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Licensing Agreement

SOFTWARE LICENSE AGREEMENT FOR TUNEUP SOFTWARE.

TUNEUP MEDIA INC.

PLEASE READ THIS END-USER SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE TUNEUP SOFTWARE. THIS LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR SINGLE ENTITY) AND TUNEUP MEDIA, INC., A DELAWARE CORPORATION ("TUNEUP MEDIA"), FOR THE SOFTWARE OF TUNEUP MEDIA, WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS ONLINE OR ELECTRONIC DOCUMENTATION, AND INTERNET BASED-SERVICES (COLLECTIVELY, THE "TUNEUP MEDIA SOFTWARE"), BY INSTALLING, DOWNLOADING, OR OTHERWISE USING THE TUNEUP SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE TUNEUP SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE TUNEUP SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE". FOR TUNEUP SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

SECTION I

  1. General. The TuneUp Media Software includes computer software, and may include associated media, printed materials online or electronic documentation, internet based-services and fonts, and may be provided on disk, in read only memory, on any other media or in any other form. TuneUp Media hereby grants you a personal, nonexclusive, royalty-free license to install and use the TuneUp Media Software for your personal purposes. The TuneUp Media Software is licensed, not sold, to you by TuneUp Media, and TuneUp Media reserves all rights not expressly granted to you. in this License. The TuneUp Media Software is protected by copyright and other intellectual property laws and treaties. The rights granted herein are limited to TuneUp Media's intellectual property rights and Third Party Sources (as defined below) in the TuneUp Media Software and do not include any other patents or intellectual property rights. You own the media on which the TuneUp Media Software is recorded but TuneUp Media and/or TuneUp Media''s licensor(s) retain ownership of the TuneUp Media Software itself. The terms of this License will govern any software upgrades provided by TuneUp Media that replace and/or supplement the original TuneUp Media Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

  2. Component Software. The TuneUp Media Software may include or run source code and other software developed by certain third parties ("Third Party Sources"), including without limitation the following: Gracenote MusicID Software and Mozilla Foundation's Gecko. The software incorporated into the TuneUp Media Software is owned by the Third Party Sources (the "Component Software") and is expressly subject to the license terms and provisions applicable to such Component Software ("Third Party Licenses"), including those licenses identified above. This License is expressly subject to and limited by the rights provided to TuneUp Media pursuant to the Third Party Licenses.

    THE COMPONENT SOFTWARE IS PROVIDED BY THE THIRD PARTY SOURCES, COPYRIGHT HOLDERS AND CONTRIBUTORS THEREOF "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. IN NO EVENT SHALL THE THIRD PARTY SOURCES, COPYRIGHT OWNERS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE FO THE COMPONENT SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

  3. Permitted License Uses and Restrictions. This License allows you to install and use the TuneUp Media Software. When you upgrade to TuneUp Gold by entering an activation code (obtained by purchasing TuneUp Gold at http://www.tuneupmedia.com or at a retail outlet), the activation is for use on a single computer. This license grants you the ability to transfer the activation five (5) times to a new computer. The TuneUp Media Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. You may not make the TuneUp Media Software available over a network where it could be used by multiple computers at the same time. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the TuneUp Media Software or any part thereof.

  4. Consent to Use of Data. You agree that TuneUp Media and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the TuneUp Media Software and to verify compliance with the terms of this License. TuneUp Media may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.

  5. Content Management. You acknowledge and agree that the modifications you make to your music information, including, but not limited to, song name, artist name, album name, genre/year of music, lyrics, identifying information, are done at your own risk. Any and all errors and inaccuracies contained in such modifications are in no way the fault or responsibility of TuneUp Media.

  6. Other Services. This software enables access and may link to third party content, sites and other services (collectively and individually, "Services"). Use of the Services requires Internet access and use of certain Services requires you to accept additional terms of service which will be presented to you before you can use such Services.

    You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that TuneUp Media is not responsible for the contents of any third parties, any Services provided by third parties, or any changes or updates to such Services, and shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content types (including genres, sub-genres and sub-categories and the like) and descriptions are provided for convenience, and you acknowledge and agree that TuneUp Media does not guarantee their accuracy.

