Terms of Service

1. This Re:tune Terms of Service (this “TOS”)

is entered into by and between Retune AI Inc., a Delaware corporation (“Re:tune”) and Customer (as defined below) and shall apply to Customer’s use of Re:tune’s software-as-a-service (“Re:tune Service”). This TOS and related exhibits represent the parties’ entire understanding regarding the Re:tune Service and shall control over any different or additional terms of any purchase order or other non-Re:tune ordering document, and no terms included in any such purchase order or other non-Re:tune ordering document shall apply to the Re:tune Service. “Customer” means, as applicable, the user and/or the company or other legal entity represented by such user in its use of the Re:tune Service. You represent that you have the authority to bind Customer to the terms of this TOS. If you do not agree to the terms of this TOS, or if you are not authorized to accept this TOS on behalf of your organization or entity, do not access or use any of the Re:tune Service.

2. Re:tune Service

2.1. Provision of Re:tune Service.

Subject to the terms and conditions of this TOS, Re:tune will make the Re:tune Service available to Customer pursuant to this TOS, and hereby grants Customer a non-exclusive right to access and use the Re:tune Service.

2.2. Data Security.

(a) Re:tune will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Re:tune Service (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.

(b) To the extent that Re:tune processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Re:tune Service, the Data Processing Addendum (“DPA“) is hereby deemed incorporated herein by reference and can be found here: [https://retune.so/terms-of-service].

2.3. Customer Responsibilities.

(a) Customer Equipment. Customer will be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Re:tune Service, including as set forth in the Documentation (as defined below). Customer will be solely responsible for its failure to maintain such equipment, software and services, and Re:tune will have no liability for such failure. “Documentation” means the instructions, on-line help files, technical documentation and user manuals made available by Re:tune for the Re:tune Service.

(b) Technology Restrictions. Customer will not directly or indirectly: (i) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Re:tune Service; (ii) attempt to probe, scan or test the vulnerability of the Re:tune Service, breach the security or authentication measures of the Re:tune Service without proper authorization or willfully render any part of the Re:tune Service unusable; (iii) use or access the Re:tune Service to develop a product or service that is competitive with Re:tune’s products or services or engage in competitive analysis or benchmarking; (iv) transfer, distribute, resell, lease, license, or assign the Re:tune Service or otherwise offer the Re:tune Service on a standalone basis; or (v) otherwise use the Re:tune Service in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

(c) Acceptable Use Policy. Customer will be responsible for all use of the Re:tune Service under its account, and Customer shall comply with the Re:tune Acceptable Use Policy found here: [https://retune.so/AUP].

2.4. Third-Party Materials

Certain features of the Re:tune Service are integrated with and rely on third party content, information, products and services that Customer chooses to use with the Re:tune Service (“Third-Party Materials”). Accordingly, Customer acknowledges and agrees that the availability and performance of certain features will be subject to the availability and performance of such Third-Party Materials for which they are dependent. Any Third-Party Materials utilized by Customer in connection with the Re:tune Service, whether purchased or accessed by Customer directly, or made available as an integration by Re:tune, is subject to the applicable third-party license and Customer is solely responsible for abiding by such third-party licenses.

2.5. Service Updates

Re:tune reserves the right to make changes and updates to the Re:tune Service. Customer acknowledges and agrees that its subscription and use is not contingent upon the delivery of any future functionality, and Re:tune makes no guarantee that any future functionality or features will be delivered.

3. Fees

3.1. Fees

To the extent the Re:tune Service or any portion thereof is made available for any fee, Customer will be required to select a payment plan and provide Re:tune information regarding Customer’s credit card or other payment instrument. Customer represents and warrants to Re:tune that such information is true and that you are authorized to use the payment instrument. Customer will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Customer agrees to pay Re:tune the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. Customer hereby authorizes Re:tune to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until Customer terminates its account, and Customer further agrees to pay any charges so incurred. If Customer disputes any charges you must let Re:tune know within thirty (30) days. We reserve the right to change Re:tune’s prices. If Re:tune does change prices, Re:tune will provide notice of the change on the website or in email to Customer, at Re:tune’s option, at least 30 days before the change is to take effect. Customer’s continued use of the Re:tune Service after the price change becomes effective constitutes Customer’s agreement to pay the changed amount. Customer shall be responsible for all taxes associated with the Re:tune Service other than U.S. taxes based on Re:tune’s net income.

