TERMS OF SERVICE
Terms of Service
Updated as of January 9, 2013
Please read the following important Terms of Service Agreement (the "Agreement") before accessing or using any of the various services (the "Services") made available to you ("you") by hi5 Inc. ("hi5") through http://www.hi5.com, (the "Site"), hi5 mobile applications or otherwise. ONLY USERS WHO ARE 13 YEARS OF AGE OR OLDER MAY REGISTER FOR HI5. By completing the registration process for the Site, you represent that you are 13 years of age or older, and can and will be legally bound by this Agreement. If you are under the legal age of maturity in your country, state or local jurisdiction of residence (a "Minor"), your parent or guardian must read and accept the terms of this Agreement before you register. You may not participate where doing so would be prohibited by any applicable law or regulation.
hi5 reserves the right to modify or amend this Agreement at any time, for any reason, or for no reason at all, at hi5's sole discretion. The most recent version of this Agreement will be posted on the Site. It is your sole responsibility to keep yourself apprised of any modifications or amendments to this Agreement. Your continued use of the hi5 Site following the posting of modifications or amendments to this Agreement confirms your acceptance of such modifications or amendments. Should you object to any terms and conditions of the Agreement or any subsequent modifications thereto or become dissatisfied with hi5 in any way, your only recourse is to stop using the Site.
B) Description of Services
You will be provided with a variety of Services, as described on the Site. Users of the Site who are registered to use the Services ("Members") may also utilize certain additional Services offered from time to time such as shopping and e-commerce offerings and various informational Services. hi5 reserves the rights to enhance, modify, or discontinue the Services, in whole or in part, at any time, for any reason, or for no reason at all, at hi5's sole discretion, with or without notice to Members, and with no obligation to Members.
Use of the Services by you, as Member, is subject to all applicable local, state, national and international laws and regulations. hi5 reserves the right, but does not assume any obligation, to monitor the Services to enforce this Agreement. hi5 does not guarantee that any monitoring it does perform will be to your satisfaction. Upon learning of any violation of this Agreement, hi5, at its sole discretion, may terminate your access to and use of the Services, require you to remedy such violation, and/or take any other actions that hi5 deems appropriate to enforce its rights and pursue all available remedies. Without limitation, hi5 reserves the right to terminate your access to and use of the Services if, in our view, your conduct fails to meet any of the following guidelines:
- Members shall not engage in any activity that constitutes harassment, including, but not limited to, excessive repetition when listing a person as a referral, repeated unwanted contact, interfering with another Member's use of Site, or stalking.
- Members shall not list on the Site the email addresses of people unknown to them.
- Members shall not list as referrals any email addresses that are fake, fictitious, made up, or which are owned by or belong to that Member.
- Members shall not attempt to interfere with any other person's use of the Services.
- Members shall not misrepresent their identity or impersonate any person or entity, including, but not limited to, a hi5 employee, forum leader, guide or host.
- Members shall not hold themselves out as sponsored by, endorsed by, or affiliated with the Site.
- Members shall not use any portion of the Site or the Services to post, upload, email, transmit or otherwise make available junk mail, commercial advertisements, or any other form of commercial solicitation.
- Members shall not use any portion of the Site or the Services to post, upload, email, transmit or otherwise make available content, including user names and friend list names, that is harmful, threatening, abusive, vulgar, obscene, profane, defamatory, libelous, hateful, fraudulent, or racially, ethnically or otherwise objectionable.
- Members shall not use any portion of the Site or the Services to post, upload, email, transmit or otherwise make available viruses, corrupted data or other harmful, disruptive or destructive files.
- Members shall not engage in any activity that is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual.
- Members shall not use any portion of the Site or the Services to post, share, promote, depict, encourage, solicit or exchange Content Harmful to Minors.
- Members shall not upload photos, graphics or other content that contain or promote illegal substances or activities, including, but not limited to, underage drinking or smoking, substance abuse, weapon use, or gang affiliation.
- Members shall not post content that displays pornographic or sexually explicit material of any kind.
- Members shall not post content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting content on the Site, the posting Member represents that he or she had the lawful right to distribute and reproduce such content.
- Members shall not provide material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18.
- Members shall not provide instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses.
- Members shall not attempt to gain unauthorized access to hi5's database or other computer systems.
- Members shall not attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by hi5 in connection with the Site or the Services.
- Members shall not engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services or the Site.
- Members shall not collect or store personal data about other Members for the purpose of using such personal data in connection with the prohibited conduct and activities set forth in paragraph #1 through #20 above.
- Members shall not use any portion of the Site or the Services for any unlawful purpose.
- Members shall not engage in any activity that solicits or is designed to solicit password or personal identifying information for commercial or unlawful purposes from other Members.
- Members shall not use the account, username, or password of another Member at any time or disclose their password to any third party or permit any third party to access their account.
- Members shall not publicly post information that poses or creates a privacy or security risk to another person, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers.
YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES FROM HI5 AND ITS AFFILIATES, AND ACKNOWLEDGE AND AGREE THAT YOUR EMAIL ADDRESS AND OTHER PERSONAL INFORMATION MAY BE USED BY HI5 AND ITS AFFILIATES FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES.
F) Member Account and Password
Once you register for hi5, you will have a password and an account with hi5. You are responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify hi5 of any unauthorized use of your account or any other breach of security known to you.