    Certain Services may include materials from third parties or links to certain third party web sites. You acknowledge and agree that TuneUp Media is not responsible for examining or evaluating the content or accuracy of any such third-party material or web sites. TuneUp Media does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials or web sites, or for any other materials, products, or services of third parties. Links to other web sites are provided solely as a convenience to you. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that TuneUp Media is not in any way responsible for any such use by you.

    You agree that the Services, including but not limited to graphics, audio clips, and editorial content, contain proprietary information and material that is owned by TuneUp Media and/or Third Party Sources, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.

    TuneUp Media and Third Party Sources reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will TuneUp Media be liable for the removal of or disabling of access to any such Services. TuneUp Media may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

  7. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from TuneUp Media if you fail to comply with any term(s) or conditions of this License. Upon the termination of this License, you shall cease all use of the TuneUp Media Software and destroy all copies, full or partial, of the TuneUp Media Software.

  8. Limited Warranty. TuneUp Media warrants that for a period of (90 days from the earlier of the date of original retail purchase. or download of the TuneUp Media Software that each unmodified copy of the TuneUp Media Software will conform substantially to the user documentation associated therewith. TuneUp Media's entire liability and your exclusive remedy with respect to this warranty shall be TuneUp Media using commercially reasonable efforts to correct such non-conformities. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO (90) DAYS FROM THE EARLIER OF THE DATE OF ORIGINAL RETAIL PURCHASE OR DOWNLOAD. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

  9. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE TUNEUP MEDIA SOFTWARE AND SERVICES (AS DEFINED BELOW) IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TUNEUP MEDIA SOFTWARE AND SERVICES ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TUNEUP MEDIA AND THIRD PARTY SOURCES (COLLECTIVELY REFERRED TO AS "TUNEUP MEDIA" FOR THE PURPOSES OF SECTIONS 810 AND 911) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TUNEUP MEDIA SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TUNEUP MEDIA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE TUNEUP MEDIA SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN THE TUNEUP MEDIA SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE TUNEUP MEDIA SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE TUNEUP MEDIA SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TUNEUP MEDIA OR AN TUNEUP MEDIA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE TUNEUP MEDIA SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

  10. Limitation of Liability. TO THE MAXIMUM EXTENT BY PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TUNEUP MEDIA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF DATA, LOSS OF PRIVACY, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE TUNEUP MEDIA SOFTWARE OR SERVICES, HOWEVER CAUSED, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE, EVEN IN THE EVENT OF DEFAULT, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF TUNEUP MEDIA OR OTHERWISE) AND EVEN IF TUNEUP MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES I CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF TUNEUP MEDIA UNDER ANY PROVISION OF THIS LICENSE AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $10.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

  11. Export Control. You may not use or otherwise export or re-export the TuneUp Media Software except as authorized by United States law and the laws of the jurisdiction in which the TuneUp Media Software was obtained. You agree to comply with all applicable international and national laws that apply to the TuneUp Media Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the U.S. and other governments.

  12. Government End Users. The TuneUp Media Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. '2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. '12.212 or 48 C.F.R. '227.7202, as applicable. Consistent with 48 C.F.R. '12.212 or 48 C.F.R. '227.7202-1through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

  13. Controlling Law, Jurisdiction and Severability. This License will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law provision. You agree to bring and defend any actions related to this License exclusively in the state of federal courts located in San Francisco County, California. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.

  14. Injunctive relief. To the extent that you have breached or have indicated your intention to breach this License in any manner which violates or may violate TuneUp Media's intellectual property or other rights, or may cause continuing or irreparable harm to TuneUp Media (including, but not limited to, any breach that may impact TuneUp Media's intellectual property rights, or a breach by reverse engineering), TuneUp Media may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.

  15. Indemnification. You agree to hold harmless, indemnify and defend TuneUp Media, its officers, directors, employees and other agents, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have (i) used the TuneUp Media Software in violation of another party's rights or in violation of any law, or (ii) violated any terms of this License.

  16. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the TuneUp Media Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions you are required to accept if you choose to use TuneUp Media''s online store which will govern your use of such store and any Services you purchase through that store. No amendment to or modification of this License will be binding unless in writing and signed by TuneUp Media. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.

