Terms Of Service

Mobile Application Terms of Service

Last Updated: April 3, 2015

Welcome to Frankly Co. Please read these Terms of Service (the “Terms”) carefully because they govern your use of Frankly Co.’s (“Frankly Co.”, “our”, or “we”) instant messaging and social networking services, accessible via our mobile device application (“App”). To make these Terms easier to read, our services and App are collectively called the “Services.”

Agreement to Terms

By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services.

Changes to Terms or Services

We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

Your Account

ELIGIBILITY

You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law. If you are under 18, you must obtain permission from a parent or legal guardian before using our Services. Children under the age of 13 are strictly prohibited from using the Services.

REGISTRATION & INFORMATION

If you want to use the Services you’ll have to create an account (“Account”). You can do this via the App using your email address and name.

It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

Using the Service

The Services enable you to communicate and socialize with friends, coworkers, family members, personal contacts and other users of the App and Services safely and privately. As part of our Services, Account holders may communicate with other Account holders with whom they are connected within the App through the use of our direct messaging functionality. If you choose to link your Account with an SNS Account we may, at your option, and depending on our ability to access your SNS Account, access your personal contacts on such SNS Account in order to create a list of potential contacts through our App with whom you may communicate. You’ll be able to message other Account holders with whom you are connected individually as well as engage in group chats with multiple connected Account holders, and may do so anonymously if you choose. For anonymous or “off the record” chats, the transcript of the chat can’t be saved or shared, and although chat participants will know the names and identities of the other chat participants, nobody will be able associate a particular statement with a particular chat participant. In general, unless a sender chooses to keep messages, we do not keep, save, or share the transcript of chats. In addition to sending and receiving chat messages, you’ll also be able to send and receive media files and URLs via our Services’ functionality.

Feedback

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at feedback@franklyinc.com. You agree that all Feedback will be the sole and exclusive property of Frankly Co. and you hereby irrevocably assign to Frankly Co. and agree to irrevocably assign to Frankly Co. all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you’ll execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the feedback.

Privacy Policy

Please refer to our Privacy Policy www.franklyinc.com/privacy-policy for information on how we collect, use and disclose information from our users.

Content & Content Rights

For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.

Content Ownership, Responsibility & Removal

Frankly Co. does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Frankly Co. and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

RIGHTS IN USER CONTENT GRANTED BY YOU

By making any User Content available through Services you hereby grant to Frankly Co. a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable license, with the right to grant sublicenses, to use, copy, modify, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.

You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by Frankly Co. on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You can remove your User Content by specifically deleting it. However, in certain instances some of your User Content (such as posts or comments you make in chat rooms and discussion boards) may not be completely removed and copies of your User Content may continue to exist on the Services. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

CONTENT FROM SOCIAL MEDIA NETWORKING SITES

As part of the functionality of the Services, you may link your Account to a social networking service (“SNS”) Account (like Facebook, Twitter, or Instagram) by either: (i) providing your SNS Account username (or userID) to Frankly Co. through the Services; or (ii) allowing Frankly Co. to access your SNS Account, as permitted under the applicable terms and conditions that govern your use of each SNS Account. You agree that you won’t disclose your SNS Account login information to Frankly Co. and/or grant Frankly Co. access to your SNS Account unless you are permitted to do so by the applicable SNS. Frankly Co. won’t have any obligation to pay any fees or be subject to any usage limitations imposed by an SNS.

By linking your SNS Account to your Frankly Account, you understand that Frankly Co. will access, make available and store (if applicable) some of the content that you have provided to and stored in your SNS Account so that it is available on and through the Services via your Account. For example, TicToc may enable you find and invite friends on the SNS or to post or share your Frankly Account profile on the SNS. Unless otherwise specified in these Terms, all such content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the SNS Accounts you choose and subject to applicable SNS privacy settings, personally identifiable information that you post to your SNS Accounts and information about your SNS friends will be available on and through your Account. Please note that if an SNS Account or associated service becomes unavailable or Frankly Co. ‘s access to such SNS Account is terminated by the third party service provider, then the content from your SNS Account will no longer be available on and through the Services. You may disable the connection between your Account and your SNS Accounts by adjusting the settings on your profile page in your Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS ACCOUNT SERVICE PROVIDERS ASSOCIATED WTH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS ACCOUNT SERVICE PROVIDERS.

RIGHTS IN CONTENT GRANTED BY Frankly Co.

Subject to your compliance with these Terms, Frankly Co. grants you a limited, non-exclusive, non-transferable license to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

Alerts and Notifications

As part of the Services we provide, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you outside or inside the App (“Push Messages”). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services (with the exception of infrequent, important service announcements and administrative messages).

