By visiting, accessing, or using TUNED, you signify that you have the right, authority and capacity to enter into this Agreement, that you have read and understand this Agreement, and that YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING AUTO-RENEWALS OF YOUR SUBSCRIPTION AND PROVISIONS GOVERNING DISPUTE RESOLUTION. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE, DO NOT ACCESS OR USE THE SERVICES.
The “Services” means the music service branded TUNED, mobile and device applications and all services provided by TUNED or TUNED’s vendors, or other third parties with whom TUNED (as defined herein) contracts to provide the Services that are inherently related to the music service TUNED or that are compatible for similarly situated digital music services. These may include, but are not limited to websites and applications for desktops, tablets and mobile handsets, set-top boxes and stereo equipment. The Services also include your ability to edit certain Service Content (as that term is defined in Section 8, below) that is specifically cleared for such use (the “Editable Content”) and User Content (as that term is defined in Section 9, below), and save such edited Editable Content and User Content to your own playlist without the ability to share or otherwise reproduce, distribute, publicly perform, or publicly display such edited Editable Content and User Content (the “Edit Functionality”). Each instance of edited Editable Content or edited User Content shall be deemed a “Remix” hereunder.
You need access to the internet in order to use the Services, and any cost for accessing the internet shall be paid by you. This also applies when using the Service via mobile phone, tablet, or other personal device capable of internet connection. If you use the Services via mobile telephone you should familiarize yourself with applicable data transfer costs for your mobile carrier plan. TUNED does not have any responsibility or liability for data transfer costs you may incur when using the Services. We cannot guarantee that the Services will work with all devices.
It is your responsibility to ensure that you are able to comply with the relevant system requirements described above. TUNED accepts no responsibility for any lack of functionality that is due to your equipment (including your device, internet connection, operating system or settings and software). Access to parts or all of the Services may be restricted from time to time to allow for repairs, maintenance or updating.
You may not use the Services in any way that is fraudulent or illegal or is expressly prohibited by these Terms. By using the Services, you promise to us that you accept these Terms and that (a) you are 18 years of age or over; or (b) you are between the age of 13 and 17, and have express permission from your parent or guardian to use the Services. If you are under age 13, you are not permitted to use the Services or to submit any personally identifiable information to TUNED. If TUNED reasonably believes that you have not told us your true age, we may suspend your use of the Services until you have provided us with acceptable proof of age. If you are a parent or guardian and believe TUNED may have inadvertently collected personal information from your child, please notify TUNED immediately by sending an email to TUNED – Customer Support at [email protected] detailing the basis of your belief and your request.
The Service requires you to register and create an account for validation. You agree to (a) provide accurate, current and complete information as prompted by any registration forms on the Services; (b) maintain and promptly update such information and any other information provided to TUNED, to keep it accurate, current and complete; (c) maintain the security of your password and identification; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
TUNED reserves the right to suspend or remove your account or prohibit your use of the Services, without responsibility or liability to you, if activities occur on your account that we believe breach the Agreement.
(a) Subscription. Certain aspects of the Services provided by TUNED, third parties, or both may require you to purchase a subscription for a period of time as specified during sign-up (collectively a “Subscription”). Your Subscription, which may start with a thirty (30) day trial period, will automatically renew on a monthly or annual basis (as specified during your sign-up) unless you cancel your Subscription as provided in Sections 3(e) and 3(g), or we terminate your Subscription as provided in Section 18.
(b) Bundles. TUNED may contract with a third party telecommunication provider to provide the Services to you through a bundle package together with other services provided by such third party provider. The payment terms for such bundle package, as well as other terms and conditions governing your use of the bundle package, may differ from the terms set out in this Agreement. You are solely responsible for reviewing such bundle terms or any other terms governing your use of the services provided by your telecommunication provider before agreeing to any bundle package and accessing the Service via such bundle package. If you have purchased a bundle package, payment will be taken from you by your telecommunication provider. Should you wish to cancel or terminate your subscription via such bundle package or obtain any further information in respect of payment methods, billing cycles, automatic renewals or refunds you must contact your provider. Other than this sub-section (b), Section 3 of this Agreement does not apply to you if you have purchased the Services as part of a bundle package from your telecommunication provider or any other third party.
