Last Updated July 17, 2019
IMPORTANT NOTICE: THIS IS A LEGALLY-BINDING CONTRACT. THESE TERMS OF SERVICE AFFECT YOUR LEGAL RIGHTS AND WILL BE WHOLLY AGREED TO BY YOU THROUGH USE OF THE TUNETANK INC. WEBSITE AND/OR SERVICES. FURTHER, THESE TERMS OF SERVICE WILL WHOLLY GOVERN YOUR RELATIONSHIP WITH TUNETANK INC. AND YOUR USE OF ITS WEBSITE AND/OR SERVICES.
IF YOU DO NOT WHOLLY AGREE TO THE TERMS OF SERVICE HEREIN, DO NOT USE TUNETANK INC.’S WEBSITE OR SERVICES!
PLEASE READ CAREFULLY.
These Tunetank Inc. Terms of Service (“Terms of Service”) govern Access To and Use* of the Tunetank Inc.’s (“Tunetank”) Website* and Services* by all Users and/or Customers* (or “You(r)”). These Terms of Service shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law rules and principles.
(For the full definitions list, please see Annex A]
Access To and Use: The act of electronically visiting the Website and/or taking advantage of Services or any information provided by Tunetank.
Services: All Tunetank Services, including, but not limited to, all content, data, documents, graphics, information (whether or not User Content), products, text, and all other elements offered through the Website or any mobile application (app).
Users and/or Customers (“You(r)”): All individuals, partners, or groups, including all business, commercial, non-profit, organizations or entities in whatever form, whether legally recognized or not, who access and take advantage of the Tunetank Website or Services.
Website: The Tunetank website and the associated Services found at https://tunetank.com/.
For the avoidance of doubt, any Key Terms defined herein may be used cumulatively and together to affect the required meaning, e.g., “Website Services” includes both Key Terms “Services” and “Website” and should be read together to mean: Tunetank Website Services and Services in general.1. OVERVIEW OF TUNETANK SERVICES
Tunetank provides Users with an online platform to both sell and purchase certain rights to music, including royalty-free licenses. Tunetank is unique in providing Users with an easy-to-use and easy-to-manage service whereby Artists (Sellers) and Customers (Buyers) can directly exchange content on equal bargaining grounds for a mutual benefit. The process of becoming a Tunetank Artist (Seller) or Customer is easy. To become an Artist (Seller), a User simply needs to (1) agree to these Terms of Services; (2) ‘sign up’ to create a user portfolio; and (3) start uploading music to the Tunetank Website for Customers to license! Becoming a Customer is even easier, a User simply needs to (1) agree to these Terms of Services; (2) ‘sign up’ to create a user portfolio, and (3) start browsing music to license as You wish! Tunetank is all about transparency, so the Customer that purchased certain rights to the Artist’s music will receive, along with the music file and the license key, the Artist’s contact information and the details about the license purchased. Should You wish to reach Technical Support or to contact Tunetank for any other reason, please send an email to Tunetank at firstname.lastname@example.org.
2. ACCEPTANCE OF TERMS OF SERVICE
These Terms of Service are a legally-binding agreement between You and Tunetank, regarding use of the Website as made available by Tunetank and/or its affiliates (“Licensors”). Tunetank makes available its Website and Services for Your use subject these Terms of Service. By accessing and using the Tunetank Website and Services, You AGREE to be bound by and to ACCEPT these Terms of Service and all terms and conditions contained and/or referenced herein, as well as any additional terms and conditions set forth on the Website.
If You do NOT AGREE to ALL the terms and conditions within these Terms of Service, You should NOT use or take advantage of any Tunetank Services. If You do NOT AGREE to any specific additional terms which apply to particular Content (as defined in Section 2.2) or to particular transactions concluded through the Tunetank Website or Services, then You should NOT use the part of the Website or Services which contain such Content or through which such transactions are concluded. When using or taking advantage of any Tunetank Services, should You visit another website or obtain any products, applications, or services from another entity or provider, whether free of charge or for payment, You will be subject that third-party’s guidelines and conditions applicable to such products, applications or services, and NOT those of Tunetank.
2.1 Type of License(s). You are granted a revocable, limited license to use the Tunetank Website and Services as outlined and detailed in Section 4, below. If You are a Customer or Artist (Seller), the type of license that You will be bound by will depend on the license You either purchase or sell in accordance with Section 4 or Section 7, respectively. By using the Tunetank Website and Services, You acknowledge and AGREE that no agency or employment relationship, joint venture, partnership, or similar relationship is created nor exists between You and Tunetank.
2.2 Updates to Terms of Service. These Terms of Service may be amended by Tunetank at any time upon notice through any of the following means: a posting on the main page of the Website, at or after You login to Your User Portfolio (as defined in Section 9), or by e-mail to the address You provided when You set up Your User Portfolio. Your failure to provide or maintain accurate or current contact information in Your User Portfolio will not obviate Your responsibility to comply with these Terms of Service. Please check these Terms of Service regularly to ensure that You are aware of all terms governing Your use of the Website and Services. Specific terms and conditions, if and when unequivocally indicated by Tunetank, may apply to specific content, products, materials, Services or information contained on or available through this Website (the “Content”) or transactions concluded through this Website. Such specific terms may be in addition to these Terms of Service, or, where inconsistent, only to the extent that the Content or intent of such specific terms is consistent with these Terms of Service, and then such specific terms will prevail. Please check theses Terms of Service regularly to ensure that You are aware of all terms governing Your use of the Tunetank Website and Services.
Tunetank reserves the right to make changes or updates with respect to the Website, or to the Content or the format thereof at any time without notice. Tunetank also reserves the right to terminate or restrict access to the Website and Services or any portion thereof for any reason whatsoever at its sole discretion.
3. USER WARRANTIES AND OBLIGATIONS
3.1 Agreement of Use. You AGREE to use the Tunetank Website and Services only for purposes permitted by these Terms of Service as well as any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction(s). Specifically, You AGREE and warrant that in using Tunetank Website and Services, Your actions do not contravene the laws, rules, or regulations of (1) the country, state, or locality where You reside, or (2) the country, state, or locality where Tunetank is located or operates. This includes complying with applicable export and import restrictions as well as any other restrictions.
3.2 Prohibited Conduct. You AGREE not to use or permit use of Tunetank Services, via email, facsimile, faxing, posting, publishing, uploading, or otherwise transmitting any data or material for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights; or (f) otherwise violate applicable laws, ordinances or regulations. Tunetank reserves the right to disable, remove, or revoke access to You to any material that violates the foregoing restrictions or these Terms of Service. Tunetank shall have no liability to You in the event that Tunetank takes such action. You AGREE to defend and indemnify Tunetank against any claim arising out of a violation of Your obligations under this Section 3.
3.3 Prohibited Actions. You AGREE not to access (or attempt to access) Tunetank Services by any means other than through the means provided by Tunetank or its Authorized Partners. You AGREE not to access (or attempt to access) the Services by way of automated means and that You will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
Specifically, You AGREE that You will not:
The rights granted to You under the agreement are also conditioned on the following:
You AGREE to make every reasonable effort to prevent third parties not authorized by Tunetank from accessing the Services.