SECTION II - THIRD PARTY SOFTWARE SERVICE TERMS & CONDITIONS

  1. Gracenote MusicID Terms of Use. This application contains software from Gracenote, Inc. of Emeryville, California ("Gracenote"). The software from Gracenote:

    1. This application or device contains software from Gracenote, Inc. of Emeryville, California ("Gracenote"). The software from Gracenote (the "Gracenote Software") enables this application to perform disc and/or file identification and obtain music-related information, including name, artist, track, and title information ("Gracenote Data") from online servers or embedded databases (collectively, "Gracenote Servers") and to perform other functions. You may use Gracenote Data only by means of the intended End-User functions of this application or device.

    2. You agree that you will use Gracenote Data, the Gracenote Software, and Gracenote Servers for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote Software or any Gracenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE SOFTWARE, OR GRACENOTE SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN.

    3. You agree that your non-exclusive license to use the Gracenote Data, the Gracenote Software, and Gracenote Servers will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Gracenote Data, the Gracenote Software, and Gracenote Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote Software, and the Gracenote Servers, including all ownership rights. Under no circumstances will Gracenote become liable for any payment to you for any information that you provide. You agree that Gracenote, Inc. may enforce its rights under this Agreement against you directly in its own name.

    4. The Gracenote service uses a unique identifier to track queries for statistical purposes. The purpose of a randomly assigned numeric identifier is to allow the Gracenote service to count queries without knowing anything about who you are. For more information, see the web page for the Gracenote Privacy Policy for the Gracenote service (http://www.gracenote.com/about/privacy_policy/).

    5. The Gracenote Software and each item of Gracenote Data are licensed to you "AS IS." Gracenote makes no representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Gracenote Servers. Gracenote reserves the right to delete data from the Gracenote Servers or to change data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote Software or Gracenote Servers are error-free or that functioning of Gracenote Software or Gracenote Servers will be uninterrupted. Gracenote is not obligated to provide you with new enhanced or additional data types or categories that Gracenote may provide in the future and is free to discontinue its services at any time.

    6. GRACENOTE DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. GRACENOTE DOES NOT WARRANT THE RESULTS THAT WILL BE OBTAINED BY YOUR USE OF THE GRACENOTE SOFTWARE OR ANY GRACENOTE SERVER. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES.

© Gracenote 2009 Miscellaneous Provisions. These TOS will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of the TOS to be unenforceable, the remainder of the TOS will continue in full force and effect.

SECTION III - PRIVACY POLICY

  1. Introduction

    This document sets forth the privacy policy (the "Privacy Policy") of TuneUp Media, Inc., a Delaware corporation and its affiliates ("TuneUp Media") for services provided directly and indirectly by TuneUp Media (the "Services"), TuneUp Media Software (together with all prior and subsequent versions, and all patches and updates thereto, the "Software") and the TuneUp Media Web site, www.tuneupmedia.com (including all subpages thereto, the "Site").

    The Site, Services and Software (collectively, the "TuneUp Media Offerings") are not intended for use by anyone not able to enter into legally binding contracts. If you are not able to legally form binding contracts, you may not use the TuneUp Media Offerings or submit information about yourself. Without limiting the foregoing, the TuneUp Media Offerings are not intended for and may not be used by children under the age of 13, nor may they be used to solicit or collect any information from children under the age of 13. If you have objections to this Privacy Policy, you should not download, access, sign up for or use, as applicable, the TuneUp Media Offerings.

    The applicable SysTrust or WebTrust Seal of assurance symbolizes that this site has been examined by an independent accountant. Further, the Seal represents the practitioner's report (see below) on management's assertion(s) that the entity's business being relied upon is in conformity with the applicable Trust Services Principle(s) and Criteria.

    The Trust Services Principles and Criteria is an international set of principles and criteria for systems and electronic commerce developed and managed jointly by the American Institute of Certified Public Accountants and the Canadian Institute of Chartered Accountants. By demonstrating compliance with Trust Services criteria through an examination by an independent practitioner, entities earn the right to display the seal of assurance.

    The Seal of assurance combines high standards for identified activities with the requirement for an independent verification/audit. Together they build trust and confidence among consumers and businesses conducting business over the Internet.

