Ear Candy Charity User Agreement

 

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY

EarCandyCharity.org ("EC") requires that all visitors ("you") to its site, EarCandyCharity.org, and its other sites (collectively, the "Sites"), agree to all of the terms and conditions in this User Agreement ("UA"). By accessing and using the Sites, you indicate your acknowledgment and acceptance of this UA. As used in this Agreement, "we," "our," and "us" means EC unless otherwise indicated.

Who is Ear Candy Charity?

EC is a 501(c)(3) nonprofit corporation. The mission of EC is to provide youth with access to music education. EC accomplishes its mission through Online Instrument Drives (placing instruments donated by community members in classrooms) and BackStage Class (music-based field trips that show youth “the other side of music education”). This Sites provides you with access to an online collection of information, materials and services related to EC and its work, including text, pictures, photographs, audio and video, graphics, logos, marks and images (collectively, "Content"), as well as software used in accessing the Sites, displaying the Content, and utilizing the functionality offered through the Sites ("Software"), all of which are subject to this UA. Unless stated otherwise, any new Content and Software added to the Sites and all revisions, modifications, and enhancements to the Sites, the Content or the Software will be covered by this UA effective upon the date of each such addition.

Eligibility

Use of the Sites is void where prohibited. By using the Sites, you represent and warrant that (1) all information you submit is truthful and accurate; (2) you are 18 years of age or older or have received parental consent and supervision when using the Sites; and (3) your use of the Sites does not violate any applicable law or regulation. Your use of the Sites may be terminated without warning if we believe you are in violation of any of these conditions.

Binding Agreement

By using any Site, you agree to be bound by this UA, whether you are a visitor, Teacher or Donor. The use of the Sites (including, without limitation, photographs or images), by you, or anyone else authorized by you, is prohibited except as allowed by this UA. There are specific terms of use applicable to Donors and Teachers, which are described below.

EC's Privacy Policy is a Part of this Agreement

We are committed to protecting the privacy of any personal information you may provide to us when you use the Sites. Please see our Privacy Policy for details. This UA includes and incorporates by reference EC's Privacy Policy. By accepting the terms of this UA, you agree to abide by the terms of this Privacy Policy

Our Proprietary Materials

We welcome you to our Sites and we invite you to use it within the following rules:

1. You may use the Sites, Content and Software solely as and for the purposes stated on the Sites and as described in this UA.

2. You may make one copy of relevant Content for your non-commercial use only, provided you do not delete or change any copyright, trademark, or other proprietary notices. Beyond that, no text, logo, graphic, sound, image, photograph or Software published on or underlying the Sites may be copied, modified, published or otherwise distributed or used without the prior express written permission of EC.

3. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, hyperlink to, promote, frame, download, cache, store for subsequent use, create derivative works from, transfer, or sell any information or Content displayed on or obtained from the Sites, in any manner, without your receipt of the prior written authorization of EC.

4. You may not resell, decompile, reverse engineer, disassemble, or otherwise convert the Software underlying the Sites to a human perceivable form.

The information on the Sites, the design and layout of the Sites, the Content and Software contain elements protected by trade dress, copyright, or other laws, and may not be copied or imitated in whole or in part, except as specifically stated on the Sites or in this UA. All Content, Software and materials on and underlying the Sites are copyright (c) 2012 EarCandyCharity.org, Inc. or are licensed or otherwise used by EC with permission. Except where noted otherwise, all rights to these materials are reserved by EC or their respective owners. "EarCandyCharity.org", the EarCandyCharity.org logo, "BackStage Class", and “Instrument Drive(s)” are trademarks and service marks of EarCandyCharity.org, Inc., which reserves all rights to its marks and logos. Individuals appearing on the Sites do so with permission; names and photographs of individuals may not be copied, downloaded or otherwise used.

All Site Content and functionality, and all Software underlying the Sites, may be changed or updated by us from time to time, without notice. Although EC cannot monitor the conduct of users of the Sites, it is a violation of this UA to use the Sites or any information obtained from the Sites in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit or sell to any person featured on the Sites. Any unauthorized use of the Sites, the Content or Software may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes.