- Purchases. To purchase any digital content or services available through hi5, you must be a registered Member of hi5 and comply with this Agreement. Digital content or services available through the Site may be purchased with currency that is solely for use on the Site Tagged Gold").
- Tagged Gold and Game Currency. Tagged Gold provides only a limited, non-transferable, non-sublicensable, fully-revocable license to use such Tagged Gold to access hi5 digital merchandise and content ("Virtual Goods"), Services, and certain in-game currencies for games accessible through the Site ("Game Currency," and together with Tagged Gold, the "Virtual Currency") that hi5 makes available for use with such Tagged Gold for your personal non-commercial use. Virtual Currency does not expire. Virtual Currency is non-refundable except (i) as required by law or (ii) at hi5's sole and absolute discretion. Virtual Currency has no monetary value and does not constitute currency or property of any type. Virtual Currency is not transferable or assignable. hi5 may charge fees for the right to use Tagged Gold, or may distribute the Tagged Gold without charge, each in hi5's sole discretion. When you redeem Tagged Gold, hi5 will redeem Tagged Gold that you have purchased before redeeming Tagged Gold that you have obtained on a promotional basis, or otherwise without charge.
- VIP Membership. You may decide to upgrade your membership to VIP status for an additional cost. For details on pricing and what it means to be a hi5 VIP, please visit http://www.hi5.com/vip/details.html. If you choose to become a hi5 VIP, hi5 will charge the price of your VIP membership at the beginning of the membership term in the form of a charge or debit to your Payment Method (as defined in this Agreement). Your VIP membership will automatically renew each month. If, at any point, you wish to discontinue your VIP membership, you must visit http://www.hi5.com/vip/cancel.html and select 'CANCEL' at least 3 days prior to your next schedule automatic payment so that hi5 can process your cancellation properly.
- Virtual Goods. In its sole discretion, hi5 may offer you the opportunity to redeem Tagged Gold or Game Currency for certain Virtual Goods. As part of the Services, and subject to this Agreement, hi5 grants you a limited, non-transferable, revocable license to use the Virtual Goods purchased through the hi5 Site or within the applicable game on the hi5 Site. Regardless of the use of the terms "purchase," "buy," "sell," "order" or the like on the hi5 Site or in this Agreement, you do not own any Virtual Goods, and you acknowledge that you have only the foregoing license to the Virtual Goods. Use of the Virtual Goods is for your personal, non-commercial use only. The length of time you may have access to Virtual Goods you purchase will be determined by hi5 in its sole discretion. The images and other content included as part of Virtual Goods are part of the hi5 Content (as defined below) and are subject to all terms and conditions regarding such Content as set forth in this Agreement. In addition, any message or other content that you may include with Virtual Goods must comply with all terms and conditions regarding content as set forth in this Agreement. Without limiting any of the foregoing, neither you nor any potential recipient of a Virtual Good may reproduce, distribute, transfer, modify or otherwise use Virtual Goods in any manner other than as expressly authorized by hi5.
- Payments. Only valid credit cards or other payment methods acceptable to hi5 ("Payment Method") may be used for payment. By submitting an order for Tagged Gold through hi5, you authorize hi5, or its designated payment processors, to charge the Payment Method you specify for the purchase amount. All prices shown on the Site are subject to change without notice. When you provide your payment information, including any payment card number, to hi5 or our designated payment processors, you authorize hi5 or our designated payment processors to store payment information and other related information. For VIP memberships, your Payment Method will be charged or debited monthly on the anniversary of your VIP membership activation date ("Billing Date"). If, however, the activation date is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be. If you cancel your VIP membership, hi5 will not charge or debit your Payment Method for any future renewal periods unless you reactivate your VIP membership.
- Taxes. You will be responsible for any applicable sales or use taxes, duties, or other governmental taxes or fees payable in connection with your purchase of Tagged Gold. If you do not pay such sales or other tax or fee on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such purchases, and hi5 reserves the right to collect such taxes or other fees from you at any time.
- Limitations. hi5 may restrict your ability to redeem your Virtual Currency based on your place of residence. Additionally, hi5 may limit your use of the Virtual Currency service by applying limits to: the amount of Virtual Currency you may have credited to your account at one time; the amount of Virtual Currency you may redeem within a given time period (for example, one day); the number of promotional Virtual Currency you may obtain in a single event; and other features and uses determined by hi5, in our sole discretion.
- Modification. hi5 has no obligation to continue offering any feature or function on the Site, including any feature or function that enables the use or redemption of any Virtual Currency. hi5 may revise, discontinue, or modify Virtual Goods at any time without notification to you and without any right to compensation for you. The existence of a particular Virtual Good available for redemption with Virtual Currency is not a commitment by hi5 to maintain or continue to make the particular Virtual Good available in the future. hi5 shall have no liability of any kind if a product or service that you have ordered is unavailable.
