1.1 These terms, additional terms for individual Services and our policies (Terms) are applicable to and govern your (you) use of on-line services (Services) from FriendMedia Inc and our affiliates (FriendMedia). You should read these Terms carefully.
1.2 By using our Services (and any free trial of our Services) you agree to these Terms. Additional terms may be applicable to individual Services, and those terms will become applicable if you use such Services. As well by using our Services you also agree to comply with our policies that are posted on our website at http://aesthetic.tv/legal/ or otherwise made available to you.
1.3 By using our Services you also represent that you have legal capacity to accept these Terms. If you use our Services on behalf of a company or any other legal entity you are representing that you have full right and authority to accept these Terms on behalf of that entity. In such case you means such legal entity and its Affiliates.
1.4 Your use of the Services is at our discretion and we may refuse your application to use, or terminate your right to use, any of our Services for any reason.
1.5 You may not use the Services if you are a competitor of FriendMedia or for benchmarking purposes.
2.1 To use the Services you must register an account with us and subscribe for each Service you wish to use.
2.2 Use of certain Services requires you to (i) purchase a subscription for each FriendMedia digital signage player (FriendMedia Player) that you wish to use the Service with for a defined subscription period, (ii) to register the applicable details of each FriendMedia Player, and (iii) to register additional users. Purchase of additional subscriptions is subject to FriendMedia’s approval.
2.3 You must provide complete and accurate information when registering to use the Services including where applicable details of each registered FriendMedia Player. If you fail to provide this, or you provide false or misleading information, you are not permitted to use the Services.
- Your Use of the Services
3.1 You should not misuse our Services. You may only use the Services as permitted by these Terms and in compliance with applicable law.
3.2 You agree to only access the Services via the internet administrative interface provided for this purpose by FriendMedia. You agree not to access (or attempt to access) the Services by any other means except if separately agreed with FriendMedia in writing.
3.3 You shall not transmit any viruses through your use of its Services. You also agree not to use the Services for any unlawful activity, for any harmful, discriminatory, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive activity.
3.4 You agree to (i) keep your user account and password for using the Services safe and secure, (ii) use reasonable efforts to prevent any unauthorised access to, or use of, the Services and/or our documentation, and (iii) you accept responsibility for the use of your account. If you become aware of any unauthorised use or access, you agree to notify FriendMedia immediately.
3.5 You warrant and represent that your use of the Services is in compliance with all applicable law including any laws concerning data protection and export of data and software. You agree not to permit any users to access the Services in a US, European Union embargoed country or where the use of the Services is not permitted under the applicable law of those countries.
3.6 To ensure that all customers have fair access to the Services and to protect the integrity of the network, FriendMedia reserves the right to prevent improper or excessive use of the Services. If you improperly or excessively use the Services, FriendMedia may limit your throughput, prevent or limit your use of the Services through specific ports or communication channels, or suspend or terminate your use of the Services.
4.1 All video, audio, and other content accessed through the Services are the property of the applicable content owner and may be protected by copyright law and other intellectual property rights. You must ensure that you have the right to use such content.
4.3 If you use the Services 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 complies with applicable law, including laws relating to data protection, privacy, obscenity and export laws worldwide.
- Your Data
5.1 You own all right, title and interest in and to all of your data.
5.3 You grant to us a worldwide, royalty-free, non-assignable, and non-exclusive license to host, copy and transmit your data as necessary for us to provide you with the Services. We may also use your data on a worldwide, royalty-free, non-exclusive basis for the purpose of improving the Services or the related hardware and software, for statistical purposes and for marketing purposes.
5.4 Additional use of your data, FriendMedia Player data and your content may be specified in each Service.
5.5 We will maintain reasonable administrative, physical and technical safeguards for the protection of your data.
5.6 We are not responsible for any loss, destruction, alteration or disclosure of data caused by any third party.
5.7 If we process any of your personal data on your behalf when performing our obligations under these Terms, you shall be the data controller and FriendMedia shall be a data processor and in any such case:
(a) You acknowledge and agrees that the personal data may be transferred or stored outside the European Economic Area or the country where you and the authorised users are located in order to carry out the Services and FriendMedia’s other obligations under these Terms;
(b) You shall ensure that you are entitled to transfer the relevant data (including personal data) to FriendMedia so that we may lawfully use, process and transfer the personal data in accordance with each Service and these Terms on your behalf;
(c) You shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) We shall process the personal data only in accordance with these Terms and any lawful instructions reasonably given by you from time to time.