4. TUNETANK; ARTIST (SELLER) LICENSES
4.1 Your Use of Tunetank. You are granted a revocable, limited, non-exclusive, non-transferrable, and non-sublicensable license (the “Tunetank License”) to use the Tunetank Website and Services, so long as Your use of such Website and Services are expressly permitted in these Terms of Service. Tunetank reserves the right to immediately revoke Your Tunetank License upon the breach of these Terms of Service or upon a good faith belief that Your use of Tunetank Services will be injurious to Tunetank, others, Users, the public, or in violation of these Terms of Service. Additionally, this Tunetank License is not a sale of any of Tunetank intellectual property owner’s rights.
4.2 Tunetank License Restrictions. Your Tunetank License may ONLY be used by You. You may, unless otherwise specifically indicated to the contrary, not lease, lend, rent, sub-license, or transfer any of Your rights to use Tunetank Services or any data received stemming from Your use of this Tunetank License belonging to Tunetank. The Tunetank License also is held with respect to all User obligations outlined and detailed in Section 3, above.
4.3 Artist (Seller) Licenses. As an Artist (Seller), You will be strictly bound by the type of License under which You have sold for use Your User Content (as defined in Section 13). The Licenses granted herein are outlined in EXHIBIT A and are exclusive, non-revocable, limited, non-transferrable, and non-sublicensable, subject only to Section 8, below. For the avoidance of doubt, You are subject to the costs, limitations, and terms and conditions set forth in EXHIBIT A and on the Tunetank Website at the time of You entering into these Terms of Service provided that such costs, limitations, and terms and conditions pertaining to any subsequently purchased License(s) may be subject to change without notice. Specifically, You, as an Artist (Seller), AGREE to be bound by the following affiliated or sold Licenses and their respective terms and conditions:
4.4 Adjustment of License Cost: The cost of the respective Licenses is fixed; however, Tunetank allows for respective Artists (Sellers) to reserve the right to unilaterally alter their prices as they see fit. If an Artist (Seller) or Customer wishes to so alter or request to alter the price to any User Content associated with a License, they should contact Technical Support as outlined in Section 25, below.
5. ARTIST (SELLER) TERMS
5.1 How to Sell. In order to become a Seller, You must first create a User Portfolio. After creation of a User Portfolio, only then can You upload User Content to the Tunetank Website. Once Your User Content is uploaded to the Tunetank Website in accordance with Section 5.3, said User Content only then will be available for purchase by Customers.
5.2 User Uploads. By uploading User Content (as defined in Section 13, herein), You AGREE to have said User Content sold under one of the License(s) options outlined in Section 4.3, above. Furthermore, You acknowledge and AGREE that the purchasing Customer will be granted by You the RIGHT TO USE Your User Content in any way possible under the terms of the respective License(s) and applicable law. This use may include, but is not limited to, the RIGHT TO USE Your User Content for: integrating and/or synchronizing into projects and productions combining images, sounds, and texts (in any language), such as in advertisements, animations, apps, films, games, the internet, presentations, television, video clips, and so on, whether in a private or public place; and in all existing platforms, including but not limited to, CD-ROM, computers, data storage devices, online stores (e.g., an app store) radio smartphones, tablets, television, and the like.
5.3 Quality of Content. All User Content will be reviewed by Tunetank before said User Content will be made available to Customers for quality. Tunetank quality checks all User Content based on the following parameters: commercial relevance, compositional integrity, emotive behavior, music mastery, production quality, samples quality, and sound quality; however, Tunetank reserves the right to refuse publication to any User Content it, in good faith, deems unfit for upload. Should Your User Content be rejected for upload by Tunetank, You may request an explanation by contacting Technical Support as outlined in Section 25, herein. Notwithstanding anything to the contrary herein and as further detailed in Sections 13 & 18, such review shall not be deemed a review for purposes of determining any copyright similarities or any potential infringement of any copyright and such review and compliance with third parties’ rights shall be the sole responsibility of the Artists (Sellers).
5.4 Seller-Specific Responsibilities. In addition to abiding by the conditions set forth by these Terms of Services, if You qualify as an Artist (Seller) You also will be held to the following responsibilities: (a) the upload of only high-quality User Content matching the purposes for which said User Content is licensed (i.e., sold); (b) all User Content within Your Tunetank Portfolio matches the description(s) You gave on the “track preview” page; (c) Your User Content is 100% original; (d) You will not provide for licensing (i.e., sale) any sound-alike tracks and/or samples to that of other Tunetank User Content; (e) Your User Portfolio and User Content fit within the Tunetank design, including all track lengths being a minimum of ninety (90) seconds; and (f) and Your User Content and description do not violate any consumer protection, unfair competition, trade practices, or fair trading laws.
5.5 Payment Rates. The Seller agrees to be compensated for User Content based on the subscriber shared method. 50% of monthly revenue of License subscription fees will be shared and distributed to the respective Sellers depending on the number of downloads of their User Content made by a given subscriber in such month. No payments will be made for number track previews made by a subscriber.
5.6 Free Deposits; Right to Retain Monies. Tunetank will pay all transactions fees, other than the bank’s fees charged by Your bank, which should allow You to withdraw all Payments at no additional cost. Tunetank reserves the right to retain any monies it believes You owe to Tunetank and/or its Licensors or as is required to comply with the law.
5.7 Payments and Taxes. Tunetank may pay Your earned sales amount, in its discretion, in bi-weekly or monthly intervals. This frequency and rate of payment to You by Tunetank may be decreased or increased upon Your request which may be accepted or denied in Tunetank’s sole discretion. Notwithstanding anything to the contrary herein, however, in order for You to receive a payment from Tunetank, Your User Portfolio must have a balance of at least $100 USD (i.e., You are owed a minimum of $100 USD, in accordance with Section 5.5). Tunetank will make this bi-weekly or monthly payout via PayPal or Payoneer or other similar services. Upon the termination of Your User Portfolio for any reason, subject to Section 5.6, Tunetank will pay the entirety of Your earned sales amount in accordance with the regular intervals by which You have previously been paid. You alone are responsible for paying all applicable taxes pursuant to Section 11.7 herein.
5.8 Advertisements; Discounts and Promotions. By using Tunetank Services, You automatically AGREE to allow Tunetank to use any of Your uploaded User Content for advertising purposes promoting Tunetank Services and/or Licenses and/or your User Content (“Promo Rights”). In exercise of such Promo Rights and related advertisement(s), You (as the Artist (Seller)) will be given credit as the Artist (Seller) in a manner reasonable with the medium or platform used for the advertisement. Tunetank shall have the Promo Rights to use Your User Content immediately upon Your uploading said Content to the Tunetank Website. If You do not wish Tunetank to use any of Your uploaded User Content for advertising purposes, please contact Technical Support, as outlined in Section 25, to OPT OUT from Tunetank’s Promo Rights. If you OPT OUT within thirty (30) days from date of upload, Tunetank will respect this election and not use Your User Content, even if such use was being prepared (absent Your explicit consent). If thirty (30) days have passed since the upload of Your User Content and You have not elected to OPT OUT of Tunetank’s Promo Rights, Tunetank shall have such Promo Rights if Tunetank has begun preparing and/or using said Content for an advertisement(s) regardless of Your later objection (“Exception”). However, Tunetank’s Promo Rights will only apply to the specific User Content being prepared and/or used in connection with the advertisement. Other than with regard to Your Content that is subject to the limited Exception set forth above, You may elect to OPT OUT from Tunetank’s Promo Rights with Your User Content at any time for prior and future Content. Tunetanks’ Promo Rights with respect to the User Content subject to the Exception will expire within one (1) year after the termination thereof.
