Last updated: October 22nd, 2020
This ToneFuse Terms of Service (“Agreement”) is a legal agreement between You, and ToneFuse, LLC, on behalf of itself and its affiliates (“Affiliates”), including Bandsintown LLC (collectively, “ToneFuse,” “We” or “Us”) which governs Your use of the ToneFuse Ad Platform (the “Service”). “You” or “Your” means the publisher entity or any other person or entity identified in Your Account (as defined below) on whose behalf You are authorized to act (collectively, the “Publisher”).
By clicking “I ACCEPT” or by creating Your Service account (an “Account”), or otherwise accessing or using the Service, You agree to be bound the terms and conditions set forth herein. If You are accepting this Agreement on behalf your employer or another legal entity, including a business or a government, You represent that You have full legal authority to bind such entity to this Agreement. If You do not agree to the terms of this Agreement, do not create an Account, or access or use the Service.
The Service allows You, to offer and sell elements of an application that You designate for placement of ads (“Inventory”) to any advertiser, demand side platform, advertising network or other participant in the Service, which may include Bandsintown LLC or its Affiliates, who bids to buy Inventory listed by You via the Service (“Advertising Partners”). Advertising Partners may display and serve their Ads on Inventory made available via Your Properties.
You permit ToneFuse to serve, as applicable, (i) advertisements and other content ("Ads"), (ii) ToneFuse LLC-related text links and banners, and (iii) related search queries and other links to Your website(s), mobile application(s), media player(s), mobile content, and/or other property(ies) approved by ToneFuse (each individually a "Property" and collectively the “Properties”).
Subject to this Article 2 and Article 7, You will receive a payment related to (a) the number of valid clicks on Ads displayed on Your Properties, (b) the number of valid impressions of Ads displayed on Your Properties, or (c) other valid events performed in connection with the display of Ads on Your Properties, in each case only if and when ToneFuse determines that Your Properties have remained in compliance with the Agreement for the entirety of the period for which payment is made and through to the date that the payment is issued. Subject to the terms of Article 4, in no event will You receive less than $0.001 per Click (as defined below). The payments described herein are exclusive of all taxes (if any) and You are responsible for withholding any and all taxes (if any) associated with Your use of the Service.
If Your Account is in good standing through to the time when ToneFuse issues You a payment, We will pay You within 60 days after the last day of the calendar month in which ToneFuse received payment from an Advertising Partner. No remittances will be made for any amount less than $100 (USD) and any unpaid earnings will rollover and accrue to the next remittance period. If ToneFuse is investigating Your compliance with the Agreement or Your Account has been suspended or terminated for any reason, Your payment may be delayed or withheld. To ensure proper payment, You are responsible for providing and maintaining accurate contact and payment information in Your Account.
Payments will be calculated solely based on ToneFuse's calculation of the amount owed to You in accordance with one of the methods set forth above in this Article 2. You acknowledge and agree that you are only entitled to payment for Your use of the Service for which ToneFuse has been paid; if, for any reason, ToneFuse does not receive payment from an Advertising Partner or credits such payment back to an Advertising Partner, You are not entitled to be paid for any associated use of the Service. Additionally, if an Advertising Partner defaults on payment to ToneFuse, We may withhold payment or charge back Your Account.
ToneFuse has the right to withhold or adjust payments to You in order to exclude any amounts ToneFuse determines arise from invalid activity. In the event ToneFuse detects invalid activity, either before or after issuing a payment for that activity, ToneFuse reserves the right to debit Your Account, and adjust future payments accordingly, for all invalid clicks, impressions, queries, conversions, or other events including for all clicks, impressions, queries, conversions, or other events on Properties that do not comply with the Agreement.
ToneFuse may deduct or withhold any withholding taxes that ToneFuse may be legally obligated to deduct or withhold from any amounts due to You under the Agreement, and remittance to You as reduced by such deductions or withholdings will constitute full remittance and settlement of amounts due to You under the Agreement. If a tax authority subsequently determines that ToneFuse’s withholding tax payment is insufficient and requires additional payments, ToneFuse will make such payments and You will reimburse ToneFuse for such additional withholding tax payments, or ToneFuse may, at its election, deduct such amounts from amounts due to You. Within a reasonable period of time, ToneFuse will provide You with documentation evidencing its withholding tax payments.
