TuneMe Terms of Service
Welcome to TuneMe Ltd. (“Company”, “we,” or “us”). These Terms of Use (this “Agreement”) govern your access to and use of our services, which include our AI‑based solution and platform designed to analyze users’ voices to create personalized sound sessions that help reduce stress, and improve sleep (“App”), all as agreed and further detailed in the specific purchase order or service plan chosen during registration (“Service Plan” and “Services”). By accessing or using our Services, you agree to be bound by this Agreement. If you do not agree with this Agreement, please do not access or use our Services. The Effective Date of this Agreement shall be the earlier of (i) first access to the Services or (ii) execution of a Service Plan.
This Agreement applies to you whether (i) you engage with the Company directly; (ii) you are a customer who registers for and manages an online account (“Enterprise Customer”); or (iii) you are a person or entity designated by the Enterprise Customer for using the Services on their behalf (“Authorized User”, and each of the foregoing, “User”). The Company and the User shall be referred herein collectively as the “parties” or individually as a “party.”
Important Notice – Arbitration and Class Action Waiver: PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION SECTION, YOU AND THE COMPANY AGREE THAT ANY DISPUTES ARISING UNDER THIS AGREEMENT OR YOUR USE OF THE SERVICES WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT IN COURT. BY ACCEPTING THIS AGREEMENT, YOU ARE WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. Right Granted and User Account
1.1. The Company hereby grants you a limited, non-exclusive, non-transferable, revocable right to access and use the Services during the Term, solely in accordance with this Agreement, and in compliance with applicable law, and, where applicable, for the Enterprise Customer’s own business purposes. All rights not expressly granted herein are reserved by the Company.
1.2. Each User will be required to have a personal User account to allow them to access and use the Services (“Account”). The creation of such an Account may be done directly by providing contact details, including certain information regarding its business and billing data, and by defining a username and password, or through integration with a third-party identification interface (e.g., Google). Such registration details, whether direct or indirect through a third-party identification interface, will be used by the User for accessing and managing its Account.
1.3. Each Enterprise Customer shall have the ability to provide Accounts for its own Authorized User. The total number of monthly Authorized Users under an Account shall be set forth in the applicable Service Plan.
1.4. When creating an Account, the User represents and warrants that all information provided, whether about itself or, in case of an Enterprise Customer, about its Authorized Users, is complete, accurate, and lawfully collected. Where the User provides information on behalf of another individual or entity (such as an Authorized User or an affiliated account), the User represents that it has obtained all necessary rights and permissions to do so, and that such data has been collected in compliance with applicable law. The User is solely responsible for updating its Account Information to ensure it remains accurate and current throughout the Term.
1.5. The Services do not include professional services, and the Company merely grants the User, including its Authorized Users, access to the Services in accordance with the provisions herein.
1.6. The Company reserves the right to modify, change, and update the Services (e.g., infrastructure, security, technical configurations, application features, etc.) and the Services Specification, Documents or content therein, as long as they do not adversely and materially affect User’s use of the Services, and will provide User with an appropriate written notice prior to making any material changes that will adversely impact the use of the Services during the Services Period. The Company shall have the right from time to time to modify or cancel any Service Plan, upon providing the User with prior written notice to allow the User to decide whether to keep using the Service Plan, choose another Service Plan or terminate its use of the Service.
2. Intellectual Property and Ownership.
2.1. Nothing in this Agreement transfers any intellectual property rights to you. The Company retains all right, title, and interest, including all intellectual property rights, in and to the Services, the Platform (including its “look and feel” and underlying technology), all associated documentation, and any modifications or derivative works thereof (“Company Proprietary”).
2.2. All trademarks, service marks, trade names, logos, and other distinguishing symbols provided through the Services are the exclusive property of the Company (“Company Marks”).
2.3. Any suggestions, improvements, or other feedback provided by the User regarding the Services (“Feedback”) shall be deemed non-confidential and shall become the exclusive property of the Company.
