TERMS OF SERVICE for Friendsee.com
1. Your Relationship with US
Your access or use of our software, services and websites (referred to collectively as the “Services”), is subject to a legal agreement between you and Invoke Ltd and Friendsee.com. (“Friendsee”). This document explains how the agreement is made up, and sets out some of the terms of that agreement. Unless otherwise agreed in writing, your agreement with Friendsee will always include the terms and conditions set out in this document (“Universal Terms”) in addition to the terms of any legal notices applicable to the Services you access, use or register for (“Additional Terms”). Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service. Collectively, the Universal Terms and the Additional Terms are referred to as “Terms of Service.” If there is a conflict between the terms and conditions contained in the Additional Terms and the Universal Terms, then the Additional Terms shall take precedence in relation to that Service.
2. Zero Tolerance Policy
It is our goal to provide an enjoyable experience and safe environment for all users of our Services. Therefore, Friendsee has a zero tolerance policy towards certain activities which threaten user safety and enjoyment. Without limiting any additional rights and remedies afforded us below, we will terminate your Friendsee account and permanently ban your IP address from accessing the Services - without warning, if your Friendsee account is used for any of the following strictly prohibited activities:
a. Cyber-bullying, Cyber-stalking – using the Services to threaten a user’s reputation, earnings or employment in a deliberate and hostile manner is strictly prohibited. It is also a crime, and in addition to having your account terminated and your IP address permanently banned, you may also be criminally prosecuted.
b.Nudity and Sexually Explicit Content – using the Services to expose yourself, to broadcast a pornographic video, or to otherwise show nude or sexually explicit content is strictly prohibited. If you are, or appear to be under the age of 18, and you expose yourself using the Services, you are creating and distributing child pornography, and in addition to having your account terminated and your IP address permanently banned, you may also be criminally prosecuted.
3. Eligibility and Registration
a. Eligibility. Use of the Services is void where prohibited. You must be at least 14 years of age if you wish to create an Account. You must be at least 18 years of age and capable of forming a legally binding contract if you wish to use any fee-based Service. Your Account is solely for your personal use and is not transferable. You shall not authorize others to use your user name. Registered sex offenders, users who have had accounts terminated for violating Section 2 of the Terms of Service, and users who have repeatedly violated the Terms of Service are ineligible to register for an Account and are prohibited from accessing and using the Services.
b. Registration. Certain Services are only available to users who have created an “Account” by completing a registration application and registering a valid user name and password (Registration Based Services). You must have a valid email address in order to register a user name and password. When registering your user name and password, you may not select or use a user name of another person with the intention of impersonating that person, use the user name of anyone else without authorization, use a user name in violation of the intellectual property rights of any person or entity, or use a user name that Friendsee considers in its sole discretion as being inappropriate. You are solely responsible for the use and maintenance of your user name and password. You may change your password at any time. You agree to notify Friendsee of any unauthorized use of your user name or any other breach of security, and to ensure that you exit from your Account at the end of each session. You must use your Account on a regular basis by logging into your Account. Friendsee may, without notification, terminate your Account and delete Your Content if you have not logged into your Account for a period of ninety (90) days.
c. Social Login. Social Login provides the limited ability to enter a chat session without having or logging into a Friendsee account by using the user name or other log in identification and password (“Credentials”) for a third party social networking service (“SNS”) you use.
d. Social Connect. Social Connect allows you to create and/or log into your Friendsee account by using your Credentials for a third party social networking services ("SNS").
4. Accepting the Terms of Service
You must agree to the Terms of Service in order to use the Services. You can accept the Terms of Service by clicking to accept or agree to the Terms of Service, where this option is made available to you by Friendsee in the user interface for any Service; or by actually using the Services, in which case, you understand and agree that Friendsee will treat your use of the Services as acceptance of the Terms of Service from that point onwards. In the event that you do not agree to the Terms of Service, or any changes or modifications thereto, you should not continue to access or use the Services provided by Friendsee.
5. Modification of Terms of Service
Friendsee reserves the right to modify or revise these Terms of Service at any time in its sole discretion. Any modification or revision to these Terms of Service shall be effective immediately upon notification to you unless otherwise stated. Your continued access or use of the Services following the posting of any changes or modification to these Terms of Service will constitute your acceptance of such changes or modifications.
