This Terms of Service Agreement (this “Agreement”) is made by and between TunerMatch, LLC (“TunerMatch”) and you as the User (as further defined below). TunerMatch may also be referred to herein as “we” or “us”. The User entering this agreement with us may also be referred to herein as “you”.

 

 

I           YOUR ACCOUNT

 

You must register for an account with us to access and use our Services (as defined herein in Section II). Your account registration is subject to approval by TunerMatch. We reserve the right to decline a registration either to join TunerMatch or to add an account of any type, for any lawful reason.

 

To register for an account to use our Services, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. The term “User” refers to all persons who have created a TunerMatch account, be that a Tuner or a Client account (each as defined below), as the case may be.

 

You agree to provide accurate and complete information on your Profile—and on all registration and other forms you access while using our Services or provide to us—and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your business, the beneficial owner(s) of your business, your skills, or the services your business provides, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an account.

 

When you register for an account and periodically thereafter, your account will be subject to verification, including but not limited to validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on TunerMatch. You authorize TunerMatch, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your business, email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes providing official government or legal documents, and cooperating with other reasonable requests we make to verify your identity. During verification some account features may be temporarily limited but will be restored if verification is successfully completed.

 

As to a User who is a Tuner (as defined in Section II below), by registering for an account or by using our Services, you represent that you: (a) are doing business under your own name as a self-employed individual/sole proprietor or are an employee or agent of an independent business (such as a corporation, limited liability company, or other entity); (b) will use our Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your tuning business, or the business for which you are acting, and any offering or provision of your tuning services; and (d) are either a legal entity or an individual who is at least 18 years old (or the age of majority in your country if the age of majority is over 18), and that you can form legally binding contracts.

 

BY CREATING AN ACCOUNT OR USING THE TUNERMATCH SERVICE, WHETHER THROUGH

A MOBILE DEVICE, MOBILE APPLICATION OR COMPUTER (collectively, the “Services”), YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, OUR PRIVACY POLICY, COOKIE POLICY,

 

AND ALL OTHER POLICIES AND ADDITIONAL TERMS POSTED ON OUR SITES, APPLICATIONS, OR ANY OTHER TYPE OF SERVICE.

 

PLEASE BE ADVISED THAT THIS TERMS OF SERVICE AGREEMENT CONTAINS DISPUTE RESOLUTION PROVISIONS, WHICH GOVERN HOW CLAIMS BETWEEN YOU AND US OR YOU AND ANOTHER USER (AS DEFINED BELOW) WILL BE ADDRESSED AND RESOLVED. THESE PROVISIONS INCLUDE A MANDATORY ARBITRATION DISPUTE PROCESS AND ARBITRATION AGREEMENT.

 

You may terminate your account at any time, for any reason, by following the instructions provided for the termination of your account.

 

We reserve the right to make changes to this Agreement and to the Service at any time. This can be done for a variety of reasons, such as to comply with changes in the law, new features of the Service offered, changes in business practices or any other changes as necessary or reasonable. The most recent version of this Agreement shall be posted on the Service, under the “Info” tab on the navigation menu bar.

 

You are solely responsible for maintaining the confidentiality of your login information, and you are solely responsible for all activities that you participate in or that otherwise occur under your login credentials. You agree to immediately contact us if you believe someone may have gained access to your account. TunerMatch shall not be responsible and will not be held liable for any damage or loss that may occur from your failure to maintain confidentiality of your information.

 

You will use the TunerMatch Services only for lawuful purposes, as authorized by this Agreement and any other terms and policies of TunerMatch.

 

TunerMatch and its affiliates make no representation or warranty about the services, including that the services will be uninterrupted or error-free, and provide the Services (including content and information) on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, TunerMatch and its affiliates disclaim any implied or statutory warranty, including any implied warranty of title, accuracy of data, non-infringement, merchantability or fitness for a particular purpose.

 

The name "TunerMatch" and other TunerMatch marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of TunerMatch in the U.S. and other countries. They may not be used without the express written prior permission of TunerMatch.

 

 

1. ABOUT TUNERMATCH AND OUR SERVICES

 

• Our Services. TunerMatch is a marketplace that allows tuners to offer automotive tuning services in various geographic locations to Clients (as defined below), and the Clients to engage Tuners to provide tuning services for the Clients’ automobiles (our “Services”). Subject to the Terms of Service, TunerMatch provides the Services to Users, including hosting and maintaining the TunerMatch Site, facilitating the formation of Tuning Service Contracts, and assisting Users in resolving disputes which may arise in connection with those contracts.

 

When a User enters a Tuning Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Tuning Service Contract.

 

TunerMatch is not a party to any contracts for services or sales between Tuners and Clients.

 

TunerMatch offers the services for business purposes only and not for personal or consumer use.

 

Any guidance and information that TunerMatch offers, such as pricing and tuning service details, is solely for informational purposes. TunerMatch does not have any control over the tuners, Clients, or the tuning services offered by tuners, and does not guarantee the tuning services’ existence, quality, safety or legality.

 

TunerMatch offers a platform that enables Users to find one another, enter into service relationships and agreements, receive and provide tuning services, and make and receive payments through escrow. TunerMatch neither performs nor employs individuals to perform tuning services. You acknowledge and agree that TunerMatch does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Tuning Service Contract and agree that: (a) TunerMatch is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) TunerMatch is not responsible for the offering, performance, or procurement of tuning services, (c) TunerMatch does not make any representations about or guarantee any particular User’s offered services, and (d) nothing will create an employment, agency, or joint venture relationship between TunerMatch and any User offering services.

 

You further acknowledge and agree that Users, and not TunerMatch, are solely responsible for (a) evaluating and determining the suitability of any Client, Tuner and tuning service; (b) assessing whether to enter into a Tuning Service with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Tuning Service Contract on TunerMatch as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Tuning Service Contracts between Users are directly between the Users and TunerMatch is not a party to those contracts.

 

Nothing in this Agreement is intended to or does prohibit or discourage any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section V, Subsection (B), Paragraph

(12). Users are free at all times to engage in such other business activities and services and are encouraged to do so.

 

TunerMatch does not introduce Clients to Tuners. TunerMatch offers a platform that enables Tuners to introduce themselves and may from time to time highlight Tuners and tuning services that may be of interest. Therefore, TunerMatch does not charge a fee when a Tuner finds a suitable Client or a Client finds a Tuner. In addition, TunerMatch does not charge any fee or dues for posting or viewing feedback, including Composite Information.

 

 

• Account Types. We offer two account types:

 

• Client You can register for an account or add an account type to use the Services as a Client (a “Client”). The term “Client” refers to the person who uses the TunerMatch application to find a Tuner to improve the performance or handling of cars and other vehicles, including but not limited to engine and/or transmission tuning.

