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Terms of Use

The effective date of these Terms of Use is 1 September 2020.

By accessing or using the FRANKI website, software, the FRANKI service, or any applications (including mobile applications and any features such as gigs and others that may be included in future releases) made available by FRANKI (together, the “Service” or “Services”), however accessed, you agree to be bound by these terms of use (“Terms of Use”). The Service is owned or controlled by FRANKI GLOBAL, INC. (“FRANKI”), and/or its Affiliates (businesses that are legally part of the same group of companies that FRANKI is part of, or that become part of that group).

These Terms of Use affect your legal rights and obligations. If you do not agree to be bound by all these Terms of Use, do not access or use the Service.

ARBITRATION NOTICE: Except if you opt out and except for certain types of disputes described in the Arbitration section below, you agree that disputes between you and FRANKI will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.

Basic Terms

  1. Children under the age of 13 are not allowed to create an account or otherwise use the Service. Additionally, if you are in the European Economic Area, you must be over the age required by the laws of your country to create an account or otherwise use the Service, or we need to have received verifiable consent from your parent or legal guardian. If you are accepting these Terms on behalf of another legal entity, including a business or a government, you represent that you have full legal authority to bind such entity to these terms. If you don’t have the legal authority to bind your employer or the applicable entity, please do not access or use the Service.

  2. You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive videos, photos or other content via the Service.

  3. You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. Excepting people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, FRANKI prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to FRANKI upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.

  4. You agree that you will not solicit, collect or use the login credentials of other FRANKI users.

  5. You are responsible for keeping your password(s) secret and secure.

  6. You must comply with FRANKI’s Community Guidelines, which can be found at https://www.befranki.com/

  7. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.

  8. You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.

  9. You are solely responsible for your conduct and any data, text, files, information, names, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “User Content” or “Content”) that you submit, post or display on or via the Service.

  10. You must not change, modify, adapt or alter the Service or change, modify or alter another website to falsely imply that it is associated with the Service or FRANKI.

  11. You must not access FRANKI’s private API by means other than those permitted by FRANKI.

  12. You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a “spam”) to any FRANKI users.

  13. You must not use domain names or web URLs in your name or username without prior written consent from FRANKI.

  14. You must not interfere or disrupt FRANKI’s Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any FRANKI page is rendered or displayed in a user’s browser or device.

  15. You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.

  16. You must not attempt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Terms of Use or any other FRANKI terms.

  17. Violation of these Terms of Use may, in FRANKI’s sole discretion, result in termination of your FRANKI account. You understand and agree that FRANKI cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk.

  18. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for FRANKI, we can stop providing all or part of the Service to you.

General Conditions

  1. FRANKI reserves the right to modify or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you. You can deactivate your FRANKI account by reaching out to FRANKI customer service at support@frankiapp.com. If we terminate your access to the Service, your account, your videos, photos, comments, likes, follows, and all other data will no longer be accessible through your account (e.g. users will not be able to navigate to your username and view your photos). However, you understand and agree that, upon termination or deactivation of your account, your User Content and associated data, including your name, may be reposted and/or continued to be used by and linked to those third parties to whom your User Content relates.

  2. Upon termination, all licenses and other rights granted to you in these Terms of Use will immediately cease.

  3. We reserve the right, in our sole discretion, to change these Terms of Use (“Updated Terms”) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms.

  4. We reserve the right to refuse access to the Service to anyone for any reason at any time.

  5. We reserve the right to force forfeiture of any username or account for any reason.

  6. We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts containing Content that we determine in our sole discretion violates these Terms of Use.

  7. You are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that FRANKI is not responsible or liable for the conduct of any user. FRANKI reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post Content or any personal or other information.

  8. There may be links from the Service, or from communications you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Service. The Service also includes third-party content that we do not control, maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web site or feature, including applications that connect the Service or your profile on the Service with a third-party web site or feature. For example, the Service may include a feature that enables you to share Content from the Service or your Content with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. FRANKI does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that FRANKI is in no way responsible or liable for any such third-party services or features. Your correspondence and business dealings with third parties found through the Service are solely between you and the third party.

