Partnership Terms
These partnership terms (“Partner Terms“) between Tune, Inc. (“TUNE,” “We,” “Us,” or “Our“) and You (“You“, “Your” or “Partner“, operating as a “marketing partner”) serve as the agreement governing Your access to the TUNE partner interface. You and We are each a “Party” and collectively referred to herein as the “Parties.” These Partner Terms are effective and deemed accepted as of the date You accept these Partner Terms.
1. Background.
1.1 TUNE provides a partner marketing software platform that empowers Advertisers of goods and services (or those acting on their behalf) (“Advertisers”) to disseminate advertising campaigns that can be promoted by marketing partners (the “TUNE Platform”).
1.2 The TUNE Platform allows Advertisers to provide the details of an advertising campaign, such as visual specifications, conversion requirements, and commission terms, so that a marketing partner may elect to enroll to promote that campaign in exchange for commission payments by the Advertisers on a conversion basis defined by the Advertisers.
1.3 The TUNE Platform also provides measurement capabilities whereby TUNE can measure when a particular marketing partner is responsible for promoting an outcome requested in an Advertiser’s offer (“Conversions”) and the corresponding commissions Advertisers owe marketing partners in accordance with the terms of a particular campaign (“Commissions”).
1.4 Advertisers may choose to pay their marketing partner via the TUNE Pay program or directly via TUNE Pay Self-Service.
2. Platform Access
2.1 TUNE Platform Account. In order to access the TUNE Platform and elect to enroll to promote an advertising campaign offered by an Advertiser, You must set-up an account on the TUNE Platform via the TUNE partner interface. You must provide Us with complete and accurate account information at all times that You have an active account. You must immediately notify TUNE if You become aware of unauthorized use of Your account. Your use of the TUNE Platform shall be limited only to the TUNE Platform’s intended purpose. You are solely responsible and liable for use of Your account, which includes activity by all individual user’s associated with Your account.
2.2 License and Intellectual Property. We grant to You a revocable, limited, non-exclusive, and non-transferable license to access the TUNE Platform as a marketing partner in order to elect to enroll to promote an advertising campaign offered by an Advertiser; such license shall terminate upon termination of Your account. Except as otherwise stated in these Partner Terms, there is no transfer or grant any intellectual property rights, title, or interest by Us to You.
2.3 Offer and Acceptance. Your acceptance of an offer by an Advertiser to promote that Advertiser’s advertising campaign will be a legally binding relationship between You and that Advertiser, along with any other supplemental terms and conditions as may be agreed upon between You and that Advertiser. The Advertiser has sole discretion on whether to accept Your application to promote that Advertiser’s advertising campaign. TUNE is not a party to such offer and acceptance between You and the Advertiser, and TUNE accepts no responsibility for the content of such offer and acceptance between You and the Advertiser. Unless otherwise agreed upon between You and the Advertiser, Your promotion of an advertising campaign must abide by the details provided by the Advertiser and accepted by You.
2.4 Suspension. We reserve the right to immediately suspend Your account or terminate these Partner Terms if We reasonably believe that Your promotion of an advertising campaign (i) does not abide by all applicable domestic and foreign laws, rules, ordinances, and regulations, application guidelines (if using third party applications to deliver creative components of advertising campaigns), or publisher guidelines (if using third party publishers to deliver advertising campaigns); (ii) serves content that is reasonably considered unlawful, harmful, threatening, defamatory, obscene, harassing, or otherwise objectionable; (iii) facilitates spam, excessive or unlawfully sourced data transfers, or engages in activity that results in suspension or spam warnings from industry spam monitors; or (iv) is otherwise in non-compliance with these Partner Terms.
3. Confidentiality and Data
3.1 Confidential Information. You acknowledge that the Parties may be required to disclose Confidential Information to carry out these Partner Terms. “Confidential Information” refers to certain information that You or We reasonably regard as proprietary or confidential.
3.2 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 these Partner Terms and as necessary to the Parties relevant personnel 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 important to have access to the Confidential Information in order to comply with these Partner Terms). The foregoing obligations shall not apply to the extent that Confidential Information: (i) may be disclosed to comply with any applicable law or order of a court or administrative body, or in anticipation of a valid order of a court of 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 these Partner Terms; or (iv) is made available free of any legal restriction by a third party.
