Terms of Use

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Last Updated: August 29, 2022

 

Acceptance of Terms

 

Welcome to the TouchTunes Network, which consists of the following, along with any related services: TouchTunes.com, TouchTunes mobile services (including any TouchTunes mobile applications (each, an “App”)), the TouchTunes network of jukeboxes, the TouchTunes Unlimited service (“TouchTunes Unlimited Service”), and the TouchTunes TV services.  The TouchTunes Network is operated by TouchTunes Music Corporation (“TouchTunes,” “we,” or “us”).  As a condition of using and in exchange for access to the TouchTunes Network, you agree to these Terms of Use as a binding contract with TouchTunes.  Please read these Terms of Use carefully because this document is a legal contract and, by using the TouchTunes Network, you agree to its terms.  If you do not agree to these terms, please do not use the TouchTunes Network.

By using the TouchTunes Network, you represent that you are of legal age to enter into these Terms of Use, or, if you are not, that you are at least 13 years of age and will use the TouchTunes Network only under the supervision of a parent or legal guardian who has agreed to these Terms of Use both on his or her behalf and on your behalf.

We may change or otherwise update these Terms of Use from time to time by notifying you of such updates by any reasonable means, including by posting such updated Terms of Use here or by sending a notice to the e-mail address that you provided to us.  You are encouraged to review these Terms of Use periodically for changes and other updates; the “Last Updated” legend above will allow you to determine whether these Terms of Use have been updated since your prior review.  Your use of the TouchTunes Network after any such changes or other updates constitutes your acceptance of the updated Terms of Use.  Any changes or other updates to these Terms of Use will not apply to any dispute between you and us arising prior to the date on which we posted the updated Terms of Use.

We may, at any time, and without notice or liability, modify or discontinue all or part of the TouchTunes Network; charge, modify or waive any fees in connection with the TouchTunes Network; or offer opportunities to some or all the TouchTunes Network users.

Please note that, in addition to complying with all of the other terms and conditions of these Terms of Use, users of the TouchTunes Unlimited Service must comply with Section 23 below in connection with their use of that service.

 

1. Member Conduct

 

You agree to use the TouchTunes Network in accordance with all applicable laws.  As a condition of your access to the TouchTunes Network, you warrant that you will not use the TouchTunes Network for any purpose that is either unlawful or inconsistent with these Terms of Use or that we deem improper, including, but not limited to, piracy, copyright infringement, bootlegging, harassment of other users or violent, threatening or offensive behavior.  We may restrict, suspend or terminate your access to the TouchTunes Network without notice to you if we believe that you have violated any law or these Terms of Use.

You agree that you will only access the TouchTunes Network through the interfaces we provide.  You agree not to “hack” our services or systems, reverse-engineer all or any part of the TouchTunes Network, post or transmit in connection with the TouchTunes Network any virus or other code, file or program that is potentially harmful or invasive, take any action that could have the effect of damaging the TouchTunes Network or its security or interfere with other users’ use of the TouchTunes Network, either on the web, through any Apps, or through a TouchTunes jukebox.  You also agree not to cause or allow any computerized or mechanical process (including web spiders or robots on the Internet or photography or audio recording at the TouchTunes Network jukeboxes) to access the TouchTunes Network or to collect content or data from the TouchTunes Network.  Further, by using the TouchTunes Network, you agree that you will not frame or mirror any portion of the TouchTunes Network, or otherwise incorporate or assist any other person in incorporating any portion of the TouchTunes Network into any other database, product or service or otherwise redistribute or commercially exploit any portion of the TouchTunes Network.  

In using the TouchTunes Network, you also agree not to engage in trolling or other activities intended to annoy or harass others, as determined by TouchTunes and/or the staff of the applicable venue(s).

 

2. Registration; Accounts, User Names and Passwords

 

You may need to register to use all or any portion of the TouchTunes Network.  Whenever we ask you for personal or other information in a registration form or elsewhere on the TouchTunes Network, you agree to provide truthful, accurate, current and complete information and to update this information anytime it changes.

