TUNE Agency Master Services Agreement
Last Updated: August 17, 2018
This Agency Master Services Agreement (“AMSA” or “Agreement”), together with any Agency 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 (“We,” “Us,” or “Our”), Agency (“You”, “Your”, or “Agency”) and any Advertisers You work with pursuant to this Agreement. You, Advertiser and We are each a “Party” and collectively referred to herein as the “Parties.” You and We understand that under this AMSA, You will be in the business of managing and measuring the advertising activities of Your Advertisers. This Agreement is effective as of the date You activate Your account (“Account Start Date”).
By signing an Agency Pricing Statement to accompany this AMSA, electronically or otherwise, or by accessing or using Our Services, You agree to be bound by this AMSA and all terms incorporated by reference. If You do not agree to these terms, do not use Our Services.
Questions about this Agreement may be directed to: [email protected].
Capitalized terms used in this AMSA are defined herein and incorporated by reference into the Pricing Statements. Capitalized terms defined in the Pricing Statements but not defined in the AMSA are incorporated by reference herein.
“Acquisition Analytics” refers to Our proprietary mobile marketing platform which encompasses Our Attribution Analytics, and App Store Analytics platforms.
“Ads” refers to any content displayed by You or Your Representatives through the Platforms to end users.
“Advertiser” refers to an advertiser or client for which the Agency is acting as agent for the purposes of this Agreement.
“Advertisers” collectively refers to all Advertisers for which the Agency is acting as agent for the purposes of this Agreement.
“Agency Pricing Statements” collectively refers to an agreement (incorporated by reference) that specifies the Services We provide for those certain Service Fees.
“App Store Analytics” refers to Our proprietary platform providing inbound app marketing tools and is formerly known as MobileDevHQ or MDHQ.
“Attributions” are defined as follows, collectively: app installs, clicks and/or in-app events that You may be charged for based on each Attribution We track and log through the Platform per Your request.
“Attribution Analytics” refers to Our proprietary attribution and advertising analytics platform and is formerly known as MobileAppTracking or MAT.
“Billing Practices” has the meaning set forth in Section 4.1.
“Confidential Information” has the meaning set forth in Section 5.1.
“Daily Active Users” on TMC (“DAUs”) refers to the first open that occurs within a 24-hour calendar day, per device, in the device’s local time zone. Though DAUs are measured per a device’s local time zone, DAUs will be billed according to aggregated DAUs on coordinated universal time.
“Data” refers to all information that You or Your Advertisers collect or ask Us to measure and/or attribute through the Services, which may include data that is considered “personal data” under any jurisdiction’s law or regulation.
“Feedback” has the meaning set forth in Section 16.4.
“HasOffers” refers to Our proprietary platform used to create, manage, and track partners.
“In-App Marketing” (formerly known as Artisan Mobile) refers to Our proprietary mobile marketing automation and in-app marketing platform.
“In-Store Events” refers to proximity solutions provided through the TMC as a Beta Service.
“Marks” refers to names, logos, trademarks, service marks, trade names, and trade dress, collectively.
“Materials” refers to information, software, designs, text, graphics, pictures, reviews, and sound files used by a Party to support their business operations.
“Monthly Active Users” on TMC (“MAUs”) refers to the first open that occurs within a calendar month, per device, in the device’s local time zone. Though MAUs are measured per a device’s local timezone, MAUs will be billed according to the aggregated MAUs on coordinated universal time.
“Partners” refers to third parties that You or the Advertisers work with to promote the Advertisers’ applications, networks, offers, and/or advertisements, including but not limited to ad networks, publishers, advertisers, affiliates, analytics providers, and data providers.
“Platforms” collectively refers to the systems and software that we use to provide the Services, including the HasOffers Platform and TMC.
“Pricing Statement” refers to any Pricing or Services Statement that specifies the Services that We provide to You or Your Advertisers.
“Representatives” collectively refers to officers, directors, employees, agents, consultants, attorneys, and independent contractors.
“Services” collectively refers to all services and licenses provided by Us.
“Service Fees” collectively refers to any and all fees attributed to Your account, including any Software Access Fees and overages.
“Software Access Fee” refers to a recurring fixed fee we charge in exchange for providing You access to the Platforms, as set forth in the Pricing Statement.
“Subsidiaries” refers to affiliated legal entities that a Party directly or indirectly controls or that are under common control of a Party.
“Suspension” has the meaning set forth in Section 14.
“TMC Agency Platform”, formerly known as the “MAT Agency Platform,” refers to Our proprietary attribution and advertising analytics platform for agencies.