    The entity has earned the right to display the Seal of assurance with respect to the Trust Service Principle.

    • Certification Authorities. The WebTrust Seal of assurance for Certification Authorities (CA) symbolizes to potential relying parties that a qualified practitioner has evaluated the CA's business practices and controls to determine whether they are in conformity with the AICPA/CICA WebTrust for Certification Authorities Principles and Criteria. An unqualified opinion from the practitioner indicates that such principles are being followed in conformity with the WebTrust for Certification Authorities Criteria. These principles and criteria reflect fundamental standards for the establishment and on-going operation of a Certification Authority organization or function.

  2. TuneUp Media's Privacy Principles

    • Your Information (defined below) is your own.
    • You may add, delete, or modify Your Information at any time.
    • TuneUp Media will not update or modify Your Information without your permission.
    • Subject to your permission or agreement, TuneUp Media will not sell, exchange, or otherwise share Your Information with third parties, unless required by law or as provided hereby.
    • TuneUp Media does not send spam, maintain spam mailing lists, or support the activities of spammers.

  3. Information Collection and Use

    TuneUp Media Members - Your Information. When you download the Software, sign up for the Services or otherwise become a registered member of TuneUp Media, you provide us with and consent to our processing, maintaining and storing your "Your Account Information," and "Music Library Information," in each case as described below (collectively, "Your Information").

    1. Your Account Information: Your e-mail address is required by TuneUp Media in order to provide you with the Software and Services. In addition, TuneUp automatically uploads your uniquely identifiable ID (on a PC, this is the Microsoft Windows ID and the Windows user name and, on an Apple Mac, is the OS X ID and user name). TuneUp Media will also ask you to provide a private password and a security question and answer. You may also provide other information to TuneUp Media relating to various TuneUp Media Offerings, including profile information such as physical location, or passwords to third party offerings to enable TuneUp Media's extended functionality. All of such information will become part of Your Account Information.
    2. Your Music Library Information: When you join TuneUp Media, your Music Library Information is uploaded to TuneUp Media servers. Music Library Information that may be uploaded may include, is not limited to, track names, artist names, album titles and genres in your collection, as well as play counts and ratings you may have made in iTunes. Your personally identifiable music library information will not be shared with anyone without your permission. We use Your Information to enable you to use the Software and Services. Specifically:
    3. Your Account Information: This information is processed, maintained and stored on TuneUp Media's secure servers. All information included within Your Account Information will not be shared with any outside parties other than as necessary to enable synchronization of third party services with TuneUp Media Offerings pursuant to your account settings. If you forget your password, your password can be reset by following the Lost Password wizard in which a confirmation e-mail will be sent to the registered e-mail address you specify. You are responsible for maintaining the secrecy of your password and, since it allows access to Your Account Information, we recommend that you do not divulge your password to anyone.
    4. Your Music Library Information: A synchronized copy of your Music Library Information (not the library itself), is processed, maintained and stored on TuneUp Media's [secure] servers.
    5. Additionally, we may use Your Information for the following enumerated and similar purposes:
      • For assessment of service levels;
      • To better understand on an aggregated basis how our products are used, gauge traffic patterns and determine what types of content and services are most popular with users of our products and services;
      • To verify access or other rights to services or software;
      • To provide you with information about TuneUp Media products, services, news and events through the Software, the Site or e-mail;
      • To allow you to purchase and download TuneUp Media and third-party partner products and services; and/or
      • To provide you with personalized content programming (including but not limited to concert notifications and music recommendations), instructions and services.

    Also, for users ordering certain premium TuneUp Media Services, we may also collect credit card and billing information to complete the request. Unless you have agreed otherwise, TuneUp Media will not permanently store this information and the information is removed once the transaction has been completed.