2.4. The User retains all rights, title, ownership and intellectual property rights in and to any data, content, or audio recordings that it submits, transmits, makes available, or uploads to or through the Account (“User Data”). Subject to this Agreement, and solely to the extent necessary to provide the Services to the User, the User grants the Company a worldwide, limited term license and the right to use, access, process and transmit the User Data during the Term for the purpose of providing, monitoring, operating, improving and further developing its services, including through training its algorithms and AI/ML models. For the avoidance of doubt, such use will never publicly reveal or expose any User’s identity.
3. Restrictions and Limitations.
3.1. The User is prohibited from using the Services in the following manners: (a) for any illegal, immoral, or unauthorized purpose, or any activity that might result in civil liability; (b) violating or infringing third-party rights, including but not limited to privacy, publicity, or intellectual property rights; (c) copying, crawling, indexing, caching, or using any information from the Services other than User Data; (d) developing a competing or similar product or service; (e) assisting third parties in unauthorized access to the Services; (f) storing or distributing materials that are harmful, defamatory, obscene, infringing, or that promote illegal activity; (g) using the Services in scenarios where its failure could lead to harm; (h) engaging in discriminatory use; (i) copying, modifying, or creating derivative works of the Service; (j) renting, leasing, selling, or transferring the Services to third parties; (k) reverse engineering or attempting to access any component of the Service; (l) removing proprietary notices from the Service; or (m) systematically downloading and storing content from the Service.
3.2. The User shall not use the Services in any manner that infringes upon any third-party Intellectual Property rights. Additionally, the use of third-party content which the User does not have the right to transfer, pursuant to any contractual or other relationship (e.g., insider information, proprietary or confidential information obtained in the context of employment or a non-disclosure agreement), is strictly prohibited.
3.3. The Company may suspend the User Account or terminate the Agreement if it determines a breach of the Agreement, or any applicable law. While the Company will make efforts to notify affected parties of its decision, if it is unable to, Users can reach out to our support or lodge an appeal. The Company reserves the right to restrict or suspend any user of its Services or reporting features if it identifies that the user frequently files complaints that are deemed groundless. Should the User disagree with the Company's decision to suspend or block the Account or access to the Services, an appeal can be submitted by contacting the Company's support. The appeal should provide clear rationale against the decision. Upon review, if the Company determines its initial action was incorrect, it will inform the User, reinstate the account or the Services (as applicable), and remove any prior restrictions to ensure there are no future implications.
4. User Responsibilities.
4.1. The User is solely responsible for all activities within its Account, whether by the User itself, or by any third party. Where applicable, each Enterprise Customer is fully responsible for their Authorized User’s activities as well as for identifying its Authorized Users, for approving access by such Authorized Users and for controlling any unauthorized use of the Account or Services and always remains fully responsible for its Authorized Users’ compliance with the terms herein. The Company is not responsible for any harm caused by the Authorized Users, including individuals who were not authorized to have access to the Services but who were able to gain access due to the failure to timely terminate usernames, passwords or accounts, or due to insufficient protections upon User’s local computers.
4.2. The User, and where applicable each Enterprise Customer for its Users, is solely responsible for any of its User Data and hereby warrants that: (i) the User Data will not infringe any rights, including any privacy rights or proprietary rights, of any third parties; and (ii) it has obtained all necessary rights, releases and permissions to submit all User Data to the Services and to grant the rights granted under this Agreement.
5.1. We may offer fee-based Service Plans for certain premium features or content. By purchasing such a Service Plan or feature, the User, or the applicable Enterprise Customer, agrees to pay the applicable subscription fees and any taxes ("Fee"), and unless agreed otherwise in writing by the parties, you authorize us (or the app store platform) to charge your provided payment method automatically on a recurring basis. The Fees shall be invoiced and paid in accordance with the terms specified in the Service Plan, and if not explicitly stated otherwise on the first day of any relevant subscription period. The Fees do not include taxes, and the User is responsible for any taxes associated with their subscription. Unless required by law, no taxes will be deducted from payments made to the Company. When tax deductions are mandated, the User will increase the payment amount to ensure that, after any deduction, the Company receives the intended Fee amount. If applicable, Enterprise Customers must provide their VAT Registration Number(s) on orders to confirm the business nature of their subscribed services.
