BY DOING ANY OF THE FOLLOWING, YOU ("YOU") ARE ENTERING INTO AN AGREEMENT WITH SHAPESHIFTER LAB PRODUCTIONS INC. ("TUNEBEND") AND AGREE TO BE BOUND BY THESE TERMS, AND THE TERMS OF TUNEBEND’S PRIVACY POLICY, UPLOAD AGREEMENT, AND OF ANY OTHER NOTICES POSTED BY TUNEBEND (COLLECTIVELY, “AGREEMENT”):
- EXPRESSLY ACCEPTING THESE TERMS OF USE AT ANY TIME, FOR EXAMPLE UPON CLICKING "SET UP", "PROCEED" OR ANY OTHER CLEARLY INDICATED EQUIVALENT ACTIVATION PHRASE; OR
- DOWNLOADING THE APPLICATION OR AN UPGRADE TO THE APPLICATION OFFERED FROM TIME TO TIME.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, DO NOT DOWNLOAD OR OTHERWISE USE THE APPLICATION.
TUNEBEND RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE IN THE APPLICATION, OR BY SENDING YOU A NOTICE VIA EMAIL. YOU SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY MODIFICATIONS, WHICH SHALL BE EFFECTIVE UPON FIRST POSTING OR NOTIFICATION. YOUR USE OF THE APPLICATION FOLLOWING SUCH POSTING OR NOTIFICATION CONSTITUTES ACCEPTANCE OF THE TERMS AND CONDITIONS AS MODIFIED. YOU AGREE TO REVIEW THIS AGREEMENT REGULARLY.
The TuneBend application (“Application”) is a proprietary interactive application that allows its
users to post and access audiovisual content and to interact with such content and with other users, and that is accessible
via various digital media devices, such as cell phones, tablets, and personal computers (collectively, "Devices").
TuneBend reserves the right to modify, suspend or discontinue the Application at any time with or without notice, including
adding, changing or removing any features or functionality of the Application.
a. Registration Information. By downloading the Application, you represent and warrant that you are at least eighteen (18) years of age. You shall provide true, accurate, current and complete information about yourself, or, if you are registering on behalf of a minor, about such minor, as prompted by the registration form. You shall keep your account password secure and shall notify TuneBend immediately of any breach of security or unauthorized use of your account. TuneBend will not be liable for losses caused by any unauthorized use of your account. If you register on behalf of a minor, you certify to TuneBend that you are such minor’s legal guardian; as used herein, “you” shall refer to you and such minor.
b. Restrictions. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Application in a manner that sends more request messages to TuneBend’s servers in a given period of time than a single human can reasonably produce in the same period. You agree not to collect or harvest any information, including account names and performance data, from the Application, nor to use the communication systems provided by the Application for any unauthorized commercial solicitation purposes.
c. In-App Purchases. TuneBend may make certain products and/or services available to users of the Application in consideration of payment of a subscription fee or other fees (“In-App Purchases”). You may make In-App Purchases through the following payment methods (each, a “Premium Payment Method”): (a) making a purchase through the Apple App Store, Google Play or other mobile or web application platforms or storefronts authorized by TuneBend (each, a “Third Party Store”), (b) paying with your credit card, debit card, or PayPal account, which will be processed by a third party processor, or (c) adding charges to your mobile carrier bill and remitting payment directly to your carrier. Once you have made an In-App Purchase, you authorize TuneBend to charge your chosen Premium Payment Method. In the event of a conflict between a Third Party Store’s terms and conditions and this Agreement, the terms and conditions of the Third Party Store or service provider shall govern and control. If TuneBend terminates your registration or membership because of your breach of the Agreement, you will not be entitled to a refund of any unused portion of any fees, except to the extent required under applicable law, TuneBend reserves the right to change its fees and access policies from time to time, in its sole discretion. TuneBend has a no charge-back, no refund policy.
a. Granted Rights. Subject to the terms and conditions of this Agreement, TuneBend hereby grants you a limited nonexclusive, nontransferable, non-assignable, non-sublicensable right to use the Application solely for your personal purposes and solely for its intended purpose, as permitted by the usage rules set forth in the relevant Third Party Store’s Terms of Service.
b. Reserved Rights. The Application involves valuable proprietary rights of TuneBend. No title to or ownership of the Application or any proprietary rights associated therewith is transferred by this Agreement to you. All rights not expressly granted in this Agreement are reserved by TuneBend.
c. Restrictions. You may not license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application, or any portion or component thereof, or any rights granted in this Agreement, except as expressly permitted herein and subject to the terms set forth in this Agreement. You may not reverse engineer, disassemble, or decompile the Application or otherwise attempt to discover the source code of the Application. You may not: (i) remove any copyright, trademark or other proprietary notices from the Application, or any component thereof; (ii) rent or lease the Application or permit access to or use of the Application by anyone other than you; or (iv) create modifications to or derivative works of the Application.
