Hi5Networks

Developer License Agreement

IMPORTANT – PLEASE READ THE TERMS OF THIS DEVELOPER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “CANCEL” BUTTON TO DISCONTINUE THE DOWNLOAD OF THE LICENSED MATERIALS.

This Agreement is a legal agreement between you (“Developer”) and Hi5 Networks (“Hi5”) for the accompanying materials, which includes the APIs, Calls, and Documentation, as such terms are defined below, and are collectively referred to as, the “Licensed Materials.” By downloading the Licensed Materials you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, do not download or use the Licensed Materials.

1. DEFINITIONS

1.1 “APIs” means the application program interfaces and related information that permit the submission of queries between the Application and the Hi5 Site, whether by procedure calls, exchange of data, images, text, materials, or otherwise.

1.2 “Application” means the software application written by Developer using the APIs, that interfaces with the Hi5 Site, and that is hosted by Developer or a third party.

1.3 “Call” means an automated retrieval call or other data retrieval request delivered to or through the APIs in the format described in the API. 1.4 “Developer Trademarks” means the trademarks, trade names, and logos provided to Hi5 by Developer for use in accordance with this Agreement. 1.5 “Documentation” means the “online” or electronic documentation provided by Hi5 to Developer along with the APIs and Calls. 1.6 “End User” means the Hi5 end user of the Hi5 Site. 1.7 “End User Information” means all data and information accessible via the Hi5 Site relating to a Hi5 End User however collected or received, including without limitation, through “cookies” or non-electronic means pertaining to or identifiable to a particular Hi5 End User, including, without limitation, (a) name, address, email address, passwords, account numbers, personal preferences, photos, video, blogs, or any other identification data or content or (b) any information that reflects use of or interactions with the Hi5 Site or any Application by such End User, including any usage patterns of an Application by the End User. “End User Information” includes information or data relating to more than one Hi5 End User regardless of whether such information has been aggregated or anonymized. 1.8 “Hi5 Site” means the website owned and operated by Hi5 and primarily accessible through the URL www.hi5.com. 1.9 “Hi5 Trademarks” means the trademarks, trade names, and logos provided to Developer by Hi5 for use in accordance with this Agreement. 1.10 “Intellectual Property Rights” means all copyrights, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights worldwide.

2. LICENSES; RESTRICTIONS

2.1 Licenses. Subject to the terms and conditions of this Agreement, Hi5 hereby grants to Developer a limited, nonexclusive, revocable, and nontransferable license (without the right to grant sublicenses) to (i) reproduce and perform the APIs, solely in accordance with the Documentation, and solely to develop the Application, and (ii) reproduce and embed the Calls in the Application, solely to enable the Application to communicate with the Hi5 Site; (iii) reproduce and distribute the Calls, solely as embedded in the Application, to End Users to enable the Application to communicate with the Hi5 Site; and (iv) reproduce and internally use a reasonable number of copies of the Documentation for the purpose of implementing the APIs and Calls into the Application. Hi5 may change or update the Licensed Materials at any time in its sole discretion. Hi5 will notify Developer when Hi5 has made any changes or updates to the Licensed Materials by posting a notice on the Hi5 Site. Developer acknowledges that as a result of these changes or updates, Developer may need to change its Application to ensure continued operation with the Hi5 Site.

2.2 License Restrictions. Developer acknowledges that the APIs and Calls and their structure and organization constitute valuable trade secrets of Hi5. Accordingly, except as expressly allowed under Section 2.1, Developer agrees not to, and will not permit others (including End Users) to, (a) modify or create derivative works from the Licensed Materials; (b) embed or use the APIs or Calls other than with the Application or in a manner other than in accordance with the Documentation; (c) distribute, sublicense or otherwise transfer the Licensed Materials to any third party; or (d) reverse engineer the APIs or Calls. Developer shall not make available to End Users or any third party the Licensed Materials or any interface, information, or functionality of Hi5 servers or services. Developer further agrees to maintain all proprietary notices on or within the Licensed Materials. In no event will the Application or the implementation or presentation of the Application in any way mislead or confuse an End User or any other party that the Application is part of the Hi5 Site or is offered by Hi5. Developer will only display and present the Application to an End User in accordance with the guidelines set forth at http://www.hi5networks.com/platform/wiki/AppGuidelines and will only permit access to the Application via the Hi5 Site. Developer will not invite any End user to access or use the Application (or any other application) through or on any other website or service or invite any End User to join any other website or service.