 

• Tuner Account. You can register for an account to use the Services as a tuner to provide tuning services (a “Tuner”). The term “Tuner” refers to the person or entity offering the tuning services. The terms “tune”, “tuning”, or “tuning services”, as context requires, refers to the services provided by a tuner to improve the performance or handling of cars and other vehicles, including but not limited to engine and/or transmission tuning.

 

• Taxes and Benefits. Tuner acknowledges and agrees that Tuner is solely responsible for: (a) all tax liability associated with payments received from Tuner’s Clients and through TunerMatch, and that TunerMatch will not withhold any taxes from payments to Tuner unless required to under applicable law;

(b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Tuner is not covered by or eligible for any insurance from TunerMatch;

(c) determining and fulfilling Tuner’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges; and (d) if outside of the United States, determining if TunerMatch is required by applicable law to withhold any amount of the Tuning Fees and notifying TunerMatch of any such requirement and indemnifying TunerMatch for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of TunerMatch, Tuner agrees to promptly cooperate with TunerMatch and provide copies of Tuner’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Tuner is engaging in an independent business as represented to TunerMatch.

 

 

• Feedback. You acknowledge and agree that User feedback benefits the marketplace and its Users, and you specifically request and agree that TunerMatch may make available to other Users individual and composite feedback about Users, including You acknowledge and agree that any feedback results for you, including your rating and other User Content highlighted by TunerMatch on the Site or otherwise (“Composite Information”), may include User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. TunerMatch is not responsible for monitoring, influencing, contributing to or censoring these opinions. You agree to notify TunerMatch of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that TunerMatch may rely on the accuracy of such information. TunerMatch provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.

 

By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. TunerMatch generally does not review or monitor User Content. You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. TunerMatch reserves the right (but is under no obligation) to remove posted feedback or information that TunerMatch determines violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of TunerMatch.

 

 

• CONTRACTUAL RELATIONSHIPS

 

If a Client and Tuner enter into a Tuning Service Contract, the contract is a contractual relationship solely between that Client and Tuner. TunerMatch is not a party to any Tuning Service Contract and is not responsible for anything under any Tuning Service Contract. A Tuning Service Contract shall not create any employment or service relationship between TunerMatch and any User. Additionally, a Client and a Tuner may enter into any other agreements amongst themselves, for so long as no such agreement conflict with, narrow, or expand TunerMatch’s rights and obligations under this Agreement and other agreements incorporated herein.

 

TunerMatch may provide an optional Tuning Service Contract, or optional agreement terms that the Users are free to use. However, such terms shall not apply to any contract amongst Clients and Tuners to the extent thay have not agreed to other terms or agreements that conflict with such optional agreement terms. Users are solely responsible for their decision whether to use any optional agreement terms. Users acknowledge that such terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Optional agreement terms are not intended and do not constitute legal advice, create an attorney-Client relationship, or constitute advertising or solicitation of any time. Users understand and agree that they should seek legal advice from a licensed attorney for their particular needs.

 

 

1. USE OF TUNERMATCH

 

• General Usage Conditions; Consequences. In connection with accessing and using our Services, you agree to comply with this Agreement, our policies, terms, all applicable laws, rules and regulations. You agree to treat other Users in a respectful You are solely responsible for your interactions with other Users. TunerMatch does not conduct criminal background checks on or inquire into the background of any of its Users. TunerMatch makes no representations or warranties as to the conduct of any of its Users.

 

You agree to not breach or circumvent any laws, rules, regulations, other Users’ or third-party rights, our Services, terms and policies.

 

If you are a Tuner, you agree to deliver the services offered at the price listed. You shall not manipulate the price of any service or interfere with the listings of any Tuners.

 

IF YOU ARE A TUNER, YOU AGREE NOT TO OFFER, LIST, PERFORM, OR SUGGEST, IN ANY WAY, DIRECTLY OR INDIRECTLY, THE IDEA OF OR THE PERFORMANCE OF ANY ACTION THAT DOES OR MAY, DIRECTLY OR INDIRECTLY, CIRCUMVENT, BREAK, OR DEFEAT ANY OF THE ENVIRONMENTAL PROTECTION AGENCY’S (“EPA”) EMISSIONS STANDARDS, THE CALIFORNIA AIR RESOURCES BOARD (“CARB”) RULES AND REGULATIONS, AND ANY OTHER RULES AND REGULATIONS APPLICABLE TO THE TUNING OF VEHICLES, WHETHER PROMULGATED BY THE EPA OR ANY OTHER AGENCY OR GOVERNMENT ORGANIZATION, INCLUDING, BUT NOT LIMITED TO, ACTIONS OR IDEAS SUCH AS DIESEL PARTICULATE FILTER (“DPF”) AND/OR OXYGEN SENSOR DISABLE OR DELETE, OR ANY SUCH ACTION OR SERVICE. TUNERMATCH SHALL MONITOR AND PERFORM ROUTINE UNANNOUNCED CHECKS ON YOUR COMMUNICATIONS AND PERFORMANCE FOR PURPOSES OF COMPLIANCE WITH RULES AND REGULATIONS APPLICABLE TO VEHICLE TUNING, AND ANY SUCH COMMUNICATION OR ACTION AS PROHIBITED BY THIS PARAGRAPH SHALL RESULT IN THE IMMEDIATE PERMANENT SUSPENSTION OF YOUR ACCOUNT.

 

IF YOU ARE A CLIENT, YOU AGREE NOT TO ASK, SUGGEST, OR PAY, IN ANY WAY, DIRECTLY OR INDIRECTLY, FOR INFORMATION, LITERATURE, RESEARCH, TRAINING, OR PERFORMANCE OF ANY ACTION THAT DOES OR MAY, DIRECTLY OR INDIRECTLY, CIRCUMVENT, BREAK OR DEFEAT, CIRCUMVENT ANY OF THE EPA’S EMISSIONS STANDARDS, CARB’S RULES AND REGULATIONS, AND ANY OTHER RULES AND REGULATIONS APPLICABLE TO THE TUNING OF VEHICLES, WHETHER PROMULGATED BY THE EPA OR ANY OTHER AGENCY OR GOVERNMENT ORGANIZATION, INCLUDING, BUT NOT LIMITED TO, ACTIONS OR IDEAS SUCH AS DIESEL PARTICULATE FILTER (“DPF”) AND/OR OXYGEN SENSOR DISABLE OR DELETE, OR ANY SUCH ACTION OR SERVICE. TUNERMATCH SHALL MONITOR AND PERFORM UNANNOUNCED CHECKS ON YOUR COMMUNICATIONS AND PERFORMANCE FOR

 

PURPOSES OF COMPLIANCE WITH RULES AND REGULATIONS APPLICABLE TO VEHICLE TUNING, AND ANY SUCH COMMUNICATION OR ACTION AS PROHIBITED BY THIS PARAGRAPH SHALL RESULT IN THE IMMEDIATE PERMANENT SUSPENSTION OF YOUR ACCOUNT.