5.2. Excluding any written agreement (or Service Plan) agreed upon with an Enterprise Customer, and subject to applicable law, the Company reserves the right to adjust and modify the Fees. Any changes will become effective at the beginning of the subsequent renewal Term. The Company will provide the User with prior notice of at least 30 days regarding any Fee Change, allowing the User the option to terminate its subscription before the changes become effective.
5.3. Payments not received by the due date will accrue interest at a rate of 1% per month or the highest rate permissible under applicable laws, whichever is lower. The User is also responsible for any legal or collection agency fees that the Company might incur while attempting to collect overdue amounts.
5.4. If we offer a free trial, it will automatically be converted into a paid Service Plan at the end of the trial period unless you cancel before the trial ends. We reserve the right to determine your eligibility for any free trial, and to modify or cancel free trials at any time. You will be informed of the length of any free trial and the price of the relevant Service Plan that will apply after the trial. If you do not want to be charged, you must terminate the applicable Service Plan before the free trial period expires.
5.5. The Company reserves the right to suspend or terminate the User's access to the Services if the Fees are not received in a timely manner. During any suspension for non-payment, the User remains liable for the total Subscription Fee for the entire Term.
5.6. The User can cancel its subscription as outlined in the Service Plan, starting from the following subscription period. Unless stated otherwise and subject to applicable law, early cancellations will not result in any refunds or credits for partial months or unused services.
5.7. If you are a consumer residing in a jurisdiction that grants cancellation or “cooling-off” rights (for example, a 14-day withdrawal right under EU or UK law for distance contracts), we honor those rights. Specifically, if you are an EU or UK consumer, you have the right to withdraw from your initial purchase of a Service Plan within 14 days from the date of purchase without giving any reason and receive a full refund, provided that if you have accessed the paid Services during this 14-day period, we may deduct a pro-rata amount for the service used as permitted by law. To exercise this right, you must inform us of your decision to cancel within the 14-day period (e.g., by contacting our support and stating you wish to withdraw). This withdrawal right does not apply to renewals of the Service Plan, to purchases made after a free trial conversion (since payment is taken only after the trial), or to one-time purchases of digital content that have been fully delivered to you upon purchase. Nothing in this Agreement affects any rights you may have under mandatory consumer protection laws.
5.8. If you purchased your Service Plan through a third-party app store (such as Apple’s App Store or Google Play), that platform’s payment and refund policies apply in addition to this Agreement. For example, if you purchase via the Apple App Store, the sale is final per Apple’s policies, and you may need to cancel through your Apple account settings. We do not have the ability to process refunds or cancellations for purchases made through third-party app stores, and any billing disputes should be resolved with the platform. Please review the terms of service and payment policy of the platform you use, as those will govern payment processes, renewal management, and any applicable refund provisions.
6. Term, Termination and Suspension.
6.1. The term of this Agreement shall commence on the Effective Date and shall remain in effect through the duration of the defined term of the Service Plan, unless earlier terminated in accordance with this Section. Upon expiration of any Services Term, the subscription will automatically renew for successive renewal period, unless terminated by either party (the initial term together with each successive renewal terms, “Term”).
6.2. Each party may immediately terminate this Agreement in the event the other party is in breach of this Agreement and fails to cure the breach within thirty (30) days of receipt of written notice from the non-breaching party, or in order to comply with the orders or requests from governmental entities. Furthermore, the Company may terminate this Agreement immediately in the event: (i) The Company does not receive the applicable payments from the User for the Services; and/or (ii) of institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar proceedings by or against the User under any applicable laws, if such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted.
6.3. The User may terminate this Agreement at any time by providing written notice; however, unless otherwise expressly agreed in the applicable Service Plan, such termination shall become effective only at the end of the Service Plan term. No refunds or credits shall be issued for any unused portion of the Term. The Company may terminate this Agreement, or any part of the Services, at any time and for any reason, by providing the User with prior written notice (email sufficient). In such case, and unless termination is due to the User’s breach, the Company will refund any pre-paid fees on a pro rata basis for the unused portion of the Services.
6.4. The Company may suspend the User’s access to any portion or all of the Services immediately upon notice to the User if the User's use of the Service: (i) violates the restrictions and liabilities set forth in this Agreement, or poses a security risk to the Services or any third party; (ii) could adversely impact The Company’s systems, the Services or Company Proprietary; (iii) will poses a liability to the Company or anyone acting on its behalf; or (iv) could be fraudulent.
