Hi5 Coins- Terms of Sale (August 2010)

8/8/2019 Hi5 Coins- Terms of Sale (August 2010)

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Terms of Sale

Date of Last Revision: August 20, 2010.

Certain virtual products and services may be made available to you ("you" or "User") from time to timeby hi5 Networks, Inc. or its corporate affiliates (collectively, "us", "we" or "hi5") through the hi5 Site(however accessed and/or used, whether via personal computers, mobile devices (i.e., purchases via sms)or otherwise). By purchasing any such virtual products or services through hi5, you signify that you haveread, understand and agree to be bound by these Terms of Sale ("Terms of Sale"). Your purchases ofvirtual products and services through the hi5 Site and your use of hi5 are also governed by the hi5 Termsof Service ("Terms of Service"), which are incorporated herein by reference. "hi5 Site" means thatwebsite currently appearing at www.hi5.com, any other hi5 or hi5 affiliate-branded or co-branded websiteor web page (including, without limitation, any and all sub-domains, international versions and successorsthereof) and any hi5 or hi5 Affiliate provided services, including, without limitation, services providedthrough any media, devices or networks now existing or later developed. These Terms of Sale set out the

legally binding terms for your purchase and use of the certain virtual products and services and may bemodified by hi5 from time to time. hi5 reserves the right to modify these Terms of Sale from time to time.hi5 will post any modified version of these Terms of Sale on the Site and your continued use of the virtualproducts and services after such a modified version of these Terms of Sale has been posted constitutesyour acceptance to such modified version.

PLEASE READ THESE TERMS OF SALE CAREFULLY AS THEY CONTAIN IMPORTANT

INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE

RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. BY

MAKING A PURCHASE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS

AND CONSENT TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF

SALE, DO NOT MAKE ANY PURCHASES THROUGH THE HI5 SITE.

1. Purchases

To purchase any virtual good or service available through hi5, you must be a registered hi5 User andcomply with these Terms of Sale (including the Terms of Service). You acknowledge that you areresponsible for maintaining the security of, and restricting access to, your account and password, and youagree to accept responsibility for all purchases and other activities that occur under your account. If youare under 18, you may make purchases on hi5 only with the involvement of a parent or guardian. hi5reserves the right to refuse or cancel orders or terminate accounts, at any time in its sole discretion.

2. Payment

By submitting an order for hi5 Coins through hi5, you authorize hi5, or its designated paymentprocessors, to charge the account you specify for the purchase amount. All prices we show on the hi5 Siteare subject to change without notice. When you provide your payment information, including any creditcard number, to us or our designated payment processors, you authorize us or our designated paymentprocessors to store payment information and other related information.


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3. 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 hi5 Coins. If you do not pay such sales or other tax or fee ona transaction, you will be responsible for such taxes or fees in the event that they are later determined tobe payable on such purchases, and hi5 reserves the right to collect such taxes or other fees from you atany time.

4. hi5 Coins

In its sole discretion, hi5 may offer you the opportunity to obtain and redeem hi5's virtual currency (hi5Coins) for use on the hi5 Site. Hi5 may charge fees for the right to use hi5 Coins, or may distribute thehi5 Coins without charge, each in hi5s sole discretion. When you redeem hi5 Coins, hi5 will redeem hi5Coins that you have purchased before redeeming hi5 Coins that you have obtained on a promotionalbasis, or otherwise without charge. We have no obligation to continue offering any feature or function on

the hi5 Site, including any feature or function that enables the use or redemption of hi5 Coins.

Your hi5 Coins will be stored in an account for you. The hi5 Coins may be redeemed solely by hi5 on thehi5 Site, cannot be transferred to any other User, cannot be redeemed for cash, and are non-refundableexcept (i) as required by law or (ii) at hi5s sole and absolute discretion. We may further restrict yourability to redeem your hi5 Coins based on your place of residence. For clarification, although you maybuy hi5Coins via mobile services, the hi5 Coins are not redeemable for content or services offered by anycarrier.

While the hi5 Coins you purchase do not expire, you acknowledge and agree that if your accountbecomes Inactive, hi5 may, without further notice to you, redeem all hi5 Coins remaining in your accountfor 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: (a) for a period oftwo (2) years, or more, you have not logged into your hi5 account; or (b) hi5 has been unable to reach youto verify that you intend to continue use of your account.