3.3 Data. We may process and store measurement data through the TUNE Platform related to Your relationship with Advertisers; vis a vis You and Us, the data is presumed to be TUNE Confidential Information. We may separately process Your data, such as account information, in which case TUNE’s processing of Your data will comply with applicable law and Our privacy policy. You acknowledge and agree that TUNE may use Your company information, and share such information with third parties, to assess, detect, and prevent malicious, invalid, unlawful, or generally fraudulent activity. You acknowledge that You will comply with applicable laws and regulations regarding data collection, processing, and protecting, including but not limited to providing legally sufficient disclosures and obtaining necessary end user consents for collecting, processing, and protecting personal data of end users.
4. Representations & Warranties
4.1 Mutual. Each Party represents and warrants that (i) it has all requisite legal and corporate power to enter into these Partner Terms; (ii) it has no agreement or understanding with any third party that interferes with or will interfere with performance of its obligations under these Partner Terms; (iii) 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 (iv) it accepts and will perform all of its obligations under these Partner Terms.
4.2 Partner Additional Responsibilities. You agree to (i) comply with Our relevant technical integration documentation; (ii) comply with all applicable domestic and foreign laws, rules, ordinances, regulations, and tax guidelines; application guidelines (if using third party applications to deliver creative components of advertising campaigns); or publisher guidelines (if using third party publishers to deliver advertising campaigns); and (iii) comply with Our Terms of Use and Privacy Policy, which may be updated from time to time at Our discretion, Advertiser’s terms and privacy policy, and any other agreements between You and Us and/or an Advertiser using the TUNE Platform.
4.3 Our Additional Responsibilities. We agree to make commercially reasonable efforts to (i) measure all relevant actions (such as clicks, impressions, and conversions); (ii) ensure the TUNE Platform is available for use; and (iii) provide a publicly-accessible Terms of Use and Privacy Policy at all times.
5. Disclaimers, Limitation on Liability, and Indemnity
5.1 Disclaimers. TUNE EXPRESSLY DISCLAIMS ANY OBLIGATION NOT EXPRESSLY ASSUMED BY TUNE IN WRITING IN THESE PARTNER TERMS. YOU ACKNOWLEDGE AND AGREE THAT THE TUNE PLATFORM AND RELATED SERVICES ARE PROVIDED BY US AS A NEUTRAL HOST AND YOUR ACCESS TO THE TUNE PLATFORM IS PROVIDED ON AN ‘AS IS’ BASIS, AND TUNE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING THE TUNE PLATFORM’S OR RELATED SERVICES’ FUNCTIONALITY, AVAILABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT YOUR USE OF THE TUNE PLATFORM OR RELATED SERVICES WILL HAVE ANY PARTICULAR PERFORMANCE, ACCURACY, OR OUTCOME, OR THAT THE TUNE PLATFORM OR RELATED SERVICES WILL OPERATE ERROR-FREE.
5.2. Limitation on Liability. You agree that TUNE will not be liable to You for any and all claims in connection with these Partner Terms or use of the TUNE Platform. You further agree that TUNE’s maximum liability to You shall be limited to $1,000.00. You acknowledge that TUNE is not responsible for any acts, errors, or omissions by any third party, including an Advertiser with whom You elect to enroll to promote an advertising campaign.
5.3. Indemnity. You will defend, indemnify, and hold TUNE harmless from any and all losses incurred by TUNE, including but not limited to damages, settlements, legal costs, and attorneys fees arising from TUNE’s provision of the TUNE Platform under these Partner Terms.
6. Related Agreements, Modification, and Relationship of the Parties.
6.1 Other Agreements. It is understood that You may have separate agreements with Advertisers, including an offer and underlying terms and conditions agreed to between You and each Advertiser. You acknowledge that We are not responsible for any liabilities arising from disputes between You and Advertisers, including but not limited to disputes related to determining commission amounts or assessing the veracity, performance, or lawfulness of any advertising campaign. To the extent that any such agreement contradicts any provision of these Partner Terms, these Partner Terms shall govern.
