TUNE Marketplace Partnership Terms

These TUNE Marketplace Partnership Terms (“Marketplace Partner Terms”) are between TUNE, Inc., a Delaware corporation (“We,” “Us,” or “Our”) and You (“You,” “Your,” or “Partner”). You and We are each a “Party” and collectively referred to as the “Parties.” These Marketplace Partner Terms, collectively with the TUNE Marketplace Program Policies (“Program Policies”) and any Partner Pricing Statements, constitute the “Agreement.” These Marketplace Partner Terms will be effective as of the date specified on the applicable Pricing Statement.

This Agreement governs Your use of the services and licenses described in Your Partner Pricing Statement (the “Services”). By signing a Partner Pricing Statement to accompany these Marketplace Partner Terms, electronically or otherwise, or by accessing or using the Services, You agree to be bound by this Agreement and all terms incorporated by reference.

1.     PROGRAM OVERVIEW

The Program Policies dictate the benefits and support that will be provided to You, as well as Your obligations to Us, as a TUNE Marketplace Partner, based on the Services You have purchased. The Program Policies are subject to change in Our sole discretion, and We will provide You with notice of any material changes. You are responsible for reviewing the Program Policies regularly to understand the support and benefits being provided to You, as well as Your obligations.

2.     LICENSE

We hereby grant You a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, and revocable license to access, use, and implement the Services (collectively, the “User Licenses”) subject to the terms of this Agreement. The User Licenses do not include or authorize: (a) any resale, distribution, public performance, or public display of the Services or Our intellectual property; (b) modifying or otherwise making any derivative uses of the Services or Our intellectual property; (c) use of any data mining, robots, or similar data gathering or extraction methods; (d) downloading (other than page caching) of any portion of Our intellectual property, except as expressly permitted in this Agreement; (e) decompiling or reverse engineering any part of the Services or Our intellectual property; or (f) any use of the Services or Our intellectual property other than for its intended purpose.

3.     API TERMS AND CONDITIONS

As part of the Services, We may provide You access to Our application program interface (the “TUNE API”). For the avoidance of doubt, Your access, use, and implementation of the TUNE API is considered a Service, and is governed by the User Licenses in this Agreement.

In order to access the TUNE API, We will provide You with a single API key. You will not permit third parties to use this API key, and You assume sole responsibility for all requests made from this API key.

You acknowledge that We may update or revise the TUNE API from time to time, impose limits on certain features, or restrict Your access to the TUNE API. We may also discontinue the availability of the TUNE API at any time for any reason. We may exercise these rights without prior notice or liability to You. You are responsible for making any changes to Your services, at Your sole cost and expense, that are required as a result of Our updates and revisions to the TUNE API.

4.     BILLING

The terms of this section are collectively referred to as “Billing Practices.” You authorize Us to provide and bill for Your use of the Services, and such invoices shall be sent by email. All Service Fees are payable according to this Agreement in United States currency. You are responsible for any Service 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. Payment is due upon receipt unless stated otherwise in a Partner Pricing Statement. 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.

Billing begins on the Effective Date, and thereafter We will invoice You at the end of each calendar month in advance for the following month’s Service Fees.

To use the Services, We may require You to provide Us with 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. All credit/debit cards are subject to a validation check and authorization by the card issuer. You acknowledge that We may charge you a processing fee for credit/debit card transactions. We are not responsible if Your bank or card issuer charges You to process a payment in accordance with Your instructions.

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 receipt of the Services hereunder, excluding taxes on Our net income.

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 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.

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 account may be suspended or deactivated for non-payment or pending chargeback disputes.

5.     SEPARATE AGREEMENTS WITH YOUR CLIENTS

You must obtain separate agreements with Your clients that govern Your relationship with them. You understand that Our contractual relationship and obligations only extend to You, and that We have separate agreements that govern Our relationship with each of the Parties’ mutual clients. You acknowledge that We are not responsible for any liabilities arising from disputes between You and Your clients. Further, You understand that You do not obtain any rights to Our clients’ intellectual property (including, but not limited to, their data) pursuant to this Agreement.

6.     CONFIDENTIALITY

Confidential Information. You acknowledge that the Parties may be required to disclose Confidential Information to carry out the Agreement. “Confidential Information” refers to certain information that You or We reasonably regard as proprietary or confidential, including but not limited to, the API key We provide to You, and all end user data provided by either Party relating to Your or Our business, customers, products, proposed products, plans, inventions, processes, or techniques.