 

If you are a Client, you agree to pay for services purchased by you.

 

As a User, you shall not take any action that may undermine our feedback or ratings systems, transfer your account to another party without our consent, share your login credentials with anyone, create any listings, posts or other content that is not allowed or is inappropriate, post false, inaccurate, or misleading information, including deceptive, defamatory or libelous content.

 

As a User, you shall not distribute or post any spam content, chain letters, or any pyramid schemes, distribute malware or viruses that may harm us or other Users, use any robot, data minimng or data gathering tools, or other automated means in connection with our Services (including logging in, posting, inquiring, buying, offering, and any other action that a User who uses our Services engages in in connection with our Services).

 

As a User you shall not infringe on any copyright, patent, trademark, publication, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to TunerMatch and other third-parties affected by your use of our Services.

 

If we believe you are violating any of our terms, conditions, or policies, we may, in our sole discretion take a range of actions, including limiting your account usage, restricting your listings or other account features, suspending your account, applying fees, recovering expenses for monoriting and enforcement of our policies, cancelling your account, and any other action that we may deem reasonable or necessary to protect the integrity of our Services and our interests and the interests of our Users. Additionally, we reserve the right to refuse, modify or terminate all or part of our Services to any one for any reason at any time at our discretion.

 

In taking action against a User, we may consider that User’s history in using our Services and the specific circumstances surrounding the issue.

 

• Content. When you provide content using our Services (directly or indirectly), you grant us a non- exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against TunerMatch, our assignees, our sublicensees, and their assignees in connection with our, those assignees', and those sublicensees' (our “affiliates”) use of that content in connection with our provision, expansion, and promotion of our Services.

 

You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our Users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. TunerMatch takes no responsibility and assumes no liability for any content provided by you or any third party.

 

We offer service and product data (including images, descriptions and specifications) that are provided by third parties (including TunerMatch Users). You may use that content solely in your TunerMatch listings.

 

TunerMatch may modify or revoke that permission at any time in our sole discretion. The product data may include copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings/offerings).

 

We try to offer reliable service and product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that TunerMatch is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.

 

 

1. PERFORMANCE OF TUNING SERVICES AND PAYMENT FOR TUNING SERVICES

 

• Performance of Tuning Services. Tuning services improve the appearance, performance or handling of cars and other vehicles, including but not limited to engine and/or transmission tuning. Such services require that the vehicle be in good condition with no mechanical or software issues.

 

As a Client, you agree, represent and warrant that, in engaging the services of a Tuner, your automobile in good condition, mechanically sound, and if any modifications or tunings have been previously performed on the vehicle, such modifications of tunings have been correctly installed and have shown no issues. The Tuner shall not be responsible for any mechanical issues that may arise during the performance of the tuning services or after the performance of the tuning services is completed.

 

As a Tuner, you agree, represent and warrant that, in offering your tuning services and in performing and completing the tuning services, you are qualified to perform such tuning services, and if one or more licenses are required, you hold such licenses and they are active and in good standing. You agree, represent and warrant that you will use your best efforts to faithfully, honestly, and within a reasonable amount of time successfully perform the tuning services as requested by the Client upon your engagement by the Client.

 

As part of the tuning services, the Client may be required to buy hardware and to install such hardware. This may arise, for example, if the Tuner is located far from the Client and it is not practicable for the Client to go to the Tuner’s location or the Tuner to go to the Client’s location, or for any other reason that the Client and Tuner agree at the inception of their tuning service agreement.

 

Under such circumstances,

 

• the Client agrees to (i) buy any hardware or software required for the tuning services as required by Tuner, (ii) download any software as the Tuner may require, or to upload or otherwise send to Tuner any files required by Tuner, as the case may be, (iii) follow the Tuner’s instructions accurately in order to perform any action the Tuner may require of the Client; (iv) test drive the vehicle after the tuning service has been complete and upload driving and diagnostic data to the Tuner; (v) revise and redo any of the foregoing steps as necessary for the tuning of the vehicle in accordance with the Tuner’s instructions.

 

• the Tuner agrees to clearly set out by clear communication to the Client what actions the Tuner expects the Client to perform as part of the tuning service (such as test driving the vehicle). The Tuner shall provide accurate, step-by-step instructions to the Client and may also guide the Client so that that any action expected to be completed by the Client is completed in accordance with the instructions of the Tuner. For such purposes, the Tuner may utilize phone calls or video calls.

 

As part of the tuning services, if Client is dissatisfied with an issue related to the tuning services, the Tuner shall have one business week with multiple attempts as requested by Tuner per day to correct the issue. The Client and Tuner both agree that tuning a vehicle is not simple and issues may arise which require several attempts in order to be resolved, and both agree that a business week with multiple attempts as requested by Tuner to correct the issue is a normal course of action in regard to issues that may occur as part of the tuning service. If Tuner is not provided a minimum of one business week by the Client to correct the issue, Client is ineligible to dispute Tuner’s services in Arbitration or otherwise. If more than one issue occurs, the Tuner shall have one business week’s worth of time to correct each issue, which such business week period may overlap (in other words, the Tuner may work on more than one issue at the same time).

 

• Payment for Tuning Services. In order to provide for the highest quality of service, to ensure mutual satisfaction of Clients and Tuners, and to minimize disputes, payment for tuning services shall be made in the following manner:

 

• Escrow Services. TunerMatch provides escrow services to Users to deliver, hold, and receive payment for a tuning service, and to pay fees to TunerMatch (the “Escrow Services”). Therefore, the Client shall transfer to TunerMatch as escrow agent the full amount due for the performance of the tuning services (the “Tuning Fee”) prior to the commencement of the tuning services. Such Tuning Fee shall be kept in an escrow account by TunerMatch, which shall notify the Client and Tuner of the successful deposit of the Tuning The TunerMatch shall release the Tuning Fee to the Tuner upon completion of the tuning service to the satisfaction of the Client, which shall not be unreasonably withheld. If Tuner indicates that the tuning services have been completed, Client has seventy-two (72) hours to affirm or dispute that the services have been provided. If Client does not respond within seventy-two (72) hours, then the Tuning Fee will be released automatically to Tuner and Client will have forfeited any right to dispute the services provided. The Escrow Services are intended for business use, and you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.

