YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING, INSTALLING OR ANY USE OF ANY SOFTWARE AND/OR FIRMWARE, AND ANY OF THE FOLLOWING ASSOCIATED MATERIALS (MATERIALS) MEDIA, PRINTED MATERIALS, AUDIOVISUAL CONTENT, USER GUIDES, AND ONLINE OR ELECTRONIC DOCUMENTATION (SOFTWARE, FIRMWARE AND MATERIALS TOGETHER PRODUCT) PROVIDED BY FriendMedia Inc AND ITS AFFILIATES (FriendMedia), A FriendMedia DISTRIBUTOR OR A FriendMedia DEALER (TOGETHER APPROVED CHANNEL PARTNERS).
PRODUCTS SHOULD ONLY BE PURCHASED FROM AN APPROVED CHANNEL PARTNER. YOU ARE ONLY PERMITTED TO USE THE PRODUCT IF YOU ARE AN AUTHORIZED USER EITHER THROUGH OUR REGISTRATION PROCESS OR YOU HAVE BEEN AUTHORIZED BY AN APPROVED CHANNEL PARTNER TO USE THE PRODUCT. IF YOU HAVE NOT PURCHASED THE PRODUCT FROM AN APPROVED CHANNEL PARTNER AND/OR YOU ARE NOT AN AUTHORIZED END USER YOU ARE NOT PERMITTED TO USE THE PRODUCT AND YOU HAVE NO RIGHTS UNDER THIS END USER LICENSE AGREEMENT (EULA).
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AS AN AUTHORIZED USER AND FriendMedia FOR THE PRODUCT. BY DOWNLOADING, INSTALLING OR USING THE PRODUCT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU HAVE NO RIGHT TO USE THE PRODUCT AND YOU MUST DE-INSTALL ALL COPIES OF THE PRODUCT FROM YOUR COMPUTER SYSTEMS (WHERE THE PRODUCT IS SOFTWARE) OR STOP USING PRODUCT (WHERE IT IS A PLAYER AND/OR OTHER EQUIPMENT CONTAINING FIRMWARE) AND RETURN ALL PRODUCTS TO THE APPROVED CHANNEL PARTNER FROM WHOM YOU PURCHASED THE PRODUCT. IF YOU DO THIS WITHIN 30 DAYS AFTER THE PURCHASE FROM AN APPROVED CHANNEL PARTNER AND PROVIDED THAT YOU ARE THE ORIGINAL AND AUTHORIZED END USER AND THE PRODUCT IS IN ITS ORIGINAL CONDITION, THEN YOU MAY REQUEST A REFUND OF THE LICENSE FEE PAID.
Terms & Conditions
The following terms and conditions contained in the following paragraphs 1 to 14 apply where the Product is software or contains firmware, however where the context provides otherwise some terms and conditions are also applicable to Materials.
- The Product is licensed, not sold. The Product is protected by copyright as well as other intellectual property rights. FriendMedia retains all ownership and intellectual property rights in and to the Product and also in any Materials.
- FriendMedia grants to you a non-exclusive, non-sub-licensable, license to use the Product for your own use only on a single computer/virtual machine or the firmware contained in the FriendMedia player (as applicable).
- The Product in source code form is confidential and FriendMedia’s protected trade secret and you may not attempt to reverse engineer, decompile, disassemble, create derivative works based on whole or any part of the Product or otherwise decipher any portion of the Product, nor attempt to do any such things except to the limited extent permissible by applicable law. Reproduction and/or redistribution of any portion of the Product is specifically prohibited in the absence of a separate written agreement with FriendMedia. You may only use the Product for normal use as described in FriendMedia’s specification. You may not: (a) copy (except to the limited extent permissible under applicable law or for normal operation of the Product), reproduce, translate, adapt, vary or modify the Product, nor communicate it to any third party, without FriendMedia’s prior written consent; (b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Product; or (c) remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Product or on the medium on which it resides.
- You acknowledge and agree: (a) that the Product has not been developed to meet your individual requirements and therefore it is your responsibility to ensure that that the functions of the Product as described in FriendMedia’s specification meet your requirements; and (b) that software and/or firmware contained in the Product may not be free of bugs or errors and the existence of bugs or errors shall not constitute a breach of this EULA.
- If you use the Product and/or any player or electronic equipment to create or distribute audio, video, or other content, FriendMedia is not responsible for such content, and you are solely responsible, to ensure that such content and use of it is in accordance with applicable law, including laws relating to data protection, privacy, obscenity and export laws worldwide.
- On installation of the Product on your computer and/or activation of a FriendMedia player or electronic equipment certain data will be communicated to FriendMedia’s computer systems which depending on the Product type may include the hour of installation, computer name, CPU, player serial number, version of software and/or firmware, IP address, and geographical location of the IP address. This data shall be treated confidentially by FriendMedia and will be processed in accordance with applicable data protection law and FriendMedia’s data processing provisions as described in the FriendMedia’s general terms and conditions (General Terms) available at FriendMedia.com/legal. You agree that FriendMedia may use this data for verification that the Product is being used in accordance with this EULA and any other applicable terms and conditions required by FriendMedia, for statistical purposes and for marketing purposes.
- You agree not to infringe FriendMedia’s (and that of any owner of third party technology contained in the Product) intellectual property rights in the Product and to comply with the laws of United States and all other applicable law (including export controls) concerning the Product. You agree not to ship or re-export any portion of the Product to any destination to which it could not lawfully have been exported originally under any export control law.
- This EULA is subject to the General Terms. In the event of a conflict between the provisions contained in the EULA and the General Terms, the General Terms shall prevail. You may also be subject to additional terms and conditions agreed with the Approved Channel Partner from whom you purchased the Product. In no event shall such additional terms and conditions extend or enlarge FriendMedia’s liability to you.
- If you breach this EULA, FriendMedia may immediately terminate this EULA and any associated licenses, and your right to use the Product ends immediately.
- Upon termination of this EULA for any reason: (a) all rights granted to you under this EULA and any associated licenses shall immediately cease; (b) you must cease immediately all activities authorized by this EULA; (c) you must immediately pay to FriendMedia and/or the Approved Channel Partner any sums due pursuant to the purchase of the Product or any support/maintenance service; (d) you must immediately delete or remove any Software from all computer equipment (if applicable) in your possession, or in the case of a player and/or electronic equipment containing software and/or firmware immediately stop using such player and/or electronic equipment, and at FriendMedia’s option, immediately destroy or return to FriendMedia all copies of the Product, and, in the case of destruction, certify to FriendMedia that you have done so; (e) any accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected; and (f) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- This EULA is personal to you, and you may not assign or transfer your rights and/or obligations under it. No third party has any rights under this EULA.
- You may not make any warranty claim (or any other) under this EULA if your organization or another authorized End-User in your organization has made the same or similar claim for the same individual Product. In any event only one warranty claim (or any other), if applicable, per individual Product is permitted in any event.
- This EULA shall be governed by the laws of United States without regard to its conflict of laws provisions. FriendMedia and you irrevocably agree to the exclusive jurisdiction of the courts of Alameda County, California for the adjudication of any disputes arising under this EULA.
Limited Warranty/Limitation of Liability
- Subject to: (a) you being an authorized end user; (b) having purchased the Product from an Approved Channel Partner, and (c) the limitations and terms and conditions contained in this EULA, FriendMedia warrants that the Product will perform substantially in accordance with FriendMedia’s specification for a period of 30 days from the date of purchase from an Approved Channel Partner. Except for the foregoing limited warranty the Product is provided ‘As Is’ and without any further warranty.
- Except as described in paragraph 1 above, the Product is provided without any express or implied warranties, including without limitation warranties of merchantability, satisfactory quality, fitness for purpose or non-infringement.
- FriendMedia shall not be liable to the maximum extent permitted under applicable law whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, sales, revenues or savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under from your use of the Product or your inability to use the Product. FriendMedia shall not be liable for any of the losses in this Clause even if you have informed FriendMedia of the possibility of such losses.
- In no event shall FriendMedia’s liability exceed the amount FriendMedia received for the Product from the Approved Channel Partner.
- In all cases FriendMedia will not be liable for any loss or damage that was not reasonably foreseeable.
- Nothing in this EULA shall limit FriendMedia’s warranties or liability for losses which may not be lawfully limited or excluded by applicable law.
- FriendMedia’s entire liability and your exclusive remedy under this limited warranty shall be, at FriendMedia’s option, either: (a) repair or replacement of the Product; or (b) FriendMedia to use its reasonable efforts to procure that the Approved Channel Partner from whom you purchased the Product refunds the price you paid for the Product, however if that is not feasible then FriendMedia will return the price received by FriendMedia from the Approved Channel Partner for the Product. This limited warranty does not apply if the failure of/or defect in the Product is the result of misuse or abuse, or otherwise if the Product has not been used in accordance with the specification for the Product. This limited warranty is also subject to you first contacting the Approved Channel Partner from whom you purchased the Product and using reasonable efforts to seek a remedy. Any replacement Product will be warranted for 30 days. For any warranty claim you must provide proof of purchase of the Product from an Approved Channel Partner.
Upgrades and Version Changes
- If you have purchased the Product from an Approved Channel Partner and you have paid in full for the Product and subject to you being in compliance with this EULA, the General Terms and any other agreement/terms you have or are subject to with FriendMedia, FriendMedia will provide to you free of charge all upgrades and version changes (i.e. bug fixes, patches, minor updates, feature improvements within the same software version) it makes generally commercially available to its customers during the period of 12 months from first activation of the Product. Major version changes (a change from one FriendMedia software/firmware version to another) are excluded. Also excluded are customizations or developments that FriendMedia has provided for specific customers. Following the end of this 12 month period, to benefit from any Product upgrades and version changes you must either purchase from an Approved Channel Partner the new Product or a support/maintenance service.
- FriendMedia and HMP Hyper Media Player are registered trademarks, and all logo and graphic designs are trademarks of FriendMedia. Other product and company names appearing in Products and Materials are used for identification purposes only and may be trademarks or registered trademarks of their respective companies. Registered and unregistered trademarks used in any Products and Materials are the exclusive property of their respective owners.