We may reject, or require that you change, any user name, password or other information that you provide to us in registering.  You are responsible for maintaining the confidentiality of your password and you agree not to share your password with anyone or allow anyone to use your account.  You also agree to take full responsibility for any activity that occurs through the use of your account.  If you become aware that any other person has accessed your TouchTunes Network account or has obtained your password, you agree to notify us immediately.  Even if you notify us, you will be responsible for any damage caused by the breach of security, both before and after the notification.

When you register for an account on any of the TouchTunes Network services, you may be able to use your access credentials in connection with other TouchTunes Network services that we make available for your use.  These Terms of Use and the Privacy Policy will apply to your use of all TouchTunes Network services.

 

3. Our Intellectual Property

 

The TouchTunes Network is protected by copyright as a collective work or compilation under the copyright laws of the United States, Canada and other countries.  Further, content, Apps, and other works of authorship included within the TouchTunes Network are also copyrighted works.  All copyright rights in the TouchTunes Network and these individual works included within the TouchTunes Network are owned by TouchTunes or its affiliates, or its or their third-party licensors, to the full extent permitted under the United States Copyright Act, the Copyright Act (Canada) and all international copyright laws.  You must abide by all additional copyright-related requirements or restrictions contained on the TouchTunes Network.

You agree to use the TouchTunes Network (including all works included therein) solely for your own personal and non-commercial use.  We do not grant you a license to use the TouchTunes Network for any other purpose.  Except for content you have submitted in accordance with any submission mechanism provided by us, you may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works, transmit or in any way exploit any part of the TouchTunes Network without our express written permission.  Without limiting the generality of the foregoing, you may not distribute any part of the TouchTunes Network over any network, including a local area network, nor sell or offer it for sale.  To request express written permission to copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works, transmit, distribute or in any way exploit any part of the TouchTunes Network, please contact us at general@touchtunes.com.

All rights in any product names, company names, trade names, marks, logos, product packaging and designs displayed, used or made available in connection with the TouchTunes Network, whether or not appearing in large print or with the trademark symbol, belong exclusively to TouchTunes or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and/or copyright laws.  The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied on the TouchTunes Network confers on you any license or right under any trademark, patent or other intellectual property rights of TouchTunes or any third party.

 

4. Pay Services

 

Some of the TouchTunes Network services may be available only upon payment of a fee or upon presentation and redemption of Credits, as defined below (collectively, services that require you to pay a fee and/or to redeem Credits are “Pay Services”).  

Although we will try to honor requests for songs or other services that you make through the TouchTunes Network, our ability to provide these services may be affected by a number of factors; examples of such factors include, without limitation:

  • the inherent unreliability of the Internet;
  • power or service outages affecting a jukebox;
  • a jukebox being turned off or unplugged;
  • the ability of venue staff to skip a song;
  • the length of the queue in which a song is placed;
  • songs playing later than expected or being superseded by other songs (e.g., due to songs selected by FastPass users taking priority over songs selected by other users); or
  • a song requested by you is currently in the song queue.

We therefore cannot be responsible if a song that you have requested does not play.

Although songs selected by FastPass users may receive priority over other selected songs, FastPass users may nonetheless experience wait times before their selected songs are played, or their songs may not play due to, without limitation, the factors identified above.

Further, volume levels in the venue where a jukebox is located may negatively impact the ability of you and others to hear the song being played.

We may allow you to purchase, earn, accumulate, and store credits (“Credits”) in your TouchTunes account, and further, we may permit you to redeem such Credits in connection with requesting certain songs or accessing other services via the TouchTunes Network. Credits purchased or received through a physical jukebox must be used on such jukebox immediately upon receipt.  With respect to the mobile application, we may provide you with various opportunities to obtain Credits, including via direct or indirect purchases, promotional programs, and other loyalty or bonus or account-based earning opportunities. Regardless of how you obtain Credits, Credits are not money or monetary value or legal tender, and Credits do not have any cash or monetary value. Credits do not constitute a cash account or represent a cash equivalent, and Credits are not redeemable for any sum of real-world money, monetary value, or for any other goods or services outside of the TouchTunes Network services. Credits that you accumulate may expire, depending on the type of Credit and on how you acquired such Credits.  If your TouchTunes account holds a combination of Credits subject to expiration and Credits not subject to expiration, then upon your next redemption of Credits, we will automatically apply and redeem Credits subject to expiration prior to applying or redeeming any Credits not subject to expiration. For more information regarding the types of Credits you may acquire and the relevant expiration periods for various types of Credits, please see our Frequently Asked Questions page. If your TouchTunes account is terminated for any reason, any Credits associated with your account will automatically expire.  