(c) Promotion/Trials. TUNED, vendors, or other third parties with whom we contract to provide the Services may offer special promotions/trials with differing conditions and limitations which may be subject to different terms from these Terms. Any additional terms to these Terms will be disclosed at sign-up or in other communications made available to you prior to sign-up. You are solely responsible for reviewing any additional terms governing your use of such special promotions or trials before accessing any special promotions or trials. At the end of the free or promotional trial period, your subscription will automatically renew for further rolling subscription periods of such duration as set out in the product details when you signed up for the trial or promotion and you will start to pay for the subscription. To avoid any charges, you must cancel before the end of the free trial. You are entitled to only one free trial per lifetime. Any attempt to utilize more than one free trial is an unauthorized use of the Services and/or Service Content and amounts to a breach of the Agreement. If TUNED determines, in its absolute discretion, that you have utilized more than one free trial, TUNED reserves the right to terminate your access to the Services, Service Content, and/or the Agreement.
(d) Shopping in the Store. It is not necessary to buy a Subscription to make a purchase at the TUNED Store. To make a store purchase, you will be prompted to sign in to your account. If you do not have an account, create a free account and choose a username and password. Upon completion of the Store purchase, the purchased music or album will appear in your account for download. You can download TUNED Store purchases on one device only. Once downloaded, your in-store purchase will no longer be available in your account. All shopping in the Store is final. You are responsible for backing up each purchase in the TUNED Store
(f) Billing Cycle. As indicated during sign-up, the fee for certain Subscriptions must be paid in a single upfront payment while other Subscriptions may allow payment on an installment basis. If the Subscription fee is paid in a single upfront payment, the total Subscription fee is due and payable to TUNED immediately upon sale and your Payment Method will be automatically billed at that time. If the Subscription fee is paid on an installment basis, your Payment Method will automatically be billed at the beginning of each installment period as specified during sign-up.
(g) Automatic Renewal. In order to provide continuous service, you agree that TUNED will automatically renew a Subscription on or about the date the Subscription expires. Such renewal will be for the same duration of the original subscription term and will be billed at the non-discounted rate for the Subscription as of the date of your enrollment and according to your original billing cycle method (i.e. either as a single upfront payment or an installment basis). By enrolling in a Subscription, you agree that your Subscription will be subject to the above-described automatic renewals unless you cancel your Subscription in accordance with the terms of this Agreement. You also agree that the amount billed may be different if your original Subscription was purchased using a promotional/trial offer and you authorize TUNED to charge your Payment Method for such varying amounts as indicated at the time of sign-up. You agree that you are responsible for other charges, including any foreign transaction charges, that may be imposed by credit card providers, payment processors or other third parties in connection with your use of the Subscription. Your Subscription will remain in effect and continue to renew automatically until it is cancelled.
IF YOUR ACCOUNT IS MANAGED THROUGH TUNED (AND NOT THROUGH A THIRD PARTY) AND YOU WISH TO CANCEL YOUR AUTOMATIC SUBSCRIPTION RENEWAL, you may do so by visiting your account settings page (https://tunedfm.com/profile), going to the section called “Subscription” and clicking on “Cancel my subscription”. TUNED will make reasonable efforts to process cancellation requests within two business days from the receipt of the cancellation request. All other cancellations are required to be made directly through the third party that manages your TUNED Subscription.
(h) Refund Policy. We will not refund any fees paid to us, including any advance charge(s) or payment(s) for any subscription term for the Services, unless otherwise required by law or the terms of this Agreement.
If you have received or purchased access to the Services as part of a special offer, campaign or a partner deal (a “Special Offer”), then the terms presented as part of such Special Offer are a part of this Agreement. Special Offers will, unless otherwise specified, only be valid for customers in the country (and state(s)) where it is issued.
The Services shall be for private use only and use of the Services in commercial or public settings is not permitted.
The Services shall not be used in any manner that may breach the restrictions applicable to the utilization of the Service Content (as defined in Section 8, below). These include, but are not limited to, prohibitions against (i) any form of technical intervention in the Services for purposes of using the Services in any manner other than that intended and permitted under the Agreement; (ii) copying and/or making public any Service Content; (iii) assigning any username or password to anyone else; (iv) circumventing any technical mechanisms within the Services that have been established to protect Service Content from reproduction/distribution; (v) using the Services in violation of applicable law; and (vi) failing to respect applicable geographic/territorial restrictions.
The Services may include components that make use of temporary storage of certain Service Content on the various platforms (also called “offline mode”). You have access to this Service Content for as long as you have a valid Subscription. You are not permitted to gain access to such Service Content via other mechanisms than those available via the Services. Such Service Content shall not be copied and/or made available outside the Services.
