This Master Services Agreement (“MSA”), together with any Pricing Statements and other agreements (collectively the “Agreement”), applies to and governs Your use of the Services and serves as the agreement between TUNE, Inc., a Delaware corporation also doing business as HasOffers, MobileAppTracking, and MobileDevHQ (“We,” “Us,” or “Our”) and You ("You" or "Your"). You and We are each a “Party” and collectively referred to herein as the “Parties.” This Agreement is effective as of the date You activate Your account (“Account Start Date”).
Many of the sections below include bracketed summaries that explain the purpose of the section. These summaries are provided as a convenience only and will not affect the meaning of this Agreement. Questions about this Agreement may be directed to: firstname.lastname@example.org.
Capitalized terms used in this MSA are defined herein and incorporated by reference into the Pricing Statements. Capitalized terms defined in the Pricing Statements but not defined in the MSA are incorporated by reference herein.
“Ads” refers to any content displayed by You or your Representatives through the Platforms to end users.
“Billing Practices” has the meaning set forth in Section 4.1.
“Confidential Information” has the meaning set forth in Section 5.1.
“Data” refers to all information that You collect or ask Us to measure and/or attribute through the Services.
“Feedback” has the meaning set forth in Section 16.4.
“HasOffers Platform” refers to Our proprietary platform used to create, manage, and track partners.
“Marks” refers to names, logos, trademarks, service marks, trade names, and trade dress, collectively.
“MAT Platform” refers to Our proprietary attribution and advertising analytics platform.
“MAT SDK” refers to Our proprietary software development kit.
“Materials" refers to information, software, designs, text, graphics, pictures, reviews, and sound files used by a Party to support their business operations.
“MDHQ Platform” refers to Our proprietary platform providing inbound app marketing tools.
“Partners” refers to third parties that You work with to promote Your applications, networks, offers, and/or advertisements, including but not limited to ad networks, publishers, advertisers, affiliates, analytics providers, and data providers.
“Personal Data” refers to Data that is linked to an individual's device and can specifically identify that individual. In the MAT Platform, usernames, email address and phone numbers are considered Personal Data. If you are a MAT customer collecting Data from end users located in Germany, Personal Data also includes IP addresses.
“Platforms” collectively refers to the HasOffers Platform, the MAT Platform, and the MDHQ Platform.
“Pricing Statements” collectively refers to the MAT Pricing Statement, the MDHQ Pricing Statement, and the HasOffers Pricing Statement, or any combination thereof, the terms of which are incorporated by reference herein.
“Representatives” collectively refers to officers, directors, employees, agents, consultants, attorneys, and independent contractors.
“Services” collectively refers to all services and licenses provided to You by Us, including without limitation the HasOffers Platform, the MDHQ Platform, the MAT Platform and/or the MAT SDK.
“Subsidiaries” refers to affiliated legal entities that We directly or indirectly control or that are under common control with Us.
“Suspension” has the meaning set forth in Section 14.
“User Licenses” has the meaning set forth in Section 3.2.
“Vendors and Suppliers” refers to third party contractors that may provide limited elements of the Services to You on Our behalf including without limitation Amazon Web Services for cloud storage and Zuora for billing.
“Websites” collectively refers to all websites and domains owned by TUNE, Inc., including without limitation www.tune.com, www.hasoffers.com, www.mobileapptracking.com, and www.mobiledevhq.com.
2. YOUR ACCOUNT
[This section explains Your responsibilities in connection with Your account and password.]
You must create an account prior to using the Services. You assume sole responsibility for maintaining the confidentiality and security of the username and password used to manage Your account. You agree to assume sole responsibility for all activities that occur under Your account or via use of Your password.
3. OWNERSHIP; USER LICENSE; RESTRICTIONS
[This section explains Your and Our obligations relating to IP rights, and Your rights and restrictions relating to Your use of the Services.]