 

YOU SHOULD BE AWARE THAT WE DO NOT OFFER REFUNDS FOR PAY SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING IF A SONG THAT YOU REQUESTED FAILS TO PLAY OR IS DELAYED IN PLAYING, OR IF CREDITS ARE LOST OR EXPIRE.

If we offer services that allow you to communicate via wireless networks, we want you to be aware that, in addition to any fees that we charge, your wireless service provider may charge fees for text messages or data transmission.  Please consult your wireless carrier for information about any text messaging and data fees that it charges.

We also may make it possible for you to pay for services for which a fee is assessed by requesting that payment be processed by your wireless provider or by another payment intermediary.  In such cases, we will let you know before you incur any charges how we will process your payment.  By accepting services after we inform you of these arrangements, you agree to allow your wireless provider or our payment intermediary to process the charge and to bill you for the payment or deduct the payment from your prepaid balance.

You are not authorized to access any services for which a fee is charged except if you have paid the appropriate fee, have received access credentials from us and are using the access credentials that we have provided to you.  You may not provide anyone else with assistance in accessing Pay Services on an unauthorized basis, including by sharing your access credentials or providing materials that you obtained through Pay Services to third parties.

In connection with Pay Services, you may be asked to supply certain relevant information, such as your credit card number and its expiration date and your billing address information.  You represent and warrant that you have the right to use any credit card or other payment mechanism that you use in connection with any Pay Service.  By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Pay Services.  Verification of information may be required prior to the acknowledgment or completion of any transaction.

 

5. User Content and Communications

 

The TouchTunes Network contains features that allow users to submit, post, or add content to the TouchTunes Network, or communicate with other users through the TouchTunes Network (collectively, “User Submissions”).  Regarding User Submissions made by you or associated with your account (“your User Submissions”), you agree to accept sole responsibility for those User Submissions, including the information, statements, facts and material contained in any form or medium (e.g., text, audio, video and photographic) therein.

With respect to each of your User Submissions, you agree to grant, and hereby do grant, to us, our affiliates and our business partners (including operators of venues where a TouchTunes jukebox is located), a worldwide, perpetual, irrevocable, royalty-free, nonexclusive, sub-licensable (through multiple tiers) license to use, reproduce, create derivative works of, distribute, store, publicly perform, publicly display, transfer, transmit, distribute, publish and otherwise exploit such User Submission and subsequent versions thereof, in any form, medium or technology now known or later developed, and for any purpose (including promotional purposes), without additional consideration to you or any third party.  You agree you will not attempt to enforce any so-called “moral rights” in your User Submissions against us, our affiliates and/or our business partners, including any sublicensees.  Regarding each of your User Submissions to us, you represent that you are able to grant the foregoing license to such submission.

The TouchTunes Network includes online, mobile and jukebox platforms that are accessed by a community of users across North America and we expect all users to be good neighbors.  By using the TouchTunes Network, you agree that none of your User Submissions will:

  • infringe on or misappropriate the intellectual property, trade secret, privacy or publicity rights or other rights of others;
  • contain false statements or misrepresentations that could damage TouchTunes or any third party;
  • include obscene, libelous, defamatory, threatening, harassing, abusive, hateful, sexually explicit, sexually oriented, profane or embarrassing material, as determined by TouchTunes in its sole discretion;
  • be illegal or otherwise objectionable to TouchTunes; or
  • include commercial advertisements or solicitations.

Because the TouchTunes Network is a service that is offered to the public and because the TouchTunes Network jukeboxes are located in public places, we cannot guarantee that any of your User Submissions, even those that you intentionally choose not to publish, will remain confidential.  Likewise, because the transmission of information over wireless and wired networks is not inherently secure, we cannot guarantee that information (including personal information and private communications) stored locally on your mobile device or transmitted to our servers will remain confidential.

