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Friend2Friend Hosted Services End User License Agreement

Last Updated: October 14, 2016

This Hosted Services End User License Agreement (the “Agreement”) is between Friend2Friend (“Friend2Friend”) and the individual clicking the accept button, or if you are an individual entering into this on behalf of your employer, the entity on whose behalf you are entering into this Agreement (in each case, the individual and/or the employer referred to as “Customer”) and governs Customer’s use of and access to the application development and social engagement platform (the “Platform”) in order to access and use the social applications (“Apps”) provided by Friend2Friend via the Platform (collectively, the “Hosted Service”).

FRIEND2FRIEND MAY AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT SPECIFIC NOTICE TO CUSTOMER AND PURSUANT TO APPLICABLE LAW. AMENDED VERSIONS OF THIS AGREEMENT, INCLUDING CHANGES, AMENDMENTS OR MODIFICATIONS OF ANY PARTICULAR PROVISION CONTAINED HEREIN, WILL BE EFFECTIVE UPON POSTING. CUSTOMER AGREES TO REVIEW THE AGREEMENT FOR AMENDMENTS UPON EACH LOGIN AND OTHERWISE FROM TIME TO TIME. IF ANY MODIFICATION OR AMENDMENT IS UNACCEPTABLE TO CUSTOMER, THEN CUSTOMER’S ONLY RECOURSE IS TO PLEASE DO NOT USE THE PLATFORM TERMINATE THIS AGREEMENT. CONTINUED USE OF THE PLATFORM FOLLOWING FRIEND2FRIEND’S POSTING OF A CHANGE NOTICE OR AMENDED AGREEMENT WILL CONSTITUTE LEGALLY BINDING ACCEPTANCE OF THE CHANGE, AMENDMENT, OR MODIFICATION BY YOU.