3.1. Unless otherwise indicated, the Services and all content, including, without limitation, Our Websites, Platforms, Materials, Marks, and the selection and arrangement thereof are Our proprietary property or are licensed to Us and are protected by United States and international intellectual property laws. Any use, copying, redistribution and/or publication of any part of the Services, Websites, Platforms or Our Materials, other than as authorized by this Agreement or expressly authorized in writing by Us, is strictly prohibited. In addition, the look and feel of the Services, Platforms and Websites, including all page headers, custom graphics, button icons and scripts, is part of Our Marks and may not be copied, imitated or used, in whole or in part, without Our prior written permission. You do not acquire any ownership rights to the Platforms or any of Our Materials made available by and through the Services, Platforms, or Websites, and We reserve all rights not expressly granted in this Agreement.
3.2. We hereby grant You a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access, use and implement Our Services, Websites, Platforms and Materials (collectively, the “User Licenses”) subject to the terms of this Agreement. The User Licenses do not include or authorize: (a) any resale or commercial use of Our Materials therein; (b) the distribution, public performance or public display of any of Our Materials; (c) modifying or otherwise making any derivative uses of the Services, Platforms or Our Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Services, Platforms, or Our Materials or any information contained therein, except as expressly permitted on the Platforms; (f) decompiling or reverse engineering any part of the Services or Platforms; (g) using any metatags or any other "hidden text" utilizing Our Marks without prior written permission; or (h) any use of the Services, Platforms, Website or Our Materials other than for their intended purpose. Notwithstanding the foregoing, We may include your Data in aggregated and anonymous data sets to analyze trends and provide industry and performance insights. Any use of the Services, Platforms, Website or Our Materials without Our prior written permission, other than as specifically authorized by this Agreement, is strictly prohibited and will immediately terminate the User Licenses. Further, we are constantly innovating to provide the best possible experience for Our users. You acknowledge and agree that We may improve the form, nature, and content of the Platforms, Services and Websites from time to time without prior notice to You. You acknowledge that, to enhance the effectiveness of Our Services to You and only with Your permission, We may access related technology platforms, including but not limited to ad networks, publishers, or data partners, on Your behalf if You provide Us with Your credentials to such related technology platforms, which shall be treated as Confidential Information. You represent that You will only grant such access if it is allowed by the terms of the applicable technology platform.
3.3. We explicitly disclaim any ownership in Your Marks, trade secrets, patents, copyright or other proprietary content of Yours, which at all times remain Your sole and exclusive property. Further, subject to the payment terms hereunder, all of Your Data collected by Us is Your exclusive property, and We shall have no rights thereto, except as indicated in this Agreement. You acknowledge and agree that this Agreement constitutes a grant by You to Us in perpetuity throughout the world to utilize Your Marks for the limited public relations purposes of listing You on the Websites as a client/customer of Ours, and for issuing press releases stating that You are a client/customer of Ours. We agree to make no other use of Your company name, trademark(s), service mark(s) and/or logo(s) without obtaining Your express written consent.
4. BILLING PRACTICES AND PAYMENT
[This section explains Our billing practices and Your responsibilities in connection with payment for the Services.]
4.1. The terms of this section are collectively referred to as “Billing Practices.” You agree to be bound by Our Billing Practices in effect at any given time. Additional information regarding term and termination, if any, may be located in a Pricing Statement.
4.2. You authorize Us to provide and bill for Your use of the Platforms and Services, and such invoices shall be sent by email. All Service Fees (as described in the Pricing Statements) are payable according to this Agreement in United States currency. You are responsible for any fees associated with sending a wire transfer and for any costs or indebtedness resulting from currency exchange. Payments made via automatic credit/debit card billing will appear on the active credit/debit card bill as “TUNE, INC.” You acknowledge and agree that We will not be required to obtain additional authorization for each monthly billing. Payment is due upon receipt unless stated otherwise in a Pricing Statement. You may be subject to a credit check if You sign a Pricing Statement that includes net terms, and We reserve the right to approve or deny any such credit application.