- Inactivity and Termination. While the Virtual Currency you purchase does not expire, you acknowledge and agree that if your account becomes Inactive (as defined below), hi5 may, without further notice to you, redeem all Virtual Currency (including both Tagged Gold and Game Currency) remaining in your account for any Virtual Goods hi5 selects, in its sole discretion, and distribute such Virtual Goods to your "friends" (and, if you have no "friends" to any other users that hi5 may identify, in its sole discretion). For purposes of this Section, the term "Inactive" means that, based on hi5's records for a period of two (2) years, or more, you have not logged into your hi5 account and hi5 has been unable to reach you to verify that you intend to continue use of your hi5 account. If you terminate your hi5 account, your ability to redeem the Virtual Currency and your license to any Virtual Goods may also be terminated, without any right to refund or any other compensation for you. If you violate this Agreement hi5 may cancel or terminate access to your hi5 account. If hi5 terminates or cancels your hi5 account, your ability to redeem the Virtual Currency and your license to any Virtual Goods will immediately terminate, without any right to refund or any other compensation for you. Further, hi5 may suspend or otherwise limit your access to your hi5 account if hi5 suspects, in our sole discretion, fraudulent, abusive or unlawful activity associated with your hi5 account. When hi5 suspends or limits access to your hi5 account, your right to use your Virtual Currency and your license to any Virtual Goods immediately ceases.
- Chargebacks and Errors. hi5 attempts to be as accurate as possible and eliminate errors on the Site; however hi5 does not warrant that any product, service or description, photograph, pricing or other information is accurate, complete, reliable, current, or error-free. In the event of an error, whether on the Site, in an order confirmation, in processing an order, delivering a Virtual Currency, Virtual Good or otherwise, hi5 reserves the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and provide you with a merchandise or service credit (including issuing, at our option, Tagged Gold), with a value at least equal to the amount charged to your Payment Method. hi5 reserves the right to determine and modify from time to time the exact nature of any such merchandise or service credit, including conversion into one or more different types of merchandise or service credits. Your sole remedy in the event of an error is to cancel your order and obtain a credit as set forth above. To request a credit, submit a Ticket. If hi5 post Virtual Currency to your account for an activity that is subsequently voided or canceled or that involves a returned item, then hi5 will remove that Virtual Currency from your hi5 account. You must ensure that hi5 properly post your Virtual Currency to your hi5 account. You release hi5 from all liability and claims of loss resulting from any error that you do not report to hi5 within 120 days after the error first occurs. If you do not tell hi5 within this time, hi5 will not be required to correct the error.
hi5 may offer the Services through a mobile website and/or mobile applications (collectively, the "Mobile Applications"). This Agreement governs all Services that are accessible on or through the Mobile Applications. If you use the Services on a mobile device, information about your use of the Services through your mobile device and carrier may be communicated to us, including but not limited to your mobile carrier, your mobile device, or your physical location. Although hi5 provides Services through the Mobile Applications free of charge, your mobile carrier's standard fees and rates will still apply. You accept responsibility for all charges.
You acknowledge that messages, files or other materials ("Content") contained on the Site and within hi5 email messages, and third party advertisements on the Site and distributed via email, of a commercial nature and presented to you by hi5 and the Services, are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You are permitted to use hi5 Content or third party Content only as expressly authorized by hi5 or the third party advertiser. You may not (1) resell or commercially utilize the Site, the hi5 Content or third party Content therein; (2) distribute, publicly perform or publicly display any hi5 Content or third party Content; (3) copy, reproduce, distribute, or create derivative works from the hi5 Content or third party Content without expressly being authorized to do so by hi5 or the third party advertiser; (4) use any data mining, robots or similar data gathering or extraction methods; (5) download (other than page caching) any portion of the Site, the hi5 Content or third party Content, or any information contained therein without expressly being authorized to do so by hi5 or the third party advertiser; or (6) use the Site, the hi5 Content or third party Content other than for its intended purpose. Member may make a copy of the hi5 Content or third party Content for Member's personal, noncommercial use only, provided that Member keeps all copyright or other proprietary notices intact.
Although hi5 does not claim ownership of content that you provide to hi5, by providing content to hi5, you automatically grant, and represent and warrant that you have the right to grant, to hi5 a worldwide, irrevocable, perpetual, non-exclusive, and fully sublicensable, license to use, copy, perform, display, and distribute said content. hi5 respects copyright law and expects Members to do the same. Illegal or unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify hi5's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at:
hi5 Copyright Agent
110 Pacific Ave Mall
San Francisco, CA 94111
Please see 17 U.S.C. � 512(c)(3) for the requirements of proper notification. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, hi5 has adopted a policy of terminating, in appropriate circumstances, and at hi5's sole discretion, Members who are deemed to be repeat infringers. hi5 may also, at its sole discretion, limit access to the Site and/or terminate the account of any Member who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
hi5 makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Site, or websites linking to the Site. Such websites are not under the control of hi5 and hi5 is not responsible for the contents of any linked site or any link contained in a linked website, or any review, changes or updates to such websites. hi5 provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by hi5 of any website or any information contained therein. When you leave the Site, you should be aware that hi5's terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site.
hi5 may provide third party content on the Site and may provide links to websites and content of third parties (collectively, the "Third Party Content") as a service to those interested in this information. hi5 does not control, endorse or adopt 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. You acknowledge and agree that hi5 is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. You agree to use such Third Party Content contained therein at your own risk.
hi5 may run advertisements and promotions from third parties on the Site or may otherwise provide information about or links to third-party products or services on the Site. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. hi5 is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-hi5 advertisers or third party information on the Site.