From time to time, Tunetank may provide incentives for new customers, purchases, or to promote sales by way of discounts and promotions. Any discounts offered by Tunetank should not eclipse a twenty (20) percent discount. You AGREE that upon such a discount or promotion, You will split this cost of this discount or promotion with Tunetank. For example, if Tunetank offers a 20% discount to a sale, 10% of this discount will be removed from Tunetank’s normal share, and likewise, 10% of this discount will be removed from Your normal share—equaling the 20% discount offered.
5.9 Dependency on Terms of Service. These Artist (Seller) Terms are wholly dependent on, and must be interpreted and read together with, these Terms of Service. Should the Artist (Seller) Terms be found to contradict with the Terms of Service, the Terms of Service shall govern to the greatest extent possible to achieve the original intent of the Artist (Seller) Terms.
6. TUNETANK RESPONSIBILITIES TO ARTIST (SELLER)
Tunetank shall owe the following responsibilities to all Artists (Sellers): (a) to make payments in full in accordance with these Terms of Service; (b) to timely notify of any changes to these Terms of Service and/or Artist (Seller) Terms; (c) to prevent illegal use of Artist’s (Seller’s) User Content; (d) to provide full support in remedying any copyright or trademark infringement claims, as outlined in Section 27, herein; and (e) to cooperate with in auditing a Customer’s use under Section 8. TUNETANK WILL NOT BE LIABLE TO AN ARTIST (SELLER) FOR A CUSTOMER’S MISUSE OF THEIR RESPECTIVE LICENSE; HOWEVER, TUNETANK WILL COOPERATE WITH SAID ARTIST (SELLER) IN AUDITING A CUSTOMER UNDER SECTION 8.
7. CUSTOMER LICENSE TERMS
7.1 Type of License. By purchase of User Content, as outlined in Section 4.3 above, You are granted an exclusive, non-revocable, limited, non-transferable, and non-sublicensable license (a “Customer License”) to use any Artist (Seller)’s User Content pursuant to the particular License(s) Purchased, subject to Section 8, below. The costs, limitations, and terms and conditions of each respective License will be managed and provided on the Tunetank Website and may be updated from time to time in Tunetank’s sole discretion. You AGREE to be bound by the terms associated with the Artist (Seller) License You purchase. Your Customer License will only be subject to agreement with these Terms of Service and, in particular, Section 8 below.
7.2 Use of License. Your right to use the Artist (Seller) License purchased extends in perpetuity, requires no usage reporting, and is valid globally and on multiple platforms, subject to Section 8, herein.
7.3 Customer-Specific Restrictions. By purchase of an Artist (Seller) License, You acknowledge, understand, and AGREE to abide by the following: (a) all Artist (Seller) Licenses only allow for use of User Content for a single use in a single project; for example, a single track of User Content could only be used in one music video, if a Customer desired to use this same track in a second music video, said Customer must purchase a new License. In the case, a Customer purchased a subscription based license, said Customer is allowed to use it in any number of projects given that a project does not violate the conditions of a given license; (b) You will not upload any track previews or User Content with Tunetank’s watermark for use in projects or for any other purpose(s); (c) You will not modify any User Content and distribute said content within a CD; (d) You will not add lyrics over any User Content and sell said content as Your own song on any platform; and (e) You will not use a music track on any internet radio service without the addition of an audio watermark, which occurs during the playing of the track and is audible, that mentions Tunetank as the source of the track.
7.4 License Upgrades. In the case Your actual or required use of an ordered or purchased License is larger than anticipated, You will be allowed to upgrade a License if such a request is made within ninety (90) days after the original purchase. Within such ninety (90) day period, You may upgrade to the necessary License by paying the difference between the License You originally purchased and the License You now desire to acquire. Should You wish to upgrade your License outside of ninety (90) days, You may similarly upgrade Your License by paying the difference between the original License purchased and the License You now desire to acquire, however, a charge of twenty-five (25) percent of this difference will also be added to the cost of Your upgrade. In no case shall an upgrade be allowed after 365 days of the original date of purchase nor shall a downgrade of License be allowed. To initiate a License upgrade or to ask questions, please contact Tunetank Technical Support as outlined in Section 25. All orders and purchases are final and subject to Section 11.4.
8. TUNETANK’S RIGHT TO AUDIT
8.1 Rights of Tunetank. Your use of Tunetank Services and Website is based upon Your acceptance of these Terms of Service. Furthermore, You explicitly ACCEPT all terms and conditions correlating with the respective License(s) under which You order, purchase, or sell pursuant to Sections 4, 5, and 7. Tunetank does not monitor, beyond the initial order, purchase, or sale, the usage of User Content; however, Tunetank reserves the right to audit Your use of any Tunetank Services (including the Website) or User Content beyond the order, purchase, and sale stages if Tunetank finds reason to so inspect Your usage, i.e., audit. By ordering, purchasing, or selling User Content, You ACCEPT Tunetank’s right to audit Your usage and AGREE to abide by any Tunetank requests it finds necessary in conducting an audit at its own discretion. This audit may include, but is not limited to, requesting (1) receipts of orders, purchases, or sales of User Content; (2) data and usage rates of User Content; (3) the means, methods, and platforms through which User Content is being, has been, or is expected to be used; and (4) any other information Tunetank finds necessary to conduct such an audit. Tunetank will do all possible to ensure such an audit is concise, thorough, and reasonable as such individual cases may require in performing audits of User Content usage. Should Tunetank unilaterally find reason to believe an audit is necessary, it will cover the costs of such an audit; however, if Tunetank finds any breach of these Terms of Service or Licenses in Your usage of Tunetank Services or Website, You will be responsible for reimbursing Tunetank for all costs associated with said audit. During an audit, Your User Portfolio may be deactivated, frozen, or limited until the resolve of all issues which initiated the audit, including ordering, purchasing, selling, or receiving earned sales amounts.
8.2 Rights of Artist (Seller). As an Artist (Seller), it is solely Your responsibility to abide by all terms and conditions set forth in these Terms of Service and to monitor (should You desire) Customer’s usage of Your purchased User Content. Should You find reason to believe a Customer is breaching their duties under these Terms of Service or a License(s) in relation to use of User Content, please immediately contact Tunetank Technical Support under Section 25. Should Tunetank agree with Your suspicions, an audit will begin immediately. During such an audit, You will be responsible for all costs of said audit until the final resolve of all issues. If Your audit reveals no breaches of these Terms of Service or usage under the applicable License(s), You will continue to be financially liable for all costs; however, if said audit finds a breach in relation to misuse, or the like, of User Content under the applicable License(s), the audit costs will be transferred in whole to the infringing Customer(s). Should a monetary penalty be enforced against a Customer that is in breach of a License(s) using Your User Content, Tunetank will share this monetary penalty with the infringed Artist (Seller) at a 50% rate.
