THESE TUNEIN DIRECTORY TERMS OF SERVICE FOR TRANSMITTING ENTITIES (“Terms”) SET FORTH THE TERMS APPLICABLE TO YOU BROADCASTING OR DISTRIBUTING YOUR AUDIO CONTENT (“Feed”) THROUGH PROPRIETARY ONLINE SERVICES AND SOFTWARE APPLICATIONS (“Service”) OFFERED BY TUNEIN, INC. (“TuneIn”) WHERE YOU RETAIN THE RIGHT AND ABILITY TO CONTROL YOUR TRANSMISSIONS AND DISTRIBUTIONS. BY CHECKING THE BOX PROVIDED ON THE WEBPAGE WHERE YOU SIGN UP TO PROVIDE YOUR FEED TO THE SERVICE (“Sign-Up Page”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND 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, THAT SUCH COMPANY OR LEGAL ENTITY WILL BE BOUND BY THESE TERMS, AND ALL REFERENCES TO “YOU” IN THESE TERMS WILL APPLY TO THE COMPANY OR LEGAL ENTITY. THIS PREAMBLE IS INCORPORATED INTO AND MADE A PART OF THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 9, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TUNEIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
SCOPE OF AGREEMENT. These Terms govern your use of the Service to make available the transmissions or distributions of your Feed, and any sound recordings and musical works or other content embodied therein (collectively, “Feed Content”), to TuneIn’s audience of listeners (“End Users”), which audience may be the entire universe or limited to those territories restricted by you. By entering into these Terms, you hereby agree that your Feed may be included in TuneIn’s directory of radio stations, podcasts and other online content (the “Directory”), for users throughout the universe or restricted to certain territories as determined by you, TuneIn or by law.
SERVICE; PROPRIETARY RIGHTS; GRANT OF RIGHTS.
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 Feed available to End Users.
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.
No Guarantee of Inclusion in the Directory. TuneIn reserves the right, in its sole discretion, to exclude, remove or block access to your Feed, including all Feed 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. TuneIn may exclude your Feed from access within certain territories, including by excluding your Feed from appearing within the Directory within certain territories. By exercising such rights TuneIn assumes no liabilities for transmissions or distributions made by you through the Feed within any territory and exercises no right or ability to control your Feed.
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.
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 your Feed and the availability of your Feed 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.
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.
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 Feed Content on or through your Feed. By way of example and not limitation, TuneIn may run pre-, mid-, and post-roll advertising prior to the commencement or termination of or during transmissions from your Feed accessible from the Service, or include display advertising on any software through which your Feed 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. Notwithstanding the foregoing, nothing herein obligates TuneIn to sell advertising, sponsorships, or promotions to be displayed or performed before, during or after any transmissions of Feed Content on or through your Feed.
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.
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 except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions. 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.
REPRESENTATIONS AND WARRANTIES. You represent and warrant to TuneIn that: (a) any and all Feed Content that you transmit or distribute on or through your Feed 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 Feed throughout the universe or such territories for which you assume the responsibility of controlling access by End Users and does not (i) infringe on or violate any intellectual property rights, rights of publicity or privacy, or moral rights of any third party in every territory from which transmissions of your Feed are accessible; 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 in every territory from which transmissions or distributions of your Feed are accessible, including, by way of example and not limitation, licenses from all applicable performing rights organizations, collective management organizations, record labels, and music publishers or any agents thereof for the public performance of sound recordings and the musical works embodied therein; (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; (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 Feed Content; and (e) TuneIn is not required to take any steps to limit access to transmissions or distributions made by you on your Feed in any territory throughout the universe. By way of example and not limitation, if your Feed is only cleared for transmissions or distributions to or within a specific territory but not other territories, then you and you alone are responsible for limiting the territories to which your Feed will be made available. The Directory may identify your Feed in multiple territories but you must implement measures to geo-block the transmission or distribution of your Feed and your Feed Content solely to those territories for which you have obtained all necessary rights.
TERM AND TERMINATION.
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 firstname.lastname@example.org. We may terminate these terms at any time for any reason upon notice to you.
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 your Feed in the Directory for purposes of directing an End User to your Feed website or podcast if an End User can otherwise access the Feed directly through a publicly available Uniform Resource Locator or RSS feed.
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.
WARRANTY DISCLAIMER. TO THE EXTENT PERMITTED BY LAW, 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 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 FEED 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.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND 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).
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 OR THIRD PARTY THAT OWNS OR CONTROLLS INTELLECTUAL PROPERTY, WHETHER IN WHOLE OR IN PART, TRANSMITTED OR DISTRIBUTED ON YOUR FEED, 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.
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, covenant, representation or warranty of these Terms or the availability or Use of your Feed or 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 8; 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.
- General. In the interest of resolving disputes between you and TuneIn in the most expedient and cost effective manner, and except as described in Section 9.b and 9.c, you and TuneIn agree that every dispute arising in connection with these Terms, the Service, and communications to or from us will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Service, or any communications to or from us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TUNEIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Notwithstanding Section 9.a above, nothing in these Terms will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 9 within 30 days after the date that you agree to these Terms by sending a letter to TuneIn Inc. 475 Brannan St., Ste. 320, San Francisco, CA 94107, Attn: Legal Department – Arbitration-Opt-Out that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TuneIn receives your Opt-Out Notice, this Section 9 will be void and any action arising out of these Terms will be resolved as set forth in Section 10. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and TuneIn will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”), as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TuneIn. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by a nationally recognized next-day delivery service (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”) or, if a postal address is not available, to the last known email address for such party. TuneIn’s address for Notice of Arbitration is: TuneIn, Inc., 475 Brannan St, Ste. 320, San Francisco, CA 94107, Attn: Legal Department. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TuneIn may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or TuneIn must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by TuneIn in settlement of the dispute prior to the award, TuneIn will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) $15,000.
- Fees. If you commence arbitration in accordance with these Terms, then TuneIn will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in in the county and state of your residence, if you are an individual, or business address, if you are an entity (collectively “Arbitration Location”) but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the Arbitration Location. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TuneIn for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND TUNEIN AGREE THAT EACH 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, unless both you and TuneIn agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if TuneIn makes any future change to this arbitration provision, other than a change to TuneIn’s address for Notice of Arbitration, then you may reject the change by sending us written notice within 30 days of the change to TuneIn’s address for Notice of Arbitration, in which case your account with TuneIn will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
- Enforceability. If Section 9.f above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.
GOVERNING LAW. United States federal law and 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.
,; (c) you will abide by TuneIn’s Acceptable Use Policy located at https://tunein.com/policies/acceptable-use/ (“AUP”) ,; and (d) you are bound by TuneIn’s End User License Agreement and Terms of Service located at https://tunein.com/policies/ (“EULA”) when you access and use TuneIn’s Service for any other purpose. You agree not to use the Service, or any part thereof, in any manner not expressly permitted by these Terms. In the event of any direct conflict between these Terms and the Copyright Policy, AUP, or EULA, these Terms will control to the extent of the conflict.
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.
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.
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.
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.
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.
Electronic Communication. You hereby authorize TuneIn to communicate with you via email regarding the Service or these Terms.
Interpretation. You hereby expressly waive any rule of law or legal decision that would require the interpretation of ambiguities in this Agreement against TuneIn as the drafting party of these Terms.
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 transmit or distribute your Feed to End Users.