3.2. Late Payment

Re:tune may suspend access to the Re:tune Service immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Re:tune has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Re:tune.

3.3. Taxes

All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Re:tune. Customer will not withhold any Taxes from any amounts due to Re:tune.

4. Proprietary Rights

4.1. Proprietary Rights

As between the parties, Re:tune exclusively owns all right, title and interest in and to the Re:tune Service, System Data (as defined below) and the Documentation, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Re:tune Service by Customer (which will constitute Customer Data for purposes hereof). “System Data” means data collected by Re:tune regarding the Re:tune Service that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Re:tune Service.

4.2. Feedback

Customer may from time to time provide Re:tune suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Re:tune Service. Re:tune will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Re:tune will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4.3. Product Improvement and Aggregated Statistics

Customer further agrees that Re:tune has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Re:tune Service and shall be free (during and after the term hereof) to (a) use such data and other information to improve Re:tune’s products and services, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5. Warranties and Disclaimers

5.1. Customer Warranty

Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Re:tune to use the same as contemplated hereunder.

5.2. DISCLAIMERS

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. RE:TUNE SERVICE IS PROVIDED “AS-IS” AND RE:TUNE DOES NOT REPRESENT OR WARRANT THAT THE RE:TUNE SERVICE WILL BE ERROR-FREE. RE:TUNE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY MATERIAL, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

5.3. BETA PRODUCTS

FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH RE:TUNE WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY RE:TUNE. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. RE:TUNE DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR RE:TUNE MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

6. Confidentiality

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (i) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (ii) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 6, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

7. Indemnification

Customer shall defend, indemnify, and hold harmless Re:tune from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, or your other access, contribution to, use or misuse of the Re:tune Service. Re:tune shall provide notice to Customer of any such claim, suit or demand. Re:tune reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, Customer agrees to cooperate with any reasonable requests assisting Re:tune’s defense of such matter.

8. Limitation of Liability

UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL RE:TUNE BE LIABLE TO THE CUSTOMER FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF CUSTOMER HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9. Termination

9.1. Term; Termination

The term of this TOS will continue for the Customer’s subscription term. Each party may also terminate an applicable subscription term upon written notice in the event (a) the other party commits any material breach of this TOS and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.2. Survival

Upon expiration or termination of this TOS all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including terms and conditions relating to proprietary rights, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

10. General

10.1. Assignment; Delegation

Neither party hereto may assign or otherwise transfer this TOS, in whole or in part, without the other party’s prior written consent, except that either party may assign this TOS without consent to a successor to all or substantially all of its assets or business related to this TOS. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this TOS will be binding on the parties and their successors and assigns.

10.2. Amendment; Waiver

Re:tune reserves the right in its sole discretion and at any time and for any reason to modify this TOS. Any modifications to this TOS shall become effective upon the date of Customer’s next renewal. It is Customer’s responsibility to review this TOS from time to time for any changes or modifications. If Customer does not agree to the modified TOS, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this TOS will not be deemed a waiver of future enforcement of that or any other provision.

10.3. Unenforceability

If a court of competent jurisdiction determines that any provision of this TOS is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this TOS will remain in full force and effect and bind the parties according to its terms.

10.4. Governing Law

This TOS will be governed by the laws of the State of California, and any action brought hereunder shall be exclusively in the federal courts in the City and County of San Francisco, CA USA. This TOS will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.5. Notices

Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer must be sent to the email address provided by Customer when Customer creates its Re:tune account. Notices to Re:tune must be sent to the following:

RETUNE AI, Inc.

166 Geary St., 15th Floor, #14

San Francisco, CA 94108 USA

10.6. Entire Agreement

This TOS comprises the entire agreement between Customer and Re:tune with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Re:tune, its agents or employees will create a warranty or in any way increase the scope of the warranties in this TOS.