MakeFriends end user license agreement
IMPORTANT: PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (THE "AGREEMENT") BETWEEN "YOU" ANDMakeFriends ("WE," "US," OR "OUR") REGARDING YOUR USE OF THE MAKEFRIENDS SOFTWARE APPLICATION AND NETWORKING SERVICES (COLLECTIVELY, "MAKEFRIENDS"). BY USING MAKEFRIENDS, YOU AGREE THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU MAY NOT USE MAKEFRIENDS.
WE MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON EITHER POSTING OF THE MODIFIED AGREEMENT OR NOTIFYING YOU. YOU AGREE TO REVIEW THIS AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED USE OF MAKEFRIENDS SHALL INDICATE YOUR ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. Use of MakeFriends. In addition to MakeFriends terms and conditions set forth below, You agree and acknowledge that Your use of MakeFriends may be subject to additional terms and conditions of the device manufacturer, provider or carrier for the Mobile Device (as defined below) on which You download, access or use MakeFriends, which are not governed by this Agreement. In addition, when using particular functionalities and features that are part of MakeFriends, You may be subject to additional guidelines, terms, or rules applicable to such functionalities and features ("Additional Terms"), which may be posted from time to time and are hereby incorporated by reference into this Agreement. To the extent additional functionalities and features are provided to us by any of our partners, the additional terms that govern your use of such functionalities and features are not incorporated into this Agreement, but shall govern your use of such functionalities and features and You hereby agree to comply with and be bound by such terms as a condition to your access and use of such functionalities and features. This Agreement shall govern any corrections, bug fixes, enhancements, updates or other modifications to MakeFriends (collectively, "Upgrades") provided MakeFriends, except to the extent such Upgrades are accompanied by a separate license in which case the terms of such license will govern.
2. License Grant. Subject to the terms and conditions of this Agreement, MakeFriends hearby grants to You a terminable, nonexclusive, nontransferable, nonsublicenseable license to use, perform, and display MakeFriends on one (1) iPhone™ or iPod Touch™ that You own or control (your "Mobile Device"), solely for your personal, non-commercial use in accordance this Agreement. This license does not allow You to use, perform, or display MakeFriends on any iPhone or iPod Touch that You do not own or control, and You may not distribute or make MakeFriends available over a network where it could be used by more than one device at the same time.
3. License Restrictions. You may not
4. Prohibited Activities. You agree not to use MakeFriends in any manner that violates this Agreement, including MakeFriends then-current acceptable use policy ("Acceptable Use Policy"), the latest version of which is available at MakeFriends2.com/com/legal, which is incorporated in this Agreement by reference. MakeFriends may modify the Acceptable Use Policy from time to time in its discretion. Although MakeFriends cannot monitor the conduct of its users outside of MakeFriends, it is also a violation of these rules to use any information obtained from or through MakeFriends in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any person without their prior explicit consent. In order to protect our users from such activities, MakeFriends reserves the right to restrict the number of communications (including sharing of Content) which You may send to other users in any twenty-four (24) hour period to a number which MakeFriends deems appropriate in its sole discretion. Violations of any of the above may be investigated MakeFriends and, where appropriate, MakeFriends may either institute legal action, or cooperate with law enforcement authorities in bringing legal proceedings, against users who violate this Agreement. You understand and acknowledge that we have a reputation to protect, and that we want to provide a good and positive service to users of MakeFriends, so any violation of this agreement by You may cause us substantial harm. Accordingly, You agree that we may enforce this Agreement to the fullest extent permitted by law.
5. Regarding Your Mobile Device. By accessing and using MakeFriends
with your Mobile Device You acknowledge and agree that You may receive certain
communications from MakeFriends (such as text messages and pictures, mobile
emails, or other electronic communications means, collectively "Mobile Communications").
Please note that by accessing and using MakeFriends via your Mobile Device,
or by using certain mobile features, such as receiving or sending Mobile Communications
via your Mobile Device, You may incur fees from the provider or carrier of
the mobile services that You use and You are solely responsible for the payment
of such fees. If You choose to update your profile with information about
your actual location (including location-related information provided by your
carrier, provider or applications), You acknowledge and agree that
6. Ownership. The MakeFriends application is licensed to You, not sold. MakeFriends and its licensors own and retain all proprietary rights in MakeFriends (including all Upgrades thereto). MakeFriends contains the copyrighted material, trademarks, and other proprietary information ("Intellectual Property") of MakeFriends, and its licensors, including other MakeFriends users. Except for Intellectual Property which is in the public domain or for which You have been given written permission, You may not copy, modify, publish, transmit, distribute, perform, display, or sell any such Intellectual Property and the provision of such Intellectual Property to You through MakeFriends does not transfer to You or any third party any rights, title or interest in or to such Intellectual Property, including, without limitation, any intellectual property rights in any Content (as defined below) and material included therein. There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved. You agree that any questions, comments, suggestions or the like other than personally identifiable information (collectively, the "Feedback") sent to MakeFriends, shall become the sole property of MakeFriends. You further agree that MakeFriends shall be free to use and exploit in any manner any ideas, concepts, know-how or techniques contained in such Feedback for any purpose without your or a third party's consent, and without payment of any consideration to you or a third party, you hereby assign all rights, title and interest in such Feedback to MakeFriends.