“TMC SDK” refers to Our proprietary software development kit.
“TUNE MI” refers to Our marketing intelligence offering.
“TUNE IP” refers to Services, Websites, Platforms, Materials, and Marks.
“TUNE Marketing Console”, also known as “TMC”, refers to Our proprietary platform enabling mobile marketers to manage their campaigns by delivering actionable and unified insights across paid, organic, and owned channels. TMC may include access to Attribution Analytics, App Store Analytics, In-App Marketing, TUNE MI, and related services.
“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 those listed here.
“Websites” collectively refers to all websites and domains owned by TUNE, Inc.
2. YOUR ACCOUNT
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
3.1. Unless otherwise indicated, the Services and all content, including, without limitation, TUNE IP, 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 TUNE IP, 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 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 and Your Advertisers 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 distribution, public performance or public display of TUNE IP; (b) modifying or otherwise making any derivative uses of TUNE IP; (c) downloading (other than the page caching) of any portion of TUNE IP or any information contained therein, except as expressly permitted on the Platforms; (d) decompiling or reverse engineering any part of TUNE IP; (e) using any metatags or any other “hidden text” utilizing Our Marks without prior written permission; or (g) any use of TUNE IP other than for its intended purpose. Notwithstanding the foregoing, We may include Data in aggregated and anonymous data sets to analyze trends and provide industry and performance insights. Any use of TUNE IP without Our prior written permission, other than as specifically authorized by this Agreement, is strictly prohibited and will immediately terminate the User Licenses. We are constantly innovating to provide the best possible experience for Our users, and You and Your Advertisers acknowledge and agree that We may improve the form, nature, and content of TUNE IP from time to time without prior notice to You or Your Advertisers. To enhance the effectiveness of Our Services to You and Your Advertisers, at Your request, We will access related technology platforms on You and Your Advertisers’ behalf if You or Your Advertisers grant Us permission and provide Us with Your credentials to such related technology platforms. Such access credentials will be treated as Confidential Information. You and Your Advertisers represent that such access will only be granted if it is permitted by the terms of the applicable technology platform.
3.3. You and Your Advertiser grant to Us a limited, non-exclusive, non-sublicensable (other than to Our Vendors and Suppliers), non-transferable (other than as permitted under Section 16.5) license to use the Data collected through the Services to provide, maintain, optimize, and improve the Services. Beyond this limited license, We explicitly disclaim any ownership in Your or Advertiser’s intellectual property, which otherwise remain Your or Advertiser’s sole and exclusive property. You hereby authorize Us to process Your and Your Advertiser’s Data in order to provide the Services to You and Your Advertiser. You acknowledge and agree that, for the duration of this Agreement, You grant Us the right to utilize Your Marks for the limited public relations purposes of (i) listing You on Our Websites as a client of Ours, and (ii) issuing press releases stating that You are a client of Ours. We agree to make no other use of Your or Advertiser’s intellectual property without obtaining Your express written consent. In the event that We assign this Agreement in accordance with Section 16.5, You and Your Advertiser hereby consent to the transfer of the Data with such assignment of this Agreement and the use of the Data by the assignee, subject to the limitations on use of such Data as set forth in this Agreement.
3.4 Except as indicated in this Agreement and any separate agreements between You and Your Advertisers, all of the Data collected by Us is Your Advertisers’ exclusive property, and neither You nor We shall have rights thereto. If Your relationship with an Advertiser terminates, such Advertiser may continue to use any of its Data in the TMC Agency Platform, and Agency shall no longer have access to such Advertiser’s Data or accounts in the TMC. Your Advertisers may additionally choose to remove or segregate their Advertiser Data from Your account at any time and in their sole discretion.
4. BILLING PRACTICES AND PAYMENT
4.1. The terms of this section are collectively referred to as “Billing Practices.” 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 are payable according to this Agreement in United States currency. Advertiser and Agency are jointly and severally liable for payment. You are responsible for any fees associated with sending a wire transfer and for any costs or indebtedness resulting from currency exchange. You acknowledge and agree that We will not be required to obtain additional authorization for each monthly billing. Billing begins on the Effective Date, and thereafter We will invoice You according to Your Agency Pricing Statement. We will invoice You in advance of each billing period for the selected Software Access Fee. If Your Advertiser incurs overages, We will invoice You at the end of each calendar month in arrears for such overages. If, during the Initial Term, You choose to upgrade one or more of Your Advertisers to a new pricing plan (“Upgrade”), You must provide Us with at least thirty (30) days notice and the Parties must sign a duly executed amendment. If the Effective Date is not the first day of the month, billing in the first and last month of the term will be prorated.