2.3 Hi5 Trademark License. Subject to the terms and conditions of this Agreement, Hi5 grants to Developer a non-exclusive, non-transferable, revocable license (without the right to grant sublicenses) to display and use (in accordance with Hi5’s trademark usage guidelines as provided to Developer from time to time) the Hi5 Trademarks, solely in connection with the promotion of the Application to the extent Hi5 has agreed to provide a link on the Hi5 Site to the Application, subject to Hi5’s prior written approval expressly permitting the specified promotion. Hi5 may terminate Developer’s right to use the Hi5 Trademarks, in whole or in part, if Developer does not adhere to Hi5’s then-applicable trademark usage guidelines for the Hi5 Trademarks, if Hi5 does not approve of Developer’s use of the Hi5 Trademarks, if Hi5 is no longer providing a link on the Hi5 Site to the Application, or if Developer does not comply with the terms of this Agreement. Hi5 retains exclusive rights to the Hi5 Trademarks and grants no rights to Developer other than the limited license expressly granted in this section. Developer agrees to state in appropriate places on all materials using the Hi5 Trademarks that the Hi5 Trademarks are trademarks of Hi5 and to include the symbol ™ or ® as appropriate. Developer agrees not to take any action inconsistent with Hi5’s ownership of the Hi5 Trademarks and to cooperate, at Hi5’s request and expense, in any action (including the conduct of legal proceedings) which Hi5 deems necessary or desirable to establish or preserve Hi5’s exclusive rights in and to the Hi5 Trademarks. Developer will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Hi5 Trademarks or in such a way as to create combination marks with the Hi5 Trademarks and will not use the term “Hi5” in the name of Developer’s application or in any of Developer’s trademarks.

3. OTHER DEVELOPER OBLIGATIONS

3.1 Application Materials. Developer will provide Hi5 with the name of the Application, a brief description of the Application, and a link to the location where the Application may be accessed by Hi5 and Hi5 End Users (collectively, the “Application Materials”). Prior to providing a link on the Hi5 Site to the Application or displaying any information on the Hi5 Site regarding the Application, Hi5 will have the right to review the Application Materials. In addition, prior to general availability of any major version of the Application (i.e., excluding minor updates that do not provide substantial new features), Developer will deliver such major version to Hi5 for Hi5’s review. Subject to such review by Hi5 and any modifications that Hi5 requests Developer to make to the Application Materials, Hi5 will have the right to provide a link on the Hi5 Site to the Application hosted on Developer’s servers. This link may include the name of the Application and Developer’s description of the Application. Developer will be responsible for ensuring the link is active and will provide Hi5 with prior written notice of any change requiring redirection of the link. For avoidance of doubt, Hi5 will have no obligation to make the Application available from or accessible via the Hi5 Site. Developer hereby grants to Hi5 a worldwide, irrevocable, nonexclusive license, with the right to sublicense, to (i) display and use the name of the Application and Developer’s description of the Application on the Hi5 Site, and (ii) modify and create derivative works of the description of the Application provided by Developer. Without limiting any other rights of Hi5 under this Agreement, Hi5 reserves the right, without notice to Developer, to suspend the link on the Hi5 Site to the Application, discontinue the display of any information or material relating to the Application, prohibit the use by one or more End Users of the Application in connection with the Hi5 Site, or all of the foregoing, at any time, including if Developer breaches any provision of this Agreement.