You and hi5 agree that, except as otherwise specifically provided in this Agreement, you and hi5 shall seek to resolve any and all disputes between hi5 (and/or hi5's affiliates, including, without limitation, it's parent company Tagged, Inc.) and you, respectively, including, without limitation, all claims, counter-claims and cross-claims (collectively, "Claims"), whether in law, equity or otherwise, solely through individual arbitration in accordance with the policies and procedures set forth in this Agreement. Such disputes shall include without limitation:
- disputes arising out of and/or otherwise relating to hi5's Terms of Service;
- disputes arising out of and/or otherwise relating to any Services and/or any content on the Site;
- disputes arising out of and/or otherwise relating to any information, communications and/or other material that you and/or any other person and/or entity provide to and/or through the Site;
- disputes arising out of and/or otherwise relating to any information and/or other material that is collected, stored and/or disseminated by, on behalf of and/or with the approval of hi5;
- disputes arising out of and/or otherwise relating to any advertising and/or other communications by hi5 in connection with the Site;
- disputes that are the subject of purported class action litigation in which you are not a member of a certified class;
- disputes that arose before you entered into this Agreement and/or any prior version of this Agreement;
- disputes that may arise after you terminate your registration with the Site;
- disputes arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.
Notwithstanding the foregoing, and in lieu of arbitration, either you and/or hi5 may bring an individual action against the other in small claims court. Additionally, you and/or hi5 may bring any Claim against the other to the attention of a federal, state and/or local government entity, which may elect to seek relief against hi5 on your behalf, and/or against you on hi5's behalf.
You agree that you and hi5 hereby have voluntarily and intentionally waived any and all right to a trial by jury, and (except as otherwise specifically provided in this Agreement) any and all right to participate in a class action. The Federal Arbitration Act governs the interpretation and enforcement of this dispute provision. This dispute provision shall survive termination of this Agreement.
For a party hereto to initiate arbitration against the other party it must first send by certified mail to the other party a written notice of dispute ("Notice"). The Notice must identify and detail the nature of the party's Claim, the basis for that Claim, and the specific relief being sought for that Claim, including, without limitation, any Claim for injunctive relief. For the parties' convenience, a form for providing Notice is available at http://www.hi5.com/disputeresolution_forms.html to download and complete. A Notice being sent to hi5 must be addressed to: Dispute Resolution Department, hi5 Inc., 110 Pacific Ave Mall, Box #117, San Francisco, CA 94111 ("hi5 Notice Address"). A Notice being sent to you shall be sent to your hi5 e-mail account and to any other e-mail address provided in your registration (collectively, "Member Notice Address"). You may also opt to receive a copy of any Notice via mail by sending a written request to the hi5 Notice Address including your name, postal address, Member Notice Address and hi5 User ID number.
After receipt of the Notice you and hi5 must attempt in good faith to resolve the dispute set forth in the Notice. If you and hi5 are not able to resolve the dispute within 30 days after the Notice is received, then you or hi5 may initiate an arbitration proceeding against the other by downloading and completing the "American Arbitration Association ("AAA") Consumer-Related-Disputes Form-California (For Use Only In California)" demand for arbitration form available at (http://www.adr.org/si.asp?id=6377) ("Demand"), and sending a copy of the Demand to the AAA, together with a copy of the hi5 Terms of Service and a check or money order payable to the AAA in the amount of the appropriate filing fee, and sending a copy of the Demand to the other party. The copy of the Demand being sent to the AAA must be addressed as stated on the Demand. A copy of the Demand being sent to hi5 must be addressed to the hi5 Notice Address. A copy of the Demand being sent to you shall be addressed to the Member Notice Address.
Please note AAA does not provide hi5 customer support and is only able to provide information regarding initiating an arbitration proceeding against hi5. All concerns regarding your account should be addressed to hi5. hi5 will try to resolve your concern, and in the case that you are not satisfied with the resolution you may choose to follow these dispute resolutions processes.
Information regarding the appropriate filing fee to send with the Demand to the AAA (including the possible waiver of all or part of that fee) is available at http://www.adr.org/sp.asp?id=22039 and http://www.adr.org/sp.asp?id=22040, or by calling AAA Customer Service at (800) 778-7879 or AAA Case Filing Services at (877) 495-4185. Note: AAA does not provide hi5 customer support and is only able to provide information regarding initiating an arbitration proceeding against hi5. If you initiate an arbitration proceeding against hi5 and are not able to pay all or part of the AAA filing fee (and do not receive a waiver of the unpayable amount), and so long as the total amount of the relief you are seeking in the Demand is $10,000 or less, then you may send a written request for payment of the unpayable amount to hi5 at the hi5 Notice Address. hi5 shall consider your request and will, in its own discretion, either (1) pay the unpayable amount to the AAA directly or (2) send notice to you of its denial of your request within 10 business days of the receipt thereof. Further, if you initiate an arbitration proceeding against hi5, and so long as the total amount of the relief you are seeking in the Demand is $10,000 or less, then you may send proof of your payment of all or part of the AAA filing fee to hi5 at the hi5 Notice Address, and hi5 shall reimburse you for that actually paid amount.