You will promptly integrate with the Properties and maintain, including by updating as soon as commercially available, the then-current version of any required Service software, including, without limitation, any APIs or other software (“ToneFuse Code”), in a manner that complies with the technical and implementation requirements provided under this Agreement or by ToneFuse from time to time.
With respect to Your use of the Service, You are solely responsible for all aspects of the Properties, including all information, materials and content accessible or otherwise made available through the Properties, the activities of any third parties within the Properties (as applicable), and Your Inventory, including handling all related inquiries of any type or nature.
You will protect Your Account(s) and any usernames, passwords, verification codes, and any other Account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party’s, use of the Credentials or the Accounts.
You will ensure that all information in Your Account(s), including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Service may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account(s) to third parties approved by ToneFuse solely to allow such third parties to access and manage Your Account(s) on Your behalf; provided, however, that You shall (a) require that such third parties agree to be bound by the terms of this Agreement; (b) ensure that such third parties comply fully with all provisions of this Agreement, and (c) be fully responsible and liable for the acts and omissions of such third parties.
Misrepresenting ownership and fraudulent claiming of applications in the ToneFuse console is strictly prohibited and may result in a permanent ban from the Service. You agree that to the extent You create a new Account, it must be pre-approved by ToneFuse and registered to You under the same entity or name as Your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
In order to make payments in connection with Your use of the Service, ToneFuse uses a third-party payment processor (“Payment Processor”) to link the payment information provided by You (including Your address, tax and bank account information) to the Service and Your Account. The processing of payments in connection with Your use of the Service will be subject to the terms, conditions and privacy policies of the Payment Processor, PayPal and/or Your bank in addition to this Agreement. ToneFuse will not be responsible or liable for any errors made by the Payment Processor.
You will ensure that at all times you use the Service, the Properties have a clearly labeled and easily accessible privacy policy that complies with all Applicable Laws (as defined in Article 9) and which, at a minimum, provides end users with clear and comprehensive information about (a) placement of cookies on Your end users’ browsers, (b) using web beacons to collect information as a result of Ad serving on Your website, and (c) device-specific information, location information and other information stored on, accessed on, or collected from end users' devices in connection with the Service, including, as applicable, information about end users' options for cookie management.
As between You and ToneFuse, it is Your sole and exclusive responsibility to notify end users of the use by ToneFuse of such end user’s personal data through clear and conspicuous means (e.g., a link to this Agreement) and to obtain explicit consent from end users in a manner in accordance with Your then-current business practices, in each case, with respect to the following: (a) storing and accessing of cookies, device-specific information, location information, or other information on the end user's device in connection with the Service where such consent is required by law and (b) the transfer to ToneFuse by You of personal information sufficient to identify the end user for use by Bandsintown to target such end user for Ads unrelated to Your use of the Service pursuant to this Agreement. To the extent required by Applicable Law or pursuant to the standards promulgated by BBB National Programs, You shall maintain complete and accurate records to verify receipt of the aforementioned consent. Upon 30 days’ prior notice to You, ToneFuse shall have the right to examine such records in order to verify the receipt by You of the aforementioned consents. Your privacy policy shall at all times specify the manner by which an end user may opt-out of the collection and processing of personal data by You or ToneFuse and receipt by ToneFuse of targeted Ads through use of Your Properties or otherwise (collectively, an “Opt-Out Request”). You shall notify ToneFuse of receipt by You of an Opt-Out Request within five days of receipt of such Opt-Out Request. For purposes of this Section 4.3, “BBB National Programs” shall mean, collectively, The National Advertising Division, The Children’s Advertising Review Unit, The Electronic Retailing Self-Regulation Program, The National Advertising Review Board, and The Online Interest-Based Accountability Program.