Disclaimers

We make reasonable efforts to provide a Site that is safe and accurate, but can make no warranties. EC retains the right to restrict use of the Sites, in any manner it deems appropriate.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SITES, THE CONTENT AND SOFTWARE IS AT YOUR SOLE RISK. ALL CONTENT AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EC MAKES NO WARRANTY THAT (i) THE CONTENT AND SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONTENT OR SOFTWARE WILL BE RELIABLE; AND (iii) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. 

Limitation of Liability

IN NO EVENT SHALL EC, ITS EMPLOYEES, AGENTS, AFFILIATES, DIRECTORS, OFFICERS, REPRESENTATIVES, SUBCONTRACTORS, ADVISORS AND VOLUNTEERS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SITES (COLLECTIVELY "EC AND ITS AFFILIATES") BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, DAMAGES OR LOSS OF PRODUCTS, USE OF DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM THE USE OF ANY OF THE SITES OR ANY LINKED SITE (AS DEFINED BELOW), OR INABILITY TO USE THE SITES, CONTENT OR SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITES IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO SUE EC AND ITS AFFILIATES AND TO PARTICIPATE IN ANY CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SITES.

YOU UNDERSTAND AND AGREE THAT EC AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR EQUIPMENT OR NETWORK FAILURE WHATSOEVER, AND THAT EC AND ITS AFFILIATES WILL NOT BE LIABLE WHATSOEVER FOR ANY DAMAGES OR INJURY THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS IN THE SITES, EVEN IF THERE IS NEGLIGENCE BY EC OR AN AUTHORIZED EC REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BOTH.

EC neither warrants nor represents that your use of Content, Software or any other materials displayed on the Sites will not infringe rights of third parties.

Third Party Websites

The Sites may provide links to other websites ("Linked Sites") as a convenience to you. Such Linked Sites are not maintained by EC, thus EC is not responsible for the content, products, services or policies or activities of those Linked Sites. The inclusion of any link to such Linked Sites does not imply endorsement by EC of the Linked Sites.

Third Party Websites Seeking to Hyperlink to the Sites 

We welcome appropriate hyperlinks to our Sites. By publishing a hyperlink to our Sites on your website, you warrant that the content of your website is appropriate and consistent with the stated purposes of the Sites and EC. If this is not the case, please do not link to any Site. EC reserves the right to rescind the right to link to its Sites at its sole discretion.

Use of any EC trademark, service mark or other intellectual property or content provided by EC for a hyperlink to a Site is permitted and licensed by EC solely for the purposes described on the Sites, and you shall not otherwise copy, modify, publish, use or distribute such trademarks, service marks or other intellectual property or content. Upon request by EC, you shall immediately remove any hyperlink to the Sites, and discontinue use of any trademarks, service marks or other intellectual property or content provided by EC.

Making Donations through EC 

EC is a non-profit organization that connects Instrument and Financial Donors from the community to Music Teachers and their students’ needs in order to provide those students with the musical instruments required to participate in Music Education. 

100% of each financial donation made through EC goes directly to the specific program request or instrument request to which it is designated, unless the Donor indicates that a specific portion of the donation may be used for administrative purposes. Each instrument fundraising goal in a program request has a $20 fulfillment fee built-in to help cover administering costs associated with the request. 

All Donors are subject to the specific Donor terms described below.

All donations are tax deductible to the fullest extent allowed by law. 

Special Provisions Relating to Donors

Thank you for your interest in funding an instrument request through EarCandyCharity.org. By checking the box to indicate “You Agree" during the sign-up process for donations, the following additional terms of the UA apply to those users who sign up for a donor account and/or donate to a project on the Sites ("Donor"). 

