1. Introduction; Your Agreement to these Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THIS IS A BINDING CONTRACT. Welcome to the services operated by FriendlySky, Inc. (with its affiliates, “FriendlySky”) consisting of the website available at http://www.FriendlySky.com, and its network of websites, software applications, or any other products or services offered by FriendlySky (the “ FriendlySky Services ”). Other services offered by FriendlySky may be subject to separate terms.
The Terms of Service apply whether you are a user that registers an account with the FriendlySky Services or an unregistered user. You agree that by clicking “Sign Up” or otherwise registering, downloading, accessing or using the FriendlySky Services, you are entering into a legally binding agreement between you and FriendlySky regarding your use of the FriendlySky Services. You acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or otherwise use any of the FriendlySky Services.
When using or opening an account with FriendlySky on behalf of a company, entity, or organization (collectively, “Subscribing Organization”), you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind that organization to these Terms of Service and grant the licenses set forth herein; and (ii) agree to these Terms of Service on behalf of such Subscribing Organization.
2. Use of FriendlySky by Minors and Blocked Persons
The FriendlySky Services are not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your jurisdiction of residence), you may only use the FriendlySky Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
The FriendlySky Services are also not available to any users previously removed from the FriendlySky Services by FriendlySky. Finally, the FriendlySky Services are not available to any persons barred from receiving them under the laws of the United States (such as its export and re-export restrictions and regulations) or applicable laws in any other jurisdiction.
BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE FRIENDLYSKY SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE, THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS OF SERVICE IF YOU ARE BETWEEN 13 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND THAT YOU HAVE NOT BEEN PREVIOUSLY REMOVED FROM OR PROHIBITED FROM RECEIVING THE FRIENDLYSKY SERVICES.
a. Account and Password
In order to open an account, you will be asked to provide us with certain information such as an account name and password.
You are solely responsible for maintaining the confidentiality of your account and password, for restricting access to your computer, and for all activities that occur under your account or password. Please make sure the information you provide to FriendlySky upon registration and at all other times is true, accurate, current, and complete to the best of your knowledge.
Unless expressly permitted in writing by FriendlySky, you may not sell, rent, lease, share or provide access to your account to anyone else, including without limitation charging anyone for access to administrative rights on your account. FriendlySky reserves all available legal rights and remedies to prevent unauthorized use of the FriendlySky Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
b. Third Party Accounts
5. Use of Devices and Services
Access to the FriendlySky Services may require the use of your personal computer or mobile device, as well as communications with or use of space on such devices. You are responsible for any Internet connection or mobile fees and charges that you incur when accessing the FriendlySky Services.
6. Modification of these Terms of Service
FriendlySky may amend any of the terms of these Terms of Service by posting the terms. Your continued use of the FriendlySky Services after the effective date of the revised Terms of Service constitutes your acceptance of the terms.
The FriendlySky Services are owned and operated by FriendlySky. Unless otherwise indicated, all content, information, and other materials on the FriendlySky Services (excluding User Content, set out in Section 8 below), including, without limitation, FriendlySky’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials contained on the FriendlySky Services are the property of FriendlySky or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by FriendlySky, by agreeing to these Terms of Service you are granted a limited, non-sublicensable license (i.e. a personal and limited right) to access and use the FriendlySky Services for your personal use or internal business use only.
FriendlySky reserves all rights not expressly granted in these Terms of Service. This license is subject to these Terms of Service and does not permit you to engage in any of the following: (a) resale or commercial use of the FriendlySky Services or the Materials; (b) distribution, public performance or public display of any Materials; (c) modifying or otherwise making any derivative uses of the FriendlySky Services or the Materials, or any portion of them; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the FriendlySky Services, the Materials, or any information contained in them, except as expressly permitted on the FriendlySky Services; or (f) any use of the FriendlySky Services or the Materials except for their intended purposes. Any use of the FriendlySky Services or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of FriendlySky, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication or other legal principles. FriendlySky can terminate this license at any time, without notice, including where we reasonably consider that: (a) your use of the FriendlySky Services violates these Terms of Service or applicable law; (b) you fraudulently use or misuse the FriendlySky Services; or (c) we are unable to continue providing the FriendlySky Services to you due to technical or legitimate business reasons.
8. User Content
FriendlySky allows users to distribute streaming live and pre-recorded audio-visual works, to use services, such as chat, bulletin boards, forum postings, wiki contributions, voice interactive services, and to participate in other activities in which you may create, post, transmit, perform, or store content, messages, text, sound, images, applications, code or other data or materials on the FriendlySky Services (“User Content”).
a. License to FriendlySky
(i) Unless otherwise agreed to in a written agreement between you and FriendlySky that was signed by an authorized representative of FriendlySky, if you submit, transmit, display, perform, post or store User Content using the FriendlySky Services, you grant FriendlySky and its sublicensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licenseable, nonexclusive, and royalty-free right to (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (including without limitation for promoting and redistributing part or all of the FriendlySky Services (and derivative works thereof)) in any form, format, media or media channels now known or later developed or discovered; and (b) use the name, identity, likeness and voice (or other biographical information) that you submit in connection with such User Content. Should such User Content contain the name, identity, likeness and voice (or other biographical information) of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and that FriendlySky and its sub-licensees are allowed to use them to the extent indicated in these Terms of Service.