This Agreement shall remain in full force while you access or use the Services and/or as long as you have an account with any Service.
a. You may terminate your legal agreement with Friendsee at any time by closing your account(s) for all of the Services which you use, and discontinuing access to the Services.
b. Friendsee may terminate its legal agreement with you without further obligation or liability to you if you have breached any provision of the Terms of Service; or if we reasonably believe you have breached the Terms of Service. Friendsee may also terminate its legal agreement with you if providing the Services to you is no longer commercially viable. Friendsee reserves the right to cancel an Account and user name at any time, for any reason, in its sole discretion.
c. In the event your account is terminated or your user name is cancelled, Friendsee may, without notification, delete Your Content (defined hereunder in Section 11), and you will need to re-register for an account and obtain a new user name to gain access to any registration based Services. Friendsee shall not be responsible for any losses, damages, claims and actions of any kind, either directly or indirectly related to or arising from the restriction, suspension, or termination of your account, access to the Services, cancellation of your user name, or the deletion of Your Content.
8. Charges for Premium Services
Certain Services available are provided on a subscription basis and require a fee in accordance with the Fee Schedule associated with that service. You agree that Friendsee may charge to your credit card all amounts due and owing, if any, including Membership Fees, Setup Fees, Transaction Fees, or any other fee or charge associated with your use of a fee-based service. Friendsee may change prices at any time without prior notice. All fees are non-refundable unless otherwise provided for in these Terms of Service. You agree that in the event Friendsee is unable to collect the fees owed to Friendsee from the payment method you provided, Friendsee may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Friendsee in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Friendsee may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
9. Grant of License to Friendsee Services
As long as you are not in breach of any terms or conditions of this agreement, Friendsee grants you a limited, revocable, nontransferable, non-assignable, non-sublicensable, and non-exclusive right and license to access and use the Services as set forth in these Terms of Service and any applicable Additional Terms. You may not (nor may you permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any software (or any part thereof) made available to you by Friendsee.
10. Grant of License to User Content
As long as you are not in breach of any terms or conditions of this agreement, Friendsee grants you a limited, revocable, nontransferable, non-assignable, non sublicensable, and non-exclusive right and license to access User Content for your information and personal use solely as intended through the provided functionality of the Services, or as otherwise expressly authorized by Friendsee. Unless expressly authorized by Friendsee in writing, you may not copy or download any User Content unless the Service you are accessing provides the means to copy or download that content. For purposes of this Agreement, User Content means the material submitted, posted, displayed or otherwise distributed on or through the Services.
11. Grant of License to Your Content
a. You warrant and represent that you own the rights to or are otherwise authorized to post, display, perform, transmit, stream, upload, or otherwise distribute the text, data, graphics, images, photos and video files and other material and information (“Your Content”) that you stream, post, upload and otherwise submit, or display on or through the Services. You retain ownership of all right, title, and interest in Your Content. However, during the course of your use of the Services you grant Friendsee a license to use and distribute Your Content. More specifically, by posting, uploading, displaying, performing, transmitting, or otherwise distributing Your Content on or through the Services, you are granting Friendsee the nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferrable right and license to use, reproduce, display, publish, perform, distribute, transmit, broadcast, modify, adapt, prepare derivative works of, promote and otherwise exploit Your Content in any form, medium, device, technology, now known or later developed, and through any media channel, for the purpose of (i) making Your Content available on the World Wide Web on and through the Services, (ii) conducting Friendsee internal business affairs, and (iii) advertising, marketing and business development purposes.
b. In addition to the rights, licenses and privileges granted above, you agree that Friendsee may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, presentations, customer lists, website materials, and other media now known or later developed in connection with the marketing, advertising and promotion of Friendsee and the Services.
14. Friendsee Trademarks
Friendsee trademarks, logos, images, service marks, trade names and other distinctive branding features affixed or contained within the Services (“Friendsee Marks”) are the trademarks of Friendsee and may not be used without permission. Unless otherwise provided for in writing, Friendsee does not grant you a license under any intellectual property rights to the Friendsee Marks. Other trademarks, logos and trade names that may appear on or within the Services are the property of the respective owners. You agree that you shall not remove, obscure, or alter Friendsee Marks (including copyright and trademark notices) which may be affixed to or contained within the Services. Unless you have been expressly authorized to do so in writing by Friendsee, you agree that in using the Services, you will not use any trademark, service mark, trade name, or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
15. Content Restrictions
You are solely responsible for all Content posted, uploaded, streamed, or otherwise distributed under your account, including, without limitation, photographs, audio files, video files, and live streaming video, as well as any communication with other members via the instant message service and internal email service. You may not post or transmit, whether publicly or privately, any material that:
a. Is false, misleading, deceptive, deceitful, or constitutes “bait and switch;”
b. Employs misleading email addresses or forged headers or otherwise manipulated identifiers in order to disguise the origin of the content posted;
c. Contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful programs;
d. Harasses, threatens, or abuses another person;
e. Is libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable;
f. Violates any applicable law restricting the export or import of data, software, or any other content, or encourages conduct that would constitute a criminal offense;
g. Gives rise to civil liability;
h. Advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law; or
i. Otherwise violates any applicable local, state, national or foreign law or regulation.
16. Prohibited Uses of the Services
You may not use the Services in any manner not permitted by these Terms of Service, or for activities that violate any law, statute, ordinance or regulation. In addition, without limitation, you agree that you will not do any of the following while using the Services:
a. Send unsolicited email, including, without limitation, promotions, or advertisements for products or services;
b. Collect or store personal information about other users without their express permission;
c. Impersonate or misrepresent your affiliation with any person or entity;
d. Access content or data not intended for you, or log onto a server or account that you are not authorized to access;
e. Attempt to probe, scan, or test the vulnerability of the Services or to breach security or authentication measures without proper authorization;
f. Interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;”
g. Attempt to modify, reverse engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Friendsee in providing the Services;
h. Use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any network or networks connected to the Services; or
i. Encourage or instruct any other individual to do any of the foregoing.
The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft, navigation or communication systems, air traffic control, and life support or weapons systems, and such use is strictly prohibited.
17. Compliance with Intellectual Property Laws
Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. When using the Services, you agree (a) to obey the law and to respect the intellectual property rights of others; (b) not to upload, download, display, perform, transmit, or otherwise distribute any material in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights; and (c) to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any infringement of third party rights caused by any material you provide or transmit, or that is provided or transmitted using your user name.
The burden of proving that any material does not violate any laws or third party rights rests solely with you.
18. Alleged Violations of the Terms of Service
To ensure that Friendsee provides a high quality experience for you and for other users of the Services, you agree that Friendsee may access your account(s) and records, and monitor your activities on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Services. Friendsee does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Friendsee reserves the right to terminate your account(s) and/or your access to the Services, and to delete all of Your Content posted therein, with or without notice to you, and without liability to you, if Friendsee believes that you have violated any of these Terms of Service, furnished Friendsee with false or misleading information, or interfered with the use of the Services.
19. No Duty to Monitor Content
Friendsee, in its sole discretion shall have the right (but not the duty) to monitor the Content posted on or through the Services including, without limitation, the content of any communication that occurs on or through the instant message service and the internal email service, whether or not Friendsee is the intended recipient of the message or email. Friendsee reserves the right to remove Content that, in its sole judgment, does not meet its standards or does not comply with this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of others, but Friendsee is not responsible for any failure or delay in removing such content.
20. Reporting Certain Abuse to Law Enforcement
The Services are intended for use by a general audience including children as young as 14 years of age. Sexually explicit material is strictly prohibited. The traffic data and personal information of users whose account is associated with sexually explicit material may be reported to law enforcement authorities for prosecution under applicable criminal laws as follows:
a. Child Pornography. Friendsee reports to the National Center for Missing and Exploited Children, the facts and circumstances relating to sexually explicit material and other criminal offenses involving children under the age of 18 which appears on the Services. This includes, but is not limited to, the posting of sexually explicit material, (including without limitation, photos, videos, and live Webcasts) depicting children who appear to be under the age of 18.
b. Other types of abuse. Other violations of these Terms of Service that may compromise the safety of our members may be reported to local, national, or international law enforcement agencies in cooperation with the Virtual Global Taskforce.
21. Parental Control Protections
Friendsee prohibits children under the age of 14 from registering for the Services. However, it is easy for children to lie about their age and thus gain access to material which may be inappropriate and unintended for them. It is up to parents to properly supervise their children’s on-line activities. Certain parental control protections are commercially available which can assist parents in supervising their children’s on-line activities such as computer hardware, software, and filtering services which can be used to block a child’s access to on-line services such as those offered by Friendsee. You can find tools that will assist you in supervising your children’s on-line activities by clicking here.
22. Copyright Infringement
Friendsee has in place certain legally mandated procedures regarding allegations of copyright infringement. Friendsee has adopted a policy that provides for the immediate suspension and/or termination of any user who is found to have infringed on the rights of Friendsee, or of a third party, or otherwise violated any intellectual property laws or regulations. Friendsee policy is to investigate any allegations brought to its attention. If you have any evidence, know, or have a good-faith belief that your rights have been violated and you want Friendsee to delete, edit, or disable the material in question, you must provide us with the following information:
a. Identification of the copyrighted work claimed to have been infringed;
b. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material such as the URL or other specific location;
c. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, or e-mail address;
d. A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
e. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
f. The physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
For this notification to be effective, you must provide it to Friendsee designated Agent for Notice of Claimed Infringement. Friendsee agent designated to receive notice of claims of copyright or other intellectual property infringement can be contacted as follows:
By mail to:
a. If you have been notified by Friendsee that Your Content has been removed (or access to it was disabled) in response to a notification of infringement, and you believe that Your Content is not infringing, or that you are using Your Content in a manner authorized by the copyright owner, the copyright owner's agent, or pursuant to the law, you may send a counter-notice containing the following information to the Copyright Agent:
b. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
c. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content;
d. Your name, address, telephone number, and e-mail address; and
e. Your physical or electronic signature
If a counter-notice is received by the Copyright Agent, Friendsee may send a copy of the counter-notice to the original complaining party informing that person that Friendsee may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against you or Friendsee, the removed content may be replaced, or access to it restored, within a commercially reasonable time.
23. TRANSACTIONS BETEEN USERS, USER DISPUTES AND RELEASE
a. Disclaimer Related to Transactions Between Users. Friendsee is not a party to the transactions between users of the services, including, without limitation, with respect to the sale/purchase of tickets to on-line events or subscriptions to recorded content. nor is Friendsee acting as an agent of sale. Friendsee disclaims any responsibility for or liability related to such transactions, And any questions, complaints or claims related to a transaction with another user of the services should be directed to the appropriate user.
b. Disclaimer Related to User Material. You will not hold Friendsee responsible for other users' Material, actions or inactions. You acknowledge that Friendsee is an interactive online service provider, providing the Services to its users for the purpose of communicating with other users and publishing user Material. Friendsee has no control over user Material and does not guaranty the quality, safety or legality of user Material advertised, or the truth or accuracy of user Material.
c. Responsibility for Resolving User Disputes. You are solely responsible for resolving any disputes between you and other users of the services including without limitation, disputes concerning transactions with other users. Friendsee reserves the right, but has no obligation to monitor or resolve disputes between users of the services.
d. RELEASE FROM LIABILITY. IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU RELEASE Friendsee, ITS PARENT COMPANY, AND THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
24. Advertisers, Other Businesses, and Links to Other Sites
The Services may provide links redirecting you to the websites of third-party merchants, and other third-parties. These links are provided solely as a convenience to you, and do not constitute an endorsement by Friendsee of the content of such third-party sites nor of the business practices of such other businesses, entities or individuals. Friendsee is not responsible for examining or evaluating, and does not warrant or claim responsibility for in any way, the products, services, offerings or business practices of any of these businesses, entities or individuals or the content of their websites. You should carefully review their privacy statements and other conditions of use.
26. DISCLAIMER OF WARRANTIES
FRIENDSEE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES WHICH MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. ACCORDINGLY, TO THE EXTENT LEGALLY PERMITTED, FRIENDSEE HEREBY DISCLAIMS ALL WARRANTIES. FRIENDSEE IS MAKING THE SERVICES AVAILABLE "AS IS," “WITH ALL FAULTS” ON AN “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FRIENDSEE, ITS PARENT COMPANY, AND THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. FRIENDSEE DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED.
27. LIMITED LIABILITY
Friendsee LIABILITY TO YOU IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL Friendsee, ITS PARENT COMPANY AND THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
NOTWITHSTANDING THE FOREGOING, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE TOTAL FEES YOU PAID TO US IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless. Friendsee, its parent company, and their affiliates, officers, employees, agents, partners and licensors, from any loss, liability, claim or demand, including reasonable attorneys’ fees, made by any third party with respect to any transaction(s) you are involved in with other users of the services; due to or arising from your access to, use of, or inability to use the services, your violation of these terms of service, your breach of any of the representations and warranties herein; or the infringement by you or any other user of your account of any intellectual property or other right of any person or entity.