8.3 Responsibilities and Rights of Customer. As a Customer, it is solely Your responsibility to abide by all terms and conditions set forth in these Terms of Service and the respective License(s). You AGREE and ACCEPT that should You be found to be in breach of any terms or conditions correlating with the applicable License(s) governing Your use of any User Content, You will be solely responsible to financially reimburse the costs associated with any audit conducted by Tunetank and/or an Artist (Seller) as outlined above in Sections 8.1 and 8.2. You further AGREE to consent to and assist with any audit performed on Your usage of User Content or Tunetank Services or Website, which may include an immediate suspension of Your right to continue to use said User Content during the performance of an audit. Should You feel an audit is frivolous or You have questions concerning Your usage of User Content (either during or prior to the initiation of an audit) You should immediately contact Tunetank Technical Support, under Section 25, to address any questions. If You proactively contact Tunetank in regards to a potential breach of these Terms of Service or use under a License(s), this good faith action will be taken into account and may allow remedial measures to be undertaken to prevent You from being responsible for an audit, extra costs, or further financial obligations.
8.4 Penalties for Breach. Should You be found to be in breach of these Terms of Service or a License(s), not only will You be solely financially responsible for all audit costs (should these be applicable), Your User Portfolio will be permanently deactivated until the resolve of all issues surrounding this breach. Furthermore, You will be penalized accordingly to the extent of the breach. This penalty will be based on the results of the audit and/or the extent of Your infringing usage of User Content. A penalty may include permanent or temporary suspension of Your User Portfolio and/or a monetary penalty of 2X (two times) the dollar amount of the correct License needed to service Your usage of User Content or a penalty of $1,000 USD, whichever is greater. These penalties shall be deemed liquidation damages with respect to the operation of a User Portfolio with a full right of offset by Tunetank and will be in addition to any legal rights to damages, including actual, statutory, treble and/or punitive damages either Tunetank or an Artist (Seller) may have against You.
9. USER PORTFOLIO
9.1 User Portfolio. You may sign up for a personalized portfolio (“User Portfolio”) with Tunetank in order to access the full range of features offered by the Website and Services. In creating Your User Portfolio, You AGREE to submit accurate, current, and complete information and keep this information frequently updated. Tunetank reserves the right to suspend or terminate User Portfolios which it suspects are used in contradiction to these Terms of Service and/or contain information that is untrue, inaccurate, not current, or incomplete.
When You create Your User Portfolio, You will choose a personal, non-transferable username and password. User Portfolios may not be “shared” or used by more than one individual. After You ACCEPT these Terms of Service and Your User Portfolio registration has been accepted by Tunetank, Your User Portfolio will be established. You are solely responsible for any and all activities that occur under Your User Portfolio, whether or not such use was authorized by You.
9.2 User Portfolio Information. The information You provide will be used only for such purposes as allowing You to set up a User Portfolio and profile to interact with other users through the Service, improve the content of the Service, customize the advertising and content You see, and communicate with You about specials and new features. It is completely optional for You to engage in these activities and/or make any purchases from Tunetank. Unless unequivocally prohibited by a non-waivable provision of the applicable law, Tunetank may archive and/or backup for a period of time Tunetank may deem necessary or required in its reasonable discretion all User Portfolio information and User Content for purposes of protecting its own and User’s legal rights, valid requests from law enforcement, and for financial record. These archives and/or backups may be retained after the termination of Your User Portfolio, whether or not the termination is initiated by Tunetank or You, and will be kept by Tunetank only for such purposes, and will not be processed, used, or shared without appropriate legal cause.
In creating Your User Portfolio (including the creation of an avatar, banner, images, track previews, etc.), You AGREE to full responsibility involving any and all copyright or trademark infringement claims stemming from the creation and customization of Your User Portfolio. You AGREE and understand that You alone are responsible for maintaining the confidentiality of all usernames and passwords associated with any User Portfolio You use to access the Website and Services. You will be held accountable for all activities that occur under your User Portfolio. Additionally, You may not use a User Portfolio that belongs to someone else at any time without the permission of that portfolio holder. Tunetank is not liable for any harm caused or related to the theft or misappropriation of Your username, password, User Content (as defined in Section 13), disclosure of Your username or password, or Your authorization of anyone else to use Your username or password. However, You could be held liable for losses incurred by Tunetank, another User or any third party due to misappropriation and use of Your User Portfolio. If You become aware of any unauthorized use of Your User Portfolio, please notify Tunetank immediately at email@example.com.
10. PROHIBITED CONDUCT
VIOLATION OF THE FOLLOWING TERMS (DETERMINED IN TUNETANK’S SOLE DISCRETION) WILL RESULT IN THE TERMINATION OF YOUR USER PORTFOLIO. WHILE TUNETANK PROHIBITS CERTAIN CONDUCT AND CONTENT ON THE TUNETANK WEBSITE, YOU UNDERSTAND AND AGREE THAT TUNETANK CANNOT BE RESPONSIBLE FOR CONTENT POSTED, SHARED, OR TRANSMITTED ON THE SERVICE THAT VIOLATES THESE PROHIBITIONS AND YOU NONETHELESS MAY BE EXPOSED TO SUCH CONTENT. YOU AGREE TO USE THE SERVICE AT YOUR OWN RISK. BY USING THE TUNETANK WEBSITE YOU AGREE NOT TO:
TUNETANK IS NOT RESPONSIBLE FOR ANY VIOLATION OF APPLICABLE LAWS, RULES, OR REGULATIONS COMMITTED BY YOU, YOUR USERS, OR ANY OF YOUR AFFILIATES. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR USE OF THE TUNETANK WEBSITE AND SERVICES DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS.
11. CUSTOMER PAYMENT TERMS AND COST
11.1 Costs. There is no cost to the Customer to use the Tunetank Website or Services unless said Customer purchases a License. The cost and features available to You will directly correlate with the type of License(s) purchased as outlined in Section 4.3, above. Along with the costs, the Services associated with each License are outlined in detail on the Tunetank website under the feature “License Guide,” which is available upon clicking “License” on the Browse Page of the Website. Tunetank reserves the right to change the prices, alter the features, or amend the length of Licenses upon notice to You.
11.2 Discounts and Promotion. Tunetank reserves the right to offer any promotion or discount provided that any discount of thirty (30) percent or more shall be implemented with the consent of the Artist (Seller).
11.3 Payment. Tunetank accepts only credit/debit card payments (from the providers as listed on the Website) and payments through PayPal and such other payment processing services as may be added from time to time. In the case that Your payment fails to process for whatever reason, Your right to use any User Content stemming from this failed transaction is immediately revoked until full satisfaction of payment to Tunetank.
11.4 No Refunds. All ORDERS and PURCHASES of Tunetank Services and Licenses are FINAL provided that if you have notified Tunetank within 48 hours of purchase as to a technical defect relating to said purchase, and Tunetank has not resolved such technical issues within five (5) business days, Tunetank will issue a full refund (at no extra charge) in which case Your order will be processed and refunded via Your original method of payment and within fifteen (15) business days.