 

TunerMatch will use and release funds deposited in an Escrow Account only in accordance with this Agreement and applicable law. Depending on your needs, TunerMatch will establish and maintain one of two different types of Escrow Accounts:

 

• Client Escrow Account. After entering into a Tuning Service Contract, the first time a Client makes a payment for a tuning service, TunerMatch will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for tuning services, to receive refunds in connection with tuning services, and to make payments to TunerMatch.

 

• Tuner Escrow Account. After entering into a Tuning Service Contract, the first time a Tuner uses the Site to receive payment for a tuning service, TunerMatch will establish and maintain a “Tuner Escrow Account” for Tuner to receive payments for tuning services, withdraw payments, make payments to TunerMatch and issue refunds to Clients.

 

You hereby authorize and instruct TunerMatch to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each tuning service and other specified purposes in accordance with the Terms of Service. Client and Tuner may access current information regarding the status of an Escrow Account on the Site.

 

If you are a Tuner and you request payment or the release of funds, you hereby appoint TunerMatch as your agent to obtain funds on your behalf and credit them to your Tuner Escrow Account. Because TunerMatch is Tuner’s agent, Tuner must, and hereby does, fully discharge and credit Tuner’s Client for

 

all payments and releases of funds that TunerMatch receives on Tuner’s behalf from or on behalf of such Client.

 

TunerMatch and our affiliates are not banks. TunerMatch deposits and maintains all Escrow Account funds in an escrow trust account at a bank insured by the Federal Deposit Insurance Corporation and approved to receive, hold, and deliver escrow funds under applicable laws and regulations. The escrow trust account is separate from the operating accounts of TunerMatch and each of our affiliates. TunerMatch will not voluntarily make funds deposited in the escrow trust account available to its creditors, or the creditors of its affiliates, in the event of a bankruptcy, or for any other purpose. As provided in United States Bankruptcy Code, Section 541(d), TunerMatch holds only legal title to, and not any equitable interest in, the escrow trust account and any funds deposited in it. This Agreement is supplementary to any other agreement between Client and Tuner concerning the tuning service.

 

You agree that you will not receive interest or other earnings on the funds held in your Escrow Account. TunerMatch or our affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services we provide as provided in this Terms of Service.

 

We only agree to perform such duties as are expressly set forth in this Agreement and any other agreement incorporated herein, and no other duties will be implied. We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than the Terms of Service and any other agreement incorporated herein. We will be under no duty to inquire about or investigate any agreement or communication between Client and Tuner (except as may be otherwise provided), even if posted to the Site. We have the right to rely upon, and will not be liable for relying on, any written notice, instruction, or request furnished to us by Client or Tuner in accordance with this Agreement or any other agreement incorporated herein, if we reasonably believe that such notice, instruction, or request is genuine and that it is signed or presented by the proper party or parties. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We have no duty to solicit any payments or releases that may be due to or from any Escrow Account. We may execute any of our powers and perform any of our duties under this Agreement and any other agreement incorporated herein directly or through agents or attorneys (and will be liable only for the careful selection of any such agent or attorney) and may consult with counsel, accountants, and other skilled persons to be selected and retained by us. If we are uncertain as to our duties or rights under this Agreement or receive instructions, claims, or demands from any party to this Agreement that, in our opinion, conflict with any of the provisions of this Agreement or any other agreement incorporated herein, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Escrow Account until we are directed otherwise in writing by Client and Tuner or by a final order or judgment of an arbitrator or court of competent jurisdiction.

 

We have the right to institute arbitration or other legal proceedings if applicable, including depositing funds held in the Escrow Account with a court of competent jurisdiction, in order to resolve any dispute between Client and Tuner related to the Escrow Account. Except as expressly provided, nothing in this Agreement will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Escrow Account with a court of competent jurisdiction. Any corporation or association into which TunerMatch may be merged or converted or with which TunerMatch may be consolidated, or any corporation or association to which all or substantially all the escrow business of TunerMatch may be transferred will succeed to all the rights and obligations of TunerMatch as escrow holder and escrow agent under this Agreement and any other agreement incorporated herein to the extent permitted by applicable law.

 

• Service Fees. Tuners agree to pay TunerMatch a service fee equal to 15% of the Tuning Fee charged to the Client for the tuning service, for the use of the TunerMatch Services (including marketing, invoicing, reporting, payment, and dispute resolution services) (the “Tuner Service Fee”). Tuner is responsible for paying all Tuner Service When a Client pays a Tuner for a tuning service or when funds related to a tuning service are otherwise released to a Tuner as provided in this Agreement, TunerMatch Escrow will credit the Tuner Escrow Account for the full amount paid or released by the Client, and then subtract and disburse to TunerMatch the Tuner Service Fee. Tuner hereby irrevocably authorizes and instructs TunerMatch Escrow to deduct the Tuner Service Fee from the Tuner Escrow Account and pay TunerMatch on Tuner’s behalf. If Tuner chooses to withdraw funds in a currency other than U.S. dollars, TunerMatch Escrow (or an affiliate) will impose a foreign currency conversion charge, and the rate may differ from rates that are in effect on the date of the payment. You may be able to obtain a better rate from your bank or financial institution.

 

• Disbursement Fees. Tuners may pay TunerMatch a disbursement fee for remitting payments to their preferred payment method. This fee is paid to TunerMatch in consideration of administrative costs and costs incurred via the disbursement method, and may vary by disbursement method. The fee for each disbursement method is listed on the TunerMatch site and is subject to change.

 

• Collection of Taxes. TunerMatch Service Fee is exclusive of taxes. TunerMatch does not collect taxes it is not required to collect, but TunerMatch may be required by applicable law to collect certain taxes or levies, including income tax or VAT (which some jurisdictions refer to as GST or local sales taxes). These collection requirements and rates may change based on changes to the law in your Any amounts TunerMatch is required to collect or withhold for the payment of any such taxes shall be collected in addition to the fees owed to TunerMatch under the Terms of Service.

 

• Client Fees. Clients pay TunerMatch a service fee equal to 5% of the Tuning Fee charged by the Tuner for a tuning service, for each tuning service, for accessing the Services, and for administration and facilitation of payments related to the Tuning Fees they pay to Tuners they engage through the Site (the “Client Service Fee”). Client is responsible for paying all Client Service Such 5% Client Serivce Fee is in addition to, and not a part of, the Tuning Fee charged by the Tuner for the performance of the tuning service. Therefore, when a Client pays a Tuner for a tuning service, the Client will be charged the 5% Client Service Fee in addition to the Tuning Fee owed to the Tuner for the tuning service. Client hereby irrevocably authorizes and instructs TunerMatch Escrow to deduct the Client Service Fee from the Client Escrow Account and pay TunerMatch on Client’s behalf. If Client chooses to pay in a currency other than U.S. dollars, TunerMatch Escrow (or an affiliate) will impose a foreign currency conversion charge, and the rate may differ from rates that are in effect on the date of the payment. You may be able to obtain a better rate from your bank or financial institution.`

 

• Payment Methods. In order to use certain of our Services, Client must provide account information for at least one valid Payment Method.