(ii) With respect to User Content known as “add-ons”, “maps”, “mods”, or other types of projects submitted through CurseForge.com or related sites (“Submitted Projects”), the rights granted by you hereunder terminate once you remove or delete such Submitted Projects from the FriendlySky Services. You also acknowledge that FriendlySky may retain, but not display, distribute, or perform, server copies of Submitted Projects that have been removed or deleted.
(iii) With respect to streaming live and pre-recorded audio-visual works, the rights granted by you hereunder terminate once you delete such User Content from the FriendlySky Services, or generally by closing your account, except (a) to the extent you shared it with others as part of the FriendlySky Services and others copied or stored portions of the User Content (e.g., made a Clip); (b) FriendlySky used it for promotional purposes; and (c) for the reasonable time it takes to remove from backup and other systems.
b. User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing it. You represent, and warrant that: (1) you are the creator and owner of the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) defame any other person; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your User Content specifically does not contain any pre-release or non-public beta software or game content or any confidential information of FriendlySky or third parties. FriendlySky reserves all rights and remedies against any users who breach these representations and warranties.
c. Content is Uploaded at Your Own Risk
FriendlySky uses reasonable security measures in order to attempt to protect User Content against unauthorized copying and distribution. However, FriendlySky does not guarantee that any unauthorized copying, use or distribution of User Content by third parties will not take place. To the furthest extent permitted by applicable law, you hereby agree that FriendlySky shall not be liable for any unauthorized copying, use or distribution of User Content by third parties and release and forever waive any claims you may have against FriendlySky for any such unauthorized copying or usage of the User Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT USED BY FRIENDLYSKY HEREIN ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES, GUARANTEES, CONDITIONS, ASSURANCES OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
Users may promote, administer, or conduct a promotion (a contest or sweepstakes) on, through or utilizing the FriendlySky Services (a “ Promotion ”). If you choose to promote, administer or conduct a Promotion, you must adhere to the following rules: (i) You may carry out Promotions to the extent permitted by applicable law and you are solely responsible for ensuring that any Promotions comply with any and all applicable laws, obligations, and restrictions. (ii) You will be classified as the promoter of your Promotion in the applicable jurisdiction(s) and you will be solely responsible for all aspects of and expenses related to your Promotion, including, without limitation, the execution, administration, and operation of the Promotion; drafting and posting any official rules; selecting winners; issuing prizes; and obtaining all necessary third-party permissions and approvals, including, without limitation, filing any and all necessary registrations and bonds. FriendlySky has the right to remove your Promotion from the FriendlySky Services if FriendlySky reasonably believes that your Promotion does not comply with the Terms of Service or applicable law. (iii) FriendlySky is not responsible for and does not endorse or support any such Promotions. You may not indicate that FriendlySky is a sponsor or co-sponsor of the Promotion. (iv) You will display or read out the following when a Promotion is connection with your Promotion: “This is a promotion by [Your Name]. FriendlySky does not sponsor or endorse [Your Name]’s promotion and is not responsible for this promotion”.
You agree that your User Content will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s .com Disclosures Guide , the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (“FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the FriendlySky Services, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the FriendlySky Services, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not FriendlySky, are solely responsible for any endorsements or testimonials you make regarding any product or service through the FriendlySky Services.
f. Political Activity
Subject to these Terms of Service and the Community Guidelines, you may share political opinions; participate in political activity; provide links to a political committee’s official website, including the contribution page of a political committee; and solicit viewers to make contributions directly to a political committee. You agree, however, that these activities are entirely your own. Moreover, by engaging in these activities, you represent and warrant that you are eligible to engage in them under applicable law, and that you will abide by all relevant laws and regulations while doing so.
You agree not to solicit the use of or use any FriendlySky monetization tool (e.g., Bits or subscriptions) for the purpose of making or delivering a contribution to a candidate, candidate’s committee, political action committee, ballot committee, or any other campaign committee, or otherwise for the purpose of influencing any election. Candidates for political office are not eligible to use any FriendlySky monetization tool on their channels.
9. Prohibited Conduct
YOU AGREE NOT TO violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the FriendlySky Services.