6.5. Upon termination: (i) User rights provided under this Agreement will immediately terminate; (ii) where applicable, each party will immediately return or destroy the other party’s Confidential Information in its possession; and (iii) any Sections herein that by their nature should continue to apply following termination shall continue to remain in effect, including payment obligations, if applicable, disclaimer of warranties, limitation of liability, confidentiality, IP rights and assignment of the Feedback, and data security (if applicable).
7. Beta Versions.
7.1. The Company may offer pre-release and beta versions of new features of the Services (“Beta Versions”). It is understood that any Beta Versions are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Service. The Company makes no guarantees that any Beta Versions will ever be made generally available. In some circumstances, the Company may charge a fee in order to allow the use of Beta Versions, but Beta Versions will still remain subject to this Section 7. All information regarding the characteristics, features or performance of any Beta Versions constitutes The Company’s Confidential Information. To the maximum extent permitted by applicable law, The Company disclaims all obligations or liabilities with respect to Beta Versions, including any support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT AND SUBJECT TO APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY TO THE CUSTOMER IN RESPECT OF BETA VERSIONS WILL BE US$50.
8. Support Services
8.1. The Company may provide support services to assist the User in using the Service. Such support services should be provided during Company’s regular business days and hours, through online channels. For any queries, issues, or assistance, please contact the Company’s support at support@tuneme.io
8.2. While the Company strives to provide timely and accurate support, the Company does not guarantee any specific response time or outcome regarding the support services. We appreciate your understanding and patience.
9. Security and Privacy.
9.1. The Company implements and maintains reasonable and appropriate physical, technical, and administrative safeguards designed to protect the security, confidentiality, and integrity of User Data, including protection against unauthorized or unlawful access, use, disclosure, alteration, or destruction. Notwithstanding the foregoing, the User acknowledges that no method of transmission over the Internet, or method of electronic storage, is completely secure, and the Company does not guarantee that the Services or User Data will be immune from all security threats or unauthorized access.
9.2. The Company may collect, generate, and use aggregated, anonymized, or de-identified data and telemetry regarding the use and performance of the Services (“Usage Data”) for purposes such as monitoring, analytics, service improvement, research and development, and security. Usage Data does not include any Personal Data or User Data in identifiable form.
9.3. Any collection, use, disclosure, or other processing of Personal Data by the Company shall be subject to the terms of the Company’s Privacy Policy, which is hereby incorporated by reference.
10. Confidentiality
10.1. For the purpose of this Agreement, “Confidential Information” means all nonpublic confidential information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) in the context of the relationship under this Agreement, that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood to be confidential. Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party, including Usage Data generated by the Company.
10.2. Except as stipulated herein, and to the extent required under applicable law, the Receiving Party agrees to maintain the confidentiality of any Confidential Information disclosed by the Disclosing Party.
10.3. The Receiving Party shall not disclose, use, copy, or distribute any Confidential Information to any third party, except for its employees and contractors who require this information for the purpose of fulfilling their obligations under this Agreement. Such disclosure is permissible provided that these employees and contractors are bound by terms consistent with this Agreement regarding the handling of such Confidential Information.
10.4. The Receiving Party may disclose Confidential Information if legally mandated, but only after providing written notice to the Disclosing Party (unless restricted under law), outlining the legal requirement and the specifics of the Confidential Information to be disclosed.
10.5. Both Parties acknowledge that any breach of this Confidentiality Section could cause significant and irreparable harm to the other. As a result, in the event of any breach or threatened breach, the non-breaching Party shall be entitled to seek injunctive relief, without the necessity of posting a bond, to prevent unauthorized use or disclosure of its Confidential Information, in addition to any other remedies available under applicable law.
10.6. The obligations outlined in this Section shall survive for a period of 5 years following the termination or expiration of this Agreement. All Confidential Information remains the property of the Disclosing Party. The provision of Confidential Information under this Agreement does not grant the Receiving Party any rights, title, or licenses, explicit or implied, concerning the Confidential Information or its related Intellectual Property.
