Audio Streaming Directory Terms of Service for Transmitting Entities
Last Updated Date: August 25, 2015
THESE AUDIO STREAMING DIRECTORY TERMS OF SERVICE FOR TRANSMITTING ENTITIES (“Terms”) SET FORTH THE TERMS APPLICABLE TO YOU BROADCASTING YOUR ONLINE STREAMING AUDIO STATION (“Station”) THROUGH PROPRIETARY ONLINE SERVICES AND SOFTWARE APPLICATIONS (“Service”) OFFERED BY TUNEIN, INC. (“TuneIn”). BY CHECKING THE BOX PROVIDED ON THE WEBPAGE WHERE YOU SIGN UP TO PROVIDE YOUR STATION TO THE SERVICE LOCATED AT http://tunein.com/syndication/new/?IsBroadcaster=true (“Sign-Up Page”), YOU AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY, AND ALL REFERENCES TO “YOU” IN THESE TERMS WILL APPLY TO THE COMPANY OR LEGAL ENTITY.
1. SCOPE OF AGREEMENT. These Terms govern your use of the Service to make available the transmissions of your Station, and any sound recordings and musical works or other content embodied therein (collectively, “Station Content”), to TuneIn’s global audience of listeners (“End-Users”). By entering into these Terms, you hereby agree that your Station may be included in TuneIn’s directory of radio stations, podcasts and other online content (the “Directory”).
2. SERVICE; PROPRIETARY RIGHTS; GRANTS OF RIGHTS.
(a) License to Service. Subject to the terms and conditions of these Terms, TuneIn grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access and use the Service for the purpose of making the transmissions on and through your Station available to End-Users.
(b) Restrictions on Use of Service. In connection with your use of the Service, you will comply with all applicable laws, rules and regulations. You will not, and will not permit any third party to: (a) copy, modify, translate, or create derivative works of the Service or the Directory; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service or the Directory; (c) lend, lease, offer for sale, sell or otherwise use the Service or the Directory for the benefit of third parties; or (d) attempt to circumvent any license, timing or use restrictions that are built into the Service or the Directory.
(c) No Guarantee of Inclusion in the Directory. TuneIn reserves the right, in its sole discretion, to remove your Station, including all Station Content, and/or your Marks (defined below) from the Service and the Directory at any time, for any or no reason, without notice or liability to you.
(d) Ownership of Service. Except for the limited rights granted in Section 2(a) above, TuneIn retains all right, title and interest, including all intellectual property rights, in and to the Service and the Directory, including all enhancements, modifications and derivatives thereto. You agree to use the Service solely as authorized in these Terms. You further acknowledge that the license granted pursuant to these Terms is not a sale and does not transfer to you title or ownership of the Service or a copy of the Service, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO TUNEIN.
(e) License to Your Marks. You grant TuneIn and its agents, subsidiaries, affiliates, licensees, successors, and assigns a sublicensable, royalty-free, nonexclusive, worldwide and fully paid-up license to reproduce, distribute, publicly display, publicly perform, transmit, communicate to the public, resize, and otherwise use and exploit (collectively “Use”) during the term of these Terms any of your slogans, logos, trademarks and/or service marks (collectively, “Marks”) that you upload to the Sign-Up Page or otherwise make available to TuneIn, to advertise, market and promote the Station and the availability of the Station on or off of the Service in any and all media now known or hereafter devised. TuneIn will Use your Marks in accordance with any reasonable guidelines or other instructions that you enter into the fields provided on the Sign-Up Page.
(f) Ownership of Your Marks. Subject to the license you grant to TuneIn above, you retain all right, title and interest in and to your Marks, and all intellectual property rights embodied therein.
(g) Advertising. You hereby authorize TuneIn to sell advertising, sponsorships and promotions, either directly or through third parties, to be displayed or performed before, during or after any transmissions of Station Content on or through your Station. By way of example and not limitation, TuneIn may run pre- and post-roll advertising prior to the commencement or termination of transmissions from your Station through the Service, or include display advertising on any software through which your Station is accessed by an End-User (e.g., through a website player or a mobile application). You acknowledge and agree that TuneIn will have no obligation to share any portion of advertising revenue generated by TuneIn with you.
(h) Changes to the Service. TuneIn may at its sole discretion and from time to time change, add or remove features and functionality of the Service without any notice to you and without liability to you.
(i) Changes to these Terms. The Service is owned and operated by TuneIn, and TuneIn reserves the right to revise these Terms in an immaterial manner in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Service. TuneIn will endeavor to provide prior notice to you of material changes to these Terms. Unless otherwise provided, revisions to these Terms are effective upon posting and your continued use of the Service after a revised version of these Terms has been posted by TuneIn to the Service constitutes your binding acceptance of such revised Terms. These Terms will be identified as of the most recent date of revision, and you should visit this page periodically to ensure your continued compliance with and acceptance of the Terms. Notwithstanding the preceding sentences of this Section 2(i), no revisions to these Terms will apply to any dispute between you and TuneIn that arose prior to the effective date of such revision.