4.3. To use our Services, We may require You to provide Us with accurate, complete, and current information for a valid credit/debit card that You are authorized to use. Amounts owed will be charged to your credit/debit card unless You request, and we approve, an alternative payment method. If Your monthly invoice falls below payment thresholds determined at Our sole discretion, We may charge Your credit/debit card for such amounts owed. All/credit/debit card holders are subject to validation checks and authorization by the card issuer, and We are not obliged to inform You of the reason for any refusal. We are not responsible if Your card issuer or bank charges You as a result of Our processing of Your credit/debit card payment in accordance with Your instructions.
4.4. We may change Our Services Fees upon thirty (30) days' prior written notice sent to the email address supplied in Your account. Continued enrollment in the Platforms or use of the Services after receipt of such notice shall constitute consent to any and all changes to the Service Fees. If You do not agree with these changes, You may cancel Your account at any time, but You will remain responsible for timely payment of any and all Service Fees already incurred (including any applicable late fees).
4.5. You are responsible for paying any and all applicable sales, use or withholding tax (if any) due to all taxing authorities arising from, or in connection with, Your participation in the Platforms or use of the Services including, without limitation, taxes and related fees, costs and penalties incurred by You, Your Partners and any third party network operators pursuant to the applicable state’s tax law.
4.6. Except for termination, failure to use the Platforms or the Services does not constitute a basis for refusing to pay any of the associated Service Fees. You are responsible for all Service Fees incurred on or before the effective date of termination, even if such Service Fees do not become due and payable until after the effective date of termination. You will not receive any refund or prorated refund for amounts previously paid or amounts owed up to the effective date of termination. We reserve the right to send Your account to collections for nonpayment and to use Your information for debt collection purposes if Your Services are terminated.
4.7. If You fail to make any scheduled payment for accrued Service Fees, such overdue amounts are subject to interest charges in the amount of one and one half percent (1.5%) per month, compounded monthly, or, if different, the maximum amount permitted by law. Your account may be suspended or deactivated for non-payment or pending chargeback disputes.5. CONFIDENTIALITY
[This section explains Your and Our obligations relating to Confidential Information.]
5.1. You acknowledge that while using the Services, the Parties may be required to disclose Confidential Information. “Confidential Information” refers to certain information that You or We reasonably regard as proprietary or confidential relating to Your or Our business, customers, products, proposed products, plans, inventions, processes and techniques, including without limitation: (i) Materials; (ii) trade secrets, business plans, strategies, methods and/or practices; (iii) computer systems architecture and configurations; (iv) information which is governed by any now-existing or future non-disclosure agreement between the Parties; (v) any other information relating to the Parties that is not generally known to the public, including information about government investigations and actions (where disclosure is permitted) personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (vi) any and all analyses, compilations, notes or Our Materials prepared which contain or are based on Confidential Information.
5.2. Except as expressly allowed herein, if a Party receives any Confidential Information from the other Party, the Parties will hold in confidence and not use or disclose any such Confidential Information except in accordance with this Agreement and as necessary to the Parties employees or third parties who have agreed in writing to non-disclosure terms at least as protective as the provisions of this Section, and who are required to have access to the Confidential Information in order to comply with this Agreement.
5.3. The foregoing obligations shall not apply to the extent that Confidential Information: (i) must be disclosed to comply with any requirement of law or order of a court or administrative body; (ii) is known to or in Your or Our possession prior to receiving the disclosure of such Confidential Information as documented by notes or records; (iii) is known or generally available to the public through no act or omission of You or Us or Your or Our Representatives in breach of this Agreement; or (iv) is made available free of any legal restriction by a third party. The duties and requirements under this Section shall survive termination of this Agreement.
5.4. You acknowledge that it may be necessary for Us to share Your Confidential Information with Our Subsidiaries and Vendors and Suppliers. You hereby grant Us and Our Subsidiaries and Vendors and Suppliers a worldwide, limited license to use Your Confidential Information to provide the Services in accordance with this Agreement. We agree that such Subsidiaries and Vendors and Suppliers will be bound by the terms of this Agreement.
5.5. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the disclosing Party and that, in the event of such breach, the disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, You irrevocably waive any right to enjoin or restrain the operation of the Services as a whole or Our use of any content or other material used or displayed through the Services other than Your Confidential Information.