11. Compliance with Laws
11.1. The User acknowledges and agrees that it is solely responsible for ensuring that its access to and use of the Services complies with all applicable laws, rules, regulations, and professional standards.
11.2. The Company does not represent that the Services will comply with any specific regulatory requirements applicable to any professional or particular use case, sector, or jurisdiction. The Company does not provide legal, regulatory, or professional advice, and the User, including any Enterprise Customer, is solely responsible for determining whether the Services meet its compliance obligations.
12. Integration with Apple HealthKit and Google Health Connect.
12.1. If you choose to connect TuneMe with third-party health data services such as Apple HealthKit or Google Health Connect (collectively, “Health Platforms”), you expressly consent to our access and use of your health and fitness information from those Health Platforms. We will only use, and process data obtained through Health Platforms to provide you with health-related features and services in the TuneMe application, such as personalized wellness insights, and for no other purposes. In particular, we will not use any data obtained via Health Platforms for targeted advertising, marketing, or other data mining purposes unrelated to your usage of the Services.
12.2. We will not disclose or share your Health Platform data with any third party except as necessary to provide our services to you (for example, syncing your data across your devices or processing through our service providers), or for medical research purposes only with your explicit informed consent and in compliance with applicable law.
12.3. By enabling a Health Platform integration, you acknowledge that such data may include sensitive health information, and you authorize the Company to process that data on your behalf consistent with our Privacy Policy and this Agreement.
12.4. We do not assume any responsibility for the accuracy or completeness of data provided by Health Platforms or other third-party devices; any health information imported from third-party sources is used at your discretion and risk.
12.5. You can disable access to Health Platform data at any time through the settings or the Health Platform itself.
12.6. This section is intended to comply with Apple’s App Store Review Guidelines for HealthKit and Google’s policies for Health Connect integration. We will adhere to all applicable platform rules regarding Health Platform.
13. Indemnification.
13.1. Each Party ("Indemnitor") shall defend, indemnify, and hold harmless the other Party, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives ("Indemnitees") from and against any Losses arising out of or relating to any third-party claim concerning: (a) breach of third-party intellectual property rights; and (b) Indemnitor's gross negligence, willful misconduct or fraud.
13.2. Without limiting the foregoing, the Enterprise Customer shall indemnify, defend, and hold harmless the Company and its affiliates, officers, and employees from and against any claims, liabilities, damages, or expenses arising from or related to the Enterprise Customer’s failure to comply with applicable laws and regulations.
13.3. The obligations under this Section will only apply if the Indemnitees: (a) promptly notify the Indemnitor in writing regarding the claim; (b) permit the Indemnitor to control the defense and settlement of the claim; and (c) reasonably cooperates with the Indemnitor (at Indemnitor's expense) in the defense and settlement of the claim. In no event shall Indemnitor agree to any settlement of any claim that involves any negative commitment of the Indemnitees, without the written consent of the Indemnitees.
13.4. Notwithstanding the above, the Company may, in its sole discretion: (i) procure the right for the User to continue to use the Services in accordance with this Agreement without the infringement; (ii) replace the service with a substantially similar version; or (iii) terminate the right to continue using the Services and refund any prepaid amounts for the terminated portion of the Term.
14. Health and Wellness Disclaimer.
14.1. The App is a digital wellness and self-improvement product and service. We are not a medical or healthcare provider and the Services (including any data analyses, insights, recommendations, coaching tips, audio sessions, or other content) are not intended to diagnose, treat, cure, or prevent any disease or medical condition.
14.2. The Services and Content are provided for informational and recreational wellness purposes only. They do not constitute professional medical advice, therapy, or any form of medical care. You acknowledge that we are not a licensed medical or psychological professional, and no part of the Services has been submitted for regulatory approval as a medical device. Always seek the advice of a physician or qualified healthcare provider with any questions you have regarding medical condition or before making any health-related decision. Never disregard professional medical advice or delay seeking it because of any information you obtained through the App. Use of our Services is not a substitute for personalized professional healthcare or emergency services.
