Terms of Use

Last updated on July 18, 2016

IMPORTANT: PLEASE READ THESE TERMS OF USE CAREFULLY. PRESSING THE "JOIN" BUTTON, OR OTHERWISE ORDERING, INSTALLING OR USING THE SERVICES (AS DEFINED BELOW) CONSTITUTES ACCEPTANCE OF THIS AGREEMENT ON YOUR BEHALF.

The following terms of use ("Agreement") govern your use of the Tunity mobile application (the "App") and any of the services (the "Services") offered by AudioStreamTV Inc. ("we", "us" or "our"). By using or visiting the App, you signify your assent to this Agreement. This Agreement applies to all users of the App ("User").

Your use of any of the Services constitutes your agreement to comply with the terms of this Agreement. If you cannot agree to and/or comply with this Agreement and its requirements, you are expressly prohibited from use of the Services and must immediately exit the App.

Important Note: Regarding the resolution of any disputes, this Agreement (i) requires all matters to be settled by binding, individual arbitration or via small claims court (if applicable) and (ii) includes a waiver of certain rights, including a waiver of your ability to form class action lawsuits against us.  See DISPUTE RESOLUTION; ARBITRATION, NO CLASS ACTIONS below. If you do not agree with these terms, you should not accept this Agreement and/or use the App or Services.

Privacy Policy

In addition to reviewing this Agreement, you should also review our Privacy Policy ("Privacy Policy"), which is incorporated by reference into this Agreement, to better understand how we collect and use information. Your use of the App and the Services constitutes your agreement to Privacy Policy's terms and conditions.

See our Privacy Policy

AGE REQUIREMENT

You must be at least 18 years of age to enter into this Agreement on your own behalf and to register for use of the Services and/or the App. If you are under 18 but at least 13 years of age, you must present this Agreement to your parent or legal guardian, and he or she must enter into this Agreement on your behalf. If you are such a parent or guardian, please be aware that you are fully responsible for your child’s usage, including all financial or other liability that he or she may incur. Children under the age of 13 may not register, or be registered for or otherwise use the Services or the App.

Use of the App

You may view and use the App only in accordance with the terms of this Agreement.

You agree to use the App only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability, all as determined by applicable law.

In order to access some features of the App, you may be required to create an account. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure.

We will not be liable for your losses caused by any unauthorized use of your account.

General Prohibitions

You agree not to do any of the following, either directly or indirectly:

Use the App or Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;

Remove, circumvent, disable, damage or otherwise interfere with security-related features of the App or Services, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on the use of the App;

Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the App or any part thereof;

Modify, adapt, translate or create derivative works based upon the App or any part thereof;

Intentionally interfere or attempt to interfere with or damage proper operation of the App or Services or any User's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.

Impose or attempt to impose on the App an unreasonably large load on App's infrastructure or make automated use of the Services.

Reproduce, duplicate, copy, sell, resell, visit, or otherwise exploit the App or Services for any commercial purpose.

Encourage or enable any other individual to do any of the foregoing.

Changes to Agreement and Additional Rules of Usage

We reserve the right, at any time and without prior notice, to modify, alter or update this Agreement. You should periodically check these terms for changes. Your continued use of the App and/or Services constitutes your agreement to comply with Updated Agreement.

Change, Suspension or Termination of App, Services or Your Use

We may, without prior notice, change the App or Services, stop providing the App or Services, or create usage limits for the App or Services.

We may permanently or temporarily terminate, limit or suspend your access to the App or Services without notice or liability, for any reason or for no reason.

We reserve the right to force forfeiture of any username for any reason.

We may make changes to the materials, products, features and services available on the App at any time without notice.

Intellectual Property

The App including patents, copyrights, logos, trademarks and trade secrets are legally owned by us or third parties. These rights apply inter alia to the computer code of the App, graphical design, products, company names, etc. All contents of the App are protected by copyright and trademark rights, except as specifically permitted herein.

License

Upon your decision to use the App and subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, non-transferable, revocable license, without the right to sublicense, for you to install, access and use the App solely for your personal and non-commercial purposes. We reserve all rights in the App not expressly granted to you hereunder.

Disclaimer

The App, Services, and other material available through the App are provided "As Is", "at Your Own Risk" and "As Available" without any warranties whatsoever, express or implied. We assume no responsibility for the accuracy and completeness of the Services or other material on the App.

All other warranties, express or implied, including any warranties of merchantability, fitness for any particular purpose, or non-infringement of intellectual property are specifically excluded and disclaimed. We do not warrant that the Services will meet User's requirements and that the operation of the Services will be uninterrupted or error free, or that the App or the server that makes them available are free of viruses or bugs. We make no warranty regarding the quality of any products, service, information or content obtained through the App or Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained through the App or Services.