11.5 Tax Responsibility. All invoices, pricing, and quotes given or made by Tunetank are exclusive of all taxes. You are solely responsible for paying any applicable taxes pertaining to Your relationship with Tunetank and use of its Services, including but not limited to sales tax, Value-added tax (VAT), goods and services tax (GST), excise, withholding, or similar levies or taxes whether foreign or domestic. Similarly, You are solely responsible for any penalties or the like due stemming from a failure to pay appropriate duties and/or taxes. Any such payments, taxes, or duties, or the like will not be subtracted from any amount You owe Tunetank. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, You will be responsible for obtaining and providing Tunetank with such certificate, document or proceeding. If Tunetank is required by law to make any deduction or withholding, the parties will take such reasonable steps to minimize or reduce such deduction as permitted by law. In that case, Tunetank may, but shall not be obligated to, assist You in this regard, including compliance with the procedures for claiming relief under applicable provisions of applicable tax treaties. Tunetank shall make such deduction or withholding as required in accordance with applicable law and the total of any amount so deducted or withheld and the remainder remitted to You will be deemed to be payment in full. You acknowledge and agree that any payments to you will be made against an invoice and/or any other documentation as may be required indicating the full value of the goods and/or services provided.
12. SUPPLY AND RIGHT TO SERVICE
The length of these Terms of Service shall begin when You start using Tunetank Services and shall continue in perpetuity unless otherwise terminated by You or Tunetank in accordance with Sections 3, 10, & 24. Tunetank expressly reserves the right to immediately change, discontinue, limit, or suspend Your Services at any time, upon a good faith belief that Your use of Tunetank Services will be injurious to Tunetank, others, or the public, or in violation of these Terms of Service. Upon the termination or expiration of Your Services, You must immediately cease using the Tunetank Website and all of its Services. UPON TERMINATION OF THIS AGREEMENT YOU WILL NO LONGER BE AUTHORIZED TO USE OR TAKE ADVANTAGE OF TUNETANK SERVICES IN ANY WAY.
13. USER CONTENT
13.2 User-Uploaded Content. Tunetank allows Users to upload User Content only through a direct upload from a computer. Tunetank shall not be responsible for any corruption of files, loss of data, breach of security, hacks, viruses, or any similar compromises of data You experience; this liability will solely fall upon the User and/or any third-party platform or service said User uses in order to upload User Content onto the Tunetank Website, App, or for Services. PLEASE NOTE, YOU MAY NOT UNILATERALLY DELETE ANY USER CONTENT FROM YOUR PORTFOLIO FOR THREE (3) MONTHS AFTER THE PUBLICATION DATE OF SUCH CONTENT (I.E. THE DATE THE USER CONTENT IS LISTED FOR LICENSING). Should You wish to delete any User Content or Your User Portfolio, please contact Technical Support as outlined in Section 25.
13.3 User Content Exclusivity. You AGREE and warrant that the User Content You upload to and/or sell on or through the Tunetank Website or Services will not be offered on any platform other than Tunetank. Your User Content shall not be available on any other royalty-free music library catalog, no matter the format. Tunetank plans to accept non-exclusive User Content in the future, however, until these Terms of Service are updated to so allow, User Content must strictly be exclusive to the Tunetank Website. Should You have questions concerning the allowance of non-exclusive User Content, please contact Tunetank Technical Support as outlined in Section 25.
13.4 Responsibility for User Content. Tunetank does not control, is not responsible for, and makes no representations or warranties with respect to any User Content. You are solely responsible for Your access to, use of and/or reliance on any User Content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research, and due diligence with respect to any User Content. It Your responsibility to investigate the licensing of any User Content prior to using such User Content in any way and to ensure that Your use of any such User Content complies with all applicable laws, licensing requirements and does not infringe any third-party proprietary rights. You are also responsible for any content that You post or transmit as well as all content posted or transmitted through or by use of Your User Portfolio.
13.5 Prohibited User Content. Types of User Content prohibited from the Website and Services includes but is not limited to: (1) illegal content; (2) content relating to the creation, advertising, distribution, or receipt of illegal goods or services; (3) offensive content (including, without limitation, defamatory, threatening, or pornographic content); (4) content that discloses another person’s personal, confidential, or proprietary information; (5) fraudulent content; (6) malicious content such as malware or spyware; or (7) content that offers, promotes, advertises or provides links to unsolicited products or services.
14. YOUR WARRANTIES
YOU HEREBY WARRANT THAT: (i) ALL INFORMATION PROVIDED BY YOU TO TUNETANK IN CONNECTION WITH THE WEBSITE, AND THE SERVICES IS TRUE, ACCURATE, CORRECT, AND UP TO DATE; (ii) YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE; (iii) YOU ARE OF LEGAL AGE (18 YEARS OLD) TO FORM A BINDING CONTRACT WITH TUNETANK; (iv) YOU WILL SEEK ALL NECESSARY GOVERNMENTAL APPROVALS REQUIRED TO EFFECTUATE THESE TERMS OF SERVICE; (v) YOU SHALL PERFORM ALL OF YOUR OBLIGATIONS UNDER THESE TERMS OF SERVICE IN ACCORDANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS; AND (vi) YOUR USER MATERIALS, USER CONTENT, EDITORIAL, TEXT, GRAPHIC, AUDIOVISUAL, AND OTHER CONTENT THAT YOU SUBMIT TO TUNETANK OR MAKE AVAILABLE TO OTHER USERS OF THIS WEBSITE DO NOT: (1) INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (2) CONSTITUTE DEFAMATION, LIBEL OR OBSCENITY; (3) RESULT IN ANY CONSUMER FRAUD, PRODUCT LIABILITY, BREACH OF CONTRACT TO WHICH YOU ARE A PARTY OR CAUSE INJURY TO ANY THIRD PARTY; (4) PROMOTE VIOLENCE OR CONTAIN HATE SPEECH; (5) VIOLATE ANY APPLICABLE LAW, STATUTE, ORDINANCE, OR REGULATION; OR (6) CONTAIN ADULT CONTENT OR PROMOTE ILLEGAL ACTIVITIES.
Any and all products downloaded or purchased from this Website and Services may be subject to United States export controls. You or Your representatives AGREE that You and Your End Users are not nor will be at any time in the future (i) located in a country embargoed by the United States, (ii) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (OFAC); (iii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56 or any Executive Order of the President issued pursuant to such statutes; or (iv) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons”; (v) or if the undersigned is an individual or a company, named on the U.S. Treasury Department’s list of Specially Designated Nationals (SDN); or (vi) on the United States Commerce Department’s Table of Deny Orders.
15. INFORMATION AND MATERIALS PROVIDED BY YOU
All User Content provided by You shall be considered confidential including information regarding Your business and products, and all such information shall remain as Your intellectual property and will be held strictly confidential by Tunetank, and except as expressly authorized by You in writing, shall not be divulged or published by Tunetank and shall not be authorized by Tunetank to be divulged or published by others. Confidential information for purposes of this paragraph shall not include the following:
18. INTELLECTUAL PROPERTY (IP)
18.1 Sole Ownership of IP Rights. The Tunetank Website, in its entirety (except for User Content), including the Tunetank Website name and logo, and all other Tunetank Services Content, site design, text, data, interfaces, product and service names, design marks, logos, button icons, legends, images, photographs, music, audio or video clips, titles, page headers, graphics, software and the selection, expression, structure, arrangement, coordination, enhancement and presentation of said elements, as well as the “look and feel” of the Tunetank Website (including color combinations, layout, design and all other graphical elements), are the sole property of Tunetank and/or its authorized affiliates. The foregoing elements of Tunetank are protected by any and all U.S. and international copyright, service mark, and trademark treaties, laws, regulations, and rules and may not be copied, used or re-used for any purpose not expressly authorized in these Terms of Service, without Tunetank’s prior written permission. You acknowledge that these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. Material published by Tunetank on the Tunetank Website may contain other proprietary notices or describe products, services, processes, or technologies owned by Tunetank to which the same such protections and rights discussed above will exist, unless such material is rightly owned by a third party.