14.3. You are solely responsible for your own health and decisions. We encourage you to use the App as a complement to a healthy lifestyle and, if applicable, as a supportive tool alongside guidance from healthcare providers. You acknowledge that any reliance on information or guidance provided by us is at your own risk. We make no guarantee that any particular wellness improvement or outcome will occur due to your use of the Services.
14.4. If you experience any adverse symptoms or think you may have a medical emergency while using the Services (for example, chest pain, severe dizziness, mental health crisis, or other alarming symptoms), stop using the Services immediately and seek emergency medical attention. If you are feeling suicidal or in crisis, contact the appropriate emergency services or crisis hotlines in your region (for example, call 911 in the US, or your local emergency number).
14.5. If the App’s content includes breathing exercises, relaxation techniques, or other physical or mental exercises, you understand that participation is voluntary and at your own risk. You should assess your own health and fitness before engaging in any activities suggested by the app. If you have any known medical condition (such as heart issues, high blood pressure, anxiety disorders, or other chronic conditions) or are on medication, consult your doctor before using content that could affect your physical or mental state. Discontinue any exercise or activity that causes pain, discomfort, or exacerbates your symptoms and consult a medical professional if necessary. You represent that you are physically and mentally fit to engage in the activities offered through the App, and you assume all risks associated with participating in such activities
14.6. We strive to provide accurate and up-to-date information, but we make no warranties or representations regarding the accuracy, completeness, or usefulness of any information or content provided through the Services for your health situation. Health and wellness research is continually evolving, and the content provided through the Services may not reflect the most recent findings or advice. Ultimately, you assume full responsibility for how you choose to use the information and tools provided by us, and you agree that we are not liable for any consequences that may arise from your implementation of any suggestions or insights obtained through the Services.
15. Warranties and Disclaimers.
15.1. The Company hereby represents and warrants that during the Term: (a) it has full power and authority to enter into and perform its obligations under this Agreement; (b) the Services will substantially conform to the then-current written specifications and description provided explicitly by the Company; (c) it will deploy commercially reasonable technical and organizational safeguards designed to protect the security and confidentiality of User Data; and (d) the Services and Company Proprietary as delivered do not, to the Company’s knowledge, infringe any third-party intellectual-property right in the jurisdiction in which the Services are provided..
15.2. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 15.1, AND WITHOUT DEROGATING FROM SECTION 14 ABOVE, THE APP, THE SERVICES, THE COMPANY PROPRIETARY, AND ALL RELATED CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” To the maximum extent permitted by applicable law, the Company disclaims all other warranties, whether express, implied, statutory, or otherwise, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment, non-infringement, accuracy, or availability, and any warranties arising from course of dealing or usage of trade. The Company does not warrant that the Services will be uninterrupted, error-free, or free of harmful components, or that any output, data, or recommendations will be accurate, complete, or achieve any particular result.
15.3. The User understands that the Services incorporate AI and machine-learning components and are intended solely for wellness purposes, not for diagnosis or medical treatment (see Section 14 above). The User assumes sole responsibility for verifying any output generated by the Services before relying on it.
15.4. No advice or information (oral or written) obtained by the User from the Company or through the Services creates any warranty not expressly stated in this Agreement.
16. Limitation of Liability.
16.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2. EXCEPT FOR LIABILITY ARISING FROM (I) BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) INDEMNIFICATION OBLIGATIONS EXPRESSLY PROVIDED HEREIN, EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL FEES ACTUALLY PAID BY THE USER TO THE COMPANY FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) 100.00 US DOLLAR. The above cap and the indirect-damages waiver do not apply to: (i) a party’s breach of its confidentiality obligations; (ii) a party’s gross negligence, willful misconduct, or fraud; (iii) either party’s indemnification obligations under Section 13; or (iv) liability that cannot lawfully be limited or excluded (e.g., death or personal injury resulting from negligence, or statutory consumer rights).
16.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE COMPANY SHALL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATED TO ANY SERVICES PROVIDED TO THE USER FREE OF CHARGE OR ON A TRIAL BASIS, INCLUDING ANY BETA FEATURES OR PRE-RELEASE FUNCTIONALITY.
16.4. The parties agree that the limitations in this Section 16 reflect a reasonable allocation of risk and form an essential basis of the bargain.
