Listen & Learn Inc., a Delaware Corporation, (henceforth, “Tunefox,” “we,” “us,” “our”) is the owner of the Tunefox mobile application (the “App”) and related technology: website, widgets, etc. (collectively, the “Platform”). Tunefox is a music education iOS app utilizing interactive tab and midi sound to teach users how to play banjo (the “Service”).
We grant you access to the Service subject to these Terms of Services (the “Terms”). By accessing or using the App or the Platform, you are agreeing to these Terms and concluding a legally binding contract with Tunefox.
We may update these Terms at its absolute discretion from time-to-time, and unless stated otherwise by us in writing, these updates will come into effect once they are made available on the Platform or otherwise notified to Users.
Our liability is subject to the limitations and exclusions described in Sections Error! Reference source not found. (LIMITED AGENT), M (INDEMNITY), N (DISCLAIMERS), O (LIMITATION OF LIABILITY) and P (RELEASE). Please read these Sections carefully because they limit your rights.
ARBITRATION NOTICE: SECTION Q (DISPUTES) CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND Tunefox WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Signing Up. Users sign up for the Service through Apple’s in-app subscription service. Please see Section D below. Users also choose a password and username (the “User ID”).
Misuse of Account. You shall not:
Select or use a User ID with the intent to impersonate another person;
Use another User ID without appropriate authorization;
Select a name or username (the User ID) that is offensive, vulgar or obscene.
We reserve the right to refuse registration of and/or cancel a User ID in our sole discretion. You are responsible for all activity that occurs on your account. You must immediately notify us of any unauthorized use of your account, or any other account related security breach of which you are aware.
User Warranties. You represent and warrant, and can demonstrate to our full satisfaction upon request, that:
You affirm that you are either at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
Certain features or functionality offered by us or others through the Services, may also be limited to Users who are at least 18 years old. Those Services may be subject to separate terms from us or third parties that contain these further age requirements. If you are under 18 and use those Services, you may be violating the third party’s governing terms, which we deem a violation of these Terms as well.
All information and User Content posted or transmitted through the Platform is the sole responsibility of the User from which such content originated. We will not be liable for any errors or omissions in any User Content.
We do not endorse or have control over any User Content, nor can we guarantee the authenticity of any information that Users may provide about themselves, including their identity.
You acknowledge that all User Content accessed by you using our Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom.
FEE STRUCTURE FOR THE SERVICE
Fees. Pricing plans and services are made available on the mobile Platform. Subscription periods currently offered are one (1) month, three (3) months, and twelve (12) months. Subscription will automatically renew and User will be charged at the end of each Subscription period unless the User opts-out by sending an email to support@Tunefox.com. Tunefox reserves the right to modify the Subscription Periods on offer in its sole discretion.
New Services. From time to time, in our sole discretion, we reserve the right to establish and provide additional services to you beyond the basic functionality of our mobile Platform. All such additional services shall be deemed a part of the Service and subject to all the terms and conditions of these Terms.
Data Charges. You understand that you are responsible for all data charges you incur by using the Service.
Tunefox does not currently offer refunds.
PROHIBITED USER CONDUCT
You warrant and agree that, while using the Service and the various services and features offered on or through the Service, you shall not:
Impersonate any person or entity, whether actual or fictitious, or misrepresent affiliation with any other person or entity;
Attempt to gain unauthorized access to other personal devices, Content or information through any means;
Engage in harvesting of information, contact or personal information, or any other automatic means of obtaining lists of property, Users or other information from or through the Platform;
Use the Platform or the services made available on or through the Platform in any manner with the intent to interrupt, damage, disable, overburden, or impair the Platform or such services, including sending mass unsolicited messages or “flooding” servers with requests;
Abuse, harass, threaten or intimidate other Users;
Rent, lease, resell, distribute, use our Services for timesharing, service bureau or other commercial purposes not contemplated by this paragraph or otherwise exploit our Services in any unauthorized or unintended manner;
Remove or alter any proprietary notices or labels on or in our Services;
Use the Platform in violation of our or any third party’s intellectual property or other proprietary or legal rights;
Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services without our express written consent to do so;
Facilitate gambling, gaming, lotteries, raffles, contests, sweepstakes, and/or any other activity featuring the award of a prize;
Solicit any User to use a third party service that competes with Tunefox;
Collect social security or insurance number, financial account number, drivers’ license number, health information, or other sensitive information required to be secured under applicable local, state, provincial, national, or other law, rule, or regulation, or for which disclosure is required in case of a data breach without first obtaining our prior written consent.