Please refer to Our Privacy Policies for information about how We collect, use and share Your information.
As part of the Services, You will have access to phone, email or chat support from Our support team. Absent special circumstances, all support will be provided in the English Language.
[This section explains that We do not provide any warranties relating to the performance of the Services and are disclaiming any warranties that may be implied by law, to the extent the law allows.]
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT OF ALL APPLICABLE LAWS, THE WEBSITES (INCLUDING ALL INFORMATION THEREON), THE SERVICES AND PLATFORMS ARE PROVIDED BY US AS A NEUTRAL HOST AND ON AN “AS IS” BASIS, AND WE DISCLAIM: (I) ALL REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SERVICES, WEBSITES, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (II) ANY WARRANTY THAT THE PLATFORMS, OUR PRODUCTS, SERVICES OR INFORMATION WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR THAT THE SERVERS ARE FREE OF VIRUSES, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS; AND (III) LIABILITY FOR ANY THIRD PARTY’S SECURITY METHODS AND PROTECTION PROCEDURES. FURTHER, WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SERVICES AND/OR ASSOCIATED PRODUCTS. YOU MUST USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, WE GIVE THROUGH THE PLATFORMS, WEBSITES, AND THE MAT SDK AND/OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED HEREIN.
You acknowledge and agree that there are risks associated with utilizing an Internet-based service including, but not limited to, the risk of failure of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Your account, including, but not limited to Your Data.
9. REPRESENTATIONS AND WARRANTIES
[This section explains the representations and warranties that You and We provide to each other.]
9.1. Each Party represents and warrants that: (i) it has all requisite legal and corporate power to enter into this Agreement; (ii) it has no agreement or understanding with any third party that interferes with or will interfere with its performance of its obligations under this Agreement; (iii) it has obtained and shall maintain all rights, approvals and consents necessary to perform its obligations and grant all rights and licenses granted under this Agreement; (iv) its business and performance under this Agreement is and shall be in compliance with all applicable domestic and foreign laws, rules, ordinances and regulations, including without limitation the Children’s Online Privacy Protection Act of 1998 and laws respecting intellectual property rights, privacy rights, rights of publicity, and U.S. export-control laws; (v) it has not gained and will not attempt to gain unauthorized access to the other Party’s data centers or computer systems, or engage in any activity that disrupts, diminishes, or interferes with the performance of the other Party’s business functions; and (vi) the Materials, Feedback and other data that it supplies under this Agreement—or that it has authorized the other Party to use hereunder—do not and shall not infringe, violate or misappropriate the intellectual property rights, privacy rights, rights of publicity or other rights of any third party.
9.3. You may only pass Personal Data into the MAT Platform that is hashed using one of Our authorized hashing formats or in the MAT Platform field authorized for the particular Data type involved. If You are a MAT customer, We represent that We will hash Personal Data. If You are a MAT customer collecting Data from end users located in Germany, additional terms for commissioned data processing apply to You and Us, pursuant to the German Federal Data Protection Act. Please contact email@example.com if these additional terms apply to You.
9.4. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY SHALL MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
10. LIMITATIONS OF LIABILITY
[This section explains that neither You nor We shall be liable for consequential or indirect damages, unless Your jurisdiction does not permit this exclusion, and that Your and Our liability for direct damages is limited.]
10.1. IN NO EVENT SHALL YOU OR WE BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OUR SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED BY USING THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM A FORCE MAJEURE EVENT, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO COMPANY RECORDS, PROGRAMS OR SERVICES.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOUR OR OUR AGGREGATE LIABILITY, IF ANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF, OR INABILITY TO USE, THE SERVICES, WEBSITES OR ANY OTHER SUBJECT HEREUNDER EXCEED THE AMOUNT PAID OR PAYABLE BY YOU HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT EITHER PARTY’S INDEMNIFICATION LIABILITY ARISING UNDER SECTION 11 OF THIS AGREEMENT SHALL IN NO EVENT EXCEED THE GREATER OF (I) TWO TIMES FEES PAID OR PAYABLE BY YOU HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE DATE OF FIRST FILING OF THE CLAIM OR (II) $50,000. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (BILLING PRACTICES AND PAYMENT). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THIS SECTION WILL LIMIT YOUR OR OUR OBLIGATION TO INDEMNIFY YOU OR US PURSUANT TO THIS AGREEMENT, AS SET FORTH HEREIN.