Donor Representations

By applying to become a Donor, you promise that:

1. You are a U.S. citizen at least 18 years old or if under 18 years old are acting with parental consent and under parental supervision;

2. All information you provide to EC is accurate, and you will update the information to keep it accurate; and

3. Any donation you make is legal in your jurisdiction.

If you create a Donor gift registry account enabling you and others to contribute funds for a specific project in honor of a named person (for example, contributing funds to honor someone's birthday, anniversary or other special event), you represent that you have permission of the named person (or permission of their parent, if a minor) to provide their name and other required information for display to prospective donors and other users on the Sites.

Donor Responsibilities

You will be responsible for the use and maintenance of the confidentiality of your user ID and password (which you will receive upon completing the process of registering as a Donor) for access to Donor-restricted portions of the Sites, and shall not share your ID and password with anyone else. You agree not to use the account, username, or password of another Donor or Teacher at any time or to disclose your password to anyone else. You agree to exit from your account at the end of each session and to immediately notify EC of any unauthorized use of your password or account. You are solely responsible for any and all use of your account and for any actions that take place using your account. All suggestions and comments you provide become the intellectual property of EC.

In addition to the rights of EC described elsewhere in this UA, you agree that descriptions of the proposed activity, the photographs of students and the thank-you notes, and other materials that EC may send you regarding each project you fund are solely for your personal, non-commercial use and may not be distributed, displayed or copied in any way. Recognizing the critical importance of these restrictions in protecting the rights and privacy of the participants, you agree that any breach by you of any of these restrictions may cause EC and others to suffer irreparable loss, damage and harm in an amount not easily ascertained, and therefore agree that EC may immediately seek an injunction against you to stop your distribution, display, or copying of any such materials and you waive any objection to the scope or venue of such an action. 

Services Provided by EC

We review, verify and calculate the cost of each Music Program Request before we post it on the Sites for Donors to view. Our efforts include, but are not limited to, screening the proposed instrument request for compliance with the EarCandyCharity.Org eligibility requirements, restricting Music Teachers to addresses that have been confirmed by EC as correct school locations, confirming the existence of requested materials, and determining a cost for the proposal. For Instrument Donations and Financial Donations of $50 or more, we arrange to the best of our ability for a Music Teacher thank you letter, photographs of students laying the donated instruments and student thank-you notes to be sent to the Donor(s) after completion of the funded instrument request.

Sometimes the specific components included in a Music Program Request change after we receive your donation. In the unusual case that this happens, EC will review the Teacher's modified program request. If our review determines the modified request is reasonably similar to the Teacher's original request, we will use the funds that you donated to pay for the modified request. If we determine that the modified request is not reasonably similar to the original request, we will notify you by email and provide you with the opportunity to reallocate your donation to alternate Music Program Request.  

We take reasonable steps to protect the privacy of any personal and financial information you may provide to us when you donate through the Site as described in our Privacy Policy.

EC reserves the right to exclude any Donor from use of the Sites, in EC's sole discretion. All directions and requirements stated on the Sites regarding Donors or donations shall apply to any donation offered or made by you. 

Loss or Damage

EC is not liable for loss or damage that may occur to a donated instrument(s) during any part of the donation process including, but not limited to, shipping, repair or placement. An instrument is considered to be Donated when it is transferred from your possession to the shipping carrier designated by EC or delivered to a School program. Once an instrument has been donated it becomes the property of Ear Candy.

Instruments Deemed Beyond Repair

EC utilizes third party instrument repair specialists to assess and repair instruments prior to placement in a music program. In some cases, the cost of repairing a donated instrument is assessed as greater than the cost to purchase a new instrument of the same type. In these cases, EC will not approve the repair. In such cases, EC will scrap the instrument for repair credit towards the repair of other donated instruments.

Financial Donors 

Any Financial Donations contributed to an instrument request that is not fully funded prior to that instrument request’s close date will be credited to the Financial Donors’ Ear Candy account, excluding any portion of the donated funds that were allocated for Ear Candy’s general operating costs at the time of donation.