You further agree not to attempt (or encourage or support anyone else’s attempt) to engage in any of the foregoing prohibited activities.
You must not use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of the Platform. You must not obtain, use, or access, or attempt to obtain, use, or access, any Content or information through any means not intentionally made publicly available or provided for through the Platform.
You further agree to abide by any third-party terms that apply to the Services or when posting reviews of Tunefox, including the iTunes App Store Terms of Service or the Android Market Terms of Service. Posting Tunefox usernames in app store reviews is strictly prohibited and may result in us deleting your tunefox account
MODIFICATION OF THE SERVICE OR PLATFORM
We reserve the right, at our sole discretion, to change, modify, suspend or discontinue our Service and/or Platform, including, without limitation, the availability of any feature, database, function, or content at any time. We may impose limits on certain features, services, and/or function, or restrict your access to parts or all of the Service without notice or liability.
ADVERTISING AND NOTIFICATIONS
Some of our Services may be supported by advertising revenue and may display advertisements and promotions. You agree that we may place such advertising and promotions on the Platform, or on, about, or in conjunction with your User Content. The manner, mode, and extent of such advertising and promotions are subject to change without specific notice to you.
You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you. User Content (including any that may have been created by Users employed or contracted by Tunefox) does not necessarily reflect the opinion of Tunefox.
You grant us permission to use and send push notifications, emails, alerts, marketing and promotional materials, email campaigns, and other reasonable forms of communications. You may opt-out of receiving marketing material by contacting support@Tunefox.com.
Finally, you irrevocably waive, and cause to be waived, against Tunefox and its Users any claims and assertions of moral rights or attribution with respect to your Content. By “use” we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names, and other forms of intellectual property (collectively, the “Intellectual Property”).
Proprietary Information. The Platform may use and incorporate software and other proprietary systems and Intellectual Property for which we have appropriate authority to use, and you agree that such is protected by copyright, trademarks, patents, proprietary rights, and other laws, both domestically and internationally. You warrant that it shall not infringe on any Intellectual Property or other third-party rights through the use of the Platform (U.S. Copyright Act of 1976, Title 17 U.S.C).
Platform. You agree and accept that the Platform (including any source code, ideas, enhancements, feature requests, suggestions, or other information provided by you or any other party with respect to the Platform) is the Intellectual Property of Tunefox and you further warrant that by using the Platform you will not:
Copy the Platform or the services that it provides for your own commercial purposes; and
Directly or indirectly copy, recreate, decompile, reverse engineer, or otherwise obtain, modify, or use any source or object code, architecture, or algorithms contained in the Platform or any documentation associated with it.
Trademarks. We have moral & registered rights in our trademarks and you shall not copy, alter, use, or otherwise deal in the marks without our prior written consent.
LICENSE & USE
By accepting these Terms, you are granted a limited, non-exclusive, non-transferable and revocable license to use, modify and reproduce the Intellectual Property, solely for personal, non-commercial use.
You are also granted access a limited, non-exclusive, and revocable license and use the Platform for the duration of these Terms, in accordance with these Terms.
We may revoke or suspend your license(s) and prevent future use of the Platform in our absolute discretion for any reason that we see fit, including for breach of these Terms by you. We will ordinarily advise you of any suspension or revocation, however we are under no obligation to do so.
You promise not to use Platform for any purpose prohibited by these Terms of Service.