License

  1. License Grant. By Friend2Friend. Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay the Fees and any additional policies incorporated by reference in this Agreement, which Friend2Friend may add, remove, modify, or amend at any time in its sole discretion) (“Additional Policies”), Friend2Friend grants to Customer a non-exclusive, non-transferable, non-assignable, non-sub licensable license to access and use Platform and to use, reproduce, and distribute the Apps made available on the Platform.
  2. By Customer. Customer hereby grants to Friend2Friend, and Friend2Friend hereby accepts from Customer, a limited, revocable, non-transferable, royalty-free license, during the Term to: (i) store, use, and reproduce any data provided by Customer to Friend2Friend via the Platform (“Customer Data”); and (ii) reproduce, translate, encode, publish, use, and distribute any information, materials, or documents uploaded by Customer to the Platform, including any designs, artwork, brand assets, trademarks, or trade dress used to customize any App (the “Customer Materials”), in each case for the sole purpose of providing, and only to the extent necessary to provide, the Hosted Service to Customer and to fulfill Friend2Friend’s obligations under this Agreement.
  3. License Restrictions. Customer agrees that Customer will not: (a) access, use, copy, or distribute the Hosted Service (including any App) except as expressly allowed or in a manner that exceeds or violates any limitation set forth in this Agreement or the Additional Policies; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Platform; (c) use or allow the use of the Hosted Service for rental or in the operation of a service bureau or time-sharing arrangement, hosting or ASP model (except as an agency acting on behalf of a client as permitted by Friend2Friend); (d) remove or obscure any copyright, or proprietary rights notice on any copy of the Documentation or which is displayed by the Hosted Service; (e) permit any third party to access and/or use the Hosted Service other than by the individuals authorized by Customer to use the Hosted Service on its behalf (each a “Named User”); or (f) interfere with, disrupt, alter, translate, or modify the Hosted Service, or create an undue burden on the Hosted Service or networks or services connected to the Hosted Service.
  4. Ownership. As between the parties, Friend2Friend shall retain all title, copyright and IP rights in the Hosted Service, including the Platform and all Apps (but excluding any Customer Materials), and all improvements thereto. Customer does not acquire any right, express or implied, in the Hosted Service (including any App), other than those specified in this Agreement. For purposes of this Agreement, “IP Rights” means all forms of intellectual property rights and protections throughout the world, including, but not limited to, any (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity and similar rights; and (g) and any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, whether published or unpublished, arising under statutory law, common law, or by contract, and whether or not perfected, including all applications, disclosures and registrations with respect thereto.
  5. Removal of Customer Materials by Customer. Customer may remove any of its Customer Materials from the Hosted Service at any time, but removing Customer Materials from the Hosted Service does not change or reduce any obligation incurred by Customer in connection with such Customer Materials prior to the date of removal.
  6. Removal of Customer Materials by Friend2Friend. Friend2Friend reserves the right, but has no obligation, to monitor Customer’s use of the Hosted Service, the Platform or any App and the content of any Customer Materials and to remove any Customer Materials from the Hosted Service or to restrict or prohibit Customer’s use of the Platform or any App in any instance where Friend2Friend determines in its sole discretion that where Service where such Customer Materials or use or distribution of the Platform or any App by Customer violates Section 3.1(c) below or otherwise may, in Friend2Friend’s sole discretion, create liability for Friend2Friend. In addition, Friend2Friend reserves the right to suspend and/or bar any Customer from using the Hosted Service or any particular App at its sole discretion.
  7. Ownership of Customer Data and Customer Materials. As between the parties, Customer shall retain all right, title, and interest in and to (a) the Customer Materials, subject to the license rights granted to Friend2Friend in this Agreement and (b) all data generated as a result of Customer’s use of the Hosted Service, including: (i) any data collected from third party users via the Hosted Service, such as email addresses, (ii) any information or data provided by a third-party user of the Hosted Service to Friend2Friend (each an “End User”), including any derivatives of such information (collectively, “End User Data”), subject to Friend2Friend’s privacy policy as published at http://www.friend2friend.com/privacy-policy/; and (iii) any data that tracks or measures Customer’s use of the Hosted Service in an aggregate, non-personally identifiable manner (“Usage Data”). Notwithstanding the foregoing, Customer hereby grants Friend2Friend a perpetual, irrevocable, fully-paid up right and license to use all data as set forth in subsection (b) to the extent necessary for Friend2Friend to perform the Hosted Services, and for its own internal business purposes. Customer acknowledges and agrees that as between Friend2Friend and Customer, Friend2Friend shall own all right, title and interest in and to all Apps.
  8. Ownership of Marks. If and to the extent that the Customer Materials contain, or Customer requests and Friend2Friend agrees to provide a user interface for the Platform or customize any App so that such is branded with, any marks of Customer (“Customer Marks”), then with respect to such Customer Marks, Customer hereby grants to Friend2Friend a limited, non-exclusive, non-transferable, revocable, royalty-free license, with no right to sublicense, to use the Customer Marks for the purpose of performing its obligations under this Agreement. Nothing in this Agreement constitutes the grant of a general license to any Customer Marks. All rights in and to the Customer Marks not expressly granted herein are reserved. No implied licenses are granted to Customer by the terms of this Agreement and no license rights with respect to any Customer Marks shall be created by implication or estoppel.

Fees and named users

  1. Fees. All fees and charges set forth in the applicable Schedule (“Fees”) are due and payable in accordance with the pricing plans listed http://www.friend2friend.com/platform-pricing/
  2. Named users. Unless otherwise limited by agreement between Friend2Friend and Customer, Customer may permit any of its employees to use the Hosted Service for the benefit of Customer as Named Users using the user identities and passwords (“Login Credentials”) provided to each Named User by Friend2Friend. As between Customer and Friend2Friend, Customer acknowledges and agrees that it is responsible for all activity that takes place using any Login Credentials issued to Customer and for any Fees incurred in connection with such use. Customer agrees to, and agrees to ensure that Named Users shall, protect the secrecy and security of all Login Credentials.

