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Friend Heaven.com Terms of Use Agreement
April 12th, 2008
Friend Heaven, (“Friend Heaven” or “we”) operates FriendHeaven.com, which is a social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends. The services offered by Friend Heaven include any Friend Heaven branded URL (the "Friend Heaven Website"), the Friend Heaven instant messaging service and other features (for example, music and video embedded players). The Friend Heaven Services are hosted in the United States.
This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the Friend Heaven Services. By using the Friend Heaven Services, you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the Friend Heaven Website, including through a mobile device or otherwise use the Friend Heaven Services without being registered) or you are a "Member" (which means that you have registered with Friend Heaven). The term "User" refers to a Visitor or a Member. You are only authorized to use the Friend Heaven Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and the terms of this Agreement. Please read this Agreement carefully and save it. If you do not agree to be bound by it or with any of the legal provisions applicable to it and to follow all applicable laws, you should leave the Friend Heaven Website and discontinue use of the Friend Heaven Services immediately. If you wish to become a Member, communicate with other Members and/or make use of the Friend Heaven Services, you must read this Agreement and indicate your acceptance during the Registration process.
This Agreement includes Friend Heaven's policy for acceptable use of the Friend Heaven Services and Content (as defined in Section 6.1 below) posted on or through the Friend Heaven Services and your rights, obligations and restrictions regarding your use of the Friend Heaven Services and Content posted on or through the Friend Heaven Services. In order to participate in certain Friend Heaven Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions from Friend Heaven. Unless otherwise provided by the additional terms and conditions applicable to the Friend Heaven Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement. You may receive a copy of this Agreement by emailing us at: contact@friendheaven.com, Subject: Terms of Use Agreement.
Friend Heaven may modify this Agreement from time to time and such modification shall be effective upon posting by Friend Heaven on the Friend Heaven Website. Your continued use of the Friend Heaven Services after Friend Heaven posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the Friend Heaven Services and that you provide to other Users. Your Friend Heaven profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other Friend Heaven Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and Friend Heaven assumes no responsibility or liability for this material. If you become aware of misuse of the Friend Heaven Services by any person, please click on the "Contact Friend Heaven” or the “Report Abuse” link at the bottom of the Friend Heaven Website pages.
Friend Heaven reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Friend Heaven Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. Friend Heaven expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Friend Heaven Services if Friend Heaven determines, in its sole discretion, that you have violated this Agreement or pose a threat to Friend Heaven and/or its Users and/or violating any applicable law.
1. Eligibility. Use of the Friend Heaven Services and registration to be a Member for the Friend Heaven Services (“Membership”) is void where prohibited. By using the Friend Heaven Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the Friend Heaven Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
2. Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the Friend Heaven Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. Friend Heaven may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, this Agreement will remain in effect, including Sections 5-17.
3. Fees. You acknowledge that Friend Heaven reserves the right to charge for any portion of the Friend Heaven Services and to change its fees (if any) from time to time in its discretion. If Friend Heaven terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify Friend Heaven immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Use by Members. The Friend Heaven Services are for the personal use of Members and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by Friend Heaven. Friend Heaven reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the Friend Heaven Services, including collecting usernames, userid numbers and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Friend Heaven Website, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. Friend Heaven reserves the right to take appropriate legal action for any illegal or unauthorized use of the Friend Heaven Services.
6. Proprietary Rights in Content on Friend Heaven.
6.1 Friend Heaven does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Friend Heaven Services. After posting your Content to the Friend Heaven Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the Friend Heaven Services, you hereby grant to Friend Heaven a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the Friend Heaven Services, including without limitation distributing part or all of the Friend Heaven Website in any media formats and through any media channels, except Content marked “private” will not be distributed outside the Friend Heaven Website. This limited license does not grant Friend Heaven the right to sell or otherwise distribute your Content outside of the Friend Heaven Services. After you remove your Content from the Friend Heaven Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the Friend Heaven Website you change the Content’s privacy setting to “private,” we will cease distribution of such “private” Content outside the Friend Heaven Website as soon as practicable after you make the change.