29. Dispute Resolution and Governing Law.
a. Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement and the transactions contemplated by this Agreement ("Dispute"), you and Friendsee agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. Friendsee will send its notice to the email address you have provided to us. You will send your notice to Friendsee Worldwide, Inc., 444 S. Flower Street, Suite 3000, Los Angeles, California 90071, ATTN: Legal Department.
b. Binding Arbitration. If you and Friendsee are unable to resolve a Dispute through informal negotiations, either you or Friendsee may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Friendsee will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Friendsee may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
c. Restrictions. You and Friendsee agree that any arbitration shall be limited to the Dispute between Friendsee and you individually. To the full extent permitted by law, (i) no arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
d. Exceptions to Informal Negotiations and Arbitration. You and Friendsee agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of any of your or Friendsee intellectual property rights; (ii) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for injunctive relief.
e. Location. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Friendsee agree to submit to the personal jurisdiction of that court.
f. Forum Non Conveniens. With regard to any Dispute not subject to arbitration, or where no election to arbitrate has been made, You and Friendsee waive, to the fullest extent permitted by law, (i) any objection had now or later, to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any court of the State of California sitting in Los Angeles, or the United States District Court for the Second District of California, and (i) any claim that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
g. WAIVER OF JURY TRIAL. WITH REGARD TO ANY DISPUTE NOT SUBJECT TO ARBITRATION , OR WHERE NO ELECTION TO ARBITRATE HAS BEEN MADE, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND FRIENDSEE KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RERLATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.
h. Governing Law. The services are controlled and operated by Friendsee from its offices in the United States of America, State of California. Friendsee makes no representation that the services are available or appropriate for use in other locations. Your use of or access to the services should not be construed as Friendsee purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California. Except as expressly provided otherwise, the Laws of the United States of America and the law of the State of California, without giving effect to its conflicts of law principals govern all matters arising out of or relating to this Agreement and all of the transactions it contemplates, including, without limitation its validity, interpretation, construction, performance, and enforcement. Those who choose to access the Services from locations outside of the United States, do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable.
i. Severability. You and Friendsee agree that if any portion of Section 29 is found illegal or unenforceable (except any portion of Section 29(d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 29(d) is found to be illegal or unenforceable then neither you nor Friendsee will elect to arbitrate any Dispute falling within that portion of Section 29(d) found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Friendsee agree to submit to the personal jurisdiction of that court.
30. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
31. No Third Party Beneficiaries
This Agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties. be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
32. Modifications to Services
Friendsee may, in its sole discretion and without prior notice modify the Services, and discontinue the Services at any time.
33 we do not guarantee content to be saved and recorded with the free version. any content can be removed or not recorded if we believe it is damaging our service or abusing it or for any other reason content can be removed or deleted from the archive. is such cases we are not required to notify the user
34. Assignment and Delegation
You may not delegate any of your duties or assign any of your rights under this Agreement, voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner. Friendsee may assign any of its rights and any of its obligations under this agreement without consent, including without limitation, in connection with a corporate reorganization, consolidation, merger or sale of substantially all of its assets. Any purported assignment of rights or delegation of duties in violation of this Section is void.
35. Successors and Assigns
This Agreement is binding upon, and inures to the benefit of, the Parties and their respective permitted successors and assigns. This Section does not address, directly or indirectly, whether a party may assign its rights or delegate its duties under this Agreement. Section 33 addresses these matters.
Unless otherwise specified herein, any notice or other communication to be given hereunder will be in writing and given: by Friendsee via email to the address that you provide at registration, or by a posting on the Friendsee website; and by you via email to email@example.com The date of receipt will be deemed the date on which such notice is transmitted.
The Terms of Service (including the Universal Terms of Service and any Additional Terms) constitutes the entire agreement between you and Friendsee and governs your use of the Services, superseding any prior agreements (whether written or oral) between you and Friendsee regarding the subject matter herein. Inaction or failure by Friendsee to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held void, invalid, illegal or unenforceable, the legality and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way. The descriptive headings of the articles, sections, and subsections of this Agreement are for convenience only and no not constitute a part of this Agreement.
This Agreement was last modified April 4, 2013