Warranties, Disclaimers

  1. Warranties. Customer represents and warrants to Friend2Friend that:
    1. It has the power and authority to enter into this Agreement;
    2. It is the owner of or licensee of all rights necessary and appropriate to grant the rights hereunder;
    3. In the event Customer uses the Hosted Service to distribute Customer Materials via SMS messaging, Customer shall obtain all necessary consents and opt-ins necessary using the functionality provided by Friend2Friend and the Hosted platform and shall indemnify, defend, release, and hold harmless from any and all claims made by any third party alleging that Customer failed to obtain such consents as required by any applicable law, including, without limitation, the Telephone Consumer Protection Act of 1991;
    4. It will not use the Hosted Services to: (A) infringe or misappropriate any materials protected by any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (“IP Rights”); (B) make any claim, statement, promise, or offer, that is false, misleading, or deceptive; (C) engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party; (D) distribute any Customer Materials contain nudity, graphic sex acts, or sexually explicit material, depicts violent or illegal activities, threatens, harasses or bullies others, promotes discrimination or hatred based on race, ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity, impersonates any person or Friend2Friend, harvests, publishes, displays, or uses any private and confidential information of any person, such as credit card numbers, Social Security numbers, driver’s and other license numbers, or any other information that is not publicly accessible; facilitates online gambling, contains or transmits viruses, worms, defects, Trojan horses, malware, Spyware, or malicious scripts; or knowingly violates terms of service for any wireless service carrier; or (E) engage in any deceptive form of advertising which includes, but is not limited to, phishing, sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or any other activity.
  2. Disclaimer. FRIEND2FRIEND DOES NOT MAKE ANY OTHER WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE HOSTED SERVICES, THE PLATFORM, OR ANY APP, INCLUDING ANY WARRANTIES OF MERCHANT CUSTOMER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WHICH ARE HEREBY DISCLAIMED. THE HOSTED SERVICES, INCLUDING THE PLATFORM AND ALL APPS AVAILABLE THEREON, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE.
  3. Indemnification. Customer will defend, indemnify and hold harmless Friend2Friend (and its officers, directors, agents, and employees) from and against any and all claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or relating, in any way, to any Customer Materials or any use of the Hosted Service, including the Platform or any App, in violation of the terms of this Agreement.
  4. Limitation of Liability. In no event will Friend2Friend be liable for any consequential, indirect, exemplary, special, punitive, or incidental damages, including any lost data and lost profits, arising from or relating to the Hosted Service, Support Services, or this Agreement even if Friend2Friend has been advised of the possibility of such damages. Friend2Friend’s total cumulative liability in connection with this Agreement and the Hosted Service and Support Services, whether in contract or tort or otherwise, will not exceed the amount of Fees paid to Friend2Friend for the Hosted Service or Support Services giving rise to the claim, in the twelve (12) months preceding the date the first claim arises hereunder. Customer acknowledges that the Fees reflect the allocation of risk in this Agreement and that Friend2Friend would not enter into this Agreement without these limitations on its liability.

Term and Termination

  1. Term. The term of this Agreement will begin on the Effective Date and will continue monthly or annually, depending on customer, (“Initial Term”), unless this Agreement is earlier terminated as provided herein.
  2. Renewal Term. Following the Initial Term, this Agreement shall automatically renew for successive one-year periods on a month-to-month basis (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides the other with at least fourteen (14) days written notice prior to the expiration of the then current Term of their intent not to renew the then current Term.
  3. Renewal Term Fee Calculation. The Fees for the Renewal Term shall be invoiced by Friend2Friend at the then published Friend2Friend price for the applicable service, provided, however, that any increase shall be effective only upon ninety (90) thirty (30) days prior written notice to Customer.
  4. Termination. Friend2Friend may terminate this Agreement effective immediately upon written notice to Customer, if (i) Customer breaches any provision in Section 3; (ii) Customer fails to pay any portion of the Fees within fifteen (15) days after receiving written notice from Friend2Friend that payment is past due; or (c) Customer materially breaches any other provision of this Agreement and does not cure the breach within fifteen (15) days after receiving written notice thereof from Friend2Friend.
  5. Effects of Termination. Upon termination or expiration of this Agreement or any Schedule for any reason, (i) any amounts owed to Friend2Friend under the terminating or expiring Schedules before such termination or expiration, will be immediately due and payable; provided, however, that prepaid Fees paid by Customer for a Term shall not be refundable and shall be forfeit if Friend2Friend terminates this Agreement pursuant to Section 6.4; (ii) all licensed rights granted in this Agreement will immediately cease to exist; and (iii); and Friend2Friend shall cease providing the Hosted Services to Customer. Sections 1.2, 1.3, 1.6, 1.7, 3, 4, 5, 6.5, 7, and 8 and any obligation to pay outstanding fees will survive any expiration or termination of this Agreement.

Confidentiality

In addition to the provisions contained in Section 1 of this Agreement, the Parties recognize and agree that in connection with the relationships described in this Agreement, each Party and its employees may have access to highly sensitive, confidential business, financial, and other proprietary information of the other Party which, if used without the other Party’s consent, would cause severe and irreparable harm to such other Party, including, without limitation: (a) know-how, trade secrets, formulas, programs, processes, techniques, methodologies, inventions and research; (b) business information, including, but not limited to, strategies, projections, markets, sales, profits, costs, customer lists and business plans; (c) plans for future development; and (d) other information of a similar sensitive nature and not generally known by third parties (“Confidential Information”). Consequently, each party, for itself and its employees, agrees to keep all such Confidential Information confidential; to not use the Confidential Information for any purpose other than as permitted under this Agreement; and not to disclose such Confidential Information to any third party without the prior written consent of the other Party.

Compliance with Laws

Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Hosted Service. Customer agrees that it will not export or re-export the Platform in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Customer will defend, indemnify, and hold harmless Friend2Friend from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

Assignment

Customer may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including its licenses with respect to the Licensed Software) to any third party without Friend2Friend’s prior written consent. Friend2Friend may freely assign this Agreement. For purposes of this Section 8.2, any change of control of Customer, including, without limitation, by way of the sale transfer, assignment or other disposition of securities of Customer (whether in one more transactions), or by way of merger or consolidation, or otherwise occurring, shall be deemed an assignment by Customer. Any attempted assignment or transfer in violation of the foregoing will be a material breach of this Agreement and will be void.

U.S. Government End Users

If Customer is a branch or agency of the United States Government, the following provision applies. The Licensed Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

Governing Law and Arbitration

This Agreement will be governed by the laws of California, without reference to conflicts of law principles that would require the application of the laws of any other jurisdiction. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. All claims brought by Customer in relation to this Agreement or Customer’s use of the Hosted Service will occur in San Francisco, California. It is expressly agreed that either party may seek injunctive relief, at any time, in an appropriate court of law or equity to enforce its rights hereunder.

Digital Millennium Copyright Act

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
  3. Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
  4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  5. 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
  6. A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
  7. Friend2Friend’s Copyright Agent to receive DMCA Takedown Notices is: Telescope Inc., 11835 W. Olympic Blvd., Suite 350, Los Angeles, CA 90064
  8. Email: info (@) telescope.tv
  9. Telephone: +1 424-270-2900. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Platform. You acknowledge that in order for Friend2Friend to be authorized to takedown any Content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

Notice

From time to time, Friend2Friend may revise this Agreement. To help you stay current of any changes, Friend2Friend notes the date this Agreement was last updated below. Your use of the Platform following the posting of any revised version of this Agreement shall be deemed acceptance of the revised policy. Friend2Friend strongly recommends checking this Agreement periodically. If, and only if, Friend2Friend makes revisions to this Agreement that result in a material lessening of the restrictions on Friend2Friend’s use or disclosure of your Personal Information, Friend2Friend will make a commercially reasonable attempt to obtain your consent before implementing such revisions with respect to such Personal Information. If you disagree with the provisions of this Agreement at any time, your sole remedy is to terminate your use of the Platform and inform us of such termination as described in this Agreement. Continued use of the Platform constitutes your agreement to this Agreement as in effect.

General

Friend2Friend’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

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