 

Client hereby authorizes TunerMatch to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment consistent with our Privacy Policy, and to charge Client’s credit card (or any other Payment Method) for the Tuning Fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.

 

By providing Payment Method information through the Site or by authorizing payments with the Payment Method, Client represents that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or

 

agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on TunerMatch; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.

 

When Client authorizes a payment using a Payment Method via the Site, Client represents that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.

 

TunerMatch is not liable to any User if TunerMatch does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. TunerMatch will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Escrow Instructions.

 

• Currency Type. If a User’s Payment Method is denominated in a currency other than S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Site will display foreign currency converter tool that TunerMatch and our affiliates currently make available to provide an estimate of the convertion rate of supported foreign currencies to U.S. Dollars.

 

These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site through the converter tool. If foreign currency conversion is required to make a payment in U.S. Dollars and TunerMatch and its affiliates does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed through the converter tool, TunerMatch Escrow or one of our Affiliates will charge, debit, or credit the User’s Payment Method in U.S. Dollars and the User’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User’s Payment Method provider. The User’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User’s sole risk. TunerMatch and our other Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than

U.S. Dollars or for currency fluctuations that occur when receiving or sending payments to and from the Escrow Account.

 

• Other Payment Related Provisions. Payment for tuning services may be made using the payment methods offered by When using our Escrow Services, you authorize TunerMatch or its third party payment entity to initiate payments using your selected payment method and collect the transaction amount on behalf of the Tuner. Accordingly, payments received by TunerMatch from you will satisfy your obligations to pay the Tuner in the amount of payments received.

 

Client becomes obligated to pay the full amount of the tuning services into the Client Escrow Account immediately upon the signing of a Tuning Service Contract with a Tuner. When Client authorizes the payment of the Tuning Fees, Client automatically and irrevocably authorizes and instructs TunerMatch to charge Client’s payment method for the Tuning Fees, and upon the Tuner commencing its services, such Tuning Fee shall be held in the Tuner Escrow Account.

 

Client acknowledges and agrees that failure by Client to decline or dispute an invoice or request for payment for seventy-two (72) hours, is an authorization and instruction to release payment.

 

TunerMatch shall disburse the Tuning Fee (minus the 20% Tuner Service Fee as provided above) in the applicable Tuner Escrow Account and payable to a Tuner after the tuning services are complete to the satisfaction of the Client, which satisfaction shall not be unreasonably withheld.

 

If a Tuner that is located outside of the United States is not able to withdraw funds due to economic sanctions applicable to TunerMatch or our payment partners, or due to TunerMatch's payment partners' refusal to service certain geographic areas, TunerMatch will suspend automatic disbursement as provided in the prior paragraph and will safeguard such funds in an Escrow Account, or in another suitable account, as determined in TunerMatch's sole discretion, until the earlier of (a) the Tuner is able to and does in fact withdraw the funds, or (b) TunerMatch is required by law to escheat the funds to an appropriate legal authority, after which the Tuner can seek to recover the funds from such authority.

 

Except as expressly provided in the Terms of Service or any other agreement incorporated herein and as prohibited by applicable law, TunerMatch may refuse to process, may hold the disbursement of the Tuning Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Escrow Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Tuner’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Tuning Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site or is using the Site unlawfully; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances. If, after investigation, we determine that the hold on the disbursement of the Tuning Fees is no longer necessary, TunerMatch Escrow will release the hold as soon as practicable.

 

In addition, except as expressly provided in the Terms of Service or the Escrow Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you or your Client despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing TunerMatch Escrow (and TunerMatch Escrow will have the right) to charge your account(s), offset any amounts determined to be owing, deduct amounts from future payments or withdrawals, charge your Payment Method, or use other lawful means to obtain reimbursement from you. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Services and close your Account.

 

In certain circumstances, your transaction may be declined, frozen, or held for any reason including for suspected fraud, compliance with economic or trade sanctions, in connection with TunerMatch’s internal risk controls or due to potential violations of any policy of TunerMatch, or a third-party payment service provider.

 

TunerMatch or its third-party payment entity may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on our Services when you purchase a service or make any other transaction on our Services where card information is entered. Such stored payment information may be used as your default payment method for future transactions on our Services. At any

 

time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You may make changes to your default payment method through the Personal Information section under the Account settings. You are responsible for maintaining the accuracy of information we have on file, and you consent to TunerMatch updating such stored information from time to time based on information provided by you, your bank or other payments services providers. You will only provide information about payment methods that you are authorized to use.

 

Client acknowledges and agrees that TunerMatch or its affiliates may charge or debit Client’s designated Payment Method for the Tuning Fees incurred. Once TunerMatch or its affiliates charges or debits the Client’s designated Payment Method for the Tuning Fees, the charge or debit is non-refundable, except as required by TunerMatch refund policy or as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client to resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Tuning Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of this obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that TunerMatch or its affiliates may dispute or appeal the chargeback, institute collection action against Client, close Client’s account, and take such other action it deems appropriate.

 

You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of the services provided by the TunerMatch or its third party payment entity. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the TunerMatch Payment Entity has no control over, or responsibility or liability for, such fees or actions

 

• Cancellations or Refunds. As Client, you may seek cancellations or refunds on the Tuning Fee paid for tuning services only if the tuning services have not been completed in full by the Tuner upon the agreed upon timeframe, or the Tuner has completed the tuning services but such tuning services are not to your reasonable satisfaction. If you are entitled to a refund, upon investigation as by TunerMatch as provided below, TunerMatch will issue the refund. Refund timing may vary in accordance with the circumstances and rules of third parties, such as credit and debit card If the Tuner completes the tuning services and TunerMatch during its investigation determines that the Client’s satisfaction was unreasonably withheld, TunerMatch shall release the Tuning Fee to the Tuner.

 

TunerMatch shall have a reasonable amount of time to conduct an investigation, which shall vary depending on the complexity of the circumstances and the cooperation of the Client and Tuner. If such extenuating circumstances arise, TunerMatch will use its best efforts to finish conducting such investigation as soon as reasonably possible. Upon conclusion of its investigation, TunerMatch shall inform the parties of the results of its investigation.

 

These foregoing provisions are subordinate to any provision of Section VII of this Agreement relating to Dispute Resolution.