The arbitration shall be administered by the AAA and shall be governed by the AAA Commercial Arbitration Rules and Mediation Procedures and the AAA Supplementary Procedures for Consumer-Related Disputes (collectively, "AAA Rules"), as modified by this Agreement. The AAA Rules are available online at http://www.adr.org/sp.asp?id=22440 and http://www.adr.org/sp.asp?id=22014, or by calling AAA Customer Service at (800) 778-7879. (Additional information about the arbitration process, presented in a simplified FAQ format, is available at http://www.hi5.com/disputeresolution.html. The arbitrator selected to resolve the dispute between you and hi5 shall bound by the terms of this Agreement. All arbitration hearings shall take place exclusively in San Francisco County, California. Except, however, that if the total amount of the relief you are seeking in the arbitration is $10,000 or less you may choose whether the arbitration shall be conducted solely on the basis of documents submitted to the arbitrator, through a telephone hearing, or by an in-person hearing, as established by the AAA Rules. If the total amount you are seeking is greater than $10,000 then your and hi5's respective rights to an arbitration hearing shall be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which any award is based.
In addition to any reimbursement of AAA filing fees as detailed above, and so long as the total amount of the relief you are seeking in the arbitration is $10,000 or less, hi5 shall pay all other AAA administration fees and all arbitrator fees for the arbitration. Except, however, that if the arbitrator in such action finds that either the substance of your dispute against hi5 or the relief you are seeking in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA filing, administration and arbitrator fees in such action shall be governed by the AAA Rules. In said event, you hereby agree to reimburse hi5 for all monies paid by hi5 that are your obligation to pay under the AAA Rules. Additionally, if the total amount of the relief you are seeking in the arbitration is greater than $10,000 then the payment of all AAA filing, administration and arbitrator fees shall be governed by the AAA Rules.
You and hi5 agree that unless and until the arbitrator determines the monetary and/or other relief, if any, to which you and/or hi5 is entitled in connection with the dispute being arbitrated, neither you nor hi5 shall disclose to the arbitrator the amount of any settlement offer(s) that you and/or hi5 previously made to the other in connection with said dispute. In any individual arbitration between you and hi5, if the arbitrator issues you an award that is greater than the value of hi5's last written settlement offer to you then hi5 shall:
- pay you the amount of the award or $2,500 (the "Member Incentive"), whichever is greater; and
- pay your attorney, if any, twice the amount of any fees, and reimburse said attorney any expenses (including expert witness fees and costs), that said attorney reasonably and actually accrues in investigating, preparing and pursuing your Claim against hi5 in the arbitration (collectively, the "Attorney Incentive").
However, if hi5 did not make any written settlement offer to you prior to the arbitrator in said individual arbitration issuing you an award, then so long as the arbitrator awards you any monetary relief on the merits of your Claim against hi5, you and your attorney (if any) shall be entitled to receive the Member Incentive and the Attorney Incentive, respectively. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of any fees and/or expenses, the Member Incentive and/or the Attorney Incentive at any time during the individual arbitration and/or upon request by you and/or hi5 made within 14 days of the arbitrator's ruling on the merits of said individual arbitration. The Attorney Incentive supplements and does not supersede any right you may have under applicable law to receive attorneys' fees and/or expenses in connection with the individual arbitration (including as may be awarded to you by the arbitrator), but in no event may you recover a duplicative award of attorneys' fees and/or expenses. If hi5 prevails in an individual arbitration against you and is entitled under applicable law to receive attorneys' fees and/or expenses, hi5 hereby agrees that it shall not seek and shall refuse to receive such an award.
The arbitrator may award any form of individual relief in your favor, but solely to the extent warranted by your individual Claim. You and hi5 agree that, except as otherwise specifically provided in this Agreement, you and hi5 may bring a Claim against the other solely in your or hi5's individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, except as otherwise set forth herein, no arbitrator may consolidate more than one person's Claim and/or otherwise preside over any form of a representative or class proceeding. If all or part of this specific paragraph is found by a court of competent jurisdiction to be unenforceable after final appeal, then the entirety of this Dispute provision shall be deemed null and void.
AT ANY TIME AND IN ITS SOLE DISCRETION HI5 MAY DIRECT THE AAA TO CONSOLIDATE ANY AND ALL PENDING INDIVIDUAL ARBITRATION CLAIMS THAT (i) ARISE IN SUBSTANTIAL PART FROM THE SAME AND/OR RELATED TRANSACTIONS, EVENTS AND/OR OCCURRENCES, AND (ii) INVOLVE A COMMON QUESTION OF LAW AND/OR FACT WHICH, IF RESOLVED IN MULTIPLE INDIVIDUAL AND NON-CONSOLIDATED ARBITRATION PROCEEDINGS, MAY RESULT IN CONFLICTING AND/OR INCONSISTENT RESULTS. IN SAID EVENT, YOU HEREBY CONSENT TO CONSOLIDATED ARBITRATION, IN LIEU OF INDIVIDUAL ARBITRATION, OF ANY AND ALL CLAIMS YOU MAY HAVE AGAINST HI5 AND THE AAA RULES SET FORTH HEREIN SHALL GOVERN ALL PARTIES. Additionally, in said event, if the arbitrator issues you an award that is greater than the value of hi5's last written settlement offer to you then hi5 shall:
- pay you the amount of the award or three times the amount of hi5's last written settlement offer to you (the "Consolidated Member Incentive"), whichever is greater; and
- pay your attorney, if any, twice the amount of any fees, and reimburse said attorney any expenses (including expert witness fees and costs), that said attorney reasonably and actually accrues in investigating, preparing and pursuing your Claim against hi5 in the arbitration (collectively, the "Consolidated Attorney Incentive").