17. Dispute Resolution, Binding Arbitration & Class-Action Waiver.
17.1. Except as expressly set out below, any dispute, claim, or controversy arising out of or relating to the Services or this Agreement (collectively, “Dispute”) shall be resolved exclusively by final and binding arbitration on an individual basis, administered by the International Centre for Dispute Resolution (ICDR) or, where applicable, the American Arbitration Association (AAA) under its Consumer Arbitration Rules.
17.2. The seat of arbitration shall be Tel Aviv, Israel; the proceedings shall be conducted in English; and the arbitrator shall apply the substantive law of the State of Israel, consistent with this Section, together with the Israeli Arbitration Law 1968 or any mandatory and applicable arbitration law (e.g., for U.S. residents, the U.S. Federal Arbitration Act).
17.3. Either party may (a) bring an individual claim in a court of competent jurisdiction for injunctive or other equitable relief to protect its intellectual-property rights, or (b) seek relief in small-claims court for disputes within that court’s jurisdiction.
17.4. ALL DISPUTES SHALL BE ARBITRATED OR LITIGATED ONLY ON AN INDIVIDUAL BASIS. Neither party shall bring any claim as a plaintiff or class member in a class, consolidated, representative, or private-attorney-general action. The arbitrator may not consolidate claims or preside over any form of representative proceeding.
17.5. Arbitration procedures shall be as follows: (a) Filing. A party seeking arbitration must submit a written demand in accordance with the applicable rules and provide a copy to the other party; (b) Fees. The Company will bear arbitration fees exceeding any court filing fee the consumer would pay, unless the arbitrator determines the claim is frivolous; (c) Award. The arbitrator may award any relief that a court of competent jurisdiction could award under law and must provide a written, reasoned decision. Judgment on the award may be entered in any court having jurisdiction.
17.6. You may opt out of this arbitration agreement within thirty (30) days of first accepting these Terms by sending written notice support@tuneme.io or the postal address herein. If you opt out, Disputes will be resolved in the courts specified above.
17.7. If the class-action waiver herein is found unenforceable, the entire arbitration agreement shall be void as to that Dispute, which must then proceed in court. If any other provision of this Section 17 is held unenforceable, the remaining provisions shall remain in force.
17.8. This Section 17 survives the termination of the Agreement and cessation of the Services.
18. Miscellaneous.
18.1. Assignment. Neither party may assign or otherwise transfer this Agreement or its rights and obligations hereunder to a third party without the other party's prior written consent; provided, however, that each party may assign this Agreement at any time without the other party's consent: (a) in connection with a merger, acquisition or sale of all or substantially all of its business or assets; or (b) to any Affiliate (any entity which is controlled by, controls, or is in common control with, such a Party)or as part of a corporate reorganization. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
18.2. Entire Agreement. This Agreement (including any Service Plan in connection with the Agreement) is the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Parties, whether written or verbal. This Agreement shall prevail in the event any online acceptance of terms was performed during the registration or use of the free trial.
18.3. Force Majeure. The Company and Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, global pandemic, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
18.4. Jurisdiction; Governing Law. To the extent the Arbitration mechanism above does not apply, any dispute between User and the Company will be governed by the laws of the State of Israel, without regard to the conflict of laws provisions of such State, and any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the competent courts of the Tel Aviv district, Israel, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
18.5. Independent Contractors; Non-Exclusive Rights. The Parties are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship between the Parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
18.6. Notice. Each Party may provide the other Party with notice hereunder by personal delivery, overnight courier, registered or certified mail or via email to the mailing address or Email (return receipt requested), as applicable, listed below. Notices provided by personal delivery will be effective immediately. Notices provided by overnight couriers will be effective one business day after they are sent. Notices provided via registered or certified mail will be effective three business days after they are sent. Notices provided via email will be deemed received upon its receipt.
18.7. No Third-Party Beneficiaries. Except as set forth herein, this Agreement does not create any third-party beneficiary rights for any individual or entity that is not a party to this Agreement.
18.8. No Waivers. Failure by The Company to enforce any provision of this Agreement will not constitute a waiver of such provision nor limit its right to enforce such provision later. All waivers by The Company must be in writing to be effective.
18.9. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.