Obligations of Confidentiality. 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. 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.

7.     CO-MARKETING

Subject to the Program Policies and any applicable Partner Pricing Statements, We grant You a nonexclusive, nontransferable, non-sublicensable, royalty-free license during the duration of this Agreement to use Our name and logo for the sole purpose of listing Us as a partner on Your website. Subject to the Program Policies and any applicable Partner Pricing Statements, You grant Us a nonexclusive, nontransferable, non-sublicensable, royalty-free license during the duration of this Agreement to use Your name and logo (including the name and logo of Your services or products) for the purposes of listing You as a partner on Our websites, in press releases, and in other marketing materials referencing the TUNE Marketplace. The use of either Party’s name or logo other than as described herein requires the applicable Party’s prior written consent. Neither Party shall make any express or implied statement or suggestion, or use the other Party’s name or logo in any manner that dilutes, tarnishes, degrades, disparages, or otherwise reflects adversely on the other Party or its business. We may revoke the use of Our name or logo at any time in Our sole discretion.

8.     MUTUAL REPRESENTATIONS AND WARRANTIES

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 performance of its obligations under this Agreement; (iii) its business and performance under this Agreement are and shall be in compliance with all applicable domestic and foreign laws, rules, ordinances, and regulations; (iv) it has taken commercially reasonable efforts to protect the data of the other Party and the data of the other Party’s client; and (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.

9.     MUTUAL INDEMNIFICATION

You will defend, indemnify, and hold Us (and Our subsidiaries, vendors, and suppliers) harmless against any losses, damages, liabilities, penalties, costs. and expenses, including without limitation reasonable attorneys’ fees, 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) any content, information, or data provided by You or Your performance of any of Your 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) You breached any of Your obligations, representations, or warranties in this Agreement. The foregoing obligations are conditioned on Us promptly notifying You in writing of such claim.

10.   LIMITED LIABILITY

In no event shall 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 the 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.

To the maximum extent permitted by applicable law, in no event shall 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 or any other subject hereunder exceed the amount paid or payable by You hereunder in the six months preceding the incident. This limitation of liability is cumulative and not per incident.

11.   TERMINATION

You or We may terminate this Agreement for cause or convenience at any time with thirty (30) days’ prior written notice to the other Party (with email to [email protected]); provided, however, that We may immediately suspend You from using or accessing the Services if You are exceeding the TUNE API rate limit described in the Partner Pricing Statement, or are in noncompliance with Our technical integration documentation and have failed to cure such noncompliance within twenty-four (24) hours of notice.

12.   DATA SECURITY

You will implement and maintain technical, physical, and administrative safeguards in accordance with industry best practices to protect the security and confidentiality of Our Confidential Information, the Services, and the TUNE API. Additionally, You must provide Us with immediate written notice of all incidents that You know have resulted in unauthorized use, reproduction, disclosure, modification, storage, destruction, corruption, or loss of any of Our Confidential Information, the Services, or the TUNE API (each such incident, a “Security Incident”). Following any Security Incident, We and You will consult in good faith regarding remediation steps that may be required by applicable law or by Us for such Security Incident.

13.   ASSIGNMENT

Either Party may, upon written notice to the other (with email sufficing), assign this Agreement to a parent, subsidiary, 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 any respective heirs, administrators, successors, and permitted assigns.

14.   DISCLAIMERS

Except as expressly set forth herein, to the fullest extent of all applicable laws, the Services 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, 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 Services 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. No advice or information, whether verbal or written, that We give shall create any warranty, representation and/or guarantee not expressly stated herein.

15.   MISCELLANEOUS

This Agreement is not intended to create an exclusive arrangement between the Parties, and shall not restrict either Party from entering into similar arrangements with other parties. The Parties acknowledge and agree that they are independent contractors and do not intend to create an agency, partnership, joint venture, or similar relationship. You agree that all notices that We provide to You electronically, via email, satisfy any legal requirement that such communications be in writing. We may make commercially reasonable changes to this Agreement from time to time. We will provide notice of any material changes to this Agreement. This Agreement is governed by and construed in accordance with the laws of the State of Washington.