Friends with Benefits Terms of Service
Last Updated: May 4, 2026
Welcome, and thank you for your interest in Friends with Benefits ("Community Owner," "we," or "us") and our online community, along with any mobile or other downloadable applications that we make available to enable access to the same (collectively, the "Community"). These Terms of Service are a legally binding contract between you and Community Owner regarding your use of the Community.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING "I ACCEPT," OR BY OTHERWISE ACCESSING OR USING THE COMMUNITY, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF AND ACCESS TO THE COMMUNITY, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING COMMUNITY OWNER'S PRIVACY POLICY (COLLECTIVELY, THESE "TERMS") AND THE ADDITIONAL COMMUNITY TERMS ATTACHED AS EXHIBIT A (THE "ADDITIONAL TERMS") EITHER (A) ON BEHALF OF YOURSELF AS AN INDIVIDUAL, OR (B) IF YOU ARE ACCESSING THE COMMUNITY ON BEHALF OF AN ENTITY, ORGANIZATION, OR COMMUNITY OWNER, ON BEHALF OF SUCH ENTITY, ORGANIZATION OR COMMUNITY OWNER FOR WHICH YOU ACT, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ORGANIZATION OR COMMUNITY OWNER TO THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE COMMUNITY. YOUR USE OF THE COMMUNITY, AND COMMUNITY OWNER'S PROVISION OF THE COMMUNITY TO YOU, CONSTITUTES AN AGREEMENT BY COMMUNITY OWNER AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND COMMUNITY OWNER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1.
Eligibility. You must be at least 18 years old to join the Community or have the consent of a parent or legal guardian. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old or you are at least 13 years old and have obtained verifiable consent from a parent or legal guardian to join the Community; (b) you have not previously been suspended or removed from the Community; and (c) your registration and your use of the Community is in compliance with any and all applicable laws and regulations.
2.
Accounts and Registration. To access most features of the Community, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at
jamie@jbsocialgroup.com or by using the mechanisms made available by Community Owner.
3.
LICENSES
3.1.
Limited License. Subject to your complete and ongoing compliance with these Terms, Community Owner grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use any mobile or other downloadable application provided to you by Community Owner and associated with the Community on a mobile device that you own or control; and (b) access and use the Community.
3.2.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the software powering the Community; (b) make modifications to the software powering the Community; or (c) interfere with or circumvent any feature of the Community, including any security or access control mechanism. If you are prohibited under applicable law from using the Community, then you may not use it.
3.3.
Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Community ("Submissions"), then you hereby grant Community Owner and its Service Provider (defined in Section 16.1 below) an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Submissions in any manner and for any purpose, including to improve the Community and create other products and services. We will have no obligation to provide you with attribution for any Submissions you provide to us.
4.
Ownership; Proprietary Rights. The Community is managed by Community Owner using a platform made available by Service Provider. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Community provided by Community Owner or Service Provider ("Materials") are protected by intellectual property and other laws. All Materials included in the Community are the property of Community Owner or its third-party licensors (including Service Provider). Except as expressly authorized by Community Owner, you may not make use of the Materials. There are no implied licenses in these Terms and Community Owner and Service Provider reserve all rights to the Materials not granted expressly in these Terms.
5.
THIRD-PARTY TERMS
5.1.
Third-Party Services. Community Owner may provide tools through the Community that enable integration with third-party platforms, add-ons, services, or products not provided by Community Owner ("Third-Party Services"). If you direct us to transmit data to, or receive data from, a Third-Party Service on your behalf (including by enabling the applicable integration in the settings of the Community), then you authorize us and Service Provider to collect, access, use, derive, disclose, generate, transfer, transmit, store, host, or otherwise process ("Process") any such data, including User Content (defined in 6.1 below), in connection with the applicable integration, in a manner consistent with the functionality of the Community requested by you and the permissions granted to Community Owner by the relevant integration (which Processing may include, without limitation, performing queries on the data held by the Third-Party Service). You acknowledge and agree that your use of a Third-Party Service is subject to your agreement with the relevant provider of such Third-Party Service, and that Community Owner and Service Provider are not a party to such agreement. Community Owner and Service Provider do not control and have no liability for Third-Party Services, including their security, functionality, operation, availability, or interoperability with the Community or how the Third-Party Services or their providers use User Content. All data received from Third-Party Services on behalf of you as described herein will be deemed User Content under these Terms.
5.2.
Third-Party Software. The Community may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third-Party Components"). Although the Community is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
6.
USER CONDUCT
6.1.