3.2 Compliance with Hi5 Policies. With regards to its use of the Licensed Materials and in the collection, use, and storage of End User Information, Developer acknowledges and agrees that it will fully comply with all applicable laws and all Hi5 policies, including without limitation the Hi5 privacy policy, currently available at www.hi5.com//friend/displayPrivacy.do, which may be amended, updated, and revised from time to time by Hi5. Developer will not collect or use End User Information except in performance of the Application in connection with the Hi5 Site, as permitted by this Agreement and the Hi5 privacy policy, and as expressly permitted by the End User. Without limiting the foregoing, Developer further agrees to comply with all applicable laws with respect to any collection, use, or disclosure of Personal Information as that term is defined in the Hi5 privacy policy.

3.3 End User Information. Developer will not retain any End User Information provided by Hi5 or provided in response to a Call for longer than twenty-four hours and will use safeguards to prevent the disclosure or retention of this End User Information. Prior to collecting any information directly from an End User, Developer will implement and adopt a privacy policy in compliance with applicable laws. Developer will not enable any end user other than the End User using the Application to access or use the content of another End User. In no event Developer will not retain any End User Information after the termination of the applicable End User’s use of the Application. The Application will not permit or enable any End User to interfere with any other End User’s use of the Hi5 Site. If at any time the Application or the End User’s use of the Application takes the End User away from the Hi5 Site and if Developer or any other third party solicits End User Information directly from the End User through the Developer or third party site hosting the Application, Developer will make it clear to the End User that the End User has left the Hi5 Site and will be providing End User Information to Developer under Developer’s terms of use and other policies, including privacy policies. Developer’s privacy policy must be no less protective of the End User Information than Hi5’s privacy policy and Developer must fully comply with its policy in collecting, use, and storing End User Information.

3.4 Copyright Policy. If the Application allows End Users to share content on the Developer’s site or a third party’s site, Developer must include and implement a copyright policy on Developer’s site that is at least as protective of Hi5’s copyright policy currently available in Section 9 of Hi5’s terms of service http://www.hi5.com/friend/displayTOS.do (as may be amended from time to time) and register an agent for notices of copyright infringements with the U.S. Copyright Office. Developer’s copyright policy must comply with the Digital Millennium Copyright Act (the “DMCA”) and Developer must include the following statement on every page of the Application through which End Users can upload or otherwise make third party content available: “By making any content available through this Application, you represent and warrant that you own all rights necessary to properly do so.” If an End User provides content that infringes on any third party’s Intellectual Property Rights, Developer agrees to promptly remove such material, as specified under the DMCA, upon receipt of notice of infringement by a third-party copyright owner, either directly from such third-party copyright owner or if forwarded to Developer by Hi5.

3.5 Information Requests. Developer agrees to promptly respond to any request from Hi5 regarding the use of the Application by End Users, the operation of the Application in connection with the Hi5 Site, or Developer’s compliance with the terms of this Agreement. 3.6 Feedback. During the term of this Agreement, Developer agrees to provide to Hi5 comments, criticisms, suggested improvements, survey responses, test results, answers to Hi5’s questions, and other feedback regarding the interface of the Application with the Hi5 Site and regarding the functionality of the Hi5 Site generally, in written or oral form (“Feedback”). Developer hereby perpetually and irrevocable assigns to Hi5 and agrees to assign to Hi5, all of Developer’s right, title, and interest in such Feedback. If Developer is unable to assign to Hi5 any of its rights in such Feedback, Developer hereby grants to Hi5 a perpetual, irrevocable, exclusive (even as to Developer), worldwide, sublicenseable, transferable, royalty-free and fully paid-up right and license to use and exploit in any manner and for any purpose all Feedback and related information. 4. REPRESENTATIONS AND WARRANTIES. Developer represents, warrants and covenants the Application Materials and content contained therein and Developer’s activities on Developer’s site shall not:

1. be unlawful, harmful, threatening, obscene, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or harmful to minors in any way;
2. harass, degrade, intimidate, or be hateful toward an individual or group of individuals;
3. impersonate an End User or falsely state or otherwise misrepresent Developer’s affiliation with Hi5 or any other entity;
4. include personal or identifying information about an End User without that End User’s express consent, and of which consent Developer shall maintain a written record for a period of three (3) years after any termination of this Agreement;
5. be false, deceptive, misleading, or deceitful;
6. infringe any Intellectual Property Rights or the rights of publicity or privacy of any person or include content that Developer does not have a right to license to Hi5 hereunder;
7. create, send, or enable anything constituting or containing pyramid schemes, chain letters, or any advertisement that Developer is prohibited by law from sending;
8. constitute or contain any form of advertising or solicitation as part of the Application or email or otherwise contact End Users who have requested not to be contacted, including about other services, products, or commercial interests; advertise any illegal services or the sale of any items the sale of which is prohibited or restricted by applicable law or the advertise of which violates generally accepted advertising industry guidelines;
9. contain software viruses or other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware or telecommunications equipment, or surreptitiously intercept or expropriate any system, data or personal information;
10. disrupt the normal flow of communications on and through the Hi5 Site, or otherwise negatively affect End Users’ ability to use the Hi5 Site;
11. employ misleading identifiers (such as false URLs or email addresses) in order to disguise the origin of content transmitted through the Application or to impersonate any person or obtain unauthorized access to the Hi5 Site or unauthorized access to any End User Information; or
12. create liability for Hi5.

5. INDEMNITY. Developer will indemnify, defend, and hold Hi5, and its officers, directors, agents, and employees, harmless from and against any claim, demand, loss, damage, cost, liability, or expense (including attorneys’ and expert witnesses’ fees), arising directly or indirectly from or related to (a) any breach of the representations, warranties or covenants in this Agreement, (b) Developer’s use of the Licensed Materials other than in accordance with the licenses granted in Section 2.1, or (c) Developer’s acts, omissions, or misrepresentations under this Agreement or any Hi5 policies, including without limitation Developer’s breach of this Agreement or such policies. Hi5’s indemnity rights shall not be limited or offset by any contributory negligence by Hi5.

6. OWNERSHIP. Developer retains all right, title, and interest to the Application, excluding any portion of the APIs incorporated therein and the Developer Trademarks. Hi5 retains all right, title, and interest to the End User Information, the Licensed Materials, the Hi5 Site, the Documentation, the Hi5 Trademarks, and all Intellectual Property Rights in the foregoing items. Developer acknowledges and agrees that it has no rights in the End User Information, the Licensed Materials, the Hi5 Site, the Documentation, or the Hi5 Trademarks except for the limited rights granted under this Agreement, and will take all reasonable measures to protect Hi5’s proprietary rights in the Licensed Materials, and the Hi5 Trademarks. All rights not expressly granted to Developer in this Agreement are reserved by Hi5. Developer understands and acknowledges that Hi5 may be independently creating and may be working with third parties to create applications, content, and other products or services that may be similar to the Applications that Developer might create and nothing in this Agreement will be construed as restricting or preventing Hi5 from creating and fully exploiting any such applications, content, products, or services, without any obligation to Developer.

7. CONFIDENTIAL INFORMATION. “Confidential Information” means the Licensed Materials, Application Content, End User Information, and any related Hi5 or End User proprietary information. Developer will use Confidential Information solely as necessary in the performance of its obligations under and exercise of its rights granted in this Agreement. Developer will not disclose the Confidential Information to any third party and will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner that Developer uses to protect its own confidential and proprietary information of a similar nature and in any event with no less than reasonable care. Developer’s internal disclosure of Confidential Information will be only to those employees having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent with these non-disclosure terms. Developer will promptly notify Hi5 of any unauthorized disclosure or use of Confidential Information by any person. This Agreement imposes no obligation upon Developer with respect to Confidential Information which Developer can establish by legally sufficient evidence: (i) was in the possession of, or was rightfully known by Developer without an obligation to maintain its confidentiality prior to receipt from Hi5; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by Developer in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) is independently developed by Developer without use of or reference to Hi5’s Confidential Information. Developer may disclose Confidential Information as required by law or judicial or other governmental order, provided that Developer will give Hi5 reasonable notice prior to such disclosure, will seek confidential treatment of the information disclosed, and will comply with any applicable protective order or equivalent.