By “Application” we mean an application or other technical interface provided by TUNED that is used to access the Services. Subject to the terms of this Agreement, TUNED hereby grants you a personal, non-exclusive, non-transferable, limited and revocable license to download, run and use the Application for personal use on relevant devices owned or controlled by you. Such license also applies to updates and upgrades that replace or supplement the Services in any respect and which are not distributed with a separate license and related documentation. The Application is licensed, not sold, to you, and TUNED retains ownership of all copies of the Application even after installation on your devices. TUNED may transfer its rights and obligations, or sub-contract or sub-license its obligations, under this Agreement to another legal entity, provided your legal and consumer rights are not prejudiced. You may not may transfer your rights and obligations, or sub-contract or sub-license your obligations, under this Agreement to another legal entity.
The Services contains content, such as sound recordings, audiovisual works, other video or audio works, clips, images, graphics, text, software, works of authorship, files, documents, applications, artwork, trademarks, trade names, metadata, album titles, sound recording titles, artist names, intellectual property, or materials relating thereto or any other materials, and their selection, coordination and arrangement (collectively, the “Service Content”). The Service Content is the property of TUNED and/or third parties and is protected by copyright under both United States and foreign laws. The Service Content is made available to you only for your personal use as expressly permitted under these Terms.
You are prohibited from using the Service Content as follows:
To the extent allowed by the Services, any musical works (sound recordings and underlying musical compositions), audiovisual works (including but not limited to MTV style premium music videos, clips and so called “behind the scenes” audiovisual content), other video or audio works, images, graphics, text, works of authorship, files, documents, applications, artwork, trademarks, trade names, metadata, album titles, sound recording titles, artist names, intellectual property, or materials relating thereto or any other materials that you submit to the Service (“User Content”) are generated, owned and controlled solely by you and/or your licensees. We do not claim any intellectual property ownership rights in any User Content. After directly sending (“submitting”) your User Content to the Services, you continue to retain any intellectual property ownership rights that you may have in your User Content, subject to the license below. By submitting any User Content on or through the Services, you hereby grant to TUNED a license (with the unrestricted right to sublicense) to store, host, display, stream, transmit conditional downloads, exploit, promote, market, sell and transmit permanent downloads, use, modify, delete from, add to, publicly perform, publicly display, reproduce, create and use derivative works of, distribute and otherwise disseminate the User Content on or through the Services via any and all devices known or hereinafter devised. For the avoidance of doubt, to the extent you use the Edit Functionality to create a Remix, you acknowledge and agree that you own no right, title or interest therein and that any such Remix shall not be considered your User Content hereunder.
(a) The license you grant to TUNED is non-exclusive (meaning you are free to license User Content to anyone else), fully-paid and royalty-free (meaning that we are not required to pay you for the use on the Services of the User Content that you post), sublicensable (so that we are able to use our affiliates, subcontractors and other vendors such as internet content delivery networks and wireless carriers to provide the services related to the Services), perpetual (forever) and worldwide.
(b) You represent and promise to us that the User Content submitted by you on or through the Services: (i) is owned by you or you otherwise have the right to grant the license set forth herein; (ii) does not infringe the rights of any third party, including any intellectual property rights, rights of confidential information or rights in privacy; (iii) does not imply any affiliation, endorsement, approval or cooperation by TUNED or any artist, band, label, entity or individual without express written consent from such individual or entity; and (iv) shall comply with all applicable laws and these Terms. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any User Content submitted by you on or through the Services.
(c) The Services perform technical functions necessary to offer the services on the Services, including but not limited to transcoding and/or reformatting User Content to allow its use throughout the Services.
(d) We may reject, refuse to post or delete any User Content for any or no reason, including User Content that in our sole judgment breaches this Agreement or which may be offensive, illegal or breach the rights of any third party, or harm or threaten the safety of any third party. We are under no obligation to you or any other person to oversee, monitor or moderate User Content. We may at our option, moderate and review User Content to ensure that it complies with these Terms. If we do opt to monitor the Services, we assume no responsibility or liability to you for any User Content available on the Services.
(e) The licenses granted in this section are granted separately with respect to each item of the User Content that you submit to the Services.
(f) You are solely responsible for the User Content that you submit to the Services. You must not upload, store, distribute, send, transmit, display, perform, make available or otherwise communicate to the public any content to which you do not hold the necessary rights. In particular, any unauthorized use of copyright protected material within the User Content (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Services) may constitute an infringement of third party rights and is strictly prohibited. Any such infringements and may also result in civil litigation or criminal prosecution by or on behalf of the relevant rights holder.
You must not upload or share any User Content which, in TUNED’s reasonable opinion:
You further agree not to undertake any of the following activities on the Services:
You agree that any breach of the provisions of this Section 10 will be considered a serious breach of the Agreement.