If you terminate your hi5 account pursuant to these Terms of Sale or the hi5 Terms of Service, yourability to redeem the hi5 Coins may also be terminated, without any right to refund or any othercompensation for you. For purposes of clarification and not limitation, if you cancel your hi5 account,hi5s offering of hi5 Coins, and your ability to redeem the hi5 Coins, may also be terminated, without anyright to compensation for you. When we cancel or terminate access to your hi5 Coins account balance,your right to use your hi5 Coins account balance immediately ceases.Further, we may suspend or otherwise limit your access to your hi5 Coins if we suspect, in our sole

discretion, fraudulent, abusive or unlawful activity associated with your account. When we suspend orlimit access to your hi5 Coins account balance, your right to use your hi5 Coins account balanceimmediately ceases.

We may limit your use of the hi5 Coins service by applying limits to: the number of hi5 Coins you mayhave credited to your hi5 Coins account balance at one time; the number of hi5 Coins you may redeem


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within a given time period (for example, one day); the number of promotional hi5 Coins you may obtainin a single event; and other features and uses determined by us in our sole discretion.

If we post hi5 Coins to your account for an activity that is subsequently voided or canceled or that

involves a returned item, then we will remove those hi5 Coins from your account. You must ensure thatwe properly post your hi5 Coins to your hi5 Coins account. If you believe that you have validly acquiredhi5 Coins that we have not posted to your hi5 Coins account, we will not consider posting these hi5 Coinsunless you contact us within one hundred twenty (120) days after the date you claimed to have acquiredthose hi5 Coins. We may require reasonable documentation to support your claim.

5. Virtual Goods

In its sole discretion, hi5 may offer you the opportunity to redeem hi5 Coins for certain virtual items andservices (Virtual Goods) through the hi5 Site as part of our offering of the Services (as defined in theTerms of Service). As part of these Services, and subject to the Terms of Service and these Terms ofSale, hi5 grants you a limited, non-transferable, revocable license to use the Virtual Goods through the

hi5 Site. Regardless of the use of the terms "purchase," "buy," "sell," "order" or the like on the hi5 Site orin these Terms of Sale, you do not own any Virtual Goods and acknowledge that you have only theforegoing license to the Virtual Goods. All use of the Virtual Goods is for your personal, non-commercialuse only. hi5 will use commercially reasonable efforts to make Virtual Goods you have purchasedavailable for use within a reasonable period of time after purchase. Upon termination of these Terms ofSale under the hi5 Terms of Service, hi5s offering of Virtual Goods may also be cancelled, without anyright to compensation for you. For purposes of clarification and not limitation, if you violate hi5s Termsof Service or cancel your hi5 account, hi5s offering of Virtual Goods, and your license to any VirtualGoods, may also be cancelled, without any right to compensation for you. If you have any questionsabout Virtual Goods, please contact customer support.

The existence of a particular Virtual Good available for redemption with hi5 Coins is not a commitment

by us to maintain or continue to make the particular Virtual Good available in the future. hi5 may revise,discontinue, or modify Virtual Goods at any time without notification to you. hi5 shall have no liability ofany kind if a product or service that you have ordered is unavailable. If necessary, hi5 reserves the right tosubstitute items of equal or greater value when an item or service is unavailable or hi5 may cancel yourpurchase.

The length of time you may have access to Virtual Goods you purchase will be determined by hi5 in itssole discretion. The images and other content included as part of Virtual Goods is part of the hi5Intellectual Property (as defined in the hi5 Terms of Service) and is subject to all terms and conditionsregarding such Intellectual Property as set forth in the Terms of Service. In addition, any message or othercontent that you may include with Virtual Goods must comply with all terms and conditions regardingContent as set forth in the Terms of Service. Without limiting any of the foregoing, neither you nor any

potential recipient of a Virtual Good may reproduce, distribute, transfer, modify or otherwise use VirtualGoods in any manner other than as expressly authorized by hi5.

6. Errors

We attempt to be as accurate as possible and eliminate errors on hi5, however we do not warrant that anyproduct, service or description, photograph, pricing or other information is accurate, complete, reliable,


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current, or error-free. In the event of an error, whether on the hi5 Site, in an order confirmation, inprocessing an order, delivering a Virtual Good or otherwise, we reserve the right to correct such error andrevise your order accordingly if necessary (including charging the correct price) or to cancel the order andprovide you with a merchandise or service credit (including issuing, at our option, hi5 Coins as described

above), with a value at least equal to the amount charged to your credit card. hi5 reserves the right todetermine 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 remedyin the event of such error is to cancel your order and obtain a credit as set forth above. To request a credit,send an email [email protected]. You release us from all liability and claims of loss resulting fromany error that you do not report to us within 120 days after the error first occurs. If you do not tell uswithin this time, we will not be required to correct the error.

7. Privacy

We care about the privacy of our Users. Clickhere to view the hi5 Site's Privacy Policy. By using the hi5Site, you are consenting to the processing of your Personal Information according to this Privacy Policy.