You shall not, and shall not allow or encourage third parties to run “robots” or “spiders” against any of Your Properties or use any means to artificially increase the number of impressions, queries, or conversions on Ads displayed on Your Properties (collectively “Clicks”) via the Service, including (a) Clicks generated by any person, bot, automated program or similar device originating from Your IP addresses or computers under Your control, (b) Clicks solicited or generated by payment of money, false representation, or requests for end users to click on Ads or take other actions, (c) Clicks occurring on a Property associated with another Service Account used by You, or (d) Ads serviced to end users whose browsers have JavaScript disabled or who are otherwise tampering with an Ad serving or measurement (collectively, “Fraudulent Clicks”). You represent and warrant that there will not be any Fraudulent Clicks via the Properties. ToneFuse shall not be liable for any fees based on Fraudulent Clicks and You agree to defend, indemnify and hold ToneFuse, its licensors, independent contractors and suppliers, and its and their agents, directors, officers, and employees (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) with respect to any such claims against ToneFuse by an Advertising Partner related to allegations arising from Fraudulent Clicks. Final judgment on what constitutes Fraudulent Clicks shall be in the sole discretion of ToneFuse.
You will not, and will not allow any third party to: (a) directly or indirectly access, launch or activate the Service, ToneFuse Code or any other ToneFuse technology, content, software, materials and/or documentation (collectively, the “ToneFuse Materials”) through or from, or otherwise incorporate any ToneFuse Materials in, any software, application, site or other means other than in Your designated Properties as permitted under this Agreement during the Term (as defined below); (b) copy, distribute, rent, sell, lease, lend, sublicense, or transfer any ToneFuse Materials or make the Service available to any third party except as expressly set forth and in accordance with this Agreement; (c) decompile, reverse engineer, or disassemble the ToneFuse Materials; (d) create derivative works based on the ToneFuse Materials; (e) modify, remove, or obscure any proprietary notices or legends that appear on the ToneFuse Materials or during the use and operation thereof; (f) use any ToneFuse Materials to directly or indirectly generate Fraudulent Clicks; (g) create or attempt to create a substitute or similar service or product to the Service through the use of or access to any of any ToneFuse Materials or proprietary information related thereto; (h) use or modify any feature or functionality of the Service to collect personally identifiable information; or (i) engage in any action or practice that reflects poorly on ToneFuse or otherwise disparages or devalues ToneFuse’s reputation or goodwill.
Unless otherwise approved by ToneFuse in its sole and absolute discretion, You may not post any advertising that directly competes with Advertising Partners that are represented by ToneFuse. Exceptions include Ads served through banner ad networks or Google AdSense that may automatically serve competing Ads without Your knowledge. You agree to make best efforts to filter out competing Ads from these Ad networks in order to optimize performance of ToneFuse’s Ads for mutual benefit.
You acknowledge and agree that ToneFuse is not affiliated with or responsible for any third-party products or services You may choose to manage with the Service. ToneFuse reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any content from the Service, in whole or in part, that in ToneFuse’s sole and absolute discretion, deems objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. ToneFuse has no obligation to monitor the content of any Ad. Notwithstanding the foregoing, ToneFuse may remove or block any Ad if ToneFuse reasonably determines that such action is appropriate to prevent errors or any other harm with respect to the Service, it violates ToneFuse’s Policies, or to avoid or limit ToneFuse’s liability.
ToneFuse may use third party service providers to make certain services available to You. Such third party services may change at any time, in ToneFuse’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts.
You will not use ToneFuse to serve Ads from, or target Ads to, countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. You will not use any ToneFuse Materials in connection with any service that is distributed or otherwise made available to any countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. Further, You represent and warrant that You (a) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (b) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (c) are not placed on the U.S. Commerce Department’s Denied Persons List; and (d) will not access or use any of the Service if any Applicable Laws in Your country prohibit You from doing so in accordance with this Agreement.
Subject to the terms and conditions of this Agreement, You shall have the right during the Term to access and use the Service solely for purposes of: (a) listing Inventory available on the Properties for sale on the Service, and (b) receiving reports of Ads requests, impressions and other data related to the delivery of Ads through the Service.