 

• Non-Circumvention. You agree and acknowledge that a substantial portion of TunerMatch’s compensation for making the Services available to you is collected through the applicable Service Fees as described in Subsections (3) and (6) of this Section (B). You agree and acknowledge that

 

in exchange for the applicable Service Fee, you obtain substantial value in the relationships that you make with other Users (the “TunerMatch Relationship”). TunerMatch only receives the Service Fee when a Client and Tuner pay and receive payment through the TunerMatch Site. Accordingly, except as may be provided otherwise in this Agreement, you agree that for a period of twenty-four (24) months from the start of a TunerMatch Relationship (the “Non-Circumention Period”), you will use the Site as your exclusive method to request, make, and receive all payments for tuning services directly or indirectly arising from such relationship and you shall not circumvent the Payment Methods offered by TunerMatch unless you pay a fee to take the relationship off the TunerMatch Service (the “Conversion Fee”), as detailed in Paragraph (12) of this Section (B). If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User. If you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. By way of example only, you agree that during the Non-Circumvention period you will not:

 

• Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.
• Invoice or report on the Site or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users.
• Refer a User you identified on the Site to a third party who is not a User of the Site for purposes of making or receiving payments other than through the Site.

 

You agree to notify TunerMatch immediately if a person suggests making or receiving payments other than through the Site in violation of this Paragraph (11) or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to TunerMatch.

 

You acknowledge and agree that a violation of this Paragraph (11) is a material breach of the Terms of Service, and may result in your Account being permanently suspended and charged the Conversion Fee (defined above). This Section still applies if you choose to cease using the Site, and you must pay the Conversion Fee for each other User you wish to continue working with after you cease using the Site.

 

• Opting Out of TunerMatch Payment Methods. You may opt out of the obligations in Paragraph (11) of this Section (B) with respect to each TunerMatch Relationship only if the Client or Tuner pays TunerMatch a Conversion Fee which is a minimum of $5,000 USD and up to $50,000 USD for each TunerMatch Relationship, unless Client and Tuner have had a TunerMatch Relationship for at least two (2)

 

You understand and agree that if TunerMatch determines that you have violated the foregoing Paragraph (11), it may (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days,

(b) close your Account and revoke your authorization to use the Services, and (c) charge you for all losses and costs (including any and all time of TunerMatch’s internal workforce) and reasonable expenses (including attorneys’ fees and court costs) related to investigating such breach and collecting such fees.

 

You agree that the Conversion Fee is 13.5% of the estimated earnings over a twelve (12) month period, which is calculated by taking the Hourly Rate (defined below) and multiplying it by 2,080. “Hourly Rate” means (a) the highest hourly rate charged by the Tuner on any Service Contract with the Client, if any; or

(b) if there is no hourly rate on a Service contract, the hourly rate in the Tuner’s profile when the conversion is requested. The Conversion Fee includes all applicable taxes and is not subject to the Service Fees charged

 

by TunerMatch. If Client and Tuner have had a TunerMatch Relationship for at least two (2) years, the Conversion Fee is a nominal $1 USD for administrative purposes. The Conversion Fee is not refundable.

 

• Communication through TunerMatch Service. Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Tuning Service Contract. You agree that prior to entering into a Tuning Service Contract, you (a) will use TunerMatch as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another User to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of TunerMatch; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) will not include any Means of Direct Contact or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.

 

For purposes of the Terms of Service, “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a User to contact you on social media or other website or platform or application that includes a communications tool, such as WhatsApp, Viber, Microsoft Teams, Skype, Slack, Wechat, or Facebook. Information is a Means of Direct Contact if it would enable another User to identify any of the information above through other sources, such as going to a website that included an email address or identifying you through social media.

 

You acknowledge and agree that a violation of this Paragraph (12) is a material breach of the Terms of Service and your Account may be permanently suspended for such violations.

 

• Default. If Client is in “default”, meaning the Client fails to pay the Tuning Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of TunerMatch), TunerMatch will be entitled to the remedies described in this Paragraph (14) in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Tuning Fees when due; (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Client fails to pay an invoice issued to the Client by TunerMatch within the time period agreed or, if no period is agreed, within 30 days; (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by TunerMatch for Tuning Fees or such other amount due being reversed to the Client; or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.

 

If Client is in default, we may, without notice, temporarily or permanently close Client’s account and revoke Client’s access to the Services, including Client’s authority to use the Site to process any additional payments, enter into Tuning Service Contracts, or obtain any additional tuning services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open tuning services at the time a limitation is put on the Client’s account as a result of the default. Without limiting other available remedies, Client must pay TunerMatch upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.

 

At our discretion and to the extent permitted by applicable law, TunerMatch or its other affiliates may, without notice, charge all or a portion of any amount that is owed to any Payment Method on file on the Client’s account; set off amounts due against other amounts received from Client or held by for Client by TunerMatch or another affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.

 

TunerMatch does not guarantee that Client is able to pay or will pay Tuning Fees, and TunerMatch is not liable for and may reverse Tuning Fees if Client is in default or initiates a chargeback of funds with their financial institution. Tuner may use the dispute process as described in this Agreement and the Tuning Service Contract (so long as such terms do not conflict with this Agreement) in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Tuner chooses. If TunerMatch recovers funds from a Client who initiated a chargeback or who is in default pursuant to this Paragraph, TunerMatch will disburse any portion attributable to Tuning Fees, after recoupment of costs and fees associated with the funds recovery, to the applicable Tuner to the extent not already paid by Client or credited by TunerMatch.

 

 

• Worker Classification. Client is solely responsible for and assumes all liability for determining whether Tuners should be engaged as independent contractors or employees and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Tuners complies with applicable laws, regulations, and rules. TunerMatch is not responsible for worker classification as between Client and Tuner, and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between TunerMatch and a User.

 

 

• DISPUTE RESOLUTION

 

PLEASE READ THIS SECTION V CAREFULLY. THE PROVISIONS OF THIS SECTION AFFECT YOUR RIGHTS AS THESE PROVISIONS DETERMINE HOW CLAIMS THE CLIENT, THE TUNER, AND TUNERMATCH HAVE AGAINST EACH OTHER.

In this Section V, the term “related third parties” includes TunerMatch’s and your respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, heirs, employees, and agents.

 

You and TunerMatch agree that any claim or dispute at law or equity that has arisen, or may arise, between you and another User, or you and TunerMatch (or any related third parties) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Services, the actions of TunerMatch or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Dispute Resolution Section.

 

• Applicable Law to All Disputes. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Florida, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and TunerMatch, except as otherwise stated in this User Agreement.

 

• Disputes Between You and TunerMatch; Arbitration. You and TunerMatch each agree that any and all disputes or claims that have arisen, or may arise, between you and another User or you and TunerMatch (or any related third parties) that relate in any way to or arise out of this or previous

 

versions of this Agreement, your use of or access to our Services, the actions of TunerMatch or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration as provided in this Agreement, rather than in court.

 

Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act ("FAA"), and to the extent not inconsistent with the FAA, the laws of the State of Florida, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate.