User Content Generally. Certain features of the Community may permit users to submit, upload, publish, broadcast, or otherwise transmit ("Post") content to the Community, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works ("User Content"). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Community, subject to the licenses granted in these Terms.
6.2.
Limited License Grant to Community Owner. By Posting User Content to or via the Community, you grant Community Owner and Service Provider a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Community. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Community Owner's or Service Provider's exercise of the license set forth in this Section.
6.3.
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content including in all ambient music and underlying musical works embodied in any sound recording. Community Owner disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Community. By providing User Content via the Community, you affirm, represent, and warrant to us that:
(a)
you are the Community Owner and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Community Owner and users of the Community to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Community Owner, Service Provider, the Community, and these Terms;
(b)
your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Community Owner or Service Provider to violate any law or regulation or require Community Owner or Service Provider to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c)
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
6.4.
User Content Disclaimer. Community Owner and Service Provider are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Community Owner or Service Provider may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Community, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Community Owner or Service Provider with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, Community Owner may (or may permit Service Provider to) investigate the allegation and determine whether to remove the User Content, which Community Owner and Service Provider reserve the right to do at any time, without notice, and for any reason. For clarity, Community Owner does not permit infringing activities on the Community.
6.5.
Monitoring Content. Community Owner and Service Provider do not control and do not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Community by its users. You acknowledge and agree that Community Owner and Service Provider reserve the right to, and may from time to time, monitor any and all information transmitted or received through the Community for operational and other purposes. If at any time Community Owner or Service Provider choose to monitor the content, then Community Owner and Service Provider still assume no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with
Community Owner's Privacy Policy. Community Owner and Service Provider may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Community without any liability to the user who Posted such User Content to the Community or to any other users of the Community.
6.6.
Child Sexual Abuse and Exploitation. Community Owner and Service Provider prohibit any sexual content or suggestive content, and predatory or inappropriate behavior involving minors (i.e. users under 18 years old) or someone who appears to be a minor. This includes sharing, offering, or asking for child exploitation content, including child sexual abuse material (CSAM). If you are unsure about a piece of content involving a minor, do not share it. To report sexual, suggestive, or inappropriate behavior minors, you can use the in-line report feature on the website or app. When child sexual exploitation content is identified, the violative content is removed as soon as possible and the related account is banned. If Community Owner and Service Provider confirm the presence of CSAM, we take the steps required by law to preserve and refer the relevant content to appropriate authorities. In the United States, federal law requires that U.S.-based electronic service providers report instances of apparent CSAM to the
National Center for Missing and Exploited Children (NCMEC). NCMEC coordinates reports with global law enforcement agencies in over 120 countries through its partner organization, the International Center for Missing and Exploited Children.
7.
COMMUNICATIONS
7.1.
Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device's "settings" page.
7.2.
In-App Notifications. When you install our app on your mobile device, we may send you in-app notifications. You can turn off notifications in the app's "settings" page.
7.3.
Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. Even if you opt out of receiving promotional messages from us, you will continue to receive administrative messages from us.
8.
PROHIBITED CONDUCT. BY USING THE COMMUNITY, YOU AGREE NOT TO:
8.1.
use the Community for any illegal purpose or in violation of any local, state, national, or international law;
8.2.
harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Community;
8.3.
violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
8.4.
access, search, or otherwise use any portion of the Community through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Community Owner or Service Provider;
8.5.
interfere with security-related features of the Community, including by: (a) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Community except to the extent that the activity is expressly permitted by applicable law;
8.6.
interfere with the operation of the Community or any user's enjoyment of the Community, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Community; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Community;
8.7.
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Community account without permission, or falsifying your age or date of birth;
8.8.
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 4(Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
8.9.
attempt to do any of the acts described in this Section 8 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 8 (Prohibited Conduct).
9.
INTELLECTUAL PROPERTY RIGHTS PROTECTION
9.1.
Respect of Third Party Rights. Community Owner respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Community to do the same. Infringing activity will not be tolerated on or through the Community.
9.2.
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended) and the Community is subject to
Service Provider's DMCA policy.
10.
Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Community. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Community. Except as expressly permitted in this Section 10 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
11.
TERM, TERMINATION, AND MODIFICATION OF THE COMMUNITY
11.1.
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Community, and ending when terminated as described in Section 11.2 (Termination).
11.2.
Termination. If you violate any provision of these Terms, then your authorization to access the Community and these Terms automatically terminate. In addition, Community Owner may, at its sole discretion, terminate these Terms or your account on the Community, or suspend or terminate your access to the Community, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account at any time by using the mechanism designated in the Community or contacting customer service at
jamie@jbsocialgroup.com.
