TUNE Pay Participation Agreement
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.
1.1 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.
8.1 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.