  4. Limited Data Sharing with Third Parties

    TuneUp Media is committed to protecting your privacy. We will only share Your Information with third parties in accordance the terms set forth in this Privacy Policy and in order to provide you specific services. In addition, we use PayPal - https://cms.paypal.com/cgi-bin/marketingweb?cmd=_render-content&content_ID=ua/Privacy_full&locale.x=en_US -- as a credit card processing company to bill users for premium services. This business partner does not retain, share, or store any personally identifiable information except to provide this service and is bound by a strict confidentiality agreement which limits their use of such information. We may share aggregated and anonymous demographic information (i.e., Your Information that is not personally identifiable) with our business partners. For example, we may share such information as the total number of users of TuneUp Media service or the broad geographic frequency of use. We may also develop algorithms leveraging the information in the TuneUp Media database for such purposes as network analysis, reputation scoring, or spam and fraud prevention. However, no such information will be linked directly to Your Account Information or other personally identifiable information.

    Although we will use commercially reasonable effort to preserve your privacy, we may need to disclose Your Information, including personally identifiable information, when required by law or if we determine that disclosure is necessary for national security, law enforcement or other issues public importance. We will use commercially reasonable efforts to notify you of such actions where reasonable and permitted by law.

  5. Change of Ownership or Other Business Transition

    In the event TuneUp Media goes through a business transition, such as a merger, acquisition or the sale of all or substantially all of its assets (a "Business Transition"), your membership in the TuneUp Media Offerings and the TuneUp Media servers containing Your Information will, in most instances, be part of the assets transferred. In such event, you will be notified via e-mail and/or through a notice on our Web site and any other appropriate methods prior to the Business Transition, and TuneUp Media's custody of Your Information will be transferred subject to all the terms and restrictions in this Privacy Policy.

    Following a Business Transition, TuneUp Media or its successors ("We") may continue to use Your Information provided such use is in accordance with the Privacy Policy under which the information was collected. If, however, We plan to use Your Information in a manner different from that stated at the time of collection, We will notify you via e-mail and/or through a notice on our Web site and any other appropriate methods. You will have a choice as to whether or not We use Your Information in this different manner. Whether or not you wish to have Your Information used in this different manner, you will retain your rights to Your Information and the ability to delete Your Information at any time. Please note, if you have deleted or deactivated your account or are an opt-out user, then you will not be contacted, nor will Your Information be used in this different manner.

  6. Cookies

    In order to improve the Services and the Site, we use "cookies" when you are logged into the Site using your e-mail address and password. A cookie is a piece of data that is transferred to your browser by a Web server and can only be understood by the server that gave it to you. It functions as your computer's identification token and enables TuneUp Media to personalize your experience when you are signed in to the Site. The cookie also contains your e-mail address so that we can make it easier for you to sign in. If you reject the cookie, you may not be able to sign up for some of the Services or use certain features of the Site.

    Most browsers are initially set to accept cookies. You can set your browser to notify you when you receive a cookie, giving you the chance to decide whether to accept it. (For some Web pages that require an authorization, cookies are not optional. Users choosing not to accept cookies will probably not be able to access those pages.)

    While TuneUp Media uses cookies to enable you to use the Services and the Site, and our Web servers automatically log the Internet Protocol ("IP") address of your computer, TuneUp Media does not use this information to identify you personally except to provide you with the features of the Services.

  7. Storage, Log Files and Backups

    Your Information is processed, maintained and stored on servers that are physically located in the United States.

    Like most Internet services, we use log files, both on the client and server side. The data held in log files includes your IP address, browser type, e-mail application, Internet service provider ("ISP"), referring/exit Web pages, computer platform type, date/time stamp, and user activity. TuneUp Media uses server log data to analyze trends, administer the Services and the Site, and improve service levels. IP addresses are not tied to any personally identifiable information.

    The Software has associated log and temporary files that are stored on your local hard drive and on TuneUp Media's servers. These files store Your Account Information, your permissions, preference settings, system notifications as well as other data necessary to operate the TuneUp Media Offerings. Your Information resides locally in the e-mail application you designate to work with the Services and the Software, as well as on TuneUp Media's servers, unless you have chosen to disable the ability to view Your Music Library Information on the Site.

    Your Information may also exist within regularly performed server backups which are processed, maintained and stored on tape and stored at TuneUp Media's offices located in the United States.

  8. Member Communications

    We may send all new users confirmation e-mails verifying the ownership of the e-mail addresses provided in Your Account Information. We also communicate with you to provide requested services and in regard to issues relating to your account.

    Users may occasionally receive information on TuneUp Media products, services, news and events. Out of respect for your privacy, we present you with the option not to receive these communications. You may change your current setting by modifying your account preferences.