11.3.
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Community; (b) you will no longer be authorized to access your account or the Community; (c) you must pay Community Owner any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 3.3 (Feedback), 4 (Ownership; Proprietary Rights), 11.3 (Effect of Termination), 12 (Indemnity), 13 (Disclaimers; No Warranties by Community Owner), 14 (Limitation of Liability), 15 (Dispute Resolution and Arbitration), and 16 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Community since upon termination of your account, you may lose access rights to any User Content you Posted to the Community. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Community using a different name, email address or other forms of account verification.
11.4.
Modification of the Community. Community Owner reserves the right to modify or discontinue all or any portion of the Community at any time (including by limiting or discontinuing certain features of the Community), temporarily or permanently, without notice to you. Community Owner will have no liability for any change to the Community, including any paid-for functionalities of the Community, or any suspension or termination of your access to or use of the Community. You should retain copies of any User Content you Post to the Community so that you have permanent copies in the event the Community is modified in such a way that you lose access to User Content you Posted to the Community.
12.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Community, and you will defend and indemnify Community Owner, its affiliates, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the "Specified Entities") and Service Provider from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys' fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Community; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
13.
DISCLAIMERS; NO WARRANTIES BY COMMUNITY OWNER
13.1.
THE COMMUNITY AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE COMMUNITY ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. COMMUNITY OWNER AND SERVICE PROVIDER DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE COMMUNITY AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE COMMUNITY, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMMUNITY OWNER AND ITS SERVICE PROVIDER DO NOT WARRANT THAT THE COMMUNITY OR ANY PORTION OF THE COMMUNITY, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE COMMUNITY, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COMMUNITY OWNER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
13.2.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMMUNITY, SPECIFIED ENTITIES, OR SERVICE PROVIDER, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE COMMUNITY WILL CREATE ANY WARRANTY REGARDING ANY OF THE SPECIFIED ENTITIES OR THE COMMUNITY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE COMMUNITY AND YOUR DEALING WITH ANY OTHER COMMUNITY USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE COMMUNITY AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE COMMUNITY) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
13.3.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 13 (DISCLAIMERS; NO WARRANTIES BY COMMUNITY OWNER) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Community Owner does not disclaim any warranty or other right that Community Owner is prohibited from disclaiming under applicable law.
14.
LIMITATION OF LIABILITY
14.1.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SPECIFIED ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE COMMUNITY OR ANY MATERIALS OR CONTENT ON THE COMMUNITY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SPECIFIED ENTITY OR SERVICE PROVIDER HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
14.2.
EXCEPT AS PROVIDED IN SECTIONS 15.5 (COMMENCING ARBITRATION) AND 15.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SPECIFIED ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE COMMUNITY OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO COMMUNITY OWNER FOR ACCESS TO AND USE OF THE COMMUNITY IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.
14.3.
WITHOUT LIMITING THE FOREGOING, YOU AND COMMUNITY OWNER AGREE THAT SERVICE PROVIDER IS NOT A PARTY TO THIS AGREEMENT AND, TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE PROVIDER WILL HAVE NO LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. YOU AGREE THAT IF YOU BRING A CLAIM AGAINST SERVICE PROVIDER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SUCH CLAIM IS SUBJECT TO THE DISPUTE RESOLUTION PROCEDURE SET FORTH IN SECTION 15, AND SERVICE PROVIDER WILL BE DEEMED SUBSTITUTED FOR COMMUNITY OWNER THEREUNDER SOLELY FOR THE PURPOSE OF SUCH CLAIM.
14.4.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15.
DISPUTE RESOLUTION AND ARBITRATION
15.1.
Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Community Owner agree that every dispute arising in connection with these Terms, the Community, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMMUNITY OWNER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2.
Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Friends with Benefits, Attention: Legal Department – Arbitration Opt-Out, 8910 University Center Ln Suite 400, San Diego, CA 92122 that specifies: your full legal name, the email address associated with your account on the Community, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once Community Owner receives your Opt-Out Notice, this Section 15 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 16.3 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4.
Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, "JAMS Rules") as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Community Owner.
15.5.
Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice of Arbitration"). Community Owner's address for Notice is: Friends with Benefits, 8910 University Center Ln Suite 400, San Diego, CA 92122. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Community Owner may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Community Owner will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Community Owner has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
15.6.
Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Community Owner must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7.