To help ensure the safety of the TouchTunes Network for users who may be minors, such as those between the ages of 13 and 17, you agree not to attempt to identify or contact minors through the use of the TouchTunes Network service.  You also agree not to attempt to override or circumvent any technology we use in an effort to prevent some users from communicating with other users.

Although you are solely responsible for your User Submissions, we reserve the right, in our sole discretion, to monitor, review and analyze such User Submissions and to reject or delete any and all such User Submissions (or any component thereof), or take other action with respect to such User Submissions, without notice to you.

If you notice that any User Submissions made by others appear to violate these Terms of Use, or if any other user ever makes you feel harassed or unsafe, please contact us at general@touchtunes.com.

You understand and agree that User Submissions are neither created, owned nor provided by TouchTunes and that TouchTunes is in no way responsible for such User Submissions or any related conduct or practices or any alleged damage resulting from User Submissions.

 

6. Notice of Copyright Infringement

 

The Digital Millennium Copyright Act of 1998 (U.S.) (the “DMCA”) and the Copyright Act (Canada) provide recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. and Canadian copyright law respectively.  If you believe in good faith that materials available on or through the TouchTunes Network infringe your copyright, you (or your agent) may send to TouchTunes a written notice by mail, e-mail or fax, requesting that TouchTunes remove such material or block access to it.  If you believe in good faith that someone has wrongly sent to us a notice of copyright infringement related to you, the DMCA permits you to send to TouchTunes a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA and the Copyright Act. See http://www.copyright.gov/ and https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html for details.  Notices and counter-notices must be sent in writing as follows:

DMCA/Copyright Act Complaints
Attention: General Counsel
TouchTunes Music Corporation
850 Third Avenue, 15th Floor
New York, NY 10022
Email: copyright@touchtunes.com

 

TouchTunes’ phone number is 212-991-6540.  We suggest that you consult your legal advisor before filing a DMCA or Copyright Act notice or counter-notice.  We reserve the right to terminate access to the TouchTunes Network for those users who repeatedly infringe the copyright rights of others.

 

7. Promotions and Sweepstakes

 

Any sweepstakes, contests, raffles, surveys, games or similar promotions (collectively, “Promotions”) made available through the TouchTunes Network may be governed by rules that are separate from these Terms of Use.  If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy before participating in the Promotion.  If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will govern to the extent of such conflict.

 

8. Links

 

The TouchTunes Network may, as a convenience to users, provide links to third-party content and other web sites and online services, through links made available by TouchTunes, our affiliates, our users, or third parties.  We do not control, sponsor, endorse, or accept any responsibility for such material. TouchTunes is not responsible for the content or privacy practices of any linked sites or services.

 

9. Limitation of Liability

 

You understand that the TouchTunes Network is an entertainment service and you agree that we will not be responsible for any damages that you claim result, directly or indirectly, from use of the TouchTunes Network, for any reason, including costs incurred while using the TouchTunes Network, delays in the ordering or playing of music (including for FastPass users), any non-performance of music, the inaccessibility or technical failure of the TouchTunes Network, or the costs associated with any claims you bring or try to bring against us.

Specifically, but without limitation, you agree not to hold TouchTunes liable for damages you claim are caused by third parties who contact you using the TouchTunes Network or become aware of your identity through the use of the TouchTunes Network and you understand that, while such behavior may be a violation of these Terms of Use, we need not attempt to identify or exercise control over individuals who falsify their identities or provide false information to others through the use of the TouchTunes Network.