    It may also become necessary to send out a service-related announcement which is not promotional in nature. This announcement may notify you of changes to the Privacy Policy, as well as planned service suspensions and outages. Generally, you may not opt-out of these communications, though you can deactivate your TuneUp Media account. These notifications will generally be sent to a validated e-mail address for your TuneUp Media account.

  9. Links

    The Site contains, and the Software may present, links to Web sites other than the Site. Please be aware that TuneUp Media is not responsible for the privacy practices of such other Web sites. We encourage you to be aware when you leave the Site or link to other sites, to read the privacy policies of each and every site that collects personally identifiable information. TuneUp Media's Privacy Policy applies solely to information collected in connection with the TuneUp Media Offerings.

    The Site also contains links to TuneUp Media's Forums (http://support.tuneupmedia.com/forums) and TuneUp Media Help (http://www.tuneupmedia.com/support.php). These provide interactive venues for users and others to learn more about TuneUp Media, receive support from other users, and send us feedback. To use these venues, you may be required to provide user registration information (Login name, password, and email) in order to post to these sites. All other profile information is optional. Participants in these forums and blogs are solely responsible for all content that they post there. TuneUp Media retains the right, but not the obligation, to correct any errors or omissions in any such content, as it may determine in its sole discretion. TuneUp Media further reserve the right to delete or remove any content from the forums or blogs without prior notice or liability.

    If you use a forum/bulletin board or chat room on the Site, you should be aware that any personally identifiable information you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages. We are not responsible for, and this Privacy Policy does not apply to, any personally identifiable information you choose to submit in these forums and blogs.

  10. Children's Privacy

    TuneUp Media is committed to protecting the privacy needs of children and we encourage parents and guardians to take an active role in their children's online activities and interests. TuneUp Media's Services, Software and Site are not intended for and may not be used by children under the age of 13. TuneUp Media does not knowingly collect information from children under the age of 13 and TuneUp Media does not target its Services, Software and Site to children under 13.

  11. Government Authority

    You should be aware that, as with all legal contracts, this Privacy Policy could be amended, terminated or modified without the consent of you and/or TuneUp Media by judicial proceeding, court order, in connection with bankruptcy or other insolvency proceedings, or pursuant to other government action. When reasonable and lawful, we will use commercially reasonable efforts to notify you if this occurs.

  12. Security and Confidentiality

    • If you forget your password, you can request to have it sent to to your email address within the TuneUp software.
    • The Services use Secure Socket Layer ("SSL") for all client-server communication using Your Information.
    • Your Web-based access to Your Information is protected by an encrypted password. We recommend that you do not disclose your password to anyone.
    • Additionally, Your Information resides on a firewall-protected server that only selected TuneUp Media personnel have access to via password. TuneUp Media strives to prevent unauthorized parties from viewing Your Information.

  13. Changes to the TuneUp Media Privacy Policy

    If we change the Privacy Policy, we will post the new Privacy Policy on the Site with a link from the Site's homepage, so that you are always aware of what information we collect, how we use it, and under what circumstances-if any-we disclose it. Any substantive changes to the TuneUp Media Privacy Policy will generally be posted within a reasonable time prior to taking effect.

    We will generally use Your Information in accordance with the Privacy Policy under which the information was collected. If, however, we plan to use Your Information in a manner different from that stated at the time of collection we will notify you via e-mail and/or through a notice on our Web site and any other appropriate methods and you will have a choice as to whether or not we use Your Information in this different manner.

  14. Contacting Us

    If you have any questions or suggestions regarding the Privacy Policy, please email us at privacy@tuneupmedia.com.

    TuneUp Media, Inc.
    2525 16th Street
    Suite 311
    San Francisco, CA 94103

    © 2012 TuneUp Media, Inc. All rights reserved.

OpenCandy End User License Agreement (EULA)

Date of last revision: March 7, 2012

PLEASE READ THESE TERMS BEFORE PROCEEDING WITH THE INSTALLATION OF THE SOFTWARE. BY AGREEING TO THESE TERMS YOU ARE GRANTING US PERMISSION TO PROVIDE RECOMMENDATIONS OF THIRD PARTY SOFTWARE IN ACCORDANCE WITH THE FOLLOWING TERMS AND THE TERMS OF OUR PRIVACY POLICY.