Arbitration Relief. Except as provided in Section 15.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Community Owner before an arbitrator was selected, Community Owner will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator's award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
15.8.
No Class Actions. YOU AND COMMUNITY OWNER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Community Owner agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
15.9.
Modifications to this Arbitration Provision. If Community Owner makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Community Owner's address for Notice of Arbitration, in which case your account with Community Owner will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10.
Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Community Owner receives an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.3 (Governing Law) will govern any action arising out of or related to these Terms.
16.
MISCELLANEOUS
16.1.
Third-Party Beneficiary. The Community is powered by a technology platform provided by CircleCo, Inc. ("Service Provider"). You and we acknowledge and agree that (a) Service Provider is an intended third-party beneficiary to these Terms, (b) is entitled to rights and benefits hereunder, and (c) may enforce these Terms against you as if it were an original party hereto.
16.2.
General Terms. These Terms, including the
Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Community Owner regarding your use of the Community. These Terms or any rights under these Terms, may not be assigned either by us or by you in whole or in part, by operation of law or otherwise, without our Service Provider's prior written consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to." If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
16.3.
Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Community Owner submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Kings County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. Service Provider operates the service that we use to provide the Community from its offices in New York, and we make no representation that Materials included in the Community are appropriate or available for use in other locations.
16.4.
Privacy Policy. You understand and agree to the processing of your personal data in connection with the Community in accordance with
Community Owner's Privacy Policy, which is hereby incorporated by reference into Section 16.4 of these Terms.
16.5.
Precedence. In the event of a conflict between the Additional Terms and these Terms these Terms will control.
16.6.
Consent to Electronic Communications. By using the Community, you consent to receiving certain electronic communications from us as further described in our
Privacy Policy. Please read our
Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
16.7.
Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Community or to receive further information regarding use of the Community.
17.
Notice Regarding Apple. This Section 17 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Community Owner only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Community or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Community. If the Community fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Community. Apple is not responsible for addressing any claims by you or any third party relating to the Community or your possession and/or use of the Community, including: (1) product liability claims; (2) any claim that the Community fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Community and/or your possession and use of the Community infringe a third party's intellectual property rights. You agree to comply with any applicable third-party terms when using the Community. Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Exhibit A: Additional Terms
EXHIBIT A - ADDITIONAL TERMS OF SERVICE
Friends with Benefits (FWB) Member Terms, Disclaimers, Event Waiver, & NIL License
This Exhibit A – Additional Terms of Service (the “FWB Member Terms”) is incorporated by reference into, and made a material part of, the Terms of Service between the person who purchases an FWB Subscription (“Member”) and Engelhardt & Co., LLC dba Friends with Benefits™ (“FWB”). These FWB Member Terms shall govern Member’s Subscription to FWB.
Between these FWB Member Terms and the Terms of Service, these FWB Member Terms shall govern and control in the event of any conflict, inconsistency, or ambiguity. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Terms of Service. These FWB Member Terms shall be effective immediately as of the date Member accepts these terms by doing any of the following: (i) clicking to accept the Terms of Service which incorporate these FWB Member Terms on any FWB web page; (ii) accessing the FWB Platform by web or mobile login; or (iii) receiving a written notice of the applicability of these FWB Member Terms, or any updates or amendments hereto, by email or in-app messaging. The “FWB Member Terms” and the “Terms of Service” may collectively be referred to as the “Agreement.”
1. FWB TERMS AND CONDITIONS OF MEMBERSHIP.
a. Membership Eligibility and Enrollment. In order to become an FWB Member, an applicant must satisfy the following requirements:
i. Application Requirement. Membership in FWB is subject to completion of an application process and is not automatically granted. Each applicant must submit accurate and complete information as requested by FWB.
ii. Approval at FWB’s Sole Discretion. Acceptance, renewal, or continuation of membership shall be determined at the sole and exclusive discretion of FWB. FWB reserves the right to accept or deny any application, or to suspend or revoke any membership, at any time and for any reason or no reason, without explanation or appeal.
iii. Eligibility Criteria. To be eligible for membership, applicants must certify that they:
1. are at least eighteen (18) years of age;
2. are a resident of the United States;
3. maintain an active social media presence on Instagram and/or TikTok which reflects content consistent with FWB’s values and brand standards; and
4. possess a combined following across Instagram and TikTok of at least: (a) for the FWB Active Member tier, one thousand (1,000) followers; (b) for the FWB PR Member tier, one thousand (1,000) followers; or (c) for the FWB Platform Member tier, five hundred (500) followers.