However, if hi5 did not make any written settlement offer to you prior to the arbitrator in said consolidated arbitration issuing you an award, then so long as the arbitrator awards you any monetary relief on the merits of your Claim against hi5, then you shall be entitled to receive the award and/or $500, whichever is greater, and your attorney (if any) shall be entitled to receive the Consolidated Attorney Incentive. As also noted above, the arbitrator may make rulings and resolve disputes as to the payment and reimbursement of any fees and/or expenses, the Consolidated Member Incentive and/or the Consolidated Attorney Incentive at any time during the consolidated arbitration and/or upon request by you and/or hi5 made within 14 days of the arbitrator's ruling on the merits of said arbitration. Similarly, the Consolidated Attorney Incentive supplements and does not supersede any right you may have under applicable law to receive attorneys' fees and/or expenses in connection with the consolidated arbitration (including as may be awarded to you by the arbitrator), but in no event may you recover a duplicative award of attorneys' fees and/or expenses. If hi5 prevails in a consolidated arbitration against you and is entitled under applicable law to receive attorneys' fees and/or expenses, hi5 hereby agrees that it shall not seek and shall refuse to receive such an award. If all or part of this specific paragraph is found by a court of competent jurisdiction to be unenforceable after final appeal, then the entirety of this dispute provision shall be deemed null and void.
Notwithstanding any provision in this Agreement to the contrary, you agree that if hi5 changes this dispute provision in the future (other than a change to the hi5 Notice Address and/or any Internet address, telephone number and/or document title set forth in this provision) you may reject that change by sending written notice within 30 days of the change to hi5 at the hi5 Notice Address. By rejecting said change you reaffirm that you shall seek to resolve all disputes between you and hi5 solely through arbitration in accordance with this Agreement.
If there is a dispute between participants on this site, or any third party, hi5 is under no obligation to become involved. In the event that you have a dispute with one or more Members, you hereby releases hi5 and its directors, officers, employees, agents, independent contractors, representatives, parents, subsidiaries, affiliates, successors, assigns and licensees from all claims, actions, losses, liabilities, judgments, damages, costs and expenses of every kind or nature (regardless of whether actual or consequential, known or unknown, suspected or unsuspected, disclosed or undisclosed), arising out of or in any way related to such disputes and/or any the Services. If you are a California resident, you hereby waives California Civil Code Section 1542, which says "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor."
Notwithstanding any of this Agreement, hi5 reserves the right, without notice and in its sole discretion, to terminate your license to use the Site or the Services, and to block or prevent future your access to and use of the Site. You may terminate use of the Site or the Services with or without cause at any time and effective immediately upon written notice to hi5. Upon termination, you shall have no right and hi5 will have no obligation thereafter to forward any unread or unsent messages to you or any third party. Sections I-S shall survive termination of the Agreement.
O) DISCLAIMERS OF WARRANTIES
MEMBER AGREES THAT USE OF THE SITE AND THE SERVICES IS ENTIRELY AT MEMBER'S OWN RISK. THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, HI5 DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE AND THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, HI5 DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR THE SERVICES ACCESSED THROUGH ANY LINKS ON THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, HI5 DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SITE OR THE SERVICES. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
P) LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL HI5, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ON ACCOUNT OF MEMBER'S USE OR MISUSE OF THE SITE OR THE SERVICES, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SITE OR THE SERVICES, FROM INABILITY TO USE THE SITE OR THE SERVICES, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SITE OR THE SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR THE SERVICES OR ANY LINKS ON THE SITE AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR THE SERVICES OR ANY LINKS ON THE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdiction, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
You agree to indemnify and hold harmless hi5, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, and suppliers from any claims and expenses, including reasonable attorney's fees and court costs, arising from Content that you have posted, stored or otherwise transmitted on or through the site or your breach of terms of this Agreement.
The Agreement and the relationship between you and hi5 shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law principles to the contrary. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, you and hi5 nevertheless agree that the court should endeavor to give effect to your and hi5's intentions as reflected in the provision, and the other provisions of the Agreement shall remain unaffected and in full force and effect. You agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to hi5, the Services and/or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. hi5 makes no representation that any material and/or other content on the Site is appropriate and/or available for use in other locations, and accessing such material and/or content from territories where it is illegal is prohibited. Any persons who choose to access the Site from other locations do so on their own initiative and at their own risk, and are solely responsible for compliance with all applicable laws.
The Agreement constitutes the entire agreement between you and hi5 and governs your use of the Site and the Services, superseding any prior agreements between you and hi5. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The failure of hi5 to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The section titles in the Agreement are for convenience only and have no legal or contractual effect. In the event there is a discrepancy between this English language version and any translated copies of this Agreement, the English version shall prevail.
Users with questions about this Terms of Service and any of the aforementioned statements may contact hi5 Inc., 110 Pacific Ave Mall, Box #117, San Francisco, CA 94111.
Effective Date January 9, 2013.
hi5 is not in any way related to, affiliated with, endorsed or sponsored by Nine Networks Australia's Hi5 television show or any related products bearing its trademark "Hi5."
Updated as of January 9, 2013
The Sites are intended to let you meet and interact with new people and stay in touch with friends. Like any website that offers a service where you register and provide information about yourself or your opinions, it is wise to pay attention to your personal information. At hi5, we understand this, and have established this Policy to explain how information is collected on the Sites, and how this information is used and disclosed.
