1.2 Please carefully review the arbitration agreement set forth in Section 18 below, as it impacts the legal rights of the parties and will require You to resolve disputes with FYVE on an individual basis through final and binding arbitration.
3. Key Content-Related Terms.
3.1 FYVE Content. Means texts, graphics, images, music, software (excluding the Application), audio, video, information or other materials (“Content”) that FYVE makes available through the Services or Application, including any Content licensed from a third party, but excluding User Content (defined below).
3.2 User Content. Means Content that a person who accesses or uses the Services or Application (“User”) posts, uploads, publishes, submits or transmits to be made available through the Services or Application (collectively with FYVE Content, “Collective Content”).
4. Accessing the Application and Account Security.
4.2 If You reside in a jurisdiction that restricts the use of the Application because of age or restricts the ability to enter into agreements such as this one due to age, You must abide by such age limits and You must not use the Application. Without limiting the foregoing, the Application is not available for use by children (persons under the age of 18) without adult supervision.
4.3 By using the Application or Service, You represent and warrant that You are at least 18 years old or will use the Service or Application under adult supervision. Your participation in using the Service and/or Application is exclusively for your sole, personal and non-commercial use. You may not authorize others to use your profile, user status or credentials, and You may not assign or otherwise lend, transfer, lease or sell (directly or indirectly) your user account to any other person or entity.
4.5 By using the Application, You agree that you:
4.5.1 Will only use the Application for lawful purposes; You will not use the Application for sending or storing any unlawful material or for fraudulent purposes.
4.5.2 Will not use the Application to cause nuisance, annoyance or inconvenience.
4.5.3 Will not impair the proper operation of the network.
4.5.4 Will not harm or attempt to harm the Application in any way whatsoever.
4.5.5 Will not copy or distribute the Application or any content provided via the Application or as a result of your use of Services without prior written permission from FYVE.
4.5.6 Will not only use the Application for your own use and will not resell it, directly or indirectly, to any third party.
4.5.7 Will keep secure the confidential information regarding your account, which allows access to the Service through the Application.
4.5.8 Will provide us with whatever proof of identity we may reasonably request.
4.5.9 Will only use an access point or 3G data account (AP) which You are authorized to use.
4.5.10 Will comply with all applicable laws from your home nation and the country, state and city in which You are present while using the Application.
4.5.11 Are aware that when requesting services by SMS, standard messaging charges will apply.
4.6 Export Control. You agree not to use the Application in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries, including but not limited to the Export Control Reform Act and its associated regulations).
5. Application and Copyright License Grant and User Content.
6. Reservation of Rights.
7. License Restrictions.
7.1 You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Application in any way; (ii) modify or make derivative works based upon the Application; (iii) create Internet “links” to the Service or “frame” or “mirror” any Application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or Application, or (c) copy any ideas, features, functions or graphics of the Application, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application.
7.2 You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Application or Service or the data contained therein; or (v) attempt to gain unauthorized access to the Application or Service or its related systems or networks.
9. Copyright Policy.
FYVE respects copyright law and expects its users to do the same. It is FYVE’s policy to terminate in appropriate circumstances Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see FYVE’s Copyright Policy at fyve.com/copyright_policy/ for further information.
10. SMS Messaging.
If You select this feature and have SMS service from one of the supported Carriers, You can receive notifications via SMS. Messaging and data rates may apply. If You change your mobile phone service provider, the service may be deactivated and You will need to re-enroll in the notification service. FYVE reserves the right to cancel and/or reinstate the notification service at any time.
11. Intellectual Property Ownership.
12. Third Party Interactions.
12.2 FYVE may rely on third party advertising and marketing supplied through the Application or Service and other mechanisms to subsidize the Application. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If You do not want to receive such advertising, you should notify us in writing. FYVE reserves the right to charge you a higher fee for the Application should you choose not to receive these advertising services. This higher fee, if applicable, will be posted on FYVE’s website located at www.fyve.com FYVE may compile and release information regarding you and your use of the Application or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
14. Disclaimer of Warranties.
14.1 THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR APPLICATION. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE OR APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR APPLICATION WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND APPLICATION IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE APPLICATION AND SERVICE, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Internet Delays.
THE COMPANY’S SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability.
16.1 IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR APPLICATION, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR APPLICATION, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FYVE may give notice by means of a general notice on the Application, electronic mail to your email address on record with FYVE, or by written communication sent by first class mail or pre-paid post to your address on record with FYVE. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or immediately upon receipt (if sent by email). You may give notice to FYVE (such notice shall be deemed given when received by FYVE) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to FYVE at the following address: 501 E. Las Olas Blvd., Ste 319, Fort Lauderdale, FL 33301 addressed to the attention of: Legal Department.
19. Governing Law.
20. Dispute Resolution.
20.2 CLASS ACTION WAIVER. ARBITRATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. THE ARBITRATOR’S AUTHORITY TO RESOLVE AND MAKE WRITTEN AWARDS IS LIMITED TO CLAIMS BETWEEN MEMBER AND FYVE ALONE. CLAIMS MAY NOT BE JOINED OR CONSOLIDATED UNLESS AGREED TO IN WRITING BY ALL PARTIES. NO ARBITRATION AWARD OR DECISION WILL HAVE ANY PRECLUSIVE EFFECT AS TO ISSUES OR CLAIMS IN ANY DISPUTE WITH ANYONE WHO IS NOT A NAMED PARTY TO THE ARBITRATION. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS AND WITHOUT WAIVING EITHER PARTY’S RIGHT OF APPEAL, IF ANY PORTION OF THIS PROVISION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THE ARBITRATION PROVISION SHALL REMAIN IN FULL FORCE AND EFFECT.
21.4 Entire Agreement. These Terms comprise the entire agreement between you and FYVE and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding your access to and use of the Application.