iv. Ongoing Eligibility. Members must continue to meet all eligibility requirements throughout their membership and must pay all required subscription or other one-time payments (“Fees”) in accordance with the Terms of Service. Failure to do so may result in suspension or termination of membership privileges, at FWB’s sole discretion.
v. Verification and Updates. FWB may, at any time, request verification of eligibility criteria, including but not limited to proof of age, residency, and social media metrics. Members are responsible for promptly updating FWB regarding any changes that may affect their eligibility status.
b. Community Conduct and Enforcement.
i. Purpose. FWB is a community built around creativity, collaboration, and respect. To maintain a safe and positive environment, all members agree to uphold the following standards of conduct in connection with their participation in the FWB community, use of the FWB platform or application (“Platform”), and attendance at any FWB-sponsored or affiliated event (“Event”), during all times where Member is an active paying member licensed to participate in the FWB Community during the Term (Member’s “Subscription”).
ii. Prohibited Content and Conduct (Digital and In-Person). Members shall not, at any time, post, upload, transmit, distribute, display, or otherwise engage in conduct, whether online or offline, which:
1. Violates any law or regulation, including laws relating to defamation, intellectual property, privacy, publicity, or discrimination, and FTC regulations governing influencer marketing and online advertising;
2. Is harassing, threatening, abusive, obscene, vulgar, pornographic, or otherwise offensive in nature;
3. Depicts or promotes hate speech, violence, self-harm, or discrimination based on race, gender, sexual orientation, religion, nationality, or disability;
4. Constitutes spam, solicitation, or unauthorized commercial activity for non-FWB entities within the Platform or at Events;
a. As an example of unauthorized commercial activity, Members are prohibited from using Events or utilizing any content generated at Events as a means to promote any third-party business other than the Event host or Brand sponsors of that Event as approved by FWB.
5. Intimidates or endangers other members, guests, or FWB staff, including through stalking, unwanted physical contact, or disorderly conduct; or
6. Violates FWB’s brand standards, community values, or reputation, as determined in FWB’s sole discretion.
iii. Event Conduct and Participation.
1. Professional Behavior. Members are expected to behave professionally, courteously, and respectfully toward other attendees, staff, and venue personnel at all times.
2. Prohibited Conduct at Events. Without limitation, the following behavior is strictly prohibited: excessive intoxication; use or possession of illegal substances; verbal or physical harassment; destruction of property; and disruptive, unsafe, or disorderly acts.
3. Compliance with Venue Rules. Members must comply with all venue rules, instructions of event personnel, and applicable safety regulations.
iv. Enforcement and Remedies.
1. Right to Remove Content or Restrict Access. FWB reserves the right, in its sole and absolute discretion, to remove or restrict access to any content posted within the Platform, suspend or terminate any membership, and/or remove any individual from an Event whose behavior violates this Code of Conduct or any applicable policy.
2. Immediate Removal from Events. FWB may, without prior notice or refund, require a Member or attendee to leave any Event if such person’s conduct is, in the sole judgment of FWB representatives, unsafe, disruptive, or inconsistent with FWB’s values.
3. Investigation and Action. FWB may investigate suspected violations and take any action it deems appropriate, including warnings, content deletion, temporary suspension, permanent removal, or referral to law enforcement authorities.
v. Disclaimer of Monitoring and Responsibility.
1. No Duty to Monitor. FWB does not undertake, and expressly disclaims, any obligation to monitor or pre-screen content or behavior of Members or third parties on the Platform or at Events.
2. Member Responsibility. Each Member is solely responsible for the content they post, the statements they make, and their conduct online and in person. FWB shall not be liable for any user-generated content or for the actions or omissions of any Member or Event participant.
vi. Reservation of Rights. FWB reserves all rights to enforce this Code of Conduct, interpret its terms, determine whether any conduct or content violates its standards, and remove content or remove Members exhibiting prohibited conduct, all in its sole and exclusive discretion. FWB’s failure to enforce any provision shall not constitute a waiver of its rights to do so later.
c. Term and Termination.
i. Term. Member’s Subscription shall commence on the date the Member’s enrollment is first completed and Member’s initial payment is made and shall continue for an initial term of sixty (60) days (“Initial Term”). Thereafter, this Agreement shall automatically renew for successive thirty (30) day renewal periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”) unless and until terminated in accordance with this section.