IN NO EVENT WILL TOUCHTUNES, ITS AFFILIATES, ITS BUSINESS PARTNERS OR ANY THIRD PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE TOUCHTUNES NETWORK (INCLUDING ANY RELATED CONTENT AND SERVICES) (“THIRD-PARTY PROVIDERS”), BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOST PROFITS, EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.  WITHOUT LIMITING THE FOREGOING, TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS WILL NOT BE LIABLE FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF YOUR ACCESS, USE, MISUSE, OR INABILITY TO ACCESS OR USE THE TOUCHTUNES NETWORK (INCLUDING ANY RELATED CONTENT OR SERVICES) OR ANY LINKED SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE OR SYSTEM FAILURE, SERVICE OUTAGE, OR INCOMPATIBILITY BETWEEN ANY ELEMENT OF THE TOUCHTUNES NETWORK AND YOUR HARDWARE DEVICE(S).  IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANOTHER USER RELATED TO, ARISING FROM, OR IN ANY WAY CONNECTED WITH USE OF THE TOUCHTUNES NETWORK, YOU AGREE TO ADDRESS AND RESOLVE SUCH DISPUTE WITH SUCH OTHER USER AND NOT TOUCHTUNES AND TO RELEASE TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS FROM ANY CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.  THE MAXIMUM AGGREGATE LIABILITY OF TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND ANY THIRD-PARTY PROVIDERS SHALL BE THE LESSER OF (A) THE TOTAL AMOUNT PAID BY YOU TO TOUCHTUNES TO USE THE TOUCHTUNES NETWORK AND (B) ONE HUNDRED U.S. DOLLARS ($100.00).

For jurisdictions that do not allow the exclusion or limitation of incidental or consequential damages, our liability in such jurisdictions shall be limited to the extent permitted by law.

 

10. Indemnity

 

YOU AGREE TO INDEMNIFY TOUCHTUNES AND ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS (THE “TOUCHTUNES PARTIES”) AGAINST AND HOLD THE TOUCHTUNES PARTIES HARMLESS FROM, LIABILITY, LOSSES, COSTS AND EXPENSES (INCLUDING LEGAL FEES) INCURRED AS A RESULT OF YOUR USE OF THE TOUCHTUNES NETWORK (INCLUDING ANY RELATED CONTENT AND SERVICES) OR CLAIMS MADE IN CONNECTION WITH SUCH USE.

For example, and without limitation, if you use the TouchTunes Network to do something illegal, you agree not to sue us if another party takes action against you for it, and, if you do sue us, you agree to pay our costs and legal fees in defending that action.  Also, if any other party takes action against you or if your property is damaged in connection with your legal use of the TouchTunes Network, even if that use is permitted by these Terms of Use, you agree not to sue us.  If you try to sue us even though you have agreed not to do so, you agree that you will be responsible for our costs and legal fees in connection with our defense of that suit.

 

11. Disclaimer of Warranties

 

THE TOUCHTUNES NETWORK (INCLUDING ANY RELATED CONTENT AND SERVICES) IS PROVIDED “AS IS.” TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS MAKE NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND WHATSOEVER RELATING TO THE TOUCHTUNES NETWORK, LINKED SITES, USER SUBMISSIONS, OR OTHER CONTENT OR SERVICES THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE TOUCHTUNES NETWORK.  TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL SUCH REPRESENTATIONS, WARRANTIES AND CONDITIONS.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL (a) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (c) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE TOUCHTUNES NETWORK, (d) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY (INCLUDING TIMELINESS), CORRECTNESS OR COMPLETENESS OF ANY CONTENT, MATERIALS, OR DATA (INCLUDING DESCRIPTIONS OF PRODUCTS AND SERVICES) MADE AVAILABLE ON THE TOUCHTUNES NETWORK OR OTHERWISE BY TOUCHTUNES AND (e) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NON-PERFORMANCE, OR OTHER ACTS OR OMISSIONS BY TOUCHTUNES OR ANY THIRD PARTY.  FURTHER, THERE IS NO WARRANTY THAT THE TOUCHTUNES NETWORK WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.

TOUCHTUNES, ITS AFFILIATES, BUSINESS PARTNERS AND THIRD-PARTY PROVIDERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, THAT (a) THE INFORMATION PROVIDED THROUGH THE TOUCHTUNES NETWORK WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (b) THE TOUCHTUNES NETWORK WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (c) THE TOUCHTUNES NETWORK WILL BE FREE FROM SERVICE OUTAGES OR OTHER SERVICE INTERRUPTIONS OR FAILURES; (d) DEFECTS OR ERRORS IN THE TOUCHTUNES NETWORK WILL BE CORRECTED; OR (e) THE CONTENT ON THE TOUCHTUNES NETWORK IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  ANY INFORMATION ON THE TOUCHTUNES NETWORK IS SUBJECT TO CHANGE WITHOUT NOTICE AND TOUCHTUNES DISCLAIMS ALL RESPONSIBILITY FOR THESE CHANGES.