During the Term and in connection with the Service, You hereby grant ToneFuse a worldwide, royalty-free, transferrable and sublicensable license under all of Your applicable rights to serve, route and place Ads from the Service.
You agree that ToneFuse may include ToneFuse brand features or other ToneFuse attribution (collectively, “Brand Features”) on any Ads transmitted by ToneFuse via the Service. You agree that ToneFuse may include Brand Features on any webview, website, or other medium displayed to an end user through the Service.
hereby grant to ToneFuse a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Properties in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
The term of this Agreement will commence on the date You create an Account via the ToneFuse console and agree to the terms of this Agreement, and will continue until terminated by either party as provided in this Agreement (“Term”). You may terminate this Agreement, with or without cause, at any time by sending written (via email) notice to the address and contact set forth in Section 15.3; provided that such termination will become effective upon the earlier of 10 business days after ToneFuse’s receipt of such notice or the date upon which, after receiving such notice, ToneFuse suspends Your ability to access or use the Service or terminates Your Account. ToneFuse may terminate this Agreement or any Account, with or without cause, in ToneFuse’s sole discretion, at any time. Upon termination of this Agreement, any licenses granted to You in this Agreement will automatically terminate, and You must immediately cease all use of the Service, as well as any ToneFuse Code, and destroy or erase all copies, full or partial, of any ToneFuse Code or Protocol in Your possession or control. Further, upon expiration or termination, if You are an Ad platform customer and if Your account balance is less than US$50 (the “Termination Threshold”), such earned balance below the Termination Threshold will not be paid and will automatically be forfeited and ToneFuse will retain any such amounts. If Your earned balance at the time of expiration or termination is greater than the Termination Threshold, ToneFuse will remit the amount earned within approximately 90 days of the end of the month of expiration or termination to You. ToneFuse will attempt to pay You for undisputed amounts earned and unpaid, however, if ToneFuse is unable to remit payment to You due to You or circumstances beyond ToneFuse’s control, You will automatically forfeit all such amounts and ToneFuse will retain any such amounts.
ToneFuse has the right, in its sole discretion, with or without notice, to suspend any application from Your Account or Your access to the ToneFuse Console or the Service. ToneFuse reserves the right to modify or discontinue, temporarily or permanently, the Service or ToneFuse Code, or any features or portions thereof, without prior notice. You agree that ToneFuse will not be liable for damages of any sort that result from any such suspension, modification, or discontinuance of Your Account.
In connection with the operation of the Service, ToneFuse and You may collect and receive Service Data. “Service Data” includes any information that You or ToneFuse collect during the delivery of ads or the performance of obligations under this Agreement, including end user device information, end user’s session-based browsing behavior, information about Ads served, viewed, or clicked on, http header information, and any other data that You elect to provide ToneFuse. You agree that ToneFuse will have the right to: (a) use and disclose Service Data (i) to provide the Service, (ii) for its internal business purposes, (iii) to improve any services provided by ToneFuse, (iv) to enable, and allow for the improvement of, services provided by Advertising Partners and other third party partners; and (v) to target such end user for Ads unrelated to Your use of the Service pursuant to this Agreement; (b) use and disclose Service Data as may be required by law or legal process; and (c) use and disclose Service Data when it is aggregated, such that it does not identify You, any end user, or individual device. You may use Service Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Service Data, and that You obtain any and all consents, waivers, approvals, authorizations and clearances from End Users that may be required by Applicable Laws in connection therewith.
YOU MUST NOT USE BANDSINTOWN TONEFUSE TO FACILITATE THE MERGING OF PERSONAL INFORMATION WITH INFORMATION PREVIOUSLY COLLECTED AS NON-PERSONAL INFORMATION WITHOUT ROBUST NOTICE OF, AND THE USER'S PRIOR AFFIRMATIVE (I.E., OPT-IN) CONSENT TO, THAT MERGER.
ToneFuse may (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) use data from the Service environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes.