What We Do

The developer of the software ("Software") you are installing has chosen to use the OpenCandy Network ("We") to provide recommendations of other third party software. All third party software participating in the OpenCandy Network must adhere to strict policies that ensure only compliant software is recommended. In the event an OpenCandy recommendation is shown, the recommendations will only occur once during the installation of the Software.

How Our Recommendations Work

As part of the installation process, a temporary file transmits anonymous, non-personally identifiable information about your computer system in order to help us determine what third party software would be appropriate to recommend. If a recommendation is shown and you choose to install such recommended third party software, then the third party software will be downloaded and installed. If a recommendation is not shown, or you choose not to install such recommended third party software, then no third party software will be downloaded or installed.

Reasonable efforts are made to ensure any temporary files created are automatically removed after the installation process is completed, regardless of whether a recommendation is made, and regardless of whether you choose to install any software. Please note, however, that some files may not be able to remove themselves until the next system restart.

Recommended Third Party Software

You are NEVER required to install any recommended third party software, and you will not be required to install any third party software as a condition to install the Software. We will never install any third party software without your express consent. Recommended third party software is also subject to its own separate license agreement(s).

How We Use Your Data

We are strong advocates for consumer privacy, and we do NOT collect or store any personally identifiable information. Any information transmitted to our servers is anonymous and may be stored in the aggregate to help us improve our services. All information is collected and used in accordance with our Privacy Policy, available at: http://www.opencandy.com/privacy-policy.

DISCLAIMER; LIMITATION OF LIABILITY

WE PROVIDE ALL RECOMMENDATIONS OR THIRD PARTY SOFTWARE "AS IS," "WITH ALL FAULTS," AND WITHOUT ANY WARRANTY WHATSOEVER, AND DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH ANY RECOMMENDATION OR THIRD PARTY SOFTWARE.

Miscellaneous

These Terms are governed by and interpreted, construed and enforced in accordance with the laws of the State of California, United States of America, without respect to its choice of law provisions. Any action is subject to the exclusive jurisdiction of the state or federal courts in California, and you irrevocably submit to the personal jurisdiction in such courts.

Third Party Software Uninstallation

We ensure that all OpenCandy recommended third party software which may be installed allows for simple uninstallation without harming your computer, and without leaving files or applications behind.

If you have any feedback or questions, please email us at: license@opencandy.com.

MICROSOFT SOFTWARE LICENSE TERMS

MICROSOFT VISUAL C++ 2008 RUNTIME LIBRARIES (X86, IA64 AND X64), SERVICE PACK 1

These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. Please read them. They apply to the software named above, which includes the media on which you received it, if any. The terms also apply to any Microsoft

  • updates,
  • supplements,
  • Internet-based services, and
  • support services

For this software, unless other terms accompany those items. If so, those terms apply.

BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE.

If you comply with these license terms, you have the rights below.

  1. INSTALLATION AND USE RIGHTS. You may install and use any number of copies of the software on your devices.

  2. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may not

    • disclose the results of any benchmark tests of the software to any third party without Microsoft’s prior written approval;
    • work around any technical limitations in the software;
    • reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
    • make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation;
    • publish the software for others to copy;
    • rent, lease or lend the software;
    • transfer the software or this agreement to any third party; or
    • use the software for commercial software hosting services.

  3. BACKUP COPY. You may make one backup copy of the software. You may use it only to reinstall the software.

  4. DOCUMENTATION. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes.

  5. EXPORT RESTRICTIONS. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.

  6. SUPPORT SERVICES. Because this software is “as is,” we may not provide support services for it.

  7. ENTIRE AGREEMENT. This agreement, and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services.

  8. APPLICABLE LAW.

    1. United States. If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.
    2. Outside the United States. If you acquired the software in any other country, the laws of that country apply.

  9. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your country. You may also have rights with respect to the party from whom you acquired the software. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.

  10. DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, MICROSOFT EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  11. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.

    This limitation applies to:

    Anything related to the software, services, content (including code) on third party Internet sites, or third party programs;

    Claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.

    It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limit