We may limit or restrict access to the Platform from time-to-time as we see fit, including (but not limited to) the following situations:
Location. We may restrict access to the Platform for Users from any location. We may restrict transactions, payments or any other activity on our Platform in any location in our absolute discretion.
Verifications. We may limit your access to the Platform where we cannot, in our absolute discretion, verify any of the information provided by you to us.
Feedback & revisions
You acknowledge that any and all:
Suggestions for correction, change, and modification to our Services, information and reports you provide to us, and other feedback (including but not limited to quotations of written or oral feedback), (collectively “Feedback”); and
Improvements, updates, modifications, or enhancements, whether made, created, or developed by us, or otherwise relating to Feedback (collectively, “Revisions”);
are and will remain our property. All Feedback and Revisions become the sole and exclusive property of Tunefox and we may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you, and without your retention of any proprietary or other right or claim.
You assign to us any and all right, title, and interest (including, but not limited to, any patent, copyright, future copyright, trade secret, trademark, show-how, know-how, and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions.
You agree to waive any moral rights you may have in any and all Feedback and Revisions, and consent to any act which amounts to an infringement of any such moral right, in favor of Tunefox. At our request, you will execute any document, registration or filing required to give effect to these provisions.
Tunefox respects the intellectual property rights of others. In accordance with the Digital Millennium Copyright act (the “DMCA”) and other applicable laws, we strive to expeditiously remove any infringing material from our site. If Tunefox becomes aware that one of its users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate the user’s account. All users should be aware of and comply with applicable copyright laws.
If you believe that anything on the services infringes any copyright that you own or control, you may file a notice of such infringement to our website: www.Tunefox.com
To be effective, any takedown notice submitted to our website must comply with the requirements set forth at 17 u.s.c. § 512(c)(3). That means that the notice must include substantially the following:
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Tunefox to locate the material.
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Tunefox to locate the material.
a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Own Risk. You agree that you use the Service at your own risk and that we are not responsible for the conduct or activities of any User.
Errors or Failures. We are not liable any circumstances for any errors or failures to execute requests or offers on the Service, including errors or failures caused by: (1) loss of internet connection to the Service by any party, or (2) a breakdown or failure of the Service.
User Interactions. You release Tunefox from all liability relating to any connections and relationships with other Users. We make no representations or warranties as to the conduct of Users or the veracity of any information they provide. In no event shall we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of the Services. This includes, without limitation, bodily injury, emotional distress, and any damages resulting in any way from communications or meetings with Users that meet through the Service. You are encouraged to take reasonable precautions and exercise the utmost personal care in all interactions with any individual you come into contact with through our Service.
Links. Where the Service contains links to other websites and resources provided by third parties, these links are provided to you for information only, without any endorsement or warranty whatsoever from Tunefox. You enter those websites solely at your own risk and acknowledges that we have no control over and accept no responsibility whatsoever for those websites or resources.
Account Access. You are solely responsible for the use and security of your personal device, which provides access to your Account through the Service. You must give prompt notice of any compromise or unauthorized access to your personal device. You must ensure and accept all liability for any breach of these Terms arising from access with your Account.
Confidentiality. Electronic Communications Privacy Act Notice (18 U.S.C. §§ 2701–2711): We make no guaranty of confidentiality or privacy of any communication or information transmitted on the Service or any website linked from the Service.
Indemnification. You agree to indemnify Tunefox for any loss, damage, cost, or expense that Tunefox may suffer or incur as a result of, or in connection with, your access to, use of, or conduct in connection with the Service, including any breach of these Terms by you.
Your indemnification of Tunefox will survive the termination of these Terms and any use of the Service.