The terms of this Article 9 will apply to ToneFuse’s processing of Personal Data and Personal Information (collectively “Personal Data”), but, only to the extent that such Applicable Law(s) apply to such processing. Capitalized terms in this Article 9 which are not otherwise defined herein, shall have the meaning ascribed to them in the Applicable Law. For the purposes of this Article 9, “Applicable Laws” means any applicable law governing the privacy, data protection, confidentiality, information security, availability and integrity, or the handling or processing of personal data, including, but not limited, to EU General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act. “Model Clauses” means the processor standard contractual clauses approved by the EU Commission for the Transfer of Personal Data to Processors established in Third Countries under the EU Data Protection Laws, as amended, replaced, or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR, and shall apply only to the extent that the data processed in the Personal Data relates to any individual residing in an EU Member State is transferred outside of the EU.
In order to perform the Service, You hereby authorize and request that ToneFuse process Personal Data, including, ad exchange ID, IP addresses, device user agent strings (containing detail of the browser and operating system used), host, path and query information related to a URL and additional data passed to ToneFuse’s application programming interface, in each case, related to Your end users, which such processing may take place where ToneFuse or its third-party Sub-Processors operate facilities.
You may provide instructions in writing to ToneFuse in addition to those specified herein with regard to processing of Personal Data. ToneFuse shall promptly respond to and comply with any request or instructions from You regarding the collection, use, processing and disclosure of Personal Data, which request may require ToneFuse to:
You and ToneFuse will negotiate in good faith with respect to any other change in the Service and/or fees resulting from any additional instructions.
You will at all times (i) remain the Controller of Personal Data pursuant to Applicable Law; (ii) determine the purposes and means of its processing of Personal Data; and (iii) comply with the obligations applicable to it pursuant to all Applicable Laws regarding the processing of Personal Data, including, without limitation, establishing a legal basis for processing of Personal Data and with respect to the transfer and provision of Personal Data to ToneFuse for processing hereunder.
ToneFuse is a Processor with respect to its processing of Personal Data hereunder. ToneFuse will process Personal Data solely as set forth in this Agreement, and will not otherwise (x) process Personal Data for purposes other than those set forth in this Agreement or as instructed by You in accordance with Section 9.3 and only to the extent necessary to perform its obligations hereunder, or (y) disclose such Personal Data to third parties other than Affiliates or third party Sub-Processors as permitted or required by Applicable Law or as otherwise provided herein. ToneFuse will comply with the obligations applicable to it pursuant to all Applicable Law regarding the processing of Personal Data.
ToneFuse will follow Your detailed written instructions to meet its obligations pursuant to Applicable Law to respond to Data Subject requests to access, delete, release, correct, or block access to Personal Data held in ToneFuse’s information technology environment. You agree to pay ToneFuse’s reasonable out-of-pocket costs and expenses and standard hourly fees that may be associated with ToneFuse’s performance of any such access, deletion, release, correction, or blocking of access to Personal Data on Your behalf. ToneFuse will promptly pass on to You any requests of an individual Data Subject to access, delete, release, correct, or block Personal Data processed by ToneFuse in connection with the terms set forth herein and shall not respond to any such request without Your prior written consent. ToneFuse shall assist You to fulfill the rights of the Data Subjects and respond to any such request; provided, however, that ToneFuse will not be responsible for responding directly to the request, unless otherwise required by Applicable Law.
ToneFuse treats all Personal Data in a manner consistent with the requirements set forth herein in all locations globally. Transfers of Personal Data originating from the EEA or Switzerland to Affiliates or third party Sub-processors located in countries outside the EEA or Switzerland that have not received a binding adequacy decision by the European Commission or by a competent national data protection authority, are subject to (i) the terms of the Model Clauses; or (ii) other appropriate transfer mechanisms pursuant to Applicable Law. The terms of this Article 9 shall be read in conjunction with the Model Clauses or other appropriate transfer mechanisms.
Transfers of Personal Data originating from other locations globally to Affiliates or third party Sub-Processors are subject to (x) for Affiliates, the terms of an intra-company data processing and transfer agreement entered into between ToneFuse and the Affiliates incorporating data security requirements consistent with those set forth herein; and (y) for third party Sub-Processors, the terms of the relevant third party Sub-Processor agreement between ToneFuse and the third party Sub-processor, incorporating data security requirements consistent with those set forth herein.