11.1. Claims Against You. We, at Our own expense, will defend, indemnify and hold You harmless against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or action to the extent that such claim, suit or action is based upon an allegation that: (i) Our performance of any of Our obligations contemplated under this Agreement infringes on any rights of any third party (including, without limitation, any intellectual property rights, privacy rights or publicity rights); or (ii) We have breached any of Our obligations, representations or warranties hereunder. The foregoing obligations are conditioned on You promptly notifying Us in writing of such claim.
11.2. Claims Against Us. You, at Your own expense, will defend, indemnify and hold Us and Our Subsidiaries and Vendors and Suppliers and Our directors, officers, employees, shareholders and representatives harmless against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or proceeding, to the extent that such claim, suit or action is based upon an allegation that: (i) Your performance of any of Your obligations contemplated under this Agreement infringes any rights of any third party (including, without limitation, any trade secret, trademark, copyright, or patent or other intellectual property right of any third party, privacy rights or publicity rights); or (ii) You have breached any of Your obligations, representations or warranties hereunder. The foregoing obligations are conditioned on Us promptly notifying You in writing of such claim.
12. GOVERNING LAW AND JURISDICTION
12.1. This Agreement is governed by and construed in accordance with the laws of the State of Washington, USA, without regard to principles of conflicts of laws, and any arbitrators shall apply such law; provided however, that any disputes exclusively related to Section 11 of the German Federal Data Protection Act shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. In the event that the Parties do not agree to a binding arbitration provision—or if the arbitration provision contained herein is deemed void or voidable—the Parties agree to submit to the exclusive jurisdiction of the courts of King County, Washington, USA, for any dispute arising under this Agreement. In the event of any litigation arising under this Agreement, the prevailing Party shall be entitled to recover reasonable attorney fees and costs from the non-prevailing Party.
12.2. To the extent permitted by law, You agree that You will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against Us and Our Representatives and permitted assignees. You agree to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. You agree to pay the attorney's fees and court costs that We incur in seeking such relief. This provision, preventing You from bringing, joining or participating in class action lawsuits, is an independent agreement and does not constitute a waiver of any of Your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided below.
Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration with a single arbitrator in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The place of arbitration shall be Seattle, Washington, USA, and the language of arbitration shall be English. Notwithstanding the foregoing, You explicitly waive Your rights to seek injunctive relief against Us or any of Our Subsidiaries and Vendors and Suppliers, parents or assigns pending arbitration.
Notwithstanding any of the provisions of this Agreement, We reserve the right to immediately suspend Your use of the Services and Platforms (“Suspension”) where We believe that: (a) You breached this Agreement; (b) You or Your Partners are conducting commercial activities that are not fully compliant with all applicable local, state and federal laws and regulations; (c) You are serving Ads that contain, or link to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, noncompliant with the publisher's ad serving guidelines or otherwise objectionable; or (d) You have failed to pay any Service Fees when due. If Your participation in the Services and Platforms terminates or is under Suspension for any reason, We may, with or without notice, suspend all Ads and custom network activity immediately or, in Our discretion, at any time thereafter.
Upon termination, the following terms apply: (a) the User Licenses and any and all other licenses and rights granted to You in connection with this Agreement will immediately cease and terminate; (b) if You are using the MAT Platform, You must either stop tracking Attributions in the MAT Platform, remove the MAT SDK from Your mobile app(s), or request a DNS shutdown of Your account in writing (with email sufficing); and (c) You are responsible for any outstanding balances and balances incurred due to Your failure to comply with subsection (b) of this Section 15.