6.2 Modification. You understand and agree that these Partner Terms are subject to modification or supplementation at TUNE’s sole discretion at any time so long as such changes do not create a material adverse impact on You, in which case TUNE will provide notice to You of such changes. You understand and agree that You must stay apprised of these Partner Terms, as they may change from time-to-time, and that Your continued access to, and use of, the TUNE Platform serves as sufficient consideration for any modifications to these Partner Terms.
6.3 Relationship of the Parties. The relationship of the Parties is that of independent contractors. Notwithstanding any description of “partners,” these Partner Terms create no partnership, joint venture, or agency relationship between the Parties.
7. Miscellaneous.
7.1 Termination. Either Party may terminate these Partner Terms upon thirty (30) days’ written notice to the other Party; provided, however, that TUNE may immediately suspend Your account or terminate these Partner Terms per Section 2.4 of these Partner Terms.
7.2 Assignment. You may assign these Partner Terms to another entity upon written notice to Us, provided that these Partner Terms shall be binding on the permitted assignee. We may assign these Partner Terms with or without notice.
7.3 Third-Party Beneficiaries. There are no third party beneficiaries to these Partner Terms. To the extent You have obligations to a third party, TUNE has no obligation to that third party.
7.4 Disputes with TUNE. Any dispute arising from these Partner Terms, or the dealings that occur pursuant to it, shall be submitted to commercial arbitration in the Seattle office of AAA as the exclusive jurisdiction of that venue. Washington law shall be applied in any such arbitration. The Parties to any such arbitration will share equally in the costs of any such arbitration, and shall bear the costs of their own legal costs and attorneys fees; provided that the arbitrator in any such arbitration shall have discretion to award legal fees and costs, including costs of any such arbitration, to the substantially prevailing party.
7.5 Binding Authority. You represents and warrant that the individual accepting these Partner Terms has fully legal and actual authority to bind You.
7.6 Delegation. TUNE may subcontract any or all of its services under these Partner Terms to third party vendors, and You consent to that delegation.
7.7 Notices. Notices sent and received via electronic communications satisfy any legal requirement that such communications be in writing. Notices to TUNE may be sent by email to [email protected] or TUNE, Inc. c/o Legal Department, 2200 Western Ave, Suite 200, Seattle, WA, 98121. Notices to You shall be sent by email or address available in the TUNE Platform partner interface, or other easily accessible means, including a message within Your account in the TUNE Platform partner interface.
TUNE Pay Rider:
The following Section shall only apply if You are promoting advertising campaigns for an Advertiser choosing to make payment via the TUNE Pay program. The following Section does not apply if You are promoting advertising campaigns for an Advertiser choosing to make payment via TUNE Pay Self-Service or any other payment method.
A.1 TUNE’s Payment On Behalf of Advertiser. You agree to accept payment by TUNE for owed Commissions on behalf of Advertisers with whom You have elected to enroll to promote an advertising campaign offered by such Advertiser.
A.2 TUNE Pay Participation Agreement. As part of Advertiser’s choice to make payment via the TUNE Pay program, and Your acceptance of an offer by an Advertiser choosing to make payment via the TUNE Pay program, You, Advertiser, and TUNE will agree to a set of terms and conditions regarding the TUNE Pay program (‘the “TUNE Pay Participation Agreement”). Unless You, Advertiser, and TUNE otherwise agree on separate terms, the terms of the TUNE Pay Participation Agreement shall be those terms available at tune.com/tune-pay-participation-agreement, as such terms may be modified in accord with the TUNE Pay Participation Agreement. The standard TUNE Pay Participation Agreement as of this date is copied below and provided for convenience only; please refer to tune.com/tune-pay-participation-agreement for the current standard TUNE Pay Participation Agreement. Except as expressly stated in these Partner Terms and the TUNE Pay Participation Agreement, You acknowledge that each Advertiser sets the terms applicable to offers and subsequent Commission payments for each advertising campaign, and You agree that You and the Advertiser are responsible for resolving any and all disputes regarding Commission payments in accord with the TUNE Pay Participation Agreement.