Your Personal Information may be processed by hi5 or its payment processors in the country where it wascollected as well as other countries (including the United States of America) where laws regardingprocessing of Personal Information may be less stringent than the laws in your country.

8. Disclaimers

ALL PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THE HI5 SITE, INCLUDINGHI5 COINS AND VIRTUAL GOODS, ARE PROVIDED "AS-IS" AND HI5, ON BEHALF OF ITSELFAND ITS LICENSORS AND SUPPLIERS, DISCLAIMS ANY AND ALL REPRESENTATIONS ANDWARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE OR NON-INFRINGEMENT. HI5 CANNOT GUARANTEE AND DOES NOT PROMISE

ANY SPECIFIC RESULTS FROM USE OF PRODUCTS OR SERVICES. HI5 DOES NOTREPRESENT OR WARRANT THAT PRODUCTS, SERVICES OR ANY PART THEREOF, AREACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT PRODUCTS ORSERVICES THAT ARE DOWNLOADED FROM THE SITE ARE FREE OF VIRUSES OR OTHERHARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USEAND DOWNLOADING OF ANY SUCH CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.

Reference to any products, services, processes or other information, by trade name, trademark,manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship orrecommendation thereof, or any affiliation therewith, by hi5.

9. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HI5 ORITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS AND SUPPLIERS BE LIABLE TOYOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS ORLOST DATA ARISING FROM YOUR PURCHASE OR USE OF ANY HI5 COINS, OR OTHER
mailto:[email protected]:[email protected]://www.hi5.com/friend/displayPrivacy.dohttp://www.hi5.com/friend/displayPrivacy.domailto:[email protected]


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PRODUCTS OR SERVICES, INCLUDING VIRTUAL GOODS, EVEN IF HI5 IS AWARE OR HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HI5S AND ITS LICENSORS ANDSUPPLIERS' TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT,WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS

YOU PAID FOR THE PRODUCTS OR SERVICES AND SHALL IN NO EVENT EXCEED $100.SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THEEXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU,SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOTAPPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

10. Governing Law and Arbitration

These Terms of Sale shall be governed by the laws of the State of California without giving effect to anyconflict of laws principles that may provide the application of the law of another jurisdiction. You and hi5agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in SanFrancisco, California (USA) and the federal courts located in the Northern District of California (USA) in

such legal action or proceeding. Any claim or dispute (excluding claims for injunctive or other equitablerelief as set forth below) in connection with these Terms of Sale these Terms of Sale where the totalamount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in acost effective manner through binding non-appearance-based arbitration, at the option of the partyseeking relief. Such arbitration shall be initiated through an established alternative dispute resolutionprovider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of suchADR Provider, except to the extent such rules are in conflict with these Terms of Sale . The partydemanding arbitration will propose an ADR Provider and the other party shall not unreasonably withholdconsent to use such ADR Provider. The ADR Provider and the parties must comply with the followingrules: a) the arbitration shall be conducted by telephone, online and/or be solely based on writtensubmissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitrationproceedings shall be held in English, or any other language the parties may mutually agree upon; c) the

arbitration shall not involve any personal appearance by the parties or witnesses unless otherwisemutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may beentered in any court of competent jurisdiction. Each party shall bear its own costs (including attorneyfees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs ofthe ADR Provider. Notwithstanding the foregoing, hi5 may seek injunctive or other equitable relief toprotect its intellectual property rights in any court of competent jurisdiction. Please note that the laws ofthe jurisdiction where you are located may be different from California law. You shall always complywith all the international and domestic laws, ordinance, regulations and statutes that are applicable to youruse of the Services.

11. Indemnity

You agree to indemnify and hold hi5, its subsidiaries and affiliates, and each of their directors, officers,agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand,damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection withyour purchase or use of any hi5 Coins, or other products or services made available through the hi5 Site,any termination or suspension of your account or right to use Coins, any violation of these Terms of Saleor the Terms of Service, of any law or the rights of any third party.


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12. Other

These Terms of Sale constitute the entire agreement between you and hi5 regarding the subject matter setforth herein, and supersede all prior and contemporaneous agreements regarding the same. The failure of

hi5 to exercise or enforce any right or provision of these Terms of Sale shall not constitute a waiver ofsuch right or provision in that or any other instance. If any provision of these Terms of Sale is heldinvalid, the remainder of these Terms of Sale shall continue in full force and effect. If any provision ofthese Terms of Sale shall be deemed unlawful, void or for any reason unenforceable, then that provisionshall be deemed severable from these Terms of Sale and shall not affect the validity and enforceability ofany remaining provisions. In the event of a conflict between these Terms of Sale and the hi5 Terms ofService, these Terms of Sale shall be controlling.

Documents

Hi5 Coins- Terms of Sale (August 2010)