3. REPRESENTATIONS AND WARRANTIES. You represent and warrant to TuneIn that: (a) any and all Station Content that you transmit on your Station or otherwise provide to TuneIn, including, without limitation, your Marks or any information you provide through the Sign-Up Page (collectively, “Your Content”) is owned and/or licensed by you for use on, through or in association with your Station and does not (i) infringe on or violate any intellectual property rights, rights of publicity or privacy, or moral rights of any third party; or (ii) violate any applicable law or regulation; (b) you have all rights, licenses and permissions necessary for you to perform, transmit, communicate to the public, reproduce, distribute and otherwise use and exploit all of Your Content; (c) you have the right, power and authority to grant any and all necessary rights and license provided under this Agreement with respect to your Marks; and (d) no other licenses, permissions, consents or authorizations must be obtained from or payments made to any other person or entity by TuneIn arising out of TuneIn’s exercise of any rights under this Agreement with respect to your Station Content.
4. TERM AND TERMINATION.
(a) Term. These Terms are in effect until terminated. Either party may terminate these Terms for convenience. You may terminate these Terms by notifying TuneIn at email@example.com. We may terminate these terms at any time for any reason upon notice to you.
(b) Effect of Termination. Upon expiration or termination of these Terms for any reason, all licenses granted under these Terms will immediately terminate, and TuneIn will remove your Marks from the Service. Notwithstanding the termination of these Terms, TuneIn may continue to index the Station in the Directory for purposes of directing an End-User to your Station’s website if an End-User can otherwise access the Station directly through a publicly available Uniform Resource Locator.
(c) Survival. All terms and provisions of this Agreement, which by their nature are intended to survive any termination or expiration of these Terms, will so survive.
5. WARRANTY DISCLAIMER. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TUNEIN HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TUNEIN MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL MAKE YOUR STATION AVAILABLE ON AN UNINTERRUPTED OR ERROR-FREE BASIS. TUNEIN MAKES NO WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED OR THAT THE SERVICE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SERVICE. TUNEIN WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT THE SERVICE.
6. LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).
7. THIRD PARTY DISPUTES. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY END-USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE TUNEIN (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
8. INDEMNIFICATION. You hereby agree to indemnify and hold TuneIn harmless from any claim, action, suit or proceeding made or brought against TuneIn arising out of or related to your breach of any term of these Terms or the availability or Use of Your Content in the Directory or on or through the Service. TuneIn will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if TuneIn is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding TuneIn’s inability to promptly contact you. You agree that TuneIn will, at your expense, have sole control over any defense against any claim for which you are obligated to indemnify TuneIn pursuant to this Section; provided, however, that you will at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of your own selection, if desired, at your own expense.
9. DISPUTE RESOLUTION.
(a) Mandatory Arbitration. YOU AND TUNEIN AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE.
(i) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to TuneIn, to you via any other method available to TuneIn, including via e-mail. The Notice to TuneIn should be addressed to 139 Townsend Street, 4th Floor, San Francisco, CA 94107, Attn: Legal Department (the “Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (the “Demand”). If you and TuneIn do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, then you or TuneIn may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THESE TERMS. The Rules and AAA forms are available at www.adr.org. If you are required to pay a filing fee to commence an arbitration against TuneIn, then TuneIn will promptly reimburse you for your confirmed payment of the filing fee upon TuneIn’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(ii) Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and TuneIn agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(iii) No Class Actions. YOU AND TUNEIN AGREE THAT YOU AND TUNEIN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
(iv) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply California state law in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
(b) Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which TuneIn seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by TuneIn or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against TuneIn, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
(c) Claims. You and TuneIn agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
(d) Improperly Filed Claims. All claims you bring against TuneIn must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, TuneIn may recover attorneys’ fees and costs up to $5,000, provided that TuneIn has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(e) Modifications. In the event that TuneIn makes any future change to the Mandatory Arbitration provision (other than a change to TuneIn’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to TuneIn’s Arbitration Notice Address, in which case your account with TuneIn and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
(f) Enforceability. If only Section 9(a)(ii) or the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 10 will govern any action arising out of or related to these Terms.
10. GOVERNING LAW. California state law, excluding its conflicts of law rules, governs these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
(b) Independent Contractors. THE RELATIONSHIP BETWEEN THE PARTIES WILL BE THAT OF INDEPENDENT CONTRACTORS. YOU MAY NOT REPRESENT YOURSELF AS AN AGENT OR LEGAL REPRESENTATIVE OF TUNEIN FOR ANY PURPOSE WHATSOEVER, AND HAVE NO RIGHT TO CREATE OR ASSUME ANY OBLIGATION OF ANY KIND, EXPRESS OR IMPLIED, FOR OR ON BEHALF OF TUNEIN IN ANY WAY WHATSOEVER. THIS AGREEMENT WILL NOT CREATE OR BE DEEMED TO CREATE ANY AGENCY, PARTNERSHIP OR JOINT VENTURE BETWEEN THE PARTIES.
(c) Assignment. You may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of TuneIn. TuneIn may assign these Terms at any time and for any reason. Subject to the foregoing, these Terms will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
(d) Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of these Terms will remain in full force and effect.
(e) Modification and Waiver. No waiver or modification of these Terms will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
(f) Headings. The captions and headings in these Terms are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of these Terms, or of any provision of these Terms, nor in any way affect the interpretation of these Terms.
(g) Electronic Communication. You hereby authorize TuneIn to communicate with you via Email regarding the Service or these Terms.
(h) Entire Agreement. These Terms supersede any previous or contemporaneous communications, whether oral or written, express or implied, and embody the entire agreement of the parties regarding your use of the Service to broadcast your Station to End-Users.