Some or all of ToneFuse’s obligations under the Agreement may be performed by Affiliates and third party Sub-Processors. ToneFuse maintains a list of Affiliates and Third Party Sub-Processors that may process Personal Data. ToneFuse will provide a copy of that list to Company upon request.
ToneFuse shall ensure that Affiliates and third party Sub-Processors will be required to abide by substantially the same obligations as ToneFuse under this Article 9 as applicable to their processing of Personal Data. You may request that ToneFuse audit a third party Sub-Processor or provide confirmation that such an audit has occurred (or, where available, obtain or assist Company in obtaining a third-party audit report concerning the third party Sub-Processor’s operations) to ensure compliance with such obligations.
ToneFuse remains responsible at all times for compliance with the terms of this Article 9 by Affiliates and the performance of third party Sub-Processors. Company consents to ToneFuse’s use of Affiliates and third party Sub-Processors as set forth herein in accordance with the terms of Section 9.6 and Section 9.7.
ToneFuse has implemented and will maintain all appropriate technical and organizational security measures and other data protection requirements to protect Personal Data against accidental or unauthorized loss, destruction, alteration, disclosure, or access, and against all other unlawful forms of processing.
ToneFuse evaluates and responds to incidents that create suspicion of or indicate a Personal Data Breach. ToneFuse shall comply with all notification and mitigation requirements in accordance with Applicable Laws.
You agree not to disclose ToneFuse Confidential Information (defined below) without ToneFuse’s prior written consent and to use at least the same degree of care to prevent unauthorized use and disclosure of such ToneFuse Confidential Information as You use with respect to Your own confidential information (but in no event less than a reasonable degree of care). “ToneFuse Confidential Information” includes any and all information that is disclosed by ToneFuse, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or under the circumstances and nature of the information would be reasonably deemed to be confidential, and includes the features and functionality of the Service. ToneFuse Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (b) is rightfully known by You at the time of disclosure without an obligation of confidentiality; (c) is independently developed by You without use of or reference to ToneFuse’s Confidential Information and without any violation of any obligation of this Agreement..
You will not name ToneFuse or use ToneFuse’s Brand in any press release, public announcement, advertisement, blog, or other form of publicity in relation to this Agreement or otherwise without securing the prior written consent of ToneFuse.
As between the parties, ToneFuse retains all right, title and interest in and to the Service and ToneFuse Materials and any materials created, developed or provided by ToneFuse in connection with this Agreement, including all Intellectual Property Rights (as defined below) related to each of the foregoing. As between the parties, except as set forth herein, You and Your licensors retain all right, title and interest in and to the Properties, including all Intellectual Property Rights related thereto. “Intellectual Property Rights” means copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority. If You provide any feedback or suggestions to ToneFuse in connection with this Agreement or the Service or ToneFuse Materials (“Feedback”), You agree to assign and hereby does assign all right, title and interest in and to such Feedback to ToneFuse.
You acknowledge that some features of the Service may be experimental in nature. ToneFuse does not represent or warrant that the Service is reliable, accurate, complete, or otherwise free from defects. Accordingly, the Service is made available for use “AS IS,” and any use thereof will be undertaken solely at Your own risk. ToneFuse reserves the right, in its sole discretion, to include or cease providing the Service at any time (subject to notice as may be required herein), and ToneFuse does not give or enter into any conditions, warranties or other terms with regard to the Service. ToneFuse does not control, endorse or adopt any Ads and makes no representation or warranties of any kind regarding the content of any Ads, including, without limitation, regarding the accuracy, completeness or decency of any Ads. ToneFuse makes no warranties, express or implied, with respect to subject matter of this Agreement, and expressly disclaims the implied warranties of merchantability, non-infringement, title, fitness for a particular purpose, and implied warranties arising from course of dealing or performance. For the avoidance of doubt, ToneFuse does not guarantee the results of the Service or that the Service will be correct, uninterrupted or error-free, that defects will be corrected, or that the Service is free of viruses or other harmful components, that the Service will be operable at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of Your equipment, systems or local access services, (c) for previously scheduled maintenance or (d) relating to events beyond ToneFuse’s (or its wholly owned subsidiaries’ or Affiliates’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where ToneFuse (or its wholly owned subsidiaries or Affiliates) or Your servers are located or co-located.