ii. Termination by Member. Following completion of the first sixty (60) days of the Term, Member may terminate this Agreement and cancel their Subscription at any time and for any reason, by providing twenty-one (21) days’ prior written notice to FWB. A notice of termination shall require Member to complete and submit the FWB Termination Request Form (available upon written request to FWB or as may be linked or hosted within the Platform) in accordance with the instructions on the FWB Termination Request Form. Termination shall become effective at the end of the Member’s next Renewal Term following FWB’s receipt of a completed FWB Termination Request Form. Member acknowledges and agrees that: (i) FWB shall have no liability for refunds or credits upon a Termination request, nor shall the same be issued for any partial billing period. Notwithstanding the foregoing, the FWB Platform Member tier (as described in the Documentation) may be cancelled at-will by Member without the minimum Initial Term requirement or Member being required to provide advanced notice, by using the self-service cancellation process described in the Platform and other Documentation.
iii. Suspension. FWB reserves the right, in its sole discretion, to temporarily suspend a Member’s account, access, or privileges (including denying access to Events) at any time, with or without notice, including while investigating suspected violations of this Agreement or during any period of nonpayment or dispute. Suspension shall not relieve Member of any payment obligations or alter the Term of this Agreement.
iv. Termination by FWB. FWB may terminate Member’s Subscription, suspend membership privileges, access to the Platform or Events, or deactivate the Member’s account at any time and without prior notice if Member breaches any provision of this Agreement, any incorporated policy, or any applicable law, or engages in conduct detrimental to FWB or its community. FWB may also terminate for convenience, upon written notice to Member, which may be provided by email or messaging applications.
v. Effect of Termination. Upon termination of the Subscription for any reason, all membership rights, access to the Platform, and participation privileges shall immediately cease. Any unpaid Fees shall accelerate, becoming due and payable immediately. Provisions of this Agreement which by their nature should survive termination (including without limitation those relating to ownership, perpetual license, confidentiality, limitation of liability, indemnification, and governing law) shall survive and remain in full force and effect.
d. Member Benefits. FWB Members shall be entitled to receive the benefits as described in the most current version of the FWB website application, the checkout page, or in any written marketing materials furnished by FWB (collectively the “Documentation”). FWB offers multiple tiers of membership Subscription, which shall entitle Member to receive only those benefits which correspond to the Subscription tier and pricing purchased by Member, as listed in the Documentation at checkout. All benefits listed in the Documentation shall be subject to the definitions below. Except for the terms described in the Documentation and in this subsection, no other warranties or guarantees shall apply. The benefits listed below are subject to change at any time by FWB in its sole and exclusive discretion, and at all times shall be subject to the policies described in the most current version of the Documentation.
i. FWB Platform Access. FWB shall make reasonable efforts to make the website and application available for active paying Members throughout the Term of this Agreement. Member agrees it shall have the sole responsibility to maintain and keep secure its user credentials and password recovery email. The FWB Platform may include content generated by FWB or other Members. Content is informational only, and FWB makes no representations as to the quality, suitability, or frequency of content shared in the Platform.
ii. Member’s License to use FWB Materials. During the Term of this Agreement, provided Member is active and current on all Fees, FWB grants Member a limited, revocable, non-exclusive license to: (i) list @thisisfwb in Member’s social media bios; (ii) reshare and repost FWB social media content on Member’s social media accounts; and (iii) tag @thisisfwb in FWB-related content posted on Member’s social media accounts. This license shall expire upon termination of this Agreement for any reason.
iii. Brand Partnership Opportunities. MEMBER UNDERSTANDS THAT FWB EXPRESSLY DISCLAIMS ANY GUARANTEE THAT FWB WILL DELIVER BRAND PARTNERSHIP OPPORTUNITIES TO MEMBER AS A BENEFIT OF MEMBER’S SUBSCRIPTION TO FWB. Subject to the foregoing limitation, FWB may, at its sole discretion and based on the availability of partnerships with various commercial entities, brands, product companies, service companies, or any other business clients of FWB or its affiliates (“Brands”), make available to Member the option to apply for the opportunity to participate in engagements with Brands. Such engagements may include showcasing a Brand’s products or services (“Brand Partnerships”). In the event a Brand Partnership is entered into by Member which includes compensation to be paid directly to Member, such Brand Partnerships may be subject to any additional terms in a separate Statement of Work (“SOW”) if provided to Member in writing by FWB or its Affiliates. Member expressly authorizes FWB to use Member’s NIL Materials to solicit Brand Partnerships without Member having any right of compensation except as may otherwise be expressly described in a SOW. The NIL License granted by Member below shall be incorporated by reference into the SOW deliverables, unless otherwise stated in the SOