Terms of Service
Last updated: April 29, 2020
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND TUNED THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 6 BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
Changes in Terms. We may update the Terms from time to time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
1. Disclaimers. Tuned does not trade or hold digital assets on your behalf. Tuned is not a trading platform, and does not hold digital assets on deposit or in a custodial relationship in any capacity. We are not an exchange. Any trading activity you conduct will be done through a third-party service provider.
1.1 Investment Disclaimer. You acknowledge and understand that the Services are not intended to supply investment, financial, tax or legal advice. Tuned does not provide investment, tax, or legal advice, nor does Tuned broker trades on your behalf. The Services are not investment advice and any observations concerning any security, trading algorithm or investment strategy provided in the Services is not a recommendation to buy, sell or hold such investment or security or to make any other investment decisions. We offer no advice regarding the nature, potential value, risk or suitability of any particular investment strategy, trading algorithm, transaction, security or investment. You acknowledge and agree that any use of the Services, any decisions made in reliance on the Services, including any trading or investment decisions or strategies, are made at your own risk. You are solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult your investment, legal or tax advisors regarding your specific situation
- Risk of Loss. The risks of loss in trading or holding any digital asset can be immediate, substantial and irreversible. There is no guarantee against losses from using the Services. You should therefore carefully consider whether trading or holding any digital asset is suitable for you in light of your financial condition and needs. The following are some risks associated with digital assets. However, these descriptions are non-exclusive and do not disclose all such risks. Please consider these and other risks carefully before using the Services.
- Market Risks. The market for digital assets is still new, uncertain and highly volatile. No one should invest in digital assets using funds that he or she is not prepared to lose entirely. Whether the market value for one or more digital assets will move up or down, or whether a digital assets will lose all or substantially all of its value, is unknown and cannot be predicted. The prices of digital assets have historically been subject to dramatic fluctuations and are highly volatile, and a decrease in the price of a single digital assets may cause volatility in the entire market. In addition, blockchain networks may go offline because of bugs, hard forks, or other unforeseeable reasons. Participants in any digital assets market should pay close attention to their position and holdings, and how they may be affected by sudden and adverse shifts in trading and other market activities. There is no guarantee that any given price quoted or realized on the Marketplace represents the fair value of the subject digital assets.
- Liquidity Risks. Digital assets have varying degrees of liquidity. Some markets are quite liquid while others may be thinner. Thin markets can amplify volatility. Factors beyond Tuned’s control may affect market liquidity for any digital assets, such as regulatory activity, market manipulation, or unexplainable price volatility. Tuned makes no representations or warranties about whether a digital asset that may be traded on a marketplace may be traded on a marketplace any point in the future, if at all. Any digital asset is subject to no longer being supported by Tuned without notice or consent.
- Legal Risks. The legal characterization of certain digital assets may be uncertain. This can mean that the legality of holding or trading them is not always clear, and may be subject to certain legal requirements or restrictions. Whether and how one or more digital assets constitute property, or assets, or rights of any kind may also seem unclear. You are responsible for knowing and understanding how digital assets will be addressed, regulated, and taxed under applicable law.
- Operational Risks. Tuned may experience sophisticated cyberattacks, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions in the Services. You agree to accept the risk of transaction failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks.
- Custody Risks. Having digital assets on deposit or with any third-party in a custodial relationship has attendant risks. These risks include security breaches, risk of contractual breach, and risk of loss. Tuned does not provide custodial services and does not warrant any custodial or wallet services that you use in connection with your use of these Services in any way.
1.2 Non-commercial use. You agree to use the Services solely for your own personal and non-commercial purposes (e.g., making the Services available to your clients or customers, or otherwise charging a fee to access the Services).
2. Creating an Account.
2.1 Eligibility. To be eligible to use the Services, you must be at least 18 years old and capable of forming a binding contract with Tuned, and not otherwise prohibited from using the Services under applicable law. Persons from certain jurisdictions that are sanctioned, embargoed, or otherwise prohibited by the United States are not eligible to use these Services.
Any person found on any consolidated sanctions list such as "Specially Designated National" list as maintained by the Office of Foreign Assets Control, any person that may reasonably designated a "politically exposed person," or any person that may otherwise be prohibited from engaging with these Services under any local, national, or international law is ineligible to use these Services.
You may not use our Services if you are restricted or prohibited from engaging in any type of trading in financial assets or related activity by any law enforcement or regulatory agencies. If we determine that you are accessing the Services from any restricted jurisdiction, or have given false representations as to your location of incorporation, establishment, citizenship or place of residence, or legal status we reserve the right to close any of your accounts immediately. The Services are not available to any person who was previously removed from Tuned.
2.2 Registration of Account. To use the Services, you will need to register for an account on the Site ("Account"). We may, in our sole discretion, refuse to open an Account for you.
2.3 Identity Verification. You will need to complete certain verification procedures to open an Account and before you are permitted to use certain Services. You agree to provide us information that we request for the purposes of identity verification and our compliance obligations with applicable law. The information we request may without limitation include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, taxpayer identification number, a government identification, and information regarding your bank account (such as the name of the bank, the account type, routing number, and account number).
2.4 Authentic Information. In providing us with this or any other information that may be required, you confirm that the information is accurate, authentic and complete. You agree to keep us updated if any of the information you provide changes. You authorize us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity, to protect you and/or us against fraud or other financial crime, to comply with anti-money laundering and other legal requirements, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that your personal information may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full.
2.5 Password Security; Contact Information. You are responsible for maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the Services Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Account by third-parties and the loss or theft of any associated external wallets or accounts. You are responsible for keeping your contact details up to date in your Account in order to receive any notices or alerts that we may send you. We assume no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of Tuned and/or failure to follow or act on any notices or alerts that we may send to you. In the event you believe your Account information has been compromised, contact Tuned support immediately at firstname.lastname@example.org
3. Services Functionality. Tuned is a software service provider that allows you to control and manage trading activity of your digital assets. We allow users to create, test, execute, and report on trading strategies in digital currency markets.
3.1 Self-Created and Self-Directed Trading Algorithms. Our Services are intended to provide you an opportunity and ability determine how you want to manage your digital assets. You are able to operationalize your digital asset strategy through a suite of tools that you customize to reflect your digital asset allocation strategy.
3.2 Integration with Exchanges. Tuned may work with outside exchange or other trading platforms. We do not verify, review, or otherwise confirm information obtained from or provided to any third-party service provider. We do not guarantee the accuracy of any third-party data.
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites, resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
3.3 Your Tax Recordkeeping Responsibilities. You acknowledge and agree that you understand state and federal recordkeeping requirements, including those of the Internal Revenue Service ("IRS") and you agree to comply with those requirements and that as between you and Tuned, Tuned has no responsibility in this regard.
4. Usage and Fees.
4.1 Monthly Subscription Fee. To access these Services, you will need to purchase a monthly subscription, you will be charged in advance on a recurring, periodic monthly basis (each month, is called a "Billing Cycle") the Subscription fee for the specific Billing Cycle plus any applicable taxes, and other charges ("Subscription Fee"), at the beginning of your Subscription and at the beginning of each Billing Cycle thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE TUNED TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you, at the beginning of each Billing Cycle, using the Payment Information you have provided, until you cancel your Subscription. No less than fourteen (14) days before your Subscription ends if the Subscription is a monthly one, or otherwise in accordance with applicable law, Tuned will send you a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Tuned. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
4.2 Cancelling Subscription. You may cancel a Transaction for a full refund within ten (10) calendar days of your initial purchase provided you have not received any Services. AFTER THAT, EXCEPT AS PROVIDED BELOW, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction, we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time through your online Account management page or by contacting our customer support team at [insert email address], but such cancellation will be effective at the end of the then-current Billing Cycle and YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT BILLING CYCLE AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Billing Cycle. If you cancel, your right to use the Services will continue until the end of your then current Billing Cycle and will then terminate without further charges.
To cancel a subscription, you must contact us by at least email at email@example.com You acknowledge that you must receive written confirmation of your cancellation before your subscription is cancelled. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current subscription period and will then terminate without further charges.
4.3 Suspension of Service. Tuned may suspend or terminate your access to our Services if you fail to make regular payments according to these Terms. You are still obligated to make any unpaid or due payments if your access if suspended due your nonpayment.
4.4 Taxes. Tuned does not collect any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder.
5. Content Ownership, Responsibility and Removal.
5.1. Definitions. For purposes of these Terms:
- "Content" means any algorithms, code and code segments, trading strategies, data transformations, data analysis and manipulation functions, tools, software, data, databases, text, lectures, messages, images, graphics, video files, audio files, ideas and other information and materials.
- "User Content" means any Content that you make available on the Site or Services.
- "Tuned Content" means any Content that Tuned makes available on the Site or Services.
5.2. Limited License. The Site, Tuned Content and the Services are owned exclusively by Tuned and its licensors. Nothing in these Terms shall be construed as transferring or assigning any ownership rights to you. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, subject to the terms of this Agreement, to (i) access the Site and Tuned Content and (ii) use the Services, solely for personal use, internal business purposes, or other approved purposes as permitted by Tuned in writing. Any other use of the Site, Tuned Content or Services is expressly prohibited. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, or in any other way exploit any of the Tuned Content, in whole or in part. All logos related to the Services or displayed on the Site are either trademarks or registered marks of Tuned or its licensors. You may not copy, imitate or use them without Tuned’s prior written consent.
Any Tuned Content, tools and infrastructure provided by Tuned may allow you to test, learn, create, and use your algorithms and algorithmic trading strategies. If and to the extent Tuned provides any Tuned Content or information containing algorithms or strategies, these are for educational or testing purposes only and should not be regarded as a suggestion to engage in or refrain from any investment-related action. You can create your own algorithms on the Site, for which you shall not hold Tuned responsible or liable.
5.3. User Content. Subject to Section 5.4, you retain ownership of all User Content. You hereby grant Tuned a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, to access, delete, store, reproduce, review, share, or otherwise use User Content (a) to the extent necessary for the performance of the Services (including for the provision of support or maintenance of the Site or Services), (b) to comply with any legal or regulatory requirements or order of any court or governmental authority, (c) if Tuned considers the User Content may impose a security risk, (d) otherwise in accordance with these Terms.
You are solely responsible for all User Content. You represent and warrant that you own all User Content or you have all rights that are necessary to grant us the license rights in User Content under these Terms, and that you have obtained all legally required consents from individuals who appear in User Content. You also represent and warrant that neither User Content, nor your use and provision of User Content to be made available through the Services, nor any use of User Content by Tuned on or through the Services will infringe, misappropriate or violate a third-party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation
You can remove User Content by specifically deleting it. However, in certain instances, some User Content (such as posts or comments you make) may not be completely removed and copies of User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
5.4. Prohibited Use. In connection with your use of the Services, and your interactions with other users, and third parties you agree and represent you will not engage in any of the following:
- Post, upload, publish, submit or transmit any User Content, including User Data, that: (i) infringes, misappropriates or violates a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Tuned’s name, any Tuned trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Tuned’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Tuned’s computer systems, or the technical delivery systems of Tuned’s providers;
- Attempt to probe, scan or test the vulnerability of any Tuned system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tuned or any of Tuned’s providers or any other third-party (including another user) to protect the Services or Tuned Content;
- Attempt to access or search the Services or Tuned Content or download Tuned Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Tuned or other generally available third-party web browsers;
- Copy, distribute, or disclose any part of the Services in any medium, including without limitation by any automated or non-automated "scraping";
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Tuned trademark, logo URL or product name without Tuned’s express written consent;
- Use the Services or Tuned Content, or any portion thereof, for any commercial purpose or for the benefit of any third-party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Tuned Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Tuned Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
We reserve the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process or governmental request. We reserve the right to cancel and/or suspend your Account immediately and without notice if we determine, in our sole discretion, that your Account is associated with a Prohibited Use and/or a Prohibited Business. WE ARE NOT RESPONSIBLE FOR ANY LOSS OF VALUE IN YOUR ACCOUNT OR ANY ASSOCIATED EXTERNAL WALLETS OR ACCOUNTS, RESULTING FROM THE SUSPENSION OR CANCELLATION OF YOUR ACCOUNT.