We have provided our contact information and email links on the Services because we would like to hear from you. However, we do not want you to, and you should not, send TUNED any documents or other materials that contain confidential or proprietary information. You grant TUNED an unrestricted, irrevocable, royalty-free license to copy, distribute, and modify any such documents or other materials that you send TUNED, and to use for any purpose any ideas, trade secrets, know-how or other confidential or proprietary information disclosed in those documents or other materials, and that all of the representations and promises you make pursuant to this Agreement with respect to User Content apply equally with respect to any other documents or materials that you send to TUNED that do not constitute User Content.
We, at our sole discretion, may disable and/or terminate use of the Services by users who infringe the intellectual property rights of others. We also have a policy of responding to notices of alleged infringement that complies with the Digital Millennium Copyright Act (“DMCA”) which may include removing material, including Service Content and/or User Content, claimed to be the subject of infringing activity. If we remove material to comply with the DMCA (“Removed Content”), we will attempt to contact the provider of such Removed Content to enable them to make a counter notification pursuant to the DMCA. We will terminate the accounts of any users and/or block access to the Services by any users who repeatedly infringe the copyrights of others.
If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property or privacy rights have been otherwise breached, please provide TUNED with a notice containing the following information:
Send your notice to TUNED Copyright Department, 540 W 26th Street, 8th Floor, New York, NY 10001 or by email to [email protected] Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that any material is infringing your copyrights or other intellectual property or privacy rights.
The provider of Removed Content may make a counter notification pursuant to Sections 512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the Removed Content. To submit a counter notification, you must provide TUNED with a written notice that includes each of the following items:
The counter notification can be sent to TUNED Copyright Department, 540 W 26th Street, 8th Floor, New York, NY 10001 or by email to [email protected] Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others.
If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item of content or other materials on the Services infringes upon your rights in such intellectually property, you must submit a notification to us in the same manner as provided above in respect of notice of alleged copyright infringement, including providing the same information in writing to the designated address set forth above.
DISCLAIMER: WE ARE NOT YOUR LEGAL ADVISORS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY, AND AS REQUIRED BY LAW.
Any questions, complaints or claims regarding the Services can be directed to: [email protected]
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice which is hereby offered as a convenience to you:
The name and address of the provider of the Services is Aspiro AB and Project Panther US LLC, TUNED – Customer Support, 540 W 26th Street, 8th Floor, New York, NY 10001. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or by email to [email protected]
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
If you fail to make payment or materially breach any provision of the Agreement, and such breach is not caused by circumstances on the part of TUNED, TUNED may, taking the interest of the user in account, deny further access to the Services.
The Services and the Service Content are provided on an “as is” and “as available” basis without any warranties of any kind. To the fullest extent permitted by applicable law, TUNED disclaims all warranties, including, but not limited to, the warranty of title, merchantability, non-infringement of third parties rights, and fitness for particular purpose. TUNED reserves the right to change functionality and content offered under the Services on an ongoing basis.
To the fullest extent permitted by applicable law, TUNED makes no warranties or representations about the Services or Service Content, including but not limited to their accuracy, reliability, completeness, efficacy, or timeliness. TUNED shall not be subject to liability for truth, accuracy, or completeness of any information conveyed to the user or for errors, mistakes or omissions therein or for any delays or interruptions of the data or information stream from whatever cause. You agree that your use the Services and the Service Content is at your own risk. It is your responsibility to evaluate the accuracy, completeness or usefulness of any opinion, advice or other Service Content available through the Services.
In no event shall TUNED be liable for any damages whatsoever (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the access, use or inability to use the Services and the Service Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, even if we have been advised of the possibility of such damages. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability shall be limited to the greatest extent permitted by law. To the fullest extent permitted by law, the liability of TUNED arising from any error or other circumstance that may give rise to liability in relation to the Services shall – except for instances of any physical harm, gross negligence and willful misconduct - be limited to the amount paid by you for access to the Services in the relevant month.
Technical problems such as temporary non-availability of individual parts of the Services or the short-term unavailability of the whole service itself must be expected and shall not constitute breach of this Agreement. TUNED does not warrant that the Services will operate error-free or that the Services, its server, or the Service Content are free of computer viruses or similar contamination or destructive features. Updates to the Service may take place on a regular basis. TUNED reserves the right to add or remove support for specific devices. If your access or use of the Services or the Service Content results in the need for servicing or replacing equipment or data, TUNED shall not be responsible for those costs.