A.3 Partner Payment and Tax Information. You must provide Us with complete and accurate payment and tax information as requested in the TUNE partner interface, such as a valid Form W-9 or W-8BEN, tax identification number, tax residency, and legal name. TUNE’s commitment to pay You for owed Commissions on behalf of Advertisers with whom You have elected to enroll to promote an advertising campaign offered by such Advertiser is conditioned on receipt of payment by TUNE from the Advertiser for the full amount owed to You; You release TUNE from any claim for payment if TUNE has not received the corresponding funds and payment instructions from Advertisers or Your bank declines to accept payment from TUNE. If You do not provide Us with complete and accurate payment and tax information, an Advertiser’s obligation to pay is delayed until Your omission or error is corrected, and We may be unable to make Payment to You, which will delay Your receipt of owed Commissions. No interest may be charged by You on such delayed payments.
A.4 Fees, Taxes, and Payments. To the extent the transfer of funds to You incurs bank fees, You are responsible for such fees, which will be deducted from Our payment to You. You are responsible for any taxes on payments by Us to You. All payments by Us to You will be in USD, which may be exchanged by our third party payment processor into your designated local currency upon deposit.
This Agreement is entered into by and among TUNE, Inc. (“TUNE”), the marketing partner accepting an offer from Advertiser on the TUNE Platform (“Partner”) and the advertiser proposing an offer to Partner on the TUNE Platform (“Advertiser”) (together the “Parties”) to memorialize the contract terms that govern the Parties’ participation in the TUNE Pay program. This Agreement is effective and deemed accepted as of the date accepted by Partner and Advertiser, with consent implied through the offer by Advertiser and subsequent acceptance by Partner, in which Advertiser chooses to pay via the TUNE Pay program.
1. Background.
1.1 TUNE provides a partner marketing software platform that empowers advertisers of goods and services (or those acting on their behalf) to disseminate advertising campaigns that can be promoted by marketing partners (the “TUNE Platform”).
1.2 The TUNE Platform allows advertisers to provide the details of an advertising campaign, such as visual specifications, conversion requirements, and commission terms, so that a marketing partner may elect to enroll to promote that campaign in exchange for commission payments by the advertiser on a conversion basis defined by the advertiser.
1.3 The TUNE Platform also provides measurement capabilities whereby TUNE can measure when a particular marketing partner is responsible for promoting an outcome requested in an advertiser’s offer (“Conversions”) and the corresponding commissions advertisers owe them in accordance with the terms of a particular campaign (“Commissions”).
1.4 In contrast to advertisers paying the marketing partner directly based on Conversions calculated on the TUNE Platform via TUNE Pay Self-Service or any other direct payment method, TUNE offers the TUNE Pay program.
2. Payment Services.
2.1 Each month, TUNE will provide Advertiser with TUNE’s measurement of Conversions and corresponding Commissions for each campaign in the form of an electronic notice (the “Notice”).
2.2 Within fifteen (15) days of receiving the Notice, Advertiser will approve each Commission calculation in the Notice.
2.3 Within seven (7) days of approving the Commission calculation in the Notice, and at the latest by the twenty-second (22nd) day of the month after Conversions and Commissions were measured, Advertiser will transfer the Commission amount to TUNE.
2.4 TUNE will transfer the Commission funds to Partner on or around the thirtieth (30th) day of the month after Conversions and Commissions were measured. Notwithstanding the prior sentence, TUNE reserves the right to not make such timely payment if (i) Partner has not provided TUNE with complete and accurate payment information, or (ii) Advertiser has not made complete payment to TUNE of all approved Commissions.
3. Dispute resolution.
3.1 A dispute between Advertiser and Partner regarding Commission amounts (a “Commission Dispute”) may arise in one of the following ways:
3.1.1 Advertiser fails to approve TUNE’s Commission calculation within fifteen (15) days of the Notice;
3.1.2 Advertiser fails to transmit Commission funds to TUNE within seven (7) days of approval of the Notice; or
3.1.3 Partner notifies TUNE and Advertiser that it disputes the calculations in the Notice.
3.2 In the thirty (30) day period following the initiation of a Dispute (the “Resolution Period”), Advertiser and Partner will attempt to resolve the Dispute.