How Does hi5 Protect Children's Privacy?
The safety and privacy of children is extremely important to us.
hi5 is a general audience web site that complies with the Children's Online Privacy Protection Act (COPPA). Our registration process is designed to restrict children under the age of 13 from becoming members of hi5 and using our site. If we receive information suggesting that a user who has registered with hi5 is under the age of 13, we require the user to provide evidence confirming that the user is at least 13 years old. If the user fails to provide such information within 48 hours, we immediately terminate the user's account and nullify all personally identifiable information displaying on the site.
What Is the Children's Online Privacy Protection Act?
The Children's Online Privacy Protection Act (COPPA) requires that commercial web sites obtain parental consent (under most circumstances) prior to the collection of any personally identifiable information from children whom they know to be under the age of 13. In addition, COPPA requires that web sites that collect personal information from children under the age of 13 provide parents with:
- Notice. Parents must be provided notice regarding what information is collected, how the information will be used, and with whom the information may be shared.
- The ability to prevent further use of the information collected about the child and prevent any future collection of personal information from the child.
- The ability to access and review their child's personal information.
COPPA also limits the amount of personal information a web site can collect from a child. Web sites may not collect any more personal information than is necessary to participate in a given game or activity.
For more information about COPPA, please visit the Federal Trade Commission's web site.
Parents: If your child is under the age of 13 and has joined hi5 using a false age, please notify hi5 at http://www.hi5.com/contact.html and we will immediately cancel your child's account and nullify all personally identifiable information displaying on the site. If you would like to know more about our site, information practices, stored information about your child, or how to close your child's account, please contact hi5 by sending a letter to hi5 Inc., 110 Pacific Ave Mall, Box #117, San Francisco, CA 94111. We will happily respond to all letters from parents with Privacy questions or concerns.
User Information Collected by hi5
Personally Identifiable User Information
We collect information about you in various ways when you use our Sites. For example, we collect personally identifiable information you provide to us, such as when you register on the Sites, including. your first and last name, email address, zip code, a user-chosen password, and date of birth and other personal information. To complete the registration process, hi5 sends a validation email message to each user, with a URL link back to the Sites. This URL contains an alphanumeric identifier and a user-specific numeric passcode that allows us to confirm the user's identity. We may also obtain information from other sources and combine that with information we collect on our Sites. hi5 may store and process personally identifiable information in the United States and other countries.
Cookies and Passive Data Collection
Other local storage. We, along with our partners and vendors, use other kinds of local storage, such as Local Shared Objects (also referred to as "Flash cookies") and HTML5 local storage, in connection with the hi5 services. Sometimes called "browser cookies," these technologies are similar to the cookies discussed above in that they are stored on your computers and can be used to store certain information about your activities and preferences. However, these objects are stored in different parts of your computer from ordinary browser cookies. Many Internet browsers allow you to disable HTML5 local storage or delete information contained in HTML5 local storage using browser controls. For information about disabling or deleting information contained in Local Shared Objects, please click here. Please note that disabling these technologies may interfere with the performance and features of hi5.
Web beacons. We, along with our partners and vendors, may also use technologies that communicate information from your Internet browser to a web server, including so-called "pixel tags," "web beacons," "clear GIFs," or similar means (collectively, "Pixel Tags"). Pixel Tags, which can be embedded in web pages, videos, or emails, can allow a web server to read certain types of information from your browser, check whether you have viewed a particular web page or email message, and determine, among other things, the time and date on which you viewed the Pixel Tag, the IP address of your computer, and the URL of the web page from which the Pixel Tag was viewed. We use Pixel Tags to improve your hi5 experience, including to provide you with content customized to your interests.
Document Retention Schedule
All personal information collected by hi5 in connection with your use of the Sites, including, without limitation, your name, location, email address, pictures, friend connections, messages, comments, login information, IP addresses and other data, will be stored only for as long as reasonably necessary for the purposes for which it was collected or to comply with any applicable legal reporting or documentation retention requirements.
How hi5 Uses the User Information
Personally Identifiable Information
We use personal information collected through our Sites for purposes described in this Policy or disclosed to you on our Sites or in connection with our services, including the hi5 referral program and friend list building. Personally identifiable information including members' pictures and names are displayed to people in order to facilitate user interaction on hi5 and Tagged. Email addresses are used, among other purposes, to invite new friends to join hi5 and to add users to members' friends' networks. To facilitate searching and finding friends and acquaintances on the service, the Sites allow users to search for other members using first and last name, email address, location and schools where users may have attended. We also use email addresses to send useful information to all registered users regarding the Sites, including news about products and services offered by hi5, Tagged and our selected partners. For example, we provide users with an opportunity to send their friends invitations to join hi5. The user can send such invitations either by entering the email address of the referral or importing an address book and selecting the specific email addresses that they would like to invite. This results in an email being sent from that registered user to the referral address, encouraging the referral to sign up on the Sites. If the referred person does not sign up within a few days, we may also send periodic reminders from the registered user to the referral address. All registered users will be able to view other users' Stats, Profiles, Comments, photos, Feed updates, About Me, Tags, Videos, Groups, Questions, Gifts and friend list pages, which may include personal information. From time to time, hi5 may share the email address and/or other personally identifiable information of any registered user with third parties for marketing purposes, to target advertising and to improve user experience on hi5's pages in general. We may also link or combine with other personal information we get from third parties, to help understand your needs and provide you with better service.