6.2 The license you grant to Friend Heaven is non-exclusive (meaning you are free to license your Content to anyone else in addition to Friend Heaven), fully-paid and royalty-free (meaning that Friend Heaven is not required to pay you for the use on the Friend Heaven Services of the Content that you post), sublicensable (so that Friend Heaven is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the Friend Heaven Services), and worldwide (because the Internet and the Friend Heaven Services are global in reach).
6.3 You represent, warrant and covenant that: (i) you own the Content posted by you on or through the Friend Heaven Services or otherwise have the right to grant the license set forth in this Section 6, and (ii) the posting of your Content on or through the Friend Heaven Services does not violate any applicable laws, including but not limited to the privacy rights, publicity rights, intellectual property rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any Content posted by you on or through the Friend Heaven Services.
6.4 The Friend Heaven Services contain Content of Friend Heaven ("Friend Heaven Content"). Friend Heaven Content is protected by copyright, trademark, patent, trade secret, industrial secret, and other laws, and Friend Heaven owns and retains all rights in the Friend Heaven Content and the Friend Heaven Services. Friend Heaven hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Friend Heaven Content (excluding any software code) solely for your personal use in connection with viewing the Friend Heaven Website and using the Friend Heaven Services.
6.5 The Friend Heaven Services contain Content of Users and other Friend Heaven licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Friend Heaven Services.
6.6 Friend Heaven performs technical functions necessary to offer the Friend Heaven Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Friend Heaven Services.
7. Content Posted.
7.1 Friend Heaven may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of Friend Heaven violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Friend Heaven assumes no responsibility for monitoring the Friend Heaven Services for inappropriate Content or conduct. If at any time Friend Heaven chooses, in its sole discretion, to monitor the Friend Heaven Services, Friend Heaven nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
7.2 You are solely responsible for the Content that you post on or through any of the Friend Heaven Services, and any material or information that you transmit to other Members and for your interactions with other Users.
7.3 You are solely responsible for ensuring that all Content that you post on or through any of the Friend Heaven Services, and any material or information that you transmit to other Users, conforms to all applicable data protection and privacy laws, including ensuring that you have obtained the prior consent of any and all individuals whose personal information you use and/or disclose on or through Friend Heaven.
8 Content/Activity Prohibited. The following are examples of the kind of Content that is illegal or prohibited to post on or through the Friend Heaven Services. Friend Heaven reserves the right to investigate and take appropriate legal action against anyone who, in Friend Heaven's sole discretion, violates this provision, including without limitation, removing the offending Content from the Friend Heaven Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of Friend Heaven:
8.1 is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
8.2 harasses or advocates harassment of another person;
8.3 exploits people in a sexual or violent manner;
8.4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
8.5 solicits personal information from anyone under 18;
8.6 publicly posts information that poses or creates a privacy or security risk to any person;
8.7 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
8.8 constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
8.9 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
8.10 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
8.11 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
8.12 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
8.13 involves commercial activities and/or sales without prior written consent from Friend Heaven such as contests, sweepstakes, barter, advertising, or pyramid schemes;
8.14 includes a photograph or video of another person that you have posted without that person's consent;
8.15 for band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile;
8.16 violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person; or
8.17 promotes propaganda and/or symbols of organizations which are unconstitutional or illegal in your country.