EACH USER ACKNOWLEDGES AND AGREES THAT:
THE SERVICE (INCLUDING ALL CONTENT, FUNCTION, CONTENT, AND SERVICES) IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Tunefox DOES NOT WARRANT THAT THE SERVICE (OR THE FUNCTION, CONTENT OR SERVICES MADE AVAILABLE THEREBY) WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. Tunefox MAKES NO WARRANTY THAT THE SERVICE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, OR INFORMATION, OR CONTENT WHETHER ORAL OR WRITTEN, OBTAINED THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF A USER IS DISSATISFIED WITH THE SERVICE, THE SOLE REMEDY IS TO DISCONTINUE USING THE SERVICE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE REMAINS AT THE DISCRETION AND RISK OF THE USER AND THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Tunefox DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SERVICE. Tunefox IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES.
EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, OR STATEMENT MADE BY ANY OTHER PARTY, OTHER THAN AS SET OUT IN THESE TERMS.
LIMITATION OF LIABILITY
IN NO EVENT SHALL Tunefox OR ANY OF ITS SUPPLIERS, DISTRIBUTORS, VENDORS, CONTRACTORS, CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE (OR THE INFORMATION, CONTENT, AND FUNCTION RELATED THERETO), INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST OR CORRUPTED DATA, LOST BUSINESS OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF Tunefox OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOUR ONLY REMEDY AGAINST Tunefox FOR DISSATISFACTION WITH THE SERVICES OR ANY CONTENT IS TO STOP USING THE SERVICES. IF, NOTWITHSTANDING THESE TERMS. IF Tunefox IS FOUND LIABLE TO YOU FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES OR ANY CONTENT, Tunefox’S LIABILITY SHALL IN NO EVENT EXCEED $1.00.
THE ABOVE LIMITATIONS ONLY APPLY TO THE EXTENT PERMITTED IN THE RELEVANT JURISDICTION.
Where a dispute arises between Tunefox and a User (the “Parties” and singularly, the “Party”), the following process shall apply:
Negotiation. If there is a dispute between the Parties relating to or arising out of these Terms, then within 30 business days of a Party notifying the other party of a dispute, senior representatives from each Party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
Arbitration. All disputes arising from or related to this Agreement must be submitted for binding arbitration before a single arbitrator under the rules of the American Arbitration Association (AAA) as in effect at such time. The location for such arbitration will be New York County, New York. The Parties agree that either Party may, within 30 days after the filing of a demand for Arbitration, demand that the Parties’ dispute first be submitted to a neutral evaluator pursuant to the American Arbitration Association’s Early Neutral Evaluation Procedures prior to proceeding with arbitration. Any resulting arbitration award may be enforced in any court having valid jurisdiction, wherever located. In addition, both Parties hereby irrevocably submit to the jurisdiction of the state and federal courts located in County of New York, in the State of New York for the enforcement of any such arbitration award.
Parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, except as prohibited by law. Each party shall separately pay for its respective attorneys’ fees and costs.
Class Action. PARTIES AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. Parties also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, Parties agree that it shall not be severable, that this entire Section shall be unenforceable and that any claim or dispute shall be resolved in court and not in collective arbitration.
Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of these Terms, unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages are inadequate to compensate.
Small Claims Court. Notwithstanding this Section, User has the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.
The prevailing Party in an action to enforce these Terms may recover from the other its reasonable attorneys’ fees and costs, if employment of an attorney was necessary.
GOVERNING LAW AND JURISDICTION
These Terms, as well as the respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of laws principles. Please note that use of the Platform by any User may be subject to other local, state, national, and international laws.
Each User expressly:
Agrees that exclusive jurisdiction for resolving any claim or dispute with Tunefox relating in any way to use of the Platform resides in the state and federal courts of the State of California;
Agrees and consents to the exercise of personal jurisdiction in the state and federal courts of the State of California.
Waives any right to a jury trial in any legal proceeding against Tunefox; and
Agrees that any claim or cause of action with respect to use of the Platform must be commenced within one (1) year after the claim arises.
If User is accepting these Terms on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to User. In this event, these Terms and any action related thereto will be will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
To contact us with any questions or concerns in connection with these Terms or the Service, or to provide us with any notice under these Terms, please contact us at:
This document was last updated on August 5, 2016