BANDSINTOWN TONEFUSE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT BANDSINTOWN TONEFUSE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL BANDSINTOWN TONEFUSE’S LIABILITY AND DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT EXCEED $500. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You represent and warrant that: (a) You have and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any Intellectual Property Rights) that are required with respect to (i) the Properties, (ii) to display Ads on the Properties, (iii) to permit ToneFuse to perform the services contemplated under this Agreement and (iv) to grant the rights You grant herein; (b) all of the information provided by You to ToneFuse to enroll in the Service is correct, accurate, complete and current at all times; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; (d) if You are entering into this Agreement, or otherwise accessing or using the Service, on behalf of any other person or entity, You are authorized to enter into this Agreement and accessing and using such Service on such person or entity’s behalf; (e) You have complied and will continue to comply with all Applicable Laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in Your performance of any acts hereunder, and You will not cause ToneFuse to be in violation of any Applicable Laws; (f) You comply with and have any and all consents, waivers, approvals, authorizations and clearances from end users to allow ToneFuse to collect and use the Service Data in accordance with this Agreement including Article 10, and as may be required for ToneFuse to provide services hereunder; (g) You will at all times comply with ToneFuse Policies; and (h) no Property is a website or online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and You will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to ToneFuse.
You agree to indemnify, defend and hold all Indemnified Persons harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from (a) the Properties, Your use of the Service, and/or Your breach of any term of this Agreement, (b) with respect to the Service, Your failure to secure all rights, title, and interest necessary to sell the Inventory and serve the Ads onto the Properties or (c) violation of any Applicable Law. You agree not to settle any claim against any Indemnified Persons without ToneFuse’s prior written consent.
This Agreement and Your use of the Service is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the state's conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, You specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree not to object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise.
IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICE OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND BANDSINTOWN TONEFUSE WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
This Agreement constitutes the entire agreement between the parties with respect to the Service and constitutes the sole and exclusive terms governing Your use of the Service. The terms of this Agreement shall supersede any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof, in each case, governing Your use of the Service. In the event of any conflict between this Agreement and any written agreement(s) between ToneFuse and You, which have been signed by both parties after the effective date of this Agreement, regarding the Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
Any notices to ToneFuse must be sent to: ToneFuse, LLC at the following address: 348 West 57th Street, Suite 107, New York, NY, 10019, to the attention of the Legal Department, via first class or air mail or overnight courier, with a copy via email to legal@bandsintown.com and such notices are deemed given upon receipt. Notice to You may be effected by sending an email to the email address specified in Your Account, or by posting a message to Your Account or the ToneFuse Console, and is deemed received when sent (for email) or posted.
The failure of ToneFuse to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. ToneFuse’s waiver of any default is not a waiver of any subsequent default.
Unenforceable provisions will be modified to reflect the parties’ intention, and remaining provisions of the Agreement will remain in full effect.
ToneFuse reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and in its sole discretion upon providing notice to You. Any changes or modification will be effective immediately upon posting the revised Agreement on the ToneFuse Console, and You waive any right You may have to receive additional notice of such changes or modifications. Your continued use of the Service following the posting of any revised Agreement will constitute Your agreement to be bound by the revised Agreement. If You do not agree to any terms of the amended Agreement, You must stop using the Service.
You may not assign or transfer this Agreement or any of Your rights hereunder and any such attempt will be null and void. ToneFuse may freely assign this Agreement and its obligations thereunder to any third party in its sole and absolute discretion.
If the performance of any part of this Agreement by ToneFuse is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of ToneFuse, then ToneFuse will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
ToneFuse and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Articles 2, 4, and 6-14 will survive any expiration or termination of this Agreement. This Agreement was last modified on the date indicated above and is effective immediately.