  9. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if FRANKI has not itself provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the FRANKI Parties (defined below) harmless for activity related to the Application.

  10. You agree that you are responsible for all data charges you incur through use of the Service.

  11. FRANKI prohibits crawling, scraping, caching or otherwise accessing any content on the Service via automated means, including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with FRANKI’s express consent).

Rights

  1. FRANKI does not claim ownership of any Content that you post on or through the Service. Instead, when you upload, submit, store, send or receive Content to or through our Service, you hereby grant to FRANKI a perpetual, non-exclusive, fully paid and royalty-free, transferable, sub-licensable, irrevocable worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make), communicate, publish, publicly perform, publicly display, distribute and repost such Content that you post on or through the Service in any media, now known or hereafter devised, and to use your name (and/or trademark) that you submit in connection with such Content of yours, subject to the Service’s Privacy Policy, available here: https://www.befranki.com/privacy-policy. You acknowledge that FRANKI may choose to provide attribution of your Content at our discretion. Make sure you have the necessary rights to grant FRANKI this license for any Content that you submit to our Service.

    If it is determined that you retain moral rights (including rights of attribution or integrity) in your Content, you hereby declare that, to the extent permitted by applicable law, (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of your Content by FRANKI, its affiliated companies or their licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of your Content; and (d) you forever release FRANKI, its affiliated companies and their licensees, successors and assigns, from any claims that you could otherwise assert against FRANKI by virtue of any such moral rights.

    Note that any feedback and other suggestions you provide may be used at any time and FRANKI is under no obligation to keep them confidential.

  2. You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

  3. You agree that FRANKI is not responsible for, and does not endorse, Content posted within the Service. FRANKI does not have any obligation to prescreen, monitor, edit, or remove any Content. If your Content violates these Terms of Use, you may bear legal responsibility for that Content.

  4. The Service contains content owned or licensed by FRANKI (“FRANKI Content”). FRANKI Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and FRANKI, FRANKI owns and retains all rights in the FRANKI Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the FRANKI Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the FRANKI Content.

  5. The FRANKI name and logo are trademarks of FRANKI, and may not be copied, imitated or used, in whole or in part, without the prior written permission of FRANKI, except in accordance with our brand guidelines. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of FRANKI, and may not be copied, imitated or used, in whole or in part, without prior written permission from FRANKI.

  6. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that FRANKI may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

  7. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

  8. Although it is FRANKI’s intention for the Service to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

  9. Also, FRANKI reserves the right to remove any Content from the Service for any reason, without prior notice. Content removed from the Service may continue to be stored by FRANKI, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, FRANKI encourages you to maintain your own backup of your Content. FRANKI is not a backup service and you agree that you will not rely on the Service for the purposes of Content backup or storage.

  10. FRANKI will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure.

  11. Except as otherwise described in the Service’s Privacy Policy, available at https://www.befranki.com/privacy-policy , as between you and FRANKI, any Content will be non-confidential and non-proprietary, and neither FRANKI nor its clients will be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with FRANKI is not a confidential, fiduciary, or other type of special relationship, including that of partner, joint venturer or any employment relationship (such as employee, subcontractor, agent or representative), and that your decision to submit any Content, and potentially receive compensation therefor, does not place FRANKI in a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of FRANKI, and neither FRANKI nor its clients will be liable for any use or disclosure of any Content you provide.

  12. It is FRANKI’s policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, FRANKI does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that FRANKI is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.

Gig Contest Rules

  1. Eligibility: A gig (the “Contest” or “Gig”) is open to legal residents of the United States (including District of Columbia) over the age of 18 years, or over the age of 21 if the Contest is in a licensed venue (“Entrants”). Employees of Franki as well as the immediate family (spouse, parents, siblings and children) and household members of each such employee are not eligible. The Contest is subject to all applicable federal, state, provincial, municipal, territorial and local laws and regulations and is void where prohibited.