7. Content. You understand and agree that MakeFriends may (but is not obligated to) review any content, communication, information, Intellectual Property, material, messages, photos, videos, URLs, profiles and the like (collectively, "Content") that is uploaded, published or displayed (hereinafter, "posted") on or through MakeFriends and delete or refuse to take online any such Content, including, without limitation, any Content that in the sole judgment of MakeFriends violates this Agreement or the Acceptable User Policy or which might be offensive, inappropriate, illegal, or that might violate the rights, harm, or threaten the safety of other users or third parties. You are solely responsible for the Content that You post on or through MakeFriends, or transmit to other users or third parties. By posting Content to any area of MakeFriends, You automatically grant, and You represent and warrant that You have the right to grant, to MakeFriends an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform (including by means of a digital audio transmission), and otherwise use Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. In addition, You represent and warrant that You have the right to post the Content and You will not post any illegal or prohibited Content and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any intellectual property rights). MakeFriends reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion against anyone who violates this Agreement, including without limitation, removing the offending Content from MakeFriends and terminating the license for MakeFriends of such violators. MakeFriends reserves the right to disclose all content that You upload, post, transmit or otherwise make available via MakeFriends (whether or not directed to MakeFriends) if required to do so by law or in the good faith belief that such disclosure is necessary or appropriate to conform to the law or comply with legal process served on MakeFriends, to protect and defend the rights or property of MakeFriends, MakeFriends or our customers, whether or not required to do so by law, or to protect the personal safety of our customers or the public.
8. Third Party Content. Content from other users, advertisers,
and other third parties may be made available to You through MakeFriends. Because
we do not control such Content,
9. Copyright Policy. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if You believe that your work has been copied and posted on MakeFriends in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that You claim has been infringed; a description of where the material that You claim is infringing is located on MakeFriends; your address, telephone number, and email address; a written 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; a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf. MakeFriends Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
Attn: Copyright Agent
12. User Disputes. Your interactions with other users in connection with MakeFriends or with advertisers, including, without limitation, payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and the other users or the advertiser. You agree that MakeFriends will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other user's use or disclosure of your personally identifiable information. If there is a dispute between You and any third party (including, without limitation, any user), MakeFriends is under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between You and other users.
13. Release. Without limiting Sections 14 or 15 below, and
to the extent permitted under applicable laws, You hereby release MakeFriends from
any liability related to:
14. NO WARRANTIES. MAKEFRIENDS IS PROVIDED MakeFriends ON AN "AS IS" BASIS. MakeFriends hearby DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO MAKEFRIENDS (INCLUDING ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS THAT YOU MAY ACCESS THROUGH MAKEFRIENDS), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF INFORMATIONAL CONTENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT MakeFriends does NOT WARRANT OR REPRESENT THAT MAKEFRIENDS WILL MEET YOUR REQUIREMENTS, THAT MAKEFRIENDS WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS IN MAKEFRIENDS WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION CONTAINED IN MAKEFRIENDS OR ACCESSED THROUGH YOUR USE OF MAKEFRIENDS WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, THAT MAKEFRIENDS OR ANY MATERIALS AVAILABLE FOR DOWNLOAD FROM MAKEFRIENDS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT MAKEFRIENDS WILL BE FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL MakeFriends be LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) RESULTING FROM YOUR ACCESS TO, OR USE OR INABILITY TO USE MAKEFRIENDS (INCLUDING AS A RESULT OF AN OUTAGE OF ANY THIRD-PARTY SERVICE OR THE WIRELESS NETWORK PROVIDED BY YOUR WIRELESS NETWORK OPERATOR), OR WITH RESPECT TO THE INFORMATION, SERVICES, CONTENT OR ADVERTISEMENTS CONTAINED ON OR OTHERWISE ACCESSED THROUGH MAKEFRIENDS. IN NO EVENT WILL MakeFriends be LIABLE TO YOU IN CONNECTION WITH MAKEFRIENDS FOR ANY DAMAGES IN EXCESS OF FIVE U.S. DOLLARS (U.S. $5.00).
16. Indemnity. You agree to indemnify and hold MakeFriends, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of MakeFriends 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 above.
17. Termination. You may terminate the license for MakeFriends at any time by removing MakeFriends in its entirety from your Mobile Device. You agree that MakeFriends, in its sole discretion, may immediately terminate Your use of and access to MakeFriends to You) at any time, for any reason, in its sole discretion. You agree that any termination of Your use of and access to MakeFriends may be effected without prior notice, and acknowledge and agree that, upon termination, MakeFriends may immediately deactivate or disable Your use of or access to MakeFriends and delete all related information, Content, emails, files and other data related to such use or access and may bar any further access to such files or MakeFriends. Further, You agree that MakeFriends shall not be liable to You for any termination of Your use of or access to MakeFriends or any deletion of Content or information hereunder. Upon termination, You agree to remove MakeFriends in its entirety from your Mobile Device. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
18. Export Controls. You agree and acknowledge that the software associated with MakeFriends may contain cryptographic functionality the export of which is restricted under U.S. export control law. You will comply with all applicable laws and regulations in Your activities under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774). You expressly agree not to export or re-export MakeFriends in violation of such laws or regulations, or without all required licenses and authorizations.
19. Government End Users. MakeFriends is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire MakeFriends with only those rights set forth herein.
20. Applicable Law and Jurisdiction. You agree that this Agreement and all matters relating to MakeFriends will be governed by the laws of the State of California, without giving effect to any principles of conflicts of laws that would require the application of the laws of a different state. You also consent to the exclusive jurisdiction and venue of the Superior Court of Los Angeles County for state claims and the Southern District of California for federal claims in all disputes arising out of or relating to MakeFriends. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties' relationship.
21. General Provisions. You are responsible for compliance with applicable local laws. This Agreement is personal to You, and You may not transfer, assign or delegate this Agreement to anyone without the express written permission of MakeFriends. Any attempt by You to assign, transfer or delegate this Agreement without the express written permission of MakeFriends shall be null and void. You acknowledge that MakeFriends will have the right hereunder to so seek an injunction, if necessary to stop or prevent a breach of Your obligations hereunder. The paragraph headings in this Agreement, shown in boldface type, are included only to help make the agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between You and MakeFriends with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
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