3.3 No Party will initiate litigation or arbitration during the Resolution Period.
3.4 If the Dispute is not resolved during the Resolution Period, either Party may initiate an arbitration (a “Commission Arbitration”) in the Seattle offices the American Arbitration Association (“AAA”).
3.5 A Commission Arbitration in AAA’s Seattle offices will be the sole venue for the resolution of any such Dispute, and the Parties will and hereby do submit to the exclusive jurisdiction of that venue for any such Dispute.
3.6 Washington law shall be applied in any Commission Arbitration.
3.7 The Parties will share equally in the costs of a Commission Arbitration, and shall each bear the costs of their own legal costs and attorneys fees, provided that the arbitrator in any such Commission Arbitration shall have discretion to award legal fees and costs, including costs of a Commission Arbitration, to the substantially prevailing Party.
3.8 Should the Parties require TUNE’s participation in any Commission Arbitration, the Parties shall pay, and be jointly and severally liable for, TUNE’s out-of-pocket costs, including but not limited to legal fees incurred by TUNE, reasonably necessitated by TUNE’s participation in the Commission Arbitration, and the arbitrator in the Commission Arbitration shall award those amounts to TUNE, which award may be reduced to judgment in TUNE’s favor and docketed in any court of competent jurisdiction.
3.9 Partner’s entitlement to payments from either Advertiser or TUNE under this Agreement is conditioned upon Partner’s compliance with all applicable laws and regulations, including but not limited to the federal CAN-SPAM Act (and all state equivalents), the federal Telephone Consumer Protection Act (and all state equivalents), all Federal Trade Commission regulations, and all US and foreign privacy laws, including but not limited to the EU General Data Protection Regulation.
3.10 Intellectual Property Licensing. The Parties all grant each other a limited, non-exclusive, non-transferable license to perform the services, obligations and acts contemplated by this Agreement, which licenses shall terminate upon termination of this Agreement.
4. Indemnity. The Parties shall indemnify TUNE, and shall be jointly and severally liable to TUNE, for any and all losses incurred by TUNE, including but not limited to damages, settlements, legal costs, and attorneys fees arising from TUNE’s provision of services to the Parties under this Agreement.
5. Limitation on Liability. The Parties agree that TUNE’s liability to either Party for any and all claims for damages shall be limited to one-month’s subscription fee for the TUNE Pay services.
6. Related Agreements.
6.1 Other Agreements. It is understood that Advertiser and Partner may have separate agreements with each other directly, and/or other agreements with TUNE. To the extent that any such agreement contradicts any provision of this Agreement, this Agreement shall govern.
6.2 Modification. The Parties understand and agree that this Agreement is subject to modification or supplementation at TUNE’s sole discretion at any time so long as such changes do not create a material adverse impact on a Party. The Parties understand and agree that they must keep themselves apprised of the Agreement, as they may change from time-to-time. The Parties understand that each use of the TUNE Pay platform requires the Parties’ respective representatives to assent to the Terms and Conditions as they may change. The Parties understand and agree that any Party representative manifesting that assent has the authority to bind the Party they represent to those Terms and Conditions, and that the Parties’ continued access to, and use of, the TUNE Pay serves as sufficient consideration for any modifications to the Terms and Conditions.
6.3 Offer. The Parties understand and agree that this Agreement may be supplemented by an offer card (the “Offer”). The Offer is a written representation of the terms (including but not limited to conversion terms and commission rates) associated with a particular campaign offered by the Advertiser, in which the Partner enrolls to promote. The terms of any Offer are incorporated into this Agreement by reference.
7. Disclaimers. TUNE expressly disclaims any responsibility and liability for the following items.
7.1 TUNE takes no responsibility for determining Commission amounts or resolving any disputes between the Parties regarding Commission amounts or conversions generated by Partner.