  2. Sponsor: The sponsor of each “gig” is the business or venue that has posted the Contest or if not posted directly on a business profile page, the sponsor will be Franki (“Sponsor”). This promotion is in no way sponsored, endorsed or administered by, or associated with Instagram, Facebook, YouTube, or any other social media platform.

  3. Agreement to Official Rules: Participation in this Contest constitutes Entrant’s full and unconditional agreement to these Official Rules as well as the Sponsor’s Gig Rules, which are final and binding in all matters related to this Contest. Winning a prize is contingent upon fulfilling all requirements set forth herein and set by Sponsor. Entrant must have permission from all individuals that appear in the Submission (if any) to use their name and/or likeness in the Submission and to grant the rights set forth below. If requested, Entrant must be able to provide such permissions in a form acceptable to Sponsor. The Submission must not contain brand names or trademarks, images, artwork other than those owned by Sponsor, which Entrant has a limited license to use to incorporate in his/her Submission in this Contest. The Submission must not contain material that is inappropriate, indecent, obscene, hateful, tortious, defamatory, slanderous or libelous. The Submission must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age; and The Submission must not contain material that is unlawful, in violation of or contrary to the laws or regulations in any state where Submission is created.

  4. Limit: Each Entrant may upload One (1) Submission per Contest.

  5. Sponsors Gig Rules: Each Gig will have specific rules and additional details as set by the Sponsor which will outline how each Contest will be judged. This may vary from Sponsor to Sponsor and from Gig to Gig and will be outlined on each Gig page with the franki application.

  6. Winner Determination: After the contest period, the Sponsor in its sole discretion will select the Winner based on the Gig rules as outlined on the Gig page associated with each Gig. Sponsor reserves the right to select no winner if in its sole discretion, it does not receive a qualified Submissions that meet the gig Rules. All other aspects of winner determination are in the sole discretion of Sponsor.

  7. Release: By receipt of any prize, winners agree to release and hold harmless the Franki, Sponsor, and their respective parent companies, subsidiaries, affiliates, suppliers, distributors, advertising/promotion agencies, and prize suppliers, and each of their respective parent companies and each such company’s officers, directors, employees and agents (collectively, the “Released Parties”) from and against any claim or cause of action, including, but not limited to, personal injury, death, or damage to or loss of property, arising out of participation in the Contest or receipt or use or misuse of any prize. Any tax consequences to the Winner(s) are the sole responsibility of Winner.

  8. Publicity: Acceptance of any prize shall constitute and signify each winner’s agreement and consent that Franki, Sponsor and its designees may use the winner’s name, city, state, likeness, photo (including Franki profile photo), Submission and/or prize information in connection with the Contest for promotional, advertising or other purposes, worldwide, in any and all media now known or hereafter devised, including the Internet, without limitation and without further payment, notification, permission or other consideration, except where prohibited by law.

  9. Limitations of Liability: Released Parties are not responsible for: (1) any incorrect or inaccurate information, whether caused by entrant, printing, typographical or other errors or by any of the equipment or programming associated with or utilized in the Contest; (2) technical failures of any kind, including, but not limited to malfunctions, interruptions, or disconnections in phone lines or network hardware or software; (3) unauthorized human intervention in any part of the Submission process or the Contest; (4) printing, typographical, technical, computer, network or human error which may occur in the administration of the Contest, the uploading, the processing or judging of Submissions, and the Contest-related materials; (5) late, lost, undeliverable, damaged or stolen mail; or (6) any injury or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from Entrant’s participation in the Contest or receipt or use or misuse of any prize (including any travel/activity related thereto). Released Parties are not responsible for misdirected or undeliverable Submissions or for any technical problems, malfunctions of computer systems, servers, providers, hardware/software, lost or unavailable network connections or failed, incomplete, garbled or delayed computer transmission or any combination thereof. Released Parties are not responsible for any unauthorized third party use of any Submission.