Applicable law may not allow for limitations on certain implied warranties; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.

 

12. Termination

 

These Terms of Use may be terminated by TouchTunes for any reason at any time.  Sections 3, 4 (solely with respect to the notices and disclaimers contained therein), 5 through 20 and 23 of these Terms of Use shall survive such termination.  You agree to cease all use of (including any access to) the TouchTunes Network upon termination of these Terms of Use.

 

3. Entire Agreement / Governing Law / Arbitration / Class Action Waiver/Language

 

Unless otherwise specified herein, these Terms of Use, as changed or updated from time to time, constitute the entire agreement between you and TouchTunes and govern your use of the TouchTunes Network, superseding any prior or contemporaneous communications and proposals in any form between you and TouchTunes.  If any part of these Terms of Use is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms of Use shall remain in effect.

Except for residents of Quebec in Quebec, Canada, these Terms of Use are governed by the laws of the United States and the State of New York, without regard to its principles of conflicts of law.  In the case of the use of the TouchTunes Network in Quebec by residents of Quebec, by the internal laws of Quebec and the federal laws of Canada applicable in Quebec without regard to its conflicts of law principles.

Except for residents of Quebec and for disputes that qualify for small claims court, all disputes arising out of or related to these Terms of Use or any aspect of the relationship between you and TouchTunes (including, for purpose of this Section 13, its affiliates), whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator, instead of in a court by a judge or jury and you hereby agree that TouchTunes and you are each waiving the right to trial by a jury.  You agree that any arbitration under these Terms of Use will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.  The arbitration shall be seated in New York and shall be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by these Terms of Use.  The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer-Rules-Web.pdf.  The arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate.  Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.  The arbitrator’s decision shall follow these Terms of Use and shall be final and binding.  The arbitrator shall have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms of Use, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator.  Regardless of any law to the contrary, the arbitrator shall have no authority to award punitive or exemplary damages.  The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.  Notwithstanding any of the foregoing, nothing in these Terms of Use will preclude you from bringing issues to the attention of federal, state, provincial or local agencies and, if the law allows, they can seek relief against us for you.

You agree that these Terms of Use and any correspondence in connection therewith will be drawn up in English only.  Vous convenez que ces Conditions d'utilisation et toute correspondance connexe seront rédigés en anglais seulement.

 

14. Jurisdictional Issues

 

The TouchTunes Network and our services are controlled, operated and made available from North America and are not intended to subject TouchTunes to the laws of any jurisdiction outside of the United States and Canada.  The TouchTunes Network and our services may not be appropriate or available for use in some jurisdictions outside of North America.  Any use of the TouchTunes Network and our services are at your own risk and you must comply with all applicable laws, rules and regulations in doing so.  We may limit the TouchTunes Network’s and our services’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.  By using an App, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

15. Privacy Policy

 

A separate document, the Privacy Policy, explains our handling of personal information we maintain about you while you use the TouchTunes Network.  By using the TouchTunes Network, you indicate that you understand and agree to the information collection, use and disclosure practices described in our Privacy Policy, so you should review it before using the TouchTunes Network.  If you have questions about our privacy practices, you can always contact us as set out in the Privacy Policy. To access a copy of the Privacy Policy, please click here.

 

16. Additional Agreements

 

From time to time, we might also offer certain services that require an additional agreement.  When this is required, we will provide the additional agreement to you when you try to access such a service.  By accepting these Terms of Use, you agree to access, read and ensure that you understand any additional agreement before accessing the service that it covers, because using that service indicates your acceptance of these Terms of Use and the terms of any additional agreement.

 

17. No Professional Advice

 

Any information supplied by any employee or agent of TouchTunes, whether by telephone, e-mail, letter, facsimile, or other form of communication, is intended solely as general guidance on the use of the TouchTunes Network and does not constitute legal, tax, medical, accounting, or other professional advice.  Individual situations and state laws vary and users are encouraged to obtain appropriate advice from qualified professionals in the applicable jurisdictions.

 

18. No Waiver

 

You agree that our failure to enforce any provisions of these Terms of Use or respond to a breach by you or other parties does not in any way waive our right to enforce subsequently any terms or conditions of the Terms of Use or to act with respect to similar breaches.