4.2. We are not responsible if Your bank charges You to process a payment in accordance with Your instructions.
4.3. The price quoted for the Services is exclusive of all applicable sales, use, withholding, consumption, excise, value added, and other similar taxes (“Transaction Taxes”). You shall pay all Transaction Taxes associated with Your or Your Advertiser’s receipt of the Services hereunder, excluding taxes on Our net income.
4.4. You are responsible for all Service Fees, even if such Service Fees are due and payable after termination of this Agreement. Failure to use the Platforms or the Services does not constitute a basis for refusing to pay any Service Fees. 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.
4.5. 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. Your or an Advertiser’s account may be suspended or deactivated for non-payment or pending chargeback disputes.
5.1. You acknowledge that while using the Services, the Parties may be required to disclose Confidential Information to each other. “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 that 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 (as defined in Section 1). 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 similar confidentiality obligations.
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.
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.
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, WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM: (I) ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, 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 AND YOUR ADVERTISERS 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, PROVISION OF THE SERVICES AND/OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED HEREIN.
You and Your Advertisers 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 You and Your Advertisers’ accounts, including, but not limited to Your Data.
9. REPRESENTATIONS AND WARRANTIES
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; (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.
9.2. You represent and warrant that You have and will have the authority, as Advertisers’ agent, to bind all Advertisers to this Agreement, and that all of Your actions related to this Agreement will be within the scope of such agency. Upon request, You will make available to Us written confirmation of the relationship between You and Your Advertisers. This confirmation should include Your Advertisers’ acknowledgment that You are their agent and authorized to act on their behalf in connection with this Agreement.
9.4 Other than Data required to fulfill the Services, no “personal data” under any law or regulation should be passed by You or Your Advertiser into Our Platforms. If You or Your Advertiser are collecting Data from end users located in the EU, additional terms for data processing apply; unless otherwise agreed to in writing between the Parties, those terms and instructions are available here.
10. LIMITATIONS OF LIABILITY
10.1. IN NO EVENT SHALL YOU, YOUR ADVERTISER 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, YOUR ADVERTISER’S 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 AND YOUR ADVERTISER 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 AND YOUR ADVERTISER 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 OR YOUR ADVERTISER’S 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, YOUR ADVERTISER’S OR OUR OBLIGATION TO INDEMNIFY PURSUANT TO THIS AGREEMENT, AS SET FORTH HEREIN.
11.1. By Us. We, at Our own expense, will defend, indemnify and hold You and Your Advertiser 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 or Your Advertiser promptly notifying Us in writing of such claim.
11.2. By Advertiser. Advertiser, at Advertiser’s 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) Advertiser’s performance of any of Advertiser’s obligations contemplated under this Agreement infringes any rights of any third party (including, without limitation, any intellectual property right of any third party, privacy rights or publicity rights); or (ii) Advertiser has breached any of Advertiser’s obligations, representations or warranties hereunder. The foregoing obligations are conditioned on Us promptly notifying Advertiser in writing of such claim.
11.3 By Agency. 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 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 You promptly notifying Us 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. 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 and Your Advertiser agree that You and Advertiser will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You or Advertiser may have against Us and Our Representatives and permitted assignees. You and Advertiser agree to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. You and Advertiser agree to pay the attorney’s fees and court costs that We incur in seeking such relief. This provision, preventing You and Advertiser from bringing, joining or participating in class action lawsuits, is an independent agreement and does not constitute a waiver of any of Your or Advertiser’s 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 and Advertiser’s 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 reasonably 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) Your use of TMC has exceeded the following thresholds: 10 events per DAU or 20 events per MAU, click conversion to install rates are less than 0.5%, impression conversion to install rates are less than 0.5%, or sixty (60) API requests per minute; (d) 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; (e) You or Your Partners are, in TUNE’s sole opinion, using the Platform to facilitate spam, excessive or unlawfully sourced data transfers, or are engaging in activity that results in possible suspension or spam warnings from industry spam monitors; or (g) 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.
15. TERM AND TERMINATION
15.1 The initial term (the “Initial Term”) will be stated in an Agency Pricing Statement. At the expiration of the Initial Term, the Agreement will automatically renew at the same length of time as defined in the Initial Term (each, a“Renewal Term”) unless a Party provides the other Party with notice of its intent not to renew at least thirty (30) days prior to the expiration of the then current term.