18.2 Use of Tunetank IP. Nothing in these Terms of Service or through the use of Tunetank Services shall be construed as granting You a license to use such material under any copyright, service mark, trademark, patent or other intellectual property right of Tunetank or any other third party, except as otherwise granted herein. Similarly, unless otherwise specifically provided herein or authorized by Tunetank in writing, all rights in the Website, Services, and Content not expressly granted to You is reserved by Tunetank. Pursuant to the Tunetank License and other Licenses granted herein, as outlined in Sections 4 & 7) or as otherwise set forth, You AGREE not to copy, republish, frame, or make available for assign, download, distribution, lease, license, loan, modification, rent, sale, sublicense, transmission, reverse engineering, or creation of derivative works based on the Content, Website, Tunetank, or Services, other than in conjunction with the Services offered by Tunetank. You also AGREE to not delete nor change any attribution or proprietary rights notices in any Tunetank or User Content.
19. USER OWNERSHIP RIGHTS
19.1 Ownership of User Content. Except as provided in the following paragraph, Tunetank acknowledges and agrees that it claims no ownership or control, nor does it obtain any right, title, or interest from You under these Terms or to any User Content that You post, submit, or upload to the Tunetank Website or through its Services, including any intellectual property rights in Your User Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless otherwise agreed between the Parties, You retain copyrights and any other rights You already hold in Your User Content. You alone are responsible for protecting those rights, as appropriate, and You AGREE that You are responsible for protecting and enforcing those rights and that Tunetank has no obligation to do so on Your behalf.
19.2 Right to Retain Copies. Tunetank reserves the right to retain a copy of all User Content that you post, upload, or submit to the Tunetank Website or through its Services. This retained content, data, or User Content will be for the benefit of Tunetank to better experiences and services for users, monitor compliance with these rules, protect itself, Users, and other licensors and licensees’ legal rights, or for any other good faith purposes as Tunetank sees fit; however, Tunetank never publishes any User Content or data and treats them as confidential information.
20. TOOLS AND STATISTICAL DATA
20.1 Monitoring of Services. Tunetank may use tools, scripts, software, and utilities (collectively, “tools”) to monitor and administer the Services and to help resolve any Tunetank service requests. The tools will not collect, report, or store any of Your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the Services provided. Data collected by the tools (excluding production data) may also be used to assist in managing Tunetank’s product and service portfolio and for license management.
20.2 Statistical Information. Tunetank may compile statistical information related to the performance of its Services and may make such information publicly available, provided that such information does not incorporate Your data and/or identify, Your confidential information, or include Your company’s name. Tunetank retains all intellectual property rights in such statistical information.
21. THIRD-PARTY MATERIALS AND LINKING TO THE WEBSITE
21.1 General. The Website and Services may include links to other websites and/or third-party products that are not under Tunetank’s control (collectively, “Third-Party Materials”). Tunetank provides such links only for convenience to users of the Website and Services, and the inclusion of any link to Third-Party Material(s) does not imply endorsement by Tunetank of the content, products and/ or services of such Third-Party Material(s). Notwithstanding any provision to the contrary herein, nothing in these Terms of Service shall be construed as to grant You any rights or licenses with regard to such Third-Party Material(s) or to entitle You to use such Third-Party Material(s).
21.2 Linking to Website. Linking to this Website is permitted provided that You comply with the following rules. You may link to the home page of this Website or to any other page of this Website. However, You are not allowed to use in-line linking (or hot-linking) or framing. You must not imply that Tunetank endorses or sponsors the linker or its website, products or services. You must not use Tunetank intellectual property, including, but not limited to, trademarks, trade names, and copyrights without advance written permission from Tunetank. Furthermore, You AGREE to remove the link at any time upon Tunetank’s request.
22. LICENSES AND RIGHTS GRANTED TO TUNETANK
Subject to the terms and conditions of these Terms of Service, each Party (“Mark Owner”) hereby grants the other Party (“Mark Licensee”), a non-exclusive, nontransferable, royalty-free, worldwide license to use its Marks to market and promote the services and/or products of the Mark Owner. Any use of the other Party’s Marks shall be subject to the Mark Owner’s right to review and approve, which approval shall not be unreasonably withheld, and shall conform with any trademark usage guidelines, polices, or requirements provided by the Mark Owner. Additionally, Users hereby grants Tunetank the right to publish, display, and/or refer to the final product developed pursuant hereto for promotional purposes.
23. TUNETANK WARRANTIES AND DISCLAIMERS
23.1 Services “As Is” and “As Available.” EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ALL CONTENT AND/OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TUNETANK HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THIS WEBSITE, SERVICES OR THE CONTENT. TUNETANK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF THIS WEBSITE, THE SERVICES, OR CONTENT. YOU ACKNOWLEDGE THAT ANY INFORMATION SENT MAY BE INTERCEPTED IN TRANSMISSION OR OTHERWISE. TUNETANK DOES NOT WARRANT THAT THE WEBSITE, SERVICES, CONTENT, OR THE SERVERS WHICH MAKE THIS WEBSITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY TUNETANK ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS. Except as agreed by TUNETANK in writing, contractors, agents, dealers or distributors of Tunetank or any other third party shall not have a right to modify this limited warranty, nor to make any additional warranties.
23.2 Use at Your Own Risk. THE USE OF THE TUNETANK WEBSITE, SERVICES, OR THE DOWNLOADING OR OTHER USE OF ANY PRODUCTS THROUGH THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. TUNETANK ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE WEBSITE OR IN CONNECTION WITH ANY SERVICES OR PRODUCTS OFFERED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TUNETANK OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
The Website and Services may contain references to specific Tunetank products and services that may not be (readily) available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country.
You understand and AGREE that by using the Website and Services, You may be exposed to Content that You may find offensive, indecent or objectionable and that, in this respect, You use the Website and Services at Your own risk.
23.3 Lack of Liability. IN NO EVENT SHALL TUNETANK OR ANY OF ITS PARTNERS OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION). THIS REFUSAL OF LIABILITY SHALL EXIST UNDER ANY THEORY OF LIABILITY RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THIS WEBSITE OR SERVICES, OR THE CONTENT, PRODUCTS, SERVICES, STATEMENTS, OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THIS WEBSITE AND SERVICES, ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OR DATA, ANY INFORMATION THAT IS SENT OR RECEIVED, OR NOT SENT OR RECEIVED, ANY FAILURE TO STORE DATA, ANY LOSS OF DATA, LOSS OR DAMAGE TO FILES, LOSS OR DAMAGE TO THE CONTENT, OR ANY SERVICES AVAILABLE THROUGH THE WEBSITE THAT ARE DELAYED OR INTERRUPTED, EVEN IF TUNETANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST TUNETANK PERTAINING TO OR IN CONNECTION WITH THIS WEBSITE AND SERVICES MUST BE COMMENCED AND NOTIFIED TO TUNETANK IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.