16.1. FORCE MAJEURE
Other than for payment obligations arising hereunder, the Parties agree that neither You nor We will be liable for failure to perform caused by acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity. You or We will give Us or You notice and will use commercially reasonable efforts to minimize the impact of any such event.
16.2. UNIQUE VALUE
The Services and Platforms We provide pursuant to the User Licenses are of a special, unique, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and which would cause Us irreparable injury and damage. Accordingly, We shall be entitled to injunctive relief and other equitable relief to preserve Our intellectual property rights and interest in and to such rights and Services as set forth herein. This provision shall not, however, be construed as a waiver of any rights We may have for damages or otherwise arising from any breach. Accordingly, You agree that You are solely responsible for (and that We have no responsibility to You or to any third party for) any claims, loss or damages arising out of or relating to any breach of Your obligations under this Agreement.
16.3. ELECTRONIC SIGNATURES
You acknowledge and agree that by submitting an electronic version of Your signature through an electronic signature program as a means of accepting this Agreement, You are submitting a legally binding electronic signature and are entering into a legally binding contract.
Neither You nor We may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld; provided, however, either You or We may, upon notice to the other, assign this Agreement to a parent, subsidiary, division, affiliate, or successor upon the merger, consolidation, sale or transfer of all or substantially all assets, so long as Your or Our successor to such transaction assumes all of the obligations under this Agreement. Subject to the above restrictions, this Agreement shall be binding on and shall inure to the benefit of You or Us, and Our respective heirs, administrators, successors, and permitted assigns. Notwithstanding the foregoing, You and We agree to permit automatic assignment in the instance of a “change of control” event.
16.6. LANGUAGE OF THIS AGREEMENT
If We have provided You with a translation of the English language version of this Agreement, then You agree that the translation is provided for Your convenience only and that the English language version of this Agreement will govern the relationship between You and Us.
16.7. SEVERABILITY AND SURVIVABILITY
If any provision or any portion of any provision of this Agreement is held to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining provisions hereof. The following sections will survive any termination of the Agreement: Ownership, Confidentiality, Pricing, Billing Practices and Payment, Representation and Warranties, Limitation of Liability and Indemnification.
You consent to receiving electronic communications and agree that all agreements, notices, disclosures and other communications that We provide to You electronically, via email or by posting notices in Your account area satisfy any legal requirement that such communications be in writing. All notices to Us will be provided by sending an email to firstname.lastname@example.org; provided, however, that in order to terminate Your Agreement with Us, You must either provide (1) written notice, signed by an authorized agent, to TUNE, Inc. c/o Legal Department, 2200 Western Avenue, Suite 200, Seattle, WA, 98121; or (2) email notification to both email@example.com and firstname.lastname@example.org. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
16.9. EXPORT CONTROL
The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list, and You shall not permit third parties to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
16.10. NO WAIVER
Either Party’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
16.11. CONTROLLING DOCUMENT AND ENTIRE AGREEMENT
16.12. NO THIRD-PARTY BENEFICIARIES
You understand that Our contractual relationship and obligations only extend to You. We do not have a contractual relationship with end users who purchase and/or install Your products, Partners, or third party affiliates who utilize the Platforms, or any other party with whom You choose to engage to perform any transaction involving the Services. There are no third-party beneficiaries of this Agreement.
[Changes from Master Services Agreement, dated September 15, 2014: MobileAppTracking by TUNE earned the ePrivacy seal which certifies technological and organizational compliance with the strict standards established by Germany federal data protection law and EU privacy regulations, and this Agreement, including Section 9.3, reflects the additional responsibilities needed to comply with the ePrivacy seal requirements.]
[Changes from Master Services Agreement, dated July 17, 2014: There were no material changes. TUNE, Inc. acquired MobileDevHQ, and this Agreement reflects the addition of the MDHQ Platform to TUNE’s suite of products.]
[Changes from Master Services Agreement, dated May 1, 2014: There were no material changes. HasOffers, Inc. rebranded to TUNE, Inc., and this Agreement reflects the Company’s new legal entity name.]