Some aspects of this Section may not apply in some jurisdictions if prohibited by applicable law. However, no provision in these Terms shall apply to any consumer in New Jersey if the provision limits redress for/under: (i) TUNED’s tortious actions (e.g., negligence, failure to exercise a basic standard of care, failure to avoid creating an unreasonable risk of harm); (ii) the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1, et seq. (i.e., the statutorily imposed duty to refrain from manufacturing and selling dangerous products, with the possibility of punitive damages for violations thereof); (iii) the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-5.9, et seq. (i.e., the statutory right to pursue punitive damages in the event of harm caused by actual malice, wanton and willful disregard, reckless indifference); (iv) the New Jersey Uniform Commercial Code (i.e., a comprehensive statutory regime governing the rights and duties of buyers and sellers with respect to contracts for the sale of goods, with the possibility of damages for economic and property harm); and (v) TUNED’s failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft, as regulated by the Federal Trade Commission and the Federal Communications Commission, and as governed by the New Jersey Identity Theft Protection Act, N.J.S.A.56:8-161, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-3, et seq.). NEW JERSEY RESIDENTS: With respect to these Terms, the provision concerning the exclusion or limitation of certain damages is not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold TUNED harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising from, relating to or resulting from (a) your breach or alleged breach of the Agreement; (b) your access to, use or misuse of the Service Content or the Services; (c) any breach of your representations and promises set forth herein, or (d) your violation of any law or the rights of a third party. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
We may terminate this Agreement and close your account, or suspend your access to the Services, at any time without notice and without responsibility or liability to you, in the event of your actual or suspected unauthorized use or misuse of the Services and/or Service Content, or breach of the Agreement. In that event, we will refund to you a pro-rata share of your Subscription charge to account for the period you will not be able to access the Services.
We may terminate this Agreement and close your account at any time on reasonable notice to you if we cease to provide the Services.
Any dispute or claim arising out of or relating in any way to one or more of the following: (1) the Agreement; (2) the Services or Service Content, including User Content; (3) your Subscription; or (4) any products or services sold or distributed by TUNED or through TUNED (collectively “Claims”), will be resolved by binding arbitration, rather than in court, except that you and TUNED may assert Claims on an individual basis in small claims court if they qualify. You and TUNED also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights unrelated to your use of the Services or Subscription.
This Arbitration Provision is intended to be given the broadest possible meaning under the law and shall be governed by the Federal Arbitration Act and applicable U.S. federal arbitration law.
(a) Prohibition of Class and Representative Actions and Non-Individualized Relief
Any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class, consolidated, or representative action or proceeding. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claims. Any relief awarded cannot affect other users of the Services.
(b) Arbitration Procedures
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, the arbitrator may award the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), except that the arbitrator cannot not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. The arbitrator must follow and enforce the Agreement.
The arbitrator, and not any court, shall have exclusive authority to resolve any Claim relating to the interpretation, applicability, enforceability or formation of this Arbitration Provision including, but not limited to any claim that all or any part of this Agreement is void or voidable. The arbitrator will decide any and all Claims—statutory, common law, or otherwise.
The arbitration will be conducted by a neutral arbitrator from the American Arbitration Association. If there is any inconsistency between the AAA rules and this Arbitration Provision, the terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would result in a fundamentally unfair arbitration.
To commence arbitration, you must complete a short form, submit it to the AAA, and send a copy to us, Attn: TUNED Legal Department, 540 W 26th Street, 8th Floor, New York, NY 10001. For more information, see the AAA’s claim filing page, https://www.adr.org/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in New York, New York, or at another mutually agreed location.
(c) Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA Consumer Arbitration Rules. You and TUNED will be individually responsible for all other costs and fees incurred in connection with the arbitration, including without limitation, all attorneys’ fees, unless recoverable under applicable law. However, in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees and costs associated with the arbitration, including our attorneys’ fees, and fees and costs paid by us on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
If the arbitrator decides that any term or provision of this Arbitration Provision other than Section 19(a) (Prohibition of Class and Representative Actions and Non-Individualized Relief) is invalid or unenforceable, you and TUNED agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Provision shall be enforceable as so modified. If the arbitrator decides that any of the provisions of Section 19(a) is invalid or unenforceable, then the entirety of this Arbitration Provision shall be null and void. The remainder of the Agreement will continue to apply.
If for any reason Claims proceeds in court rather than in arbitration, you and TUNED waive any right to a jury trial. In that instance, you expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of New York, County of New York.
(e) Future Changes to this Arbitration Provision
Notwithstanding any provision in this Agreement to the contrary, you and TUNED agree that if we make any change to this Arbitration Provision (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against TUNED prior to the effective date of the change. Moreover, if future version of this Agreement do not contain this or another Arbitration Provision, any existing Arbitration dispute will not be affected.
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and TUNED or between TUNED and any other user of the Services. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provision of the Agreement, which shall remain in full force and effect unless such deletion materially frustrates the intent of the parties, in which case this Agreement will terminate. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against TUNED unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. This Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.