Cookies and Passive Data Collection
hi5 allows Members to provide information to a profile and other parts of the site that is accessible to other users. We use this profile information for the purposes of providing our services to you, such as to analyze demographics, to better personalize our various offerings for users, or to enable other users to find your profile. All information, including any personally identifiable information, which is disclosed by users in his or her public profile and other parts of the site are available for others to see on the Sites. Please do not post direct contact information in either your profile or other locations, such as your email addresses, URLs, instant messenger IDs, phone numbers, full names, or addresses. We also caution you not to share sensitive information (such as social security numbers, credit card numbers, and driver's license numbers) with other users whom you do not know or place such information in your profile. You are aware that when you publish content or information using the "everyone" setting, you are allowing everyone, including people off hi5 and Tagged, to access that information and to associate it with you.
hi5 allows Members to upload and share content and information. You own the content and information that you post on hi5 and have the ability to control how it is shared through your privacy settings.For content that is covered by intellectual property rights, including but not limited to photos, videos and written compositions ("IP Content"), you specifically give us the following permission: you grant us a non-exclusive, transferable, sublicensable, royalty-free, worldwide license to use any IP Content that you post on or in connection with hi5 and Tagged ("IP License"). For example, hi5 and Tagged may make commercial use and/or otherwise display your name and/or IP Content in or in connection with endorsements of and/or advertisements promoting hi5, Tagged and their services. This IP License ends when you delete your IP Content or your account, unless your IP Content has been shared with others, and they have not deleted the IP Content. When you delete IP Content it is removed from the Sites. However, you understand that we may maintain backup copies of the IP Content, as part of our document retention policy.
The Invite Friends feature is an easy way for hi5 users to invite friends through email. The email address(es) that you supply to use this service may be used to send invitations, and in some cases invitation reminders, to connect with you on hi5.
At various times we may offer surveys or contests to users. Surveys may ask for contact, demographic or unique identifying information to increase the value of the results. Contests may require contact information or other demographic or personally identifiable information in order to determine eligibility. hi5 may use information collected from surveys and contests for the entertainment of users, and to determine, notify and contact winners of various contests. In addition, users' demographic and/or personally identifiable information and responses to survey and contest questions may be used by hi5 and/or shared with third parties in order to provide specifically tailored special offers or advertisements. hi5 will not share a user's email address with third parties unless the user specifically opts-in to such sharing during the completion of or registration for a survey or contest.
Third Party Links and Ad Servers
Protection of hi5 and Others
hi5 may disclose personally identifiable information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to respond to subpoenas, court orders, or other legal process. hi5 may also disclose information about its users to law enforcement officers or others, in the good faith belief that such disclosure is reasonably necessary to: enforce our
hi5 uses industry standard security measures to protect the loss, misuse and alteration of the information under our control. Although we make good faith efforts to store the information collected by the Sites in a secure operating environment that is not available to the public, we cannot guarantee complete security. Further, while we make every effort to ensure the integrity and security of our network and systems, we cannot guarantee that our security measures will prevent third-party "hackers" from illegally obtaining this information.
Updating or Removing User Information
As a registered user, you may, at any time, choose to correct or update the information you have submitted to us. This may be done by the following method:
- Log in to your hi5 account on our Sites.
- Click the "Account" link on the top right hand corner.
- Change or edit any of the information there.
As a registered user, you may, at any time, cancel your account by following the instructions set forth here: http://help.hi5.com/t5/Account-Privacy-Settings/How-do-I-cancel-my-account/ta-p/133
Users can manage their mailing preferences to specify which type of email to opt-out of on their Account Settings page when they are logged in, simply by un-checking the boxes under the Email Preferences section, indicating which type of email they would not like to receive. Canceling one's account will also prevent a user from receiving future communications from hi5, and hi5 will not share the user's information with third parties for marketing purposes. However, you may still receive a user generated invitation form your friends asking you to join hi5.
No Spam Policy
We at hi5.com are opposed to spam. Our No Spam Policy and Terms of Service prohibit all users from engaging in any activity involving spam on our service. Violations of these policies may result in immediate termination of service and legal action against any spammer. hi5's Terms of Service expressly prohibit users from uploading, posting, emailing, transmitting or otherwise making available junk mail, commercial advertisements, or other form of commercial solicitation on the Sites or through hi5's services. Any violation of our policies, by sending unsolicited email advertisements to or through hi5.com computer systems, will use or cause to be used hi5.com servers, located in California. Accordingly, any unauthorized use of hi5.com computer systems is a violation of our policies and certain federal and state laws, including the Computer Fraud and Abuse Act (18 U.S.C. sect 1030 et seq.), Section 502 of the California Penal Code and Section 17538.45 of the California Business and Professions Code. Such violations may subject the sender and his or her agents to civil and criminal penalties.
Change of Ownership
In the event of a change in ownership, or a direct merger or acquisition with another entity, we reserve the right to transfer all of hi5's user information, including email addresses and postal addresses, to a separate entity. All registered users will be notified of any change in ownership, merger or acquisition of hi5's assets by a third party, and may choose to modify any of their registration information at that time.
Revisions to This Policy
hi5 reserves the right to revise, amend, or modify this Policy from time to time. If we make any changes to this Policy, we will change the " Updated as of" date above.
Effective Date January 9, 2013.