You agree that you will comply with these Terms of Service and FriendlySky’s Community Guidelines and will not:
i. create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;
ii. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the FriendlySky Services accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the FriendlySky Services, or perform any other similar fraudulent activity;
iii. make unsolicited offers, advertisements, proposals, or send junk mail or spam to users of the FriendlySky Services, including, without limitation, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests), and other similar activities;
iv. harvest or collect the email addresses or other contact information of other users from the FriendlySky Services;
v. defame, harass, abuse, threaten or defraud users of the FriendlySky Services, or collect, or attempt to collect, personal information about users or third parties without their consent;
vi. remove, circumvent, disable, damage or otherwise interfere with security-related features of the FriendlySky Services or User Content, features that prevent or restrict use or copying of any content accessible through the FriendlySky Services, features that enforce limitations on the use of the FriendlySky Services or User Content, or delete the copyright or other proprietary rights notices on the FriendlySky Services or User Content;
vii. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the FriendlySky Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;
viii. modify, adapt, translate or create derivative works based upon the FriendlySky Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
ix. interfere with or damage operation of the FriendlySky Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
x. relay email from a third party’s mail servers without the permission of that third party;
xi. access any website, server, software application, or other computer resource owned, used and/or licensed by FriendlySky, including but not limited to the FriendlySky Services, by means of any robot, spider, scraper, crawler or other automated means for any purpose, or bypass any measures FriendlySky may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used and/or licensed FriendlySky, including but not limited to the FriendlySky Services;
xii. manipulate identifiers in order to disguise the origin of any User Content transmitted through the FriendlySky Services;
xiii. interfere with or disrupt the FriendlySky Services or servers or networks connected to the FriendlySky Services, or disobey any requirements, procedures, policies or regulations of networks connected to the FriendlySky Services; use the FriendlySky Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the FriendlySky Services, or that could damage, disable, overburden or impair the functioning of the FriendlySky Services in any manner;
xiv. use or attempt to use another user’s account without authorization from that user and FriendlySky;
xv. attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the FriendlySky Services that you are not authorized to access;
xvi. attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose; and
xvii. use the FriendlySky Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy.
FriendlySky takes no responsibility and assumes no liability for any User Content or for any loss or damage resulting therefrom, nor is FriendlySky liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter when using the FriendlySky Services. Your use of the FriendlySky Services is at your own risk. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the FriendlySky Services will not contain any content that is prohibited by such rules.
FriendlySky is not liable for any statements or representations included in User Content. FriendlySky does not endorse any User Content, opinion, recommendation, or advice expressed therein, and FriendlySky expressly disclaims any and all liability in connection with User Content. To the fullest extent permitted by applicable law, FriendlySky reserves the right to remove, screen or edit any User Content posted or stored on the FriendlySky Services at any time and without notice, including where such User Content violates these Terms of Service or applicable law, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the FriendlySky Services at your sole cost and expense. Any use of the FriendlySky Services in violation of the foregoing violates these Terms of Service and may result in, among other things, termination or suspension of your rights to use the FriendlySky Services.
10. Respecting Copyright
FriendlySky respects the intellectual property of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. If you are a copyright owner or agent thereof and believe that content posted on the FriendlySky Services infringes upon your copyright, please submit a notice following our DMCA Guidelines, which include further information about our policies, what to include in your notice, and where to submit your notice.
FRIENDLYSKY, the FriendlySky logos, CURSE, the Curse logos, and any other product or service name, logo, or slogan used by FriendlySky, and the look and feel of the FriendlySky Services, including all page headers, custom graphics, button icons and scripts, are trademarks or trade dress of FriendlySky, and may not be used in whole or in part in connection with any product or service that is not FriendlySky’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits FriendlySky, without our prior written permission. Any use of these trademarks must be in accordance with any guidelines that FriendlySky may provide you from time to time.
All other trademarks referenced in the FriendlySky Services are the property of their respective owners. Reference on the FriendlySky Services to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
12. Third Party Content
In addition to the User Content, FriendlySky may provide other third party content on the FriendlySky Services (collectively the “Third-Party Content”). FriendlySky does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third Party Content, update, or monitor it. Therefore we are not responsible for any Third Party Content on the FriendlySky Services.
You are responsible for deciding if you want to access or use third party websites or applications that link from the FriendlySky Services (“Reference Sites”). FriendlySky does not control or endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites, and makes no representations or warranties of any kind regarding the Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the FriendlySky Services are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
13. Idea Submission
By submitting ideas, suggestions, documents, and/or proposals (“Submissions”) to FriendlySky or its employees, you acknowledge and agree that FriendlySky shall be entitled to use or disclose such Submissions for any purpose in any way without providing compensation or credit to you.