 

• Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND TUNERMATCH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND TUNERMATCH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY

RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court (pursuant to Section 18.C below), subject to your and TunerMatch's right to appeal the court's decision. All other claims will be arbitrated.

 

• Arbitration Procedures. Arbitration is more informal than a lawsuit in Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of paragraph (1) of this Subsection (B) (relating to the "Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.

 

The arbitration will be administered by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA's Commercial Arbitration Rules, and the AAA's International Centre for Dispute Resolution Rules (as applicable), as modified by this Agreement to Arbitrate. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA's rules are available at www.adr.org and www.icdr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court (pursuant to Paragraph (3) below) shall select the administrator.

 

A party who intends to seek arbitration must first send to the other a Notice of Dispute ("Notice"). The Notice to TunerMatch must be sent to TunerMatch, LLC, Attn: Litigation Department, Re: Notice of Dispute, info@tunermatch.com. TunerMatch will send any Notice to you to the email address we have on file associated with your TunerMatch account; it is your responsibility to keep your email address up to

 

date. To be valid, you must include a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account. The Notice must be dated and signed by you.

 

If you and TunerMatch are unable to resolve the claims described in a valid Notice within 30 days after TunerMatch receives that Notice, you or TunerMatch may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to TunerMatch at the following email address: TunerMatch, LLC, info@tunermatch.com. In the event TunerMatch initiates an arbitration against you, it will send a copy of the completed form to the email address we have on file associated with your TunerMatch account. Any settlement offer made by you or TunerMatch shall not be disclosed to the arbitrator.

 

If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Pasco County, Florida, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or TunerMatch may attend by telephone, unless the arbitrator requires otherwise. The language of the arbitration will be English.

 

The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same TunerMatch User to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

 

• Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to If you complied with the notice of dispute procedures of paragraph (2) of this Subsection (B) ("Arbitration Procedures") and the value of the relief sought is $10,000 or less, at your request, TunerMatch will pay all administration and arbitrator fees associated with the arbitration. Any request for payment of fees by TunerMatch should be submitted by mail to the AAA along with your Demand for Arbitration and TunerMatch will make arrangements to pay administration and arbitrator fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse TunerMatch for all fees associated with the arbitration paid by TunerMatch on your behalf that you otherwise would be obligated to pay under the AAA's rules.

 

• Severability. With the exception of any of the provisions in paragraph (1) of this Subsection (2) (the "Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.

 

• Future Amendments to Agreement to Arbitrate. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address, link, email or other contact method provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against TunerMatch prior to the effective date of the The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and

 

TunerMatch. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.TunerMatch.com at least 30 days before the effective date of the amendments and by providing notice through the TunerMatch Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.

 

• Disputes Between Users. If a dispute arises between you and another User, such as a Client and a Tuner, unless you opt out as provided below, you agree to submit to binding arbitration through TunerMatch. You acknowledge and agree that TunerMatch, as an expert in the tuning service industry, is in a superior position to be able to quickly and effectively, as an impartial party, resolve dispoutes that you may have with another User in regard to the tuning services engaged for and provided. You agree that TunerMatch shall serve as the sole and final arbitrator. The decision of TunerMatch shall be final and binding on both parties. Disputes shall include any claims, disputes or controversies arising out of or relating to this Agreement between users.

 

To initiate an arbitration, you or the other User shall send a “Notice of Dispute” to TunerMatch. The Notice of Dispute to TunerMatch must be sent to info@tunermatch.com. The Notice of Dispute must include a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account. The Notice must be dated and signed by you. TunerMatch shall send either to your TunerMatch account as a message or notification, or to the email address we have on file, an acknowledgment of receipt of such Notice of Dispute, and will notify the other party against which you have a dispute of such Notice of Dispute (along with a copy of it) in a similar manner. Upon each User receiving such acknowledgment, the arbitration process shall commence.

 

BY AGREEING TO ARBITRATE UNDER THIS AGREEMENT, YOU ARE ELECTING TO HAVE CLAIMS RESOLVED BY ARBITRATION AND ARE EXPRESSLY GIVING UP ANY AND ALL RIGHTS TO A JURY TRIAL OR COURT TRIAL BEFORE A JUDGE.

 

• Fees. TunerMatch shall charge $250 in respect of any such arbitration between two However, costs shall be charged against the party for whom such costs are incurred.

 

• Documents Required. As part of the arbitration process, each party will be required to submit all files, documents, records, communications, and any other information relevant to the dispute TunerMatch at info@tunermatch.com within 72 hours of the User receiving the acknowledgment of the Notice of Dispute sent by TunerMatch.

 

• Arbitration Process. Our goal at TunerMatch is to offer the best service possible, minimize disputes, and resolve disputes quickly and cost-effectively. Each User shall have a total of seventy-two (72) hours to electronically provide all files and information exchanged between the Tuner and Client. Failure to provide all files and information within such time frame shall result in an automatic forfeiture of claim and loss by that party.

 

Arbitration shall be conducted in Pasco County, Florida, and if possible, it will be conducted electronically. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved only through the submission of documents, subject to the arbitrator’s discretion to request an in-person hearing (wither physically or by a service provider, such as Zoom or Microsoft Teams).

 

Aribtration shall be conducted in the English language. This Arbitration provision applies to all Users located in or who reside in the United States and its territories.

 

The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Tuning Match user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

 

• Right to Opt Out. You may opt out of this Arbitration provision by notifying TunerMatch in writin within thirty (30) days of the date you first registered for an account. You must do so by sending an email to info@tunermatch.com, containing all your contact information, including your full name, your account number or user ID, your phone number, your address, and your email. Opting out of arbitration does not affect any other terms of this Agreement.

 

• Amendments. TunerMatch may amend the provisions regarding arbitration at any time. The amendment shall apply to claims and disputes arising after the amendment becomes We will notify you of any amendments by posting the amended terms on the Site at least 30 days prior to the effective date of the amendments. If you do not agree to amended terms, you myay close your account within the thirty day period (from the date the amended terms are posted until they become effective) and you will not be bound by the amended terms.

 

 

VII       DISCLAIMER    OF    WARRANTIES;    LIMITATION    OF    LIABILITY;    RELEASE; INDEMNIFICATION

 

• Limitation of Liability. We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services.

 

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

 

In addition, to the extent permitted by applicable law, in no event will TunerMatch (including our subsidiaries, licensors, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or TunerMatch was advised of such damages or losses. Without limiting the generality of the foregoing, we (including our subsidiaries, licensors, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:

 

• the content you provide (directly or indirectly) using our Services;
• your use of or your inability to use our Services;
• delays or disruptions in our Services;
• viruses or other malicious software obtained by accessing or linking to our Services;
• glitches, bugs, errors, or inaccuracies of any kind in our Services;
• damage to your hardware device or your vehicle from the use of any TunerMatch Service;
• the content, actions, or inactions of third parties, including items listed using our Services;

 

• a suspension or other action taken with respect to your account or breach of this Agreement;
• the duration or manner in which your profile or services appear on the site; or
• your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.