23.4 Limitation of Liability. IN NO EVENT SHALL TUNETANK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE MONETARY COST OF THE ORDERS OR PURCHASES IN DISPUTE OR THE AMOUNT RECEIVED BY TUNETANK WITHIN THE PRECEDING 12 MONTH PERIOD RELATING TO SUCH PRODUCT OR SERVICES, WHICHEVER IS LARGER. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
24. ENDING YOUR RELATIONSHIP WITH TUNETANK
These Terms of Service will continue to apply until terminated by either You or Tunetank in accordance with these Terms of Service. If You want to terminate Your legal agreement with Tunetank, You may do so by: (a) notifying Tunetank at any time and (b) closing any User Portfolio(s) through which You take advantage of any Tunetank Services. Upon such request, Tunetank will terminate Your User Portfolio subject to Sections 9.2 and 19.2, above.
Your notice should be sent to firstname.lastname@example.org. Tunetank reserves the right to terminate its legal agreement with You at its sole discretion.
25. TECHNICAL SUPPORT
Tunetank offers typical Technical Support for its Users at no extra cost. In order to receive Technical Support from Tunetank, the User seeking such support should contact Tunetank at email@example.com or through the Tunetank Website. In such communication, the User should describe the nature of the problem to be resolved as well as User Information such as username, name, email, phone number, etc. Tunetank will make all reasonable efforts to respond to such requests in a timely manner. The User shall cooperate with Tunetank when seeking Technical Support services by providing information necessary to assist Tunetank or requested by Tunetank while diagnosing or resolving the issue. Although Tunetank cannot guarantee that a Technical Support issue will be resolved, Tunetank will make all reasonable efforts to perform Technical Support services in a professional manner and to the satisfaction of the User.
IN CASES OF ALLEGED OR POTENTIAL COPYRIGHT INFRINGEMENT, PLEASE IDENTIFY THIS ISSUE IN THE SUBJECT LINE OF THE EMAIL AS “COPYRIGHT INFRINGEMENT CLAIM.” Labelling Your email as such will ensure Tunetank will be able to act expeditiously in helping resolve any alleged or potential copyright infringement and/or remove any User Content as required.
The following methods can be used to communicate Feedback with Tunetank, or in general:
27. CLAIMS OF COPYRIGHT AND TRADEMARK INFRINGEMENT
27.1 Notice and Procedure. See Section 27.2 to 27.4, below.
27.2 Digital Millennium Copyright Act (DMCA). Tunetank takes seriously all alleged copyright infringements and will respond accordingly to notices of any and all alleged copyright infringement that complies with applicable international intellectual property law (including the DMCA, which is applicable in the United States). If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide Tunetank’s Copyright Agent with the written information specified below:
Tunetank’s Copyright Agent for notice of claims of copyright infringement on the Website and/or Services can be reached as follows:
Name: Dmitri I. Dubograev, Esq.
Address: 901 North Pitt Street #325
Alexandria, VA 22314
For clarity, only DMCA notices should go to the Copyright Agent. Any other feedback, comments, requests for Technical Support, and other communications You may have should be directed to Tunetank as outlined in Sections 25 or 26, above. You acknowledge that if You fail to comply with all of the requirements of this Section, Your DMCA notice may not be valid.
*Please note that the above procedure is exclusively for notifying Tunetank and its affiliates that Your copyrighted material has been infringed.
27.3 Counter-Notice. If You believe that Your Content that was removed (or to which access was disabled) is not infringing, or that You have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and/or use the material in Your Content, You may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Tunetank may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content provider, member, or User, Tunetank, must replace or restore access to the removed Content within 10 to 14 business days upon receipt of the counter-notice.
27.4 Trademark Infringement Notice. Tunetank recognizes the importance of trademarks and takes allegations of trademark infringement very seriously. If You are the trademark owner (or the authorized representative of the owner), You can report a claim of trademark infringement to Tunetank at firstname.lastname@example.org. While Tunetank does not adjudicate disputes between parties in connection with trademark infringement or any other matter, Tunetank will make good faith effort to address Your concerns, including (in some instances) removing the infringing content or disabling access to the infringing content. However, in order to be assured that the claimed content is indeed infringing, Tunetank may require proof from You, such as, for example a trademark registration or a court order finding trademark infringement. Some services or products on the Website are created and operated by third-party developers or service providers. As such, Tunetank does not have the ability to control the content made available through these applications or services. If You believe Your trademark has been infringed by a third-party service provider and not Tunetank, You should contact the third party directly with Your concerns.
28. SERVICE ACCESS
If the Website and Services are not available for any period or any time, Tunetank shall not be liable. Tunetank gives no warranties as to the accessibility, performance, or availability of its Website or Services. Temporary suspension of access to the Website or Services may occur without notice at Tunetank’s sole discretion including, without limitation, in the case of repair, maintenance, system failure, or for reasons beyond our control. Tunetank reserves the right to suspend the operation of its Website or Services but will only do so on a good faith basis. You AGREE that neither Tunetank nor its third-party providers will be liable to You in any way for the termination, suspension, interruption, or delay of Your Services, Products, or access to the Tunetank Website.
You hereby AGREE to indemnify and hold harmless Tunetank, its affiliates, officers, directors, agents, and employees, from any expense, loss, claim, damage, fine, penalty, or liability, which includes reasonable attorney fees and other professionals’ costs, which are payable under any judgment, verdict, court order or settlement, to the extent resulting from any claim, demand, action, suit, arbitration, or other proceeding initiated by any third party, including the assessment, claim or demand by a governmental agency or entity, arising out of User Content or Your breach of any representation, warranty, obligation, or covenant of these Terms of Service.
Tunetank retains the exclusive right to compromise, pay, and settle, without Your consent, any and all claims or causes of action that are brought against Tunetank. Tunetank also reserves the right, at Your expense, to assume the exclusive control or defense of any matter for which You are required to indemnify Tunetank and You AGREE to cooperate with the defense of these claims. You AGREE not to settle any matter in which Tunetank is named as a defendant and/or for which You have indemnity obligations under Section 29, herein, without Tunetank’s prior written Consent. Tunetank will use all reasonable efforts to communicate with and notify You of any such action, claim, or other proceeding in an acceptable and timely manner.
Tunetank may assign or delegate these Terms of Service, in whole or in part, to any person or entity at any time with or without Your consent. You, however, may not assign or delegate any rights or obligations under these Terms of Service without Tunetank’s prior written consent, and any unauthorized assignment and delegation by You shall be void and ineffective.
31. AGREEMENT TO DEAL ELECTRONICALLY
All transactions with or through the Website or Services will be conducted and executed electronically. Tunetank may keep records of any type of communication conducted via the Website or Services. You AGREE to receive electronic communications from Tunetank, which shall include all agreements, disclosures, and notifications, and that such communications will always be in writing.
All electronic records are deemed sent when they are properly addressed to the recipient and the record enters an information processing system outside the control of the sender or the record enters a region of an information processing system under the recipient's control. All electronic records are received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record.
32.1 Injunctive Relief. You acknowledge and AGREE that any violation or breach of these Terms of Service may cause Tunetank immediate and irreparable harm and damage. As a result, Tunetank has the right to, and may in its sole discretion, immediately obtain preliminary injunctive relief (including, without limitation, temporary restraining orders) and seek permanent injunctive relief against You regarding any violation or breach of these Terms of Service. In addition to any and all other remedies available to Tunetank in law or in equity, Tunetank may seek specific performance of any term in these Terms of Service.