Rights and Terms for Apps

RIGHTS IN APP GRANTED BY Frankly Co.

Subject to your compliance with these Terms, Frankly Co. grants you a limited non-exclusive, non-transferable license to download and install a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Frankly Co. reserves all rights in and to the App not expressly granted to you under these Terms.

ADDITIONAL TERMS FOR APP STORE APPS

If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:

  • These Terms are concluded between you and Frankly Co. , and not with the App Provider, and that Frankly Co. (not the App Provider), is solely responsible for the App.
  • The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
  • In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be the sole responsibility of Frankly Co. .
  • The App Provider is not responsible for addressing any claims that you or any third party may have relating to the App or your possession or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • In the event of any third-party claim that the App or your possession or use of that App infringes that third party’s intellectual property rights, Frankly Co. will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by these Terms.
  • The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App and that, upon your acceptance of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
  • You must also comply with all applicable third-party terms of service when using the App.
  • You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.

General Prohibitions

You agree not to do any of the following:

  • Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
  • Use, display, mirror or frame the Services, or any individual element within the Services, Frankly Co. ‘s name, any Frankly Co. trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Frankly Co. ‘s express written consent;
  • Access, tamper with, or use non-public areas of the Services, Frankly Co. ‘s computer systems, or the technical delivery systems of Frankly Co. ‘s providers;
  • Attempt to probe, scan, or test the vulnerability of any Frankly Co. system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Frankly Co. or any of Frankly Co. ‘s providers or any other third party (including another user) to protect the Services or Content;
  • Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Frankly Co. or other generally available third party web browsers;
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Frankly Co. trademark, logo, URL or product name without Frankly Co. ‘s express written consent;
  • Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
  • Collect or store any personally identifiable information from the Services or App from other users of the Services without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

DMCA/Copyright Policy

Frankly Co. respects copyright law and expects its users to do the same. It is Frankly Co. ‘s policy to terminate in appropriate circumstances Account holders or subscribers who repeatedly infringe the rights of copyright holders. Please see Frankly Co. ‘s Copyright Policy at www.franklyinc.com/copyright.html for further information.

Links to Third Party Websites or Resources

The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.

Warranty Disclaimers

THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

Indemnity

You will indemnify and hold harmless Frankly Co. and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your User Content; or (iii) your violation of these Terms.

Limitation of Liability

NEITHER Frankly Co. NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Frankly Co. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL Frankly Co. ‘S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO Frankly Co. FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Frankly Co. , AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Frankly Co. AND YOU.

Dispute Resolution

GOVERNING LAW

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

AGREEMENT TO ARBITRATE

You and Frankly Co. agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Frankly Co. are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Frankly Co. otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

ARBITRATION RULES

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

ARBITRATION PROCESS

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration here and a separate form for California residents here.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

ARBITRATION LOCATION AND PROCEDURE

Unless you and Frankly Co. otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Frankly Co. submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

ARBITRATOR’S DECISION

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Frankly Co. will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

FEES

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Frankly Co. will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

CHANGES

Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Frankly Co. changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to tos@franklyinc.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Frankly Co. ‘s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Frankly Co. in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General Terms

These Terms constitute the entire and exclusive understanding and agreement between Frankly Co. and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Frankly Co. and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without Frankly Co. ‘s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Frankly Co. may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by Frankly Co. under these Terms, including those regarding modifications to these Terms, will be given by Frankly Co. : (i) via email; or (ii) by posting to the App. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Frankly Co. ‘s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Frankly Co. . Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Contact Information

If you have any questions about these Terms or the Services please contact Frankly Co. at:

c/o Frankly Co.
333 Bryant Street, Suite 310
San Francisco, CA 94107
Tel: (415) 861-9797
Fax: (650) 362-1887
Email: IP@franklyinc.com

Frankly Co. COPYRIGHT POLICY

DMCA Notice of Alleged Infringement (“Notice”)

In accordance with the Digital Millennium Copyright Act of 1998, Frankly Co. will respond expeditiously to claims of copyright infringement committed using the Services that are reported to Frankly Co. ‘s designated Copyright Agent, identified below. If you are a copyright owner, or authorized to act on behalf of one, please report alleged copyright infringement by contacting our Copyright Agent and including the following:

Copyright Agent
c/o Frankly Co.
333 Bryant Street, Suite 240
San Francisco, CA 94107
Tel: (415) 861-9797
Fax: (650) 362-1887
Email: IP@franklyinc.com