6. General Disclaimers.
6.1 UNLESS OTHERWISE PROVIDED IN WRITING, THE CONTENT ON THE SERVICE IS STRICTLY FOR INFORMATIONAL PURPOSES. NOTHING ON OR IN THE SERVICE SHALL CONSTITUTE OR BE CONSTRUED AS AN OFFERING ANY FINANCIAL INSTRUMENT OR AS INVESTMENT ADVICE OR INVESTMENT RECOMMENDATIONS (SUCH AS RECOMMENDATIONS AS TO WHETHER TO PURCHASE AN INSTRUMENT) BY US OR A RECOMMENDATION AS TO AN INVESTMENT STRATEGY BY US. CONTENT ON THIS SERVICE SHOULD NOT BE CONSIDERED AS INFORMATION SUFFICIENT UPON WHICH TO BASE AN INVESTMENT STRATEGY. NO CONTENT ON THE SERVICE IS TAILORED TO THE SPECIFIC NEEDS OF ANY INDIVIDUAL, ENTITY OR GROUP OF INDIVIDUALS. WE EXPRESS NO OPINION AS TO THE FUTURE OR EXPECTED VALUE OF ANY FINANCIAL PRODUCT OR INVESTMENT STRATEGY. WE DO NOT EXPLICITLY OR IMPLICITLY RECOMMEND OR SUGGEST ANY INVESTMENT STRATEGY OF ANY KIND. CONTENT ON THE SERVICE MAY NOT BE USED AS A BASIS FOR ANY FINANCIAL OR OTHER PRODUCT.
6.2 The Content provided on the Service may be submitted to us by unaffiliated third-party providers. We do not review, audit, or otherwise have an ability to verify all Content for accuracy. We do not review Content for completeness or reliability, and we do not warrant or guarantee the accuracy, completeness, reliability or any other aspect of any Content provided to us by third-party providers.
6.3 You acknowledge that we are not liable for any loss due to any financial or personal decision you take related to your use of our Services, or any loss due to inaccurate information that we receive from you or any third-party related to your use of our services.
6.4 THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TUNED SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. TUNED DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE, TUNED CONTENT, ANY PART OF THE SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
6.5 Tuned makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
6.6 Computer Viruses and any Unauthorized Access or Use. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect your computer or other equipment, or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus screening and prevention software. You should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Tuned. Always log into your Account through the Site to review any required actions if you have any uncertainty regarding the authenticity of any communication or notice.
7. Limited Liability.
7.1 NEITHER TUNED NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF INFORMATION OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TUNED OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7.2 IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO TUNED FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO TUNED, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TUNED AND YOU.
8. Indemnity. At our request, you agree to defend, indemnify, and hold harmless Tuned, its affiliates, and its and their respective employees, officers, directors, agents, and third-party service providers from and against any and all claims, suits, liabilities, damages (actual and consequential), losses, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in any way related to any third-party claims relating to your use of the Services, violation of these Terms, applicable law or any third-party rights, or your fraud or willful misconduct. Such indemnified parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
9. Governing Law. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 11 "Dispute Resolution", the exclusive jurisdiction for all Disputes that you and Tuned are not required to arbitrate will be the state and federal courts located in New York, and you and Tuned each waive any objection to jurisdiction and venue in such courts.
10. Dispute Resolution.
11.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Tuned agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Tuned are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
11.2 Exceptions and Opt-out. As limited exceptions to Section 11.16.1 above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at firstname.lastname@example.org within thirty (30) days following the date you first agree to these Terms.
11.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
11.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
11.5 Class Action Waiver. YOU AND TUNED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
11.6 Effect of Changes on Arbitration. Notwithstanding the provisions of these Terms in respect of changes to them as set forth above, if Tuned changes any of the terms of this Section 6 "Dispute Resolution" after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Tuned’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Tuned in accordance with the terms of this Section 6 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
11.7 Severability. With the exception of any of the provisions in Section 11.5 these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
11. General Provisions.
12.2 Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Tuned’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Tuned may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
12.3 Severability. If any provision of these Terms shall be determined to be invalid or unenforceable under any rule, law or regulation or any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of these Terms shall not be affected.
12.4 Force Majeure. We shall not be liable for delays, failure in performance or interruption of Service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
12.5 Notices. Any notices or other communications provided by Tuned under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
12.6 No waiver. Tuned’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Tuned. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you are a resident of another jurisdiction with a comparable statute or doctrine, you hereby waive such statute or doctrine to the extent permissible under applicable law.