To the fullest extent permitted by applicable law, FriendlySky reserves the right, without notice and in our sole discretion, to terminate your license to use the FriendlySky Services (including to post User Content), and to block or prevent your future access to and use of the FriendlySky Services, including where we reasonably consider that: (a) your use of the FriendlySky Services violates these Terms of Service or applicable law; (b) you fraudulently use or misuse the FriendlySky Services; or (c) we are unable to continue providing the FriendlySky Services to you due to technical or legitimate business reasons. This includes the ability to terminate or to suspend your access to any purchased products or services, including any subscriptions, FriendlySky Prime or Turbo accounts. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with (i) the FriendlySky Services, (ii) any term of these Terms of Service, (iii) any policy or practice of FriendlySky in operating the FriendlySky Services, or (iv) any content or information transmitted through the FriendlySky Services, is to terminate your account and to discontinue use of any and all parts of the FriendlySky Services.
You agree to indemnify, defend, and hold harmless FriendlySky, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the FriendlySky Services, any User Content you post, store or otherwise transmit in or through the FriendlySky Services, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. FriendlySky reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FriendlySky, and you agree to cooperate with FriendlySky’s defense of these claims. FriendlySky will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. The foregoing indemnity includes, without limitation, any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your Promotions or User Content.
b. Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE FRIENDLYSKY SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FRIENDLYSKY; (B) FRIENDLYSKY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS (“FRIENDLYSKY PARTIES”) DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE FRIENDLYSKY SERVICES, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) FRIENDLYSKY DOES NOT REPRESENT OR WARRANT THAT CONTENT OR MATERIALS ON THE FRIENDLYSKY SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; (D) FRIENDLYSKY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE FRIENDLYSKY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE FRIENDLYSKY SERVICES SAFE, FRIENDLYSKY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE FRIENDLYSKY SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FRIENDLYSKY OR THROUGH THE FRIENDLYSKY SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM “FRIENDLYSKY” INCLUDES FRIENDLYSKY’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
c. Limitation of Liability and Damages
i. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL FRIENDLYSKY OR THE FRIENDLYSKY PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE FRIENDLYSKY SERVICES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM FRIENDLYSKY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FRIENDLYSKY’S RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FRIENDLYSKY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE FRIENDLYSKY SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE FRIENDLYSKY SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
ii. Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN FRIENDLYSKY AND RECEIVED THROUGH OR ADVERTISED ON THE FRIENDLYSKY SERVICES OR RECEIVED THROUGH ANY REFERENCE SITES.
iii. Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT FRIENDLYSKY HAS OFFERED THE FRIENDLYSKY SERVICES, USER CONTENT, MATERIALS AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FRIENDLYSKY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FRIENDLYSKY. FRIENDLYSKY WOULD NOT BE ABLE TO PROVIDE THE FRIENDLYSKY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
d. Applicable Law and Venue
(i) To the fullest extent permitted by applicable law, you and FriendlySky agree that if you are a Subscribing Organization or a consumer resident of a jurisdiction other than those in (ii) below, the following governing law and arbitration provision applies:
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH FRIENDLYSKY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM FRIENDLYSKY.
You and FriendlySky agree to arbitrate any dispute arising from these Terms of Service or your use of the FriendlySky Services, except that you and FriendlySky are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and FriendlySky agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to FriendlySky shall be sent to FriendlySky Interactive, Inc., Attn: Legal, 30 Nagog Park, Acton, MA 01720-4766. You and FriendlySky further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Suffolk County, Massachusetts; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Suffolk County, Massachusetts, have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of Massachusetts and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and FriendlySky will not commence against the other a class action, class arbitration or other representative action or proceeding.
(ii) If you are a resident in any jurisdiction in which the provision in the section above is found to be unenforceable, then the following shall apply:
Any disputes, claims or causes of action arising out of or in connection with these Terms of Service will be governed by and construed under the laws of the jurisdiction of your residence.
Any disputes, claims or causes of action arising out of or in connection with these Terms of Service shall be resolved by competent civil courts within your jurisdiction of residence.
YOU AND FRIENDLYSKY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE FRIENDLYSKY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
If we fail to exercise or enforce any right or provision of these Terms of Service, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
If any provision of these Terms of Service or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms of Service and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FriendlySky without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 7, 8, 11, 12, and 15-17.
e. Entire Agreement.
17. Requests for Information and How to Serve a Subpoena
All requests for information or documents related to potential, anticipated or current legal proceedings, investigations or disputes, or for third party user information, from any FriendlySky Service must be made using the appropriate level of legal process, and must be properly served on FriendlySky via the Corporation Service Company (CSC), FriendlySky’s national registered agent.
Please note that FriendlySky does not accept such requests for information or documents, or service of process, via e-mail or fax and will not respond to such requests. All requests must include the information you may have that will help us identify the relevant records (particularly, the FriendlySky Service at issue, e.g. www.FriendlySky.tv, and the username at issue, e.g. the FriendlySky username: http://www.FriendlySky.tv/username), the specific information requested, and its relationship to your investigation. Please also note that limiting your request to the relevant records (e.g. a limited time period) will facilitate efficient processing of your request.