8. Disclaimer. HI5 EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE LICENSED MATERIALS OR THE HI5 SITE AND ANY CONTENT OR MATERIALS PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. THE LICENSED MATERIALS, HI5 SITE, DOCUMENTATION, AND ANY CONTENT PROVIDED BY OR CONCERNING END USERS ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY AND RESULTS IS WITH DEVELOPER. DEVELOPER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HI5 OR ANY OF ITS AGENTS OR EMPLOYEES.

9. LIMITATION OF LIABILITY. IN NO EVENT WILL HI5 OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS) ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, INCLUDING BY WAY OF NEGLIGENCE), EVEN IF HI5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL HI5’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ANY AND ALL CLAIMS (WHETHER IN CONTRACT OR TORT OR OTHERWISE) EXCEED $100. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION AND THAT HI5 WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

10. TERMINATION. Hi5 may immediately terminate this Agreement, with or without cause, at any time upon notice to Developer. This Agreement may be terminated by either party, effective upon written notice to the other party, if the other party materially breaches the Agreement and does not cure the breach within five (5) days after receiving written notice thereof from the non-breaching Party. Upon termination or expiration of this Agreement for any reason, (i) all licenses granted to Developer in this Agreement with immediately terminate, (ii) Developer will cease all use of any Licensed Materials, Hi5 Trademarks, End User Information and any other materials provided by Hi5 or an End User to Developer, and (iii) Developer will destroy all electronic and tangible copies of the Licensed Materials, Hi5 Trademarks, End User Information, and Hi5 Confidential Information and, at Hi5’s request, will certify in writing to Hi5 that it has taken the action described in this clause. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11 will survive any termination or expiration of this Agreement.

11. GENERAL. The Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Developer agrees that any claim or dispute Developer may have against Hi5 must be resolved by a state court located in San Francisco County, California or a federal court located in the Northern District of California, except as otherwise agreed by the parties or as described below. Developer agrees to submit to the personal and exclusive jurisdiction of these courts for the purpose of litigating all such claims or disputes. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding any election by Developer to resolve any dispute through arbitration, Hi5 will have the right to seek injunctive and other equitable relief as well as damages from any court having competent jurisdiction to protect Hi5’s and its suppliers’ confidential information and intellectual property. Any notice from Hi5 to Developer may be provided by email. Any notices provided by Developer under this Agreement must be provided in writing to Hi5 Networks, Inc., 55 2nd Street, Suite 300 San Francisco, CA 94105 (Attention: Platform Manager). Such notices will be deemed given upon receipt. Developer may not assign or transfer any rights or obligations arising under this Agreement or this Agreement without Hi5’s prior written consent, and any such attempted assignment or transfer shall be void and without effect. Hi5 may freely assign this Agreement. The parties are independent contractors and no joint venture, partnership, agency, employer-employee or other relationship will be created or implied as a result of this Agreement. The failure of a party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement will remain in full force and effect. The headings of Sections of this Agreement are for convenience only and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”; and the words “will” and “shall” are used interchangeably and mean in each case that the stated act or forbearance is required. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Hi5 reserves the right to change the terms and conditions of this Agreement or any Hi5 policy at any time, and Developer’s continued use of the Licensed Materials after any such changes shall constitute Developer’s consent to such changes. Except as otherwise provided in the immediately preceding sentence, this Agreement may be changed only by a writing signed by the parties.

QUESTIONS OR ADDITIONAL INFORMATION. If Developer has any questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to platform-help AT hi5.com.