 

19. Information or Complaints

 

If you have a question or complaint regarding the TouchTunes Network, please send an e-mail to general@touchtunes.com.  You may also contact us by writing to 850 Third Avenue, 15th Floor, New York, NY 10022, or by calling us at 212-991-6540.  Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.  California residents may mail a complaint form (found at https://www.dca.ca.gov/consumers/complaints/dcaform.pdf) to the California Department of Consumer Affairs to Department of Consumer Affairs, Consumer Information Center, 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834, or call (916) 445-1254 or (800) 952-5210.

 

20. Miscellaneous

 

You agree that no confidential, joint venture, partnership, employment, or agency relationship exists between you and TouchTunes as a result of these Terms of Use or your access to and use of the TouchTunes Network.  A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  TouchTunes’ affiliates are third-party beneficiaries of these Terms of Use and, as such, will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you; otherwise, except as set forth in Section 22 below, it is not the intention of these Terms of Use or of the parties hereto to confer a third-party beneficiary right of action upon any third party.

 

21. Any Questions?

 

If you have any questions about the above Terms of Use or if you don't understand them, please send us an e-mail at general@touchtunes.com before engaging in any further use of the TouchTunes Network

 

22. Apple-Specific Terms

 

In addition to your agreement with the foregoing terms and conditions and notwithstanding anything to the contrary herein, the following provisions also apply with respect to your use of an App compatible with the iOS operating system of Apple Inc. (“Apple”).  Apple is not a party to these Terms of Use and does not own and is not responsible for an App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to an App.  Apple has no obligation whatsoever to furnish any maintenance or other support services for an App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to an App.  Apple is not responsible for addressing any claims from you or a third party relating to an App or your possession and/or use of an App, including, but not limited to: (i) product liability claims; (ii) any claim that an App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection, privacy, or similar legislation; and (iv) claims attributable to the failure of an App to conform to any warranty.  In the event of any third-party claim that an App or your possession and use of an App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.  Any questions, complaints or claims relating to an App, including those pertaining to intellectual property rights, must be directed to TouchTunes in accordance with the “Information or Complaints” section above.  The license you have been granted herein is limited to a non-transferable license to use an App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s Apple Media Services Terms and Conditions.  In addition, you must comply with the terms of any third-party agreement applicable to you when using an App, such as your wireless data service agreement.  Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Use and, upon your acceptance of the terms and conditions of these Terms of Use, they will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary thereof; notwithstanding the foregoing, TouchTunes’ right to enter into, rescind or terminate any variation, waiver or settlement under these Terms of Use is not subject to the consent of any third party.

 

23. Additional Terms and Conditions Regarding the TouchTunes Unlimited Service

 

Under the TouchTunes Unlimited Service, a TouchTunes jukebox may be installed on private premises (such as a corporate office) or a commercial establishment that may permit patrons to choose and play music without payment (each a “TouchTunes Unlimited Service Venue”).  The company or other third party that owns, operates or controls access to such TouchTunes Unlimited Service Venue will determine who can access and play songs on the TouchTunes Unlimited Service jukebox located on the premises.  TouchTunes Unlimited Service jukeboxes may be identified on your App; however, this does not mean that you will be entitled to access the applicable premises or use any such jukebox.  Access to and use of a TouchTunes Unlimited Service jukebox is determined by the applicable TouchTunes Unlimited Service Venue in its sole discretion.  If you do receive authorization from a TouchTunes Unlimited Service Venue to access or use a TouchTunes Unlimited Service jukebox on the premises of such venue, you agree to abide by any additional terms and policies promulgated by such venue, and you acknowledge that either TouchTunes or such venue may terminate your access to or use of such jukebox at any time.  In connection with your access to or use of a TouchTunes Unlimited Service jukebox or other participation in the TouchTunes Unlimited Service, we reserve the right to provide your personal information to the applicable TouchTunes Unlimited Service Venue(s) in accordance with our Privacy Policy.  We are not responsible for any acts or omissions of any TouchTunes Unlimited Service Venue, including non-performance, delayed performance or the designation of users (or failure to designate users).