We make no representation that the Services offered through the App are appropriate, available or legal in any particular location. Those who choose to access the Services offered through the App do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

THIRD PARTY MATERIALS AND SITE LINKS

You understand that within the Services and/or App you may encounter advertising, promotional or other content provided by third parties or uploaded other users in any commentary or similar social areas that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service and App at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.

We may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party web sites. By accessing or using the Service and/or the App, You acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Third Party Materials and links to other web sites are provided solely as a convenience to you. If you click through any links or use widgets that lead you to third party sites or applications, you understand and agree that (i) we do not endorse such sites and apps and is not responsible for their content, and (ii) such sites and apps will be governed by their own terms and conditions and privacy practices, which you should review.

 

Limitation of Liability

We, our affiliates, directors, employees, agents, representatives and third party service providers, will not be liable for any damages whatsoever (including, without limitation, those resulting from lost profits, lost savings, lost data, business interruption or other special, consequential or incidental damages) arising out of or relating to the use, inability to use, or the results of use of the App, whether based on warranty, contract, tort or any other legal theory and whether or not we have been advised of the possibility of such loss or damages.

In no event will our aggregate liability arising out of or in connection with this Agreement or from the use of or inability to use the App or Services exceed the amount you have paid us during the ninety (90) days prior to your claim (if any). The limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

Indemnification

You agree to indemnify us and our affiliates, directors, employees, agents, representatives and third party service providers, and to defend and hold us and each of them harmless, from any and all claims, actions, liabilities, damages, losses, expenses and costs (including attorney's fees) (collectively, "Claims") which may arise from your access to or use of the App, Services or information obtained through use of the App, any content that you submit to this App and/or your breach of this Agreement. We reserve the right to assume the exclusive control of any such defense of any such Claim.

App Availability

We shall not be responsible for any disruption to the App, regardless of length. We will not be liable for losses related to User's inability to access content due to disruptions of the App. We shall be excused from performance of any obligations under this Agreement which are prevented or interfered due to acts or conditions beyond our reasonable control.

The Security of the App

We maintain reasonable physical, electronic, and procedural safeguards and personnel policies, consistent with applicable laws that are designed to guard the Services, the App and our systems. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. In the event of a breach of the confidentiality or security of your information, we will reasonably attempt to notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using your most current email address on record with us.

DISPUTE RESOLUTION; ARBITRATION; NO CLASS ACTIONS

You and we agree that any dispute, claim or controversy arising out of or relating in any way to the Services, the App and/or this Agreement will be determined by binding arbitration or in small claims court, at your choosing. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action lawsuit. This arbitration provision and your class action waiver shall survive termination of this Agreement and the termination of your use of the App or the Services.

To seek arbitration or to file a small claim court action against us, you must first send to us, by certified mail, a written notice of your claim, including a description of the basis for the claim and the relief being sought, to: AudioStreamTV Inc.,   19 W 21st Street, Suite 402, New York, NY  10010, Attention: General Counsel. If we initiate arbitration, we will send a similar written notice to the email address used for your Services account. Following either party's receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. However, if the parties cannot reach an agreement to resolve the claim within 30 days after the notice is received, you or we may commence an arbitration proceeding or file a claim in small claims court.

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. You can also write to us (including by submitting a request with your written notice for the dispute) and we will provide them to you. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement.

Unless we agree otherwise in writing with you (at our discretion), you agree that any arbitration hearings or small claims court actions will take place at a location to be agreed upon in New York, New York. However, if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.

YOU AND WE 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 parties agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE APP MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

Governing Law

The laws of the State of New York, without reference to its conflict-of-laws principles govern this Agreement and your use of the Service and App. To the extent not arbitrated or resolved in small claims court as required herein, any dispute arising out of or related to this Agreement, the Service or the App will be brought in, and you hereby consent to the exclusive jurisdiction and venue in, the competent the state and federal courts located in New York County. You hereby agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. If any term or provision of this legal notice is for any reason held to be invalid, such invalidity shall not affect any other term or provision, and this legal notice shall be interpreted as if such term or provision had never been contained in this legal notice.

Miscellaneous

User agrees that no joint venture, partnership, employment or agency relationship exists between User and us as a result of this Agreement and/or User's use of the App. User may not assign any part of its rights and obligations under this Agreement without our prior written consent. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced. The terms of this Agreement are severable and may be construed to the extent of their enforceability in light of the parties' mutual intent. The titles and subtitles in this Agreement are used for convenience only and are not to be considered in construing it.

You may contact us at info@tunity.com.