 

Additionally, in no event will TunerMatch, our affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. The liability of TunerMatch, our affiliates, our licensors, and our third-party service providers to any User for any claim arising out of or in connection with this Agreement or the other Terms of Service will not exceed the lesser of: (a) $2,500 or (b) any fees retained by TunerMatch with respect to Tuning Service Contracts on which User was involved as Client or Tuner during the six-month period preceding the date of the claim.

 

These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with this Agreement or the other Terms of Service, whether in contract, tort (including negligence), strict liability, or otherwise, even if TunerMatch has been advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. Some states and jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to you.

 

• Release. In recognition of the fact that TunerMatch is not a party to any contract between Users, you hereby release TunerMatch, TunerMatch Escrow, our other Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Tuner Services provided to Client by a Tuner and requests for refunds based upon Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.

 

To the extent applicable, you hereby waive the protections of California Civil Code § 1542 (and any analogous law in any other applicable jurisdiction) which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

 

This release will not apply to a claim that TunerMatch failed to meet our obligations under the Terms of Service.

 

• Indemnification. You will indemnify, defend, and hold harmless TunerMatch, our licensors and affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) your or your agents’ use of the Services, including any payment obligations or default incurred through use of the Services; (b) any Tuning Service, Work Product, or User Content related to your use of the Services; (c) any Tuning Service Contract entered into by you or your agents, including, but not limited to, the classification of a Tuner as an independent contractor, any employment-related claims; (d) your or your agents’ failure to comply with the Terms of Service; (e) you or your agents’ failure to comply with applicable law; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property For purposes of this Section (C), your

 

agents include any person who has apparent authority to access or use your account demonstrated by using your Username and password.

 

“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.

 

“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.

 

VIII.       TERMINATION

 

Unless both you and TunerMatch expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided in this Agreement. You may provide written notice to TunerMatch at 2328 Destiny Way, Suite A, Odessa, FL 33556. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your account will be closed.

 

You agree that TunerMatch is not a party to any Tuning Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Tuning Service Contract entered into between Users. If you attempt to terminate this Agreement while having one or more open tuning services, you agree

(a) that such termination shall serve as instruction to TunerMatch to close any open contracts; (b) that you will continue to be bound by this Agreement and the other Terms of Service until all such tuning services have closed on the Site and your access to the Site has been terminated; (c) TunerMatch will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Tuning Service Contracts, whichever is later, to TunerMatch for any Services or such other amounts owed under the Terms of Service and to any Tuners for any Tuner Services.

 

Without limiting TunerMatch’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if:

(i) you breach any terms and conditions of this Agreement or any portion of the Terms of Service; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register for a new Account without TunerMatch’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.

 

You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Tuning Service Contracts with you. You therefore agree that: if TunerMatch decides to temporarily or permanently close your account, TunerMatch has the right (but no obligation) where allowed by law to: notify other Users that have entered into Tuning Service Contracts with you of your closed account status, and provide those Users with a summary of the reasons for your account closure. You agree that

 

TunerMatch will have no liability arising from or relating to any notice that it may or may not provide to any User regarding closed account status or the reason(s) for the closure.

 

Except as otherwise required by law, if your account is closed, you will no longer have access to information or material you kept on the Site and any content stored in your account may be deleted, for which TunerMatch expressly disclaims liability. TunerMatch may retain some or all of your account information as permitted or required by law and the Privacy Policy.

 

After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or TunerMatch from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Service or that may accrue related to any act or omission prior to such termination.

 

1. GENERAL MISCELLANEOUS PROVISIONS

 

• Entire Agreement. This Agreement, any other agreements incorporated herein, and all exhibits and schedules annexed hereto, if any, contain the full and final understanding between you and us and are intended as an integration of all prior negotiations and understandings unless otherwise provided for The terms of this Agreement supersede all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement.

 

• Modifications; Waiver. Subject to the conditions set forth herein, TunerMatch may amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. TunerMatch will provide reasonable advance notice of any amendment that includes a Substantial Modification (defined below), by posting the updated Terms of Service on the Site and providing notice on the Site or by email. If the Substantial Modification includes an increase to Fees charged by TunerMatch, TunerMatch will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a Substantial Modification. Any revisions to the Terms of Service will take effect on the noted effective No modification or amendment to the Terms of Service will be binding upon TunerMatch unless they are agreed in a written instrument signed by a duly authorized representative of TunerMatch or posted on the Site by TunerMatch. Email will not constitute a written instrument as contemplated by this Subsection (B).

 

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.

 

• Severability. If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. To the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or

 

unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.

 

• Assignability. These Terms of Service and any rights or obligations hereunder may not be transferred or assigned.

 

• Force Majeure. The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.

 

• English Language. The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.

 

• Access to the Services Outside the United States. TunerMatch makes no representations that the Site or Services are appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the S. Department of Commerce and the sanctions programs maintained by the

U.S. Department of the Treasury Office of Foreign Assets Control). You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end User without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.

 

In order to access or use the Services, you must and hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services and your license to use the Services will be immediately revoked.

 

 

1. DEFINITIONS

 

“Client” means any authorized User of the Site or Site Services, including Tuning Services Contracts, to seek or obtain tuning services, including from another User.

 

“Tuning Service Contract” means a contract entered into between a Tuner and a Client on, through, or by TunerMatch.

 

“Escrow Account” means Client Escrow Account and/or Tuner Escrow Account.

 

“Tuner” means any User of the Site or Services that utilizes the Site to advertise, provide, or receive payment for the provision of tuning services to Clients.

 

“Tuning Fees” means the fixed fee agreed between a Client and a Tuner and any bonuses or other payments made by a Client to a Tuner.

 

“Tuning Services” means all services performed for or delivered to Clients by Tuners. The term “including” as used herein means including without limitation.

“Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.

 

“Payment Method” means a valid credit card issued by a bank acceptable to TunerMatch, a bank account linked to your account, a PayPal account, a debit card, or such other method of payment as TunerMatch may accept from time to time in our sole discretion.

 

“Substantial Modification” means a change to the terms of the Terms of Service that materially reduces your rights or increases your responsibilities.

 

“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site visitor or User post to any part of the Site or provide to TunerMatch, including such content or information that is posted as a result of questions.

 

“Work Product” means any tangible or intangible results or deliverables that Tuner agrees to create for, or actually delivers to, Client as a result of performing the Tuner Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.