The donor will be notified by email, and will then have 30 Days from the date of notification to reallocate the donated funds to an alternate instrument request(s). If the Donor does not reallocate those funds within 30 Days, Ear Candy will reallocate those funds to an alternate program request on the Donors behalf.

Additional Disclaimer Information 

If, for any other reason, the proposal cannot move forward (i.e., the Teacher no longer works at the specified school or no longer requires the requested instruments, or the Teacher is no longer in good standing with EC, etc.), all financial and instrument donations made to the instrument request(s) will be credited to the Donors’ accounts, which will then follow the procedure outlined above.

Infrequently, a Teacher will move from one school to a different school while they have active projects available for funding on our site. Until the teacher alerts us to their move, the school information associated with any projects posted on the website may not accurately reflect the new school at which they are teaching. In addition, we may deliver some or all the instruments requested by that Teacher to their classroom at their new school, even if some or all of the request's donations were received before the Teacher's school information was updated on our website.

In rare instances, a Teacher fails to submit feedback for the project they have had funded at EC. In this instance, all Donors will be notified by EC and the Teacher will be excluded from future use of the Site.

EC cannot be responsible for the success of any proposed or funded projects or for the activities (or lack thereof) of the Teachers or students participating in any proposed or funded projects. 

Special Provisions for Teachers

Thank you for your interest in submitting a Music Program Request for instruments through EarCandyCharity.org. By clicking the "I Agree" button during the process to Music Program Request, the following additional terms of the UA apply to those users who sign up for a music teacher account and/or to post a music program request on the Sites ("Music Teachers"):

Music Teacher Representations

By submitting a proposal, you promise that:

1. You are a music teacher, employed directly by a state government recognized and accredited school or school district serving students (review our teacher eligibility guidelines) and currently employed at the school you note;

2. The activity you propose is legal and falls within the standards of your board of education; all information you provide to EC is accurate, and you will promptly update the information to keep it accurate;

3. Any requests you submit are solely for you and your class and are not on behalf of any other teacher or class; and

4. You have full rights to any ideas, descriptions and materials you submit to EC, and that you (and not EC) are solely responsible for such submission, including its legality and appropriateness, and that all such materials are your original creations and use by EC will not infringe on any rights of any third party. 

Teacher Responsibilities

You will be responsible for the use and maintenance of the confidentiality of your user ID and password for access to Teacher-restricted portions of the Sites, and shall not share your ID and password with anyone else. You agree not to use the account, username, or password of another Member at any time or to disclose your password to anyone else. You agree to only have one account; please note that multiple accounts are prohibited. You agree to exit from your account at the end of each session and to immediately notify EC of any unauthorized use of your password or account. You are solely responsible for any and all use of your account and for any actions that take place using your account.

In addition to the rights of EC described elsewhere in this UA, you agree that descriptions of the proposed activity, the photographs of students and the thank-you notes, and other materials that EC may send you regarding each project you fund are solely for your personal, non-commercial use and may not be distributed, displayed or copied in any way. You agree to provide student thank-you notes that do not contain any of the personal information that will identify the student. Recognizing the critical importance of these restrictions in protecting the rights and privacy of the participants, you agree that any breach by you of any of these restrictions may cause EC and others to suffer irreparable loss, damage and harm in an amount not easily ascertained, and therefore agree that EC may immediately seek an injunction against you to stop your distribution, display, or copying of any such materials and you waive any objection to the scope or venue of such an action.

From time to time, EC or a third party on EC's behalf may send you emails regarding important information regarding your use of the Sites. Even if the electronic communication system that sends such emails to your account contains an "opt-out" feature, you acknowledge and agree that it is your responsibility to be aware of the information contained in these emails. 

Rights You Grant to EC

While you retain ownership in the works you create such as the Music Program Request submissions, as to all information or materials created by you and communicated or submitted to EC through the Sites and all materials which you send to EC after the completion of the project, you hereby grant to EC a perpetual, irrevocable, worldwide, non-exclusive, fully paid and fully sublicensable license to use the submission and request materials, and portions thereof, in furtherance of EC's purposes and activities and to promote EC and its programs, in any medium, and EC may copy, publish, display, create derivative works and make other uses of the submission and project materials (in whole or in part) and license others to do the same, for EC's purposes, whether or not your proposal is funded.