a. Systems. You are solely responsible for providing and maintaining, at your own expense, all Devices, equipment, facilities and services necessary to access and use the Application, including, without limitation, computer hardware and software, modems, telephone service and Internet access.
b. Conduct. You agree to use the Application only for purposes that are permitted by this Agreement and any applicable laws, rules and regulations. You agree not to engage in any activity that interferes with or disrupts the Application or its users (or the servers or networks connected to the Application).
c. Indemnity. You shall defend, indemnify, and hold TuneBend, its affiliates, officers, employees and agents harmless from and against any third-party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, without limitation, reasonable attorney fees) arising out of or related to: (i) misuse of the Application; or (ii) any violation of this Agreement or applicable laws, rules or regulations.
a. The uploading of user-generated content ("Submissions") to the Application is subject to our Upload Agreement.
b. You agree that TuneBend has no liability with respect to any Submissions, including, without limitation, your own Submissions, and you hereby irrevocably release TuneBend and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to Submissions or any part thereof.
c. TuneBend assumes no responsibility for monitoring the Application or Submissions for inappropriate conduct, or modifying or removing such conduct or Submissions, but reserves the right to remove, in its sole discretion, Submissions that are flagged as inappropriate.
d. It is TuneBend's policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any Submission or content on the Application infringes upon your copyrights, you may submit a notification pursuant to our Digital Millennium Copyright Act Notice.
As between the parties, TuneBend owns all rights, title and interest in and to the Application (excluding your Submissions), and all proprietary process and technology relating thereto ("Technology") and all intellectual property rights therein, including, without limitation, all modifications, updates and derivative works relating to the Application or the Technology. All suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you to TuneBend related to the Application or any of TuneBend's other products or services (collectively referred to as "Contributions"), shall be owned by TuneBend; you shall not be entitled to any compensation in connection therewith and hereby assign to TuneBend all intellectual property rights and other rights in or to any and all Contributions. The TuneBend name and logo, and any other trademarks or service marks used by TuneBend in connection with the Application. are trademarks of TuneBend or its licensors, and you shall have no right or license thereto.
TuneBend may terminate this Agreement immediately if you breach any provision of this Agreement. Upon termination, you shall cease all use of the Application. Sections 3.b, 3.c, 4.b, 4.c, and 5 through 11 shall survive termination or expiration of this Agreement for any reason.
THE APPLICATION IS PROVIDED "AS IS." EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER TUNEBEND NOR ITS LICENSORS MAKE ANY WARRANTY REGARDING THE APPLICATION OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION REGARDING THE RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY, COMPATIBILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION. TUNEBEND AND ITS LICENSORS HEREBY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRIGNEMENT.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, NEITHER TUNEBEND NOR ITS LICENSORS SHALL BE LIABLE TO YOU RELATED TO THE SUBJECT MATTER HEREOF FOR ANY (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (II) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, OR (III) LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, EVEN IF TUNEBEND HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TUNEBEND'S OR ANY OF ITS LICENSORS’ AGGREGATE LIABILITY TO YOU RELATED TO THE SUBJECT MATTER HEREOF EXCEED THE AMOUNTS ACTUALLY RECEIVED BY TUNEBEND FROM YOU FOR THE APPLICATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in New York, New York. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of New York, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of New York without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
This Agreement shall be governed by the laws of the State of New York, without regard to conflicts of laws provisions thereof. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement and understanding between you and TuneBend with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written negotiations, understandings or agreements. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by TuneBend. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed email or email, or three days after being sent by prepaid certified or registered U.S. mail. You may not assign this Agreement nor any portion thereof to any third party; any purported assignment shall be void and without effect. In any action to enforce rights or obligations under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorney fees. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST TUNEBEND OR ITS LICENSORS.
Any questions, complaints or claims with respect to the Application should be directed to ShapeShifter Lab Productions Inc. Attn.: Customer Support, support@tunebend.com.
ADDITIONAL TERMS THAT ARE APPLICABLE TO USERS OF THE APPLICATION AS OFFERED BY THIRD PARTIES AND ARE AN INTEGRAL PART OF THE ABOVE AGREEMENT:
The following additional terms and conditions apply to you if you download the Application from a Third Party Store. To the extent that the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section will apply, but solely with respect to the Application and the Third Party Store. You acknowledge and agree that:
a. These Terms are concluded solely between you and TuneBend and not with the providers of the Third Party Store, and TuneBend is solely responsible for the Application and the content thereof. To the extent that this Agreement provides for usage rules for the Application which are less restrictive or in conflict with the applicable terms of service of the Third Party Store from which you obtain the Application, the more restrictive or conflicting term of the Third Party Store will take precedence and will apply.
b. The Third Party Store provider has no obligation whatsoever to provide any maintenance or support services with respect to the Application. The Third Party Store provider will have no warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of TuneBend.
c. TuneBend, not the Third Party Store provider, is responsible for addressing any claims you or any third party may have relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and/or (iv) intellectual property infringement claims.
d. The Third Party Store provider and its subsidiaries are third party beneficiaries of this Agreement and shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.