32.2 Force Majeure. With the exception of payment obligations, neither You nor Tunetank will be liable for the failure to abide by or to perform an obligation under these Terms of Service, to the extent that such failure is caused by a force majeure event. A force majeure event includes acts of God, action by a governmental entity, civil disturbances, loss of electricity and/or telecommunications, natural disasters, strike, terrorism, war, or any other such extreme event beyond the reasonable control of either You or Tunetank.
32.3 Severability. These Terms of Service will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of these Terms of Service is held to be invalid or unenforceable under applicable law, then (a) such provision will be interpreted, construed, or reformed to the extent necessary to render the same outcome as attempted in the original writing (or as close thereto as possible); and (b) such invalidity or unenforceability will not affect any other provision of this Agreement. However, if any material limitation or restriction is deemed illegal, invalid, or otherwise unenforceable in regards to the User’s License(s) (as outlined in Section 4, above), the License(s) will immediately terminate.
32.4 Waiver; Terms of Service Rights. In the case Tunetank or You waive any breach or rights under these Terms of Service, this waiver will affect only that particular situation and will not waive any other future breach. Additionally, the failure of Tunetank to enforce these Terms of Service under strict performance will not be construed as a waiver of Tunetank’s rights and remedies, herein, nor shall the particular failure to enforce said situation stand as precedent that Tunetank does not enforce these Terms of Service under strict performance. Tunetank fully intends to enforce these Terms of Service in strict performance, however, Tunetank reserves the right to enforce and waive breaches, remedies, and rights on a case-by-case basis. Any such waiver, as discussed above, must be made in writing and executed by Tunetank, and when appropriate You, in order for any effect to be given to said waiver. No waiver will be effective without Tunetank’s authorized signature, and when Your signature is required, no waiver also will be effective without Your authorized signature, unless Tunetank can prove reasonable efforts were given or bad faith is at issue.
32.5 Governing Law and Jurisdiction. These Terms of Service shall be governed by and construed and enforced in accordance with the laws of the of the Commonwealth of Massachusetts without reference to conflicts of law rules and principles. In the event of a dispute arising from or relating to the subject matter of these Terms of Service, suit may be brought only in the United States District Court for the District of Massachusetts, provided that, in the event that suit may not be brought in the United States District Court for District of Massachusetts, suit may be brought in any court of competent jurisdiction within the Commonwealth of Massachusetts. The Parties further agree to submit to the personal jurisdiction of any such court in the Commonwealth of Massachusetts for purpose of adjudicating any dispute arising from or relating to the subject matter of this Agreement and Parties agree to accept service of process in connection with any such suit. You AGREE to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts for any claim or cause of action arising out of, relating to, or in connection with these Terms of Service or the Website or Services, provided that such exclusivity does not apply to legal actions initiated or brought by Tunetank. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), the application of which is expressly excluded.
32.6 Entire Agreement. These Terms of Service, including if not superseded by the most recent version (by calendar date of implementation) of Tunetank’s Terms of Service, constitute the entirety of the agreement between Tunetank and You to access and use the Tunetank Website and Services. As mentioned in Section 32.4, no waivers will be given effect that are not in writing, and likewise, no other documents shall be consulted or are necessary in interpretation of this agreement between Tunetank and You, besides these Terms of Service. This agreement and all documents and communications related thereto are and will be written in English. Unless allowed for and excepted by these Terms of Service, the agreement between You and Tunetank is wholly contained, herein.
TUNETANK DOES NOT BEAR ANY RESPONSIBILITY NOR ASSUMES ANY RISKS IF BY ANY REASON A PRODUCT OR A SERVICE MADE AVAILABLE ON THIS WEBSITE BREACHES NATIONAL LAW OF ANY COUNTRY. THOSE WHO ACCESS THE WEBSITE OR SERVICES DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH THEIR NATIONAL LAWS.
General questions to Tunetank may be submitted at email@example.com, or as outlined in Sections 25 or 26, above.
ARTIST (SELLER) LICENSES
(1) Subscription-based license. This License is designed to cover both non-commercial and commercial uses. It does not limit the amount of projects User Content can be used into. You are allowed to use User Content as long as you have an active and fully paid subscription with Tunetank. On the time your subscription expires, your subscription will be renewed for another year given you have not contacted Tunetank to cancel your subscription. In the event the subscription is cancelled or expired without a renewal, you are not allowed to use User Content obtained through Tunetank in your projects.
DEFINITIONS OF TERMS
Access To and Use: The act of electronically visiting the Website and/or taking advantage of Services or any information provided by Tunetank. See Key Definitions, pg. 1.
Content: Specific content, products, materials, services, or information contained on or available through the Tunetank Website. Section 2.2.
Customer License: Upon order or purchase, an exclusive, non-revocable, limited, non-transferable, and non-sublicensable License to use User Content of an Artist (Seller). Section 4.3 & 7.
Tunetank: The Tunetank Website and Services See pg. 1.
Data: Any digital or paper content via uploads, storing or transferring files, videos, pictures, information, or any other material. This term is used as an all-encompassing term to include all items that would generally and reasonably be considered “data.” Used throughout Terms of Service.
License: The Artist (Seller) Licenses. Section 4.3.
Mark Licensee: The business, corporation, owner, partnership, person, registered agent, or entity that receives the right to use the trademark in question, whether or not registered with the United States Patent and Trademark Office (USPTO). Section 22.
Mark Owner: The business, corporation, owner, partnership, person, registered agent, or entity that holds ownership of, or the right to use, the trademark in question, whether or not registered with the USPTO. Section 22.
Personal Information: Any information relating to an identified or identifiable business, corporation, or person, including communications, data, proprietary information, and any other documents so named “personal” or “confidential” by a User. Section 9.1 & 17.
Services: All Tunetank Services, including, but not limited to, all content, data, documents, graphics, information (whether or not User Content), products, text, and all other elements offered through the Website or any mobile application. See pg. 1.
Terms of Service: The Tunetank Terms of Service, i.e., this document. See pg. 1.
Third-Party Materials. Links to other websites and/or third-party products that are not under Tunetank’s control. Section 21.1.
Tunetank License: A User’s revocable, limited, non-exclusive, non-transferrable license to use Tunetank Services, so long as the use of such Services are expressly permitted in these Terms of Service. Section 4.
User Portfolio: Your personalized portfolio with Tunetank that allows access to the full range of features offered by the Website and Services. Section 9.
User Content: All uploaded, stored or transferred files, videos, pictures, data, information, and other material through the Website and Services. Section 13.
Users and/or Customers (“You(r)”): All individuals, partners, or groups, including all business, commercial, non-profit, organizations or entities in whatever form, whether legally recognized or not, who access and take advantage of Tunetank Services. See pg. 1.
Website: The Tunetank website and the associated Services found at https://tunetank.com/. See pg. 1.
Copyright © 2018-2019 Tunetank Inc. All rights reserved. The Website and Services and accompanying products and documentation are the copyrighted property of Tunetank Inc. and/or its affiliates and Licensors and protected by copyright laws and international intellectual property treaties. Tunetank™, related logo, and all related product and service names, design marks and slogans are the trademarks and/or registered trademarks of Tunetank Inc. All other product and service marks contained herein are the trademarks of their respective owners. Any use of the Tunetank™ or third-party trademarks or logos without the express prior written consent of Tunetank Inc. or the applicable trademark owner is strictly prohibited.