EC reserves the right to exclude any Teachers from use of the Sites, in EC's sole discretion.

Your Responsibilities Should Your Music Program Request Be Fulfilled

If your request is approved by EC (in EC's sole discretion), posted on a Site and fulfilled, you agree to use the instruments or resources received solely as stated in the request and in a manner directed by EC.  

You agree that requested resources will be used by students or to provide students with further access to music education, as described in your request. 

You will make a reasonable effort to take photos of students who have signed a Photo Release Form supplied by your School's Administration or downloaded from the EC site HERE. You agree that only students who have provided signed Photo Relase Forms will be included in the photographs that you submit to EC. You shall provide EC each signed Photo Release Form upon request. You will use EC's instruments and materials only for the project EC has approved, and agree to follow all other instructions as provided or directed by EC regarding the fulfilled activity. You understand that the promptness and thoroughness with which you return the photographs and thank-you notes may affect the number and frequency of requests you are allowed to submit in the future.  

Disclaimers

EC will not be required to treat any Submission or Project Materials as confidential.

Termination 

You may terminate this UA by destroying all materials obtained from the Sites, cancelling your Donor or Teacher account, as applicable, and stopping all use of the Sites. EC may terminate this UA immediately at will for any reason, in its sole judgment, without warning or prior notice. Upon termination, you must destroy all materials obtained from the Sites and stop all use of the Sites.

Miscellaneous 

This UA is governed by the laws of the State of Arizona, USA and controlling United States federal law without regard to its choice of law or conflicts of law provisions. You agree that any action to resolve or enforce any dispute or arbitration award regarding use of the Sites or this UA will be brought exclusively in the federal or State courts located in Phoenix, Arizona. If any provision is deemed by a court of competent jurisdiction to be unlawful or unenforceable, it will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.

Resolution of Disputes 

THIS UA CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

Any controversy or claim arising out of or relating use of any Site shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association to be heard and adjudicated by one arbitrator to be mutually chosen by you and EC. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Phoenix, Arizona, and claims regarding the judgment of the arbitrator (including entry of judgment on the arbitration award) may be brought and shall be subject to the exclusive jurisdiction of the State and federal courts located in Phoenix, Arizona, and you waive any jurisdictional, venue, or inconvenient forum objections to such courts. Either you or EC may seek any interim or preliminary relief from a state or federal court of competent jurisdiction in Phoenix, Arizona, as may be necessary to protect the rights or property of you or EC pending the completion of arbitration.

Indemnification 

You agree to indemnify and hold EC and its Affiliates harmless from and against any and all loss, liability, claims, causes, actions, damages or penalties, including reasonable attorneys' fees, made by any third party due to or arising out of: (1) your use of any Site in breach or violation of any term of this UA; (2) your violation of any law or regulation; (3) breach of your representations and warranties as set forth herein; or (4) any content you provide to EC. 

Contact EC 

If you have any questions about the Sites or this UA, you may contact us via e-mail at info@earcandycharity.org. We are always glad to hear your questions and comments.

Entire Agreement 

This UA, including the terms specifically applicable to Donors and Teachers, and other policies and notices EC may post on the Sites necessary for access to Donor and Teacher portions of the Sites, constitute the entire agreement between EC and you in connection with your use of the Sites, hyperlinks to the Sites and the Content and Software displayed on the Sites, and supersedes any prior agreements between EC and you regarding such matters, including prior versions of this UA. EC may update this UA from time to time by posting revised versions of this UA on the Sites, without notice to you except that the effective date at the top of this UA will change and your subsequent use of the Site is governed by that new UA. The terms of this UA are effective until terminated by EC, at any time without notice. In the event of termination, the disclaimers, limitations of liabilities and indemnities set forth in this UA will survive.

 

This User Agreement was last updated on 9/11/2012.