  10. Disputes: All disputes are governed by the Arbitration rules set forth herein.

Copyright and Other Intellectual Property Violations

  1. We respect other people’s intellectual property rights and expect you to do the same.

  2. To report claims of intellectual property infringement, please contact us at: support@frankiapp.com

  3. If you repeatedly infringe other people’s intellectual property rights, we will disable your account at our discretion.

Disclaimer of Warranties

THE SERVICE, INCLUDING, WITHOUT LIMITATION, FRANKI CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER FRANKI, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, MANAGERS, OFFICERS, AGENTS OR SERVICE PROVIDERS (COLLECTIVELY, THE “FRANKI PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE FRANKI CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO FRANKI OR VIA THE SERVICE. IN ADDITION, THE FRANKI PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. 

THE FRANKI PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE FRANKI PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE FRANKI PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE FRANKI PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE. 

BY ACCESSING OR USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. 

THE FRANKI PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

Limitation of Liability; Waiver

UNDER NO CIRCUMSTANCES WILL THE FRANKI PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE FRANKI CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE FRANKI PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE FRANKI PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE FRANKI PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE FRANKI PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00). 

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF FRANKI’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE FRANKI PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE FRANKI PARTIES. 

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” 

FRANKI IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Indemnification

You (and any third party for whom you operate an account or activity on the Service) agree to defend (at FRANKI’s request), indemnify and hold the FRANKI Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by FRANKI in the defense of any claim. FRANKI reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of FRANKI.

Dispute Resolution

  1. Arbitration: Except if you opt-out or for disputes relating to: (1) your or FRANKI’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 14 or 15 of the Basic Terms, above (“Excluded Disputes”), you agree that all disputes between you and FRANKI (whether or not such dispute involves a third party) with regard to your relationship with FRANKI, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and FRANKI hereby expressly waive trial by jury.

    As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules. You may bring claims only on your own behalf.

    Neither you nor FRANKI will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if FRANKI is a party to the proceeding.

    This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and fifty (150) days of filing the case, then either FRANKI or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services (“JAMS”).

    Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use.

    You may opt out of this agreement to arbitrate. If you do so, neither you nor FRANKI can require the other to participate in an arbitration proceeding. To opt out, you must notify FRANKI in writing within thirty (30) days of the date that you first became subject to this arbitration provision. You must use this address to opt out: https://www.befranki.com/faq

    You must include your name and residence address, the email address you use for your FRANKI account, and a clear statement that you want to opt out of this arbitration agreement.

    If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all the preceding language in this Arbitration section will be null and void.

    This arbitration agreement will survive the termination of your relationship with FRANKI.

  2. Time Limitation on Claims: You agree that any claim you may have arising out of or related to your relationship with FRANKI must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

  3. Governing Law & Venue: These Terms of Use are governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Use, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with FRANKI exclusively in a state or federal court located in California, and to submit to the personal jurisdiction of the courts located in for the purpose of litigating all such disputes.

  4. Revision/Survival: FRANKI reserves the right to change this dispute resolution provision, but any such changes will not apply to disputes arising before the effective date of the amendment. This dispute resolution provision will survive the termination of any or all your transactions with FRANKI.

General Provisions

These Terms of Use constitute the entire agreement between you and FRANKI and governs your use of the Service, superseding any prior agreements between you and FRANKI.

If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity.

You will not assign the Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of FRANKI. Any purported assignment or delegation by you without the appropriate prior written consent of FRANKI will be null and void. FRANKI may assign these Terms of Use or any rights hereunder without your consent.

If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms of Use and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms of Use remain in full force and effect.

FRANKI’s failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition.

Neither the course of conduct between the parties nor trade practice will act to modify the Terms of Use, and these Terms of Use do not confer any third-party beneficiary rights.

These Terms of Use were written in English (US). To the extent any translated version of these Terms of Use conflicts with the English version, the English version shall control.

Territorial Restrictions/Export Controls

The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject FRANKI to any registration requirement within such jurisdiction or country. FRANKI reserves the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that FRANKI provides. 

Software related to or made available by the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.