15.2 During the Initial Term or a Renewal Term, either Party may terminate the Agreement with thirty (30) days written notice if: (a) the other Party becomes insolvent or makes an arrangement with creditors pursuant to a corporate reorganization, receivership, or dissolution, and provides evidence of such insolvency or arrangement with creditors to the other Party; or (b) the other Party breaches any material obligation under this Agreement and the breach is not cured within thirty (30) days of written notice thereof (collectively, “Cause”). Should You or Advertiser terminate or default prior to expiration of the Initial Term or a Renewal Term for reasons other than Cause, You and Advertiser are liable for the remaining amount due through the duration of the term.
15.3 Upon termination, the following terms apply: (a) the User Licenses and any and all other licenses and rights granted to You or Advertiser in connection with this Agreement will immediately cease and terminate; (b) if You or Advertiser are using TMC Agency Platform, you both must either stop tracking advertising attributions in TMC, remove the TMC SDK from Your or Advertiser’s mobile app(s), or request a DNS shutdown of Your and Advertiser’s account in writing (with email sufficing); and (c) You and Advertiser are responsible for any outstanding balances and balances incurred due to Your or Advertiser’s 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, Advertiser 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, and subject to the terms and conditions of this Agreement, You agree that You and Advertiser are solely responsible for (and that We have no responsibility to You, Advertiser or to any third party for) any claims, loss or damages arising out of or relating to any breach of Your or Advertiser’s 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.
In order to better serve You and Advertiser, We may internally share Your or Advertiser’s questions, comments, reviews, suggestions, ideas and feedback related to the Services (collectively, “Feedback”). To the extent such Feedback may be used to improve Our Services, We shall own exclusive rights to the Feedback so long as any use and dissemination of the Feedback does not violate any confidentiality obligations.
You, Advertiser or We may assign or transfer this Agreement: (i) to such Party’s parent, subsidiary, or other affiliated entity, (ii) in connection with a merger or consolidation of, or sale of all equity in, such Party, or (iii) in connection with the sale, transfer and/or license of all or substantially all of the assets or business of such Party to which Platform(s) this Agreement relates (which, in the case of Us as assignor, is a specific product or service provided by Us of which You and Advertiser are a customer). Subject to the above restrictions, this Agreement shall be binding on and shall inure to the benefit of You, Advertiser or Us, and any respective heirs, administrators, successors, and permitted assigns. In the case of assignment or transfer of this Agreement by Us, We must provide written notice to You (with email sufficing). In the case of assignment or transfer of this Agreement by You or Advertiser, You or Advertiser must provide written notice to Us (with email sufficing).
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, Disclaimers, Representation and Warranties, Limitation of Liability and Indemnification.
You and Advertiser 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 satisfy any legal requirement that such communications be in writing. All notices to Us will be provided by sending an email to [email protected]; 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 Ave., Suite 200, Seattle, WA, 98121; or (2) email notification to both [email protected] and [email protected]. 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 and Advertiser represent that You and Advertiser are not named on any U.S. government denied-party list, and You and Advertiser 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 and Your Advertisers. 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. For purposes of clarity, We, You, Advertiser, and any affiliates or representatives of the foregoing are not third parties. To the extent that We provide professional services to You or Advertiser, You and Advertiser acknowledge that this Agreement does not restrict or limit Us from performing similar services for any third party. The Services are provided by Us as an independent contractor. This Agreement shall not be deemed or construed to create a joint venture, partnership, employment, or any similar relationship between the Parties.
16.13. BETA TESTING
From time to time, We may invite You or Advertiser to try, at no additional cost, functionality, products, or services that are not generally available to the public (“Beta Services”). You or Advertiser may accept or decline any such Beta Services at Your or Advertiser sole discretion. Beta Services (i) are provided for evaluation purposes, (ii) may contain bugs or errors, (iii) are provided “as is” with no express or implied warranty, (iv) may be subject to additional terms, (v) are not for production use, (vi) are not subject to similar support as the Services, and (vii) are not considered “Services” hereunder. We may discontinue Beta Services at any time in Our sole discretion.
[Changes to Agency Master Services Agreement, dated August 17, 2018: TUNE revised Sections 1, 3.2, 3.3, 5.1, 6, 8, and 16.5.]
[Changes to Agency Master Services Agreement, dated April 20, 2018: TUNE enhanced its data protection commitments, including updates to Section 9.4 of this AMSA, to reflect contractual obligations under the European Union’s General Data Protection Regulation.]