7.2 TUNE takes no responsibility for assessing or affirming the veracity, performance, or lawfulness of any campaign.
7.3 TUNE will owe no indemnity to any Party for any disputes between the Parties.
7.4 TUNE will owe no Party any fiduciary duty under this Agreement.
7.5 TUNE will have no responsibility relating to collections actions, payment disputes, or claw-back disputes between the Parties.
7.6 TUNE has no escrow duties or payment processing duties under this Agreement.
7.7 TUNE has no duties to Partner under this Agreement, and is merely a delegatee of Advertiser’s authorized transmission of Commission payments to Partner.
7.8 TUNE has no duty to evaluate or regulate the qualifications of Partner, the quality of Partner’s performance, the quality or validity of Conversions, or the lawfulness of Partner’s activities.
7.9 TUNE has no duty to detect or report fraud.
7.10 TUNE has no responsibility for the accuracy of invoices or Notices.
7.11 TUNE has no responsibility for withholding taxes on behalf of any Party.
7.12 TUNE has no responsibility for any transaction fees associated with the services to be provided under this Agreement.
7.13 TUNE disclaims any performance obligation not expressly assumed by TUNE in writing in this Agreement.
8. Miscellaneous.
8.1 Taxes. The Parties understand and agree that they are each responsible for all taxes arising from Commission payments made using the TUNE Pay service that is the subject of this Agreement. The Parties understand and Agree that they are jointly and severally liable to TUNE for any tax obligations incurred by TUNE on account of any such Commission payments. TUNE will receive tax information from Partner and, if applicable, transmit a tax form 1099 or equivalent to Partner on account of all payments made under this Agreement.
8.2 Relationship of the Parties. The Parties to this Agreement, as well as TUNE, are solely each other’s independent contractors. This Agreement creates no partnership, joint venture or agency agreement among the Parties or TUNE.
8.3 Third-Party Beneficiaries. The Parties understand and agree that there are no third-party beneficiaries to this Agreement. To the extent Partner has payment obligations to a third-party in association with any campaign governed by this Agreement, TUNE has no obligation to that third-party. To the extent Advertiser has a relationship with any third-party associated with the campaigns governed by this Agreement, TUNE has no obligation to that third-party.
8.4 Disputes with TUNE. The Parties agree that any dispute with TUNE arising from this Agreement, or the dealings that occur pursuant to it, shall be submitted to commercial arbitration in the Seattle office of AAA, and the Parties submit to the exclusive jurisdiction of that venue. Washington law shall be applied in any such Arbitration. The parties to any such arbitration will share equally in the costs of any such arbitration, and shall bear the costs of their own legal costs and attorneys fees; provided that the arbitrator in any such arbitration shall have discretion to award legal fees and costs, including costs of any such arbitration, to the substantially prevailing party.
8.5 Binding Authority. The Parties to this Agreement each represent and warrant that the individual accepting this Agreement has fully legal and actual authority to bind the Party.
8.6. Confidentiality. The Parties and TUNE agree that the existence and terms of this Agreement are confidential, and will take reasonable measures to protect such confidential terms.
8.7 Delegation. The Parties understand and agree TUNE may subcontract any or all of its services under this Agreement to third party vendors, and the Parties consent to that delegation.
8.8 Termination. Any Party may terminate this Agreement upon thirty (30) days written notice to all other Parties. TUNE may terminate this Agreement and the provision of services hereunder upon three (3) days’ written notice to all parties, provided that, upon such termination, TUNE will distribute to Partner all Commission funds held by TUNE and owing to Partner at the time of termination. Sections 3.5, 3.8, 3.9, 5, 8.4, and 8.6 shall survive termination of this Agreement.
8.9 Notices. The Parties agree that notices to each other sent and received via electronic communications satisfy any legal requirement that such communications be in writing. Notices to TUNE may be sent by email to [email protected] or TUNE, Inc. c/o Legal Department, 2200 Western Ave, Suite 200, Seattle, WA, 98121. Notices to Advertiser or Partner shall be sent by email or address available in the TUNE Platform or other easily accessible means, including a message within the Party’s respective TUNE Platform interfaces.