The following are examples of the kind of activity that is illegal or prohibited on the Friend Heaven Website and through your use of the Friend Heaven Services. Friend Heaven reserves the right to investigate and take appropriate legal action against anyone who, in Friend Heaven's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
8.18 criminal or tortious activity, including child pornography, corruption of minors, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, intellectual property rights (including but not limited to copyright, trademark and patent infringement), or theft of trade or industrial secrets;
8.19 advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the Friend Heaven Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, Friend Heaven reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which Friend Heaven deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the Friend Heaven Services, you acknowledge that you will have caused substantial harm to Friend Heaven, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Friend Heaven USD $50 for each such unsolicited email or other unauthorized commercial communication you send through the Friend Heaven Services;
8.20 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the Friend Heaven Services;
8.21 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
8.22 covering or obscuring the banner advertisements on your personal profile page, or any Friend Heaven page via HTML/CSS or any other means;
8.23 any automated use of the system, including but not limited to, using scripts to add friends or send comments or messages;
8.24 interfering with, disrupting, or creating an undue burden on the Friend Heaven Services or the networks or services connected to the Friend Heaven Services;
8.25 impersonating or attempting to impersonate another Member, person or entity;
8.26 for band, comedy, filmmaker and other profiles containing a Friend Heaven player, copying the code for your Friend Heaven Player and embedding it (or directing others to embed it) anywhere other than your band profile on Friend Heaven;
8.27 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
8.28 selling or otherwise transferring your profile;
8.29 using any information obtained from the Friend Heaven Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
8.30 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Friend Heaven Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose as one of your "Top 8" friends, or sending private messages with a commercial purpose; or
8.31 using the Friend Heaven Services in a manner inconsistent with any and all applicable laws and regulations.
9 Protecting Copyrights and Other Intellectual Property. Friend Heaven respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Friend Heaven has the right to terminate the Membership of infringers.
If you believe your work has been copied and posted on or through the Friend Heaven Services in a way that constitutes copyright infringement, please send Friend Heaven's Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Friend Heaven Services (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature.
10. Member Disputes. You are solely responsible for your interactions with other Friend Heaven Members. Friend Heaven reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.
11. Disclaimers. Friend Heaven is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted on or through the Friend Heaven Services, whether caused by Users of the Friend Heaven Services or by any of the equipment or programming associated with or utilized in the Friend Heaven Services and such User Content does not necessarily reflect the opinions or policies of Friend Heaven. Profiles and third party applications created and posted by Members on the Friend Heaven Website may contain links to other websites. Friend Heaven is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by Friend Heaven. Inclusion of any linked website on the Friend Heaven Services does not imply approval or endorsement of the linked website by Friend Heaven. When you access these third-party sites, you do so at your own risk. Friend Heaven takes no responsibility for third party advertisements or third party applications that are posted on or through the Friend Heaven Services, nor does it take any responsibility for the goods or services provided by its advertisers. Friend Heaven is not responsible for the conduct, whether online or offline, of any User of the Friend Heaven Services. Friend Heaven assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. Friend Heaven is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Friend Heaven Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Friend Heaven Services. Under no circumstances shall Friend Heaven be responsible for any loss or damage, including personal injury or death, resulting from use of the Friend Heaven Services, attendance at a Friend Heaven event, from any User Content posted on or through the Friend Heaven Services, or from the conduct of any Users of the Friend Heaven Services, whether online or offline. The Friend Heaven Services are provided "AS-IS" and as available and Friend Heaven expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Friend Heaven cannot guarantee and does not promise any specific results from use of the Friend Heaven Services.
12. Limitation on Liability. IN NO EVENT SHALL Friend Heaven BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE Friend Heaven SERVICES, EVEN IF Friend Heaven HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Friend Heaven'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO Friend Heaven FOR THE Friend Heaven SERVICES DURING THE TERM OF MEMBERSHIP.
13. U.S. Export Controls. Software available in connection with the Friend Heaven Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the Friend Heaven Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
14. Disputes. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions. You and Friend Heaven agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of the Agreement or the Friend Heaven Services. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
15. Indemnity. You agree to indemnify and hold Friend Heaven, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Friend Heaven Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or if any Content that you post on or through the Friend Heaven Services causes Friend Heaven to be liable to another.
16. Other. This Agreement is accepted upon your use of the Friend Heaven Website or any of the Friend Heaven Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and Friend Heaven regarding the use of the Friend Heaven Services. The failure of Friend Heaven to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Friend Heaven is a trademark of Friend Heaven, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
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