6.1 Use of the Services may be subject to your payment of the fees as applicable to that Service. We may provide free trials for certain of our Services however continued use may be subject to a fee.
6.2 In addition to our other legal rights we may suspend or terminate the Services if you are late in paying the fees.
6.3 On termination of the Services any amounts outstanding immediately become due and payable.
- Software and Proprietary Rights
7.1 Your right to use the software for each Service and the Service itself is specified in the applicable ‘End User License Agreement’ (EULA) for such software. If there is any conflict between any provisions in these Terms and the EULA, the EULA shall prevail.
7.2 You have a right to use the Services in accordance with these Terms, however using our Services does not give you any right of ownership in any of our intellectual property rights contained in the Services.
7.3 You shall not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software and/or any of our documentation (as applicable) in any form or media or by any means, or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software; except to the limited extent permitted by applicable law or we otherwise permit you to do so in writing.
- Our Warranties/Disclaimers
8.1 We provide our Services with a commercially reasonable level of skill but unless otherwise specified in these Terms or any other applicable terms for a Service, the Services are provided ‘as is’ and without any express or implied warranty or other promises (including merchantable or satisfactory quality, fitness for purpose, or non-infringement).
8.2 FriendMedia does not warrant that your use of the Services will meet your requirements, your use of the Services will be uninterrupted, timely, secure or free from defects, or the data provided by the Services is accurate or complete.
8.3 We accept no liability for any unavailability or downtime of the Services, however we will try to maximise the availability of the Services. Availability is dependent on factors beyond our control, including bandwidth, data storage and other limitations including those of our service providers which we use to provide the Services. We will do our best to tell you when the Services are not available including for routine and unscheduled maintenance. For any unexpected downtime or for things beyond our reasonable control we will tell you what happened and do our best to improve next time.
8.4 Nothing in these Terms shall limit FriendMedia’s warranties or liability for losses which may not be lawfully limited or excluded by applicable law.
- Limitation of Liability
9.1 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 these Terms or pursuant to a Service. FriendMedia shall not be liable for any of the losses described in this Clause even if you have informed FriendMedia of the possibility of such losses.
9.2 Subject to Clauses 9.3, 9.4 and 9.5, FriendMedia’s total aggregate liability in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms and any Service shall be limited to the total fees paid for the subscriptions for the Service which is the subject of the claim during the 12 months immediately preceding the date on which the claim arose.
9.3 If you are unable to access the Services due to the fault of FriendMedia for more than 1 month in aggregate during any calendar year then FriendMedia will extend the current subscription period for the period of non-usage up to a maximum of 3 months.
9.4 In the event of any claim that your use of the Services infringes the intellectual property rights of a third party, you shall immediately notify FriendMedia, permit FriendMedia to have sole conduct of the claim at FriendMedia’s expense, including defending or settling such claim at FriendMedia’s discretion. FriendMedia may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the relevant Service on 7 days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
9.5 FriendMedia shall have no liability to you under these Terms or any Service if it is prevented from or delayed in performing its obligations under these Terms or any Service, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of FriendMedia or any other party), non-performance by third parties including internet service and hosting providers, third party server downtime or unavailability, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. We will use our reasonable efforts to notify you of any such occurrence and disruption to the Services as soon as possible.
9.6 In all cases FriendMedia will not be liable for any loss or damage that was not reasonably foreseeable.
10.1 When we use words like including, include, in particular, for example or any similar expression, these are illustrative and do not limit the sense of the words, description, definition, phrase or term preceding those terms. Also words in the singular also mean the plural (and vice-versa) where the context permits.
10.2 We may make changes to these Terms and/or the terms and conditions of a Service or policies from time to time. If we make any such changes we will publish these on our website or otherwise inform you. If you don’t agree to these changes you should stop using the Services. By continuing to use the Services you agree to the changes in the new terms or policies.
10.3 If you don’t comply with these Terms, and we do not take immediate action, this does not mean that we are giving up any of our rights, and we may take action in the future. If any part of these Terms is found to be unenforceable, the rest of the Terms shall remain in force.
10.4 You may not assign or transfer any of your rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent. No third party has any rights under these Terms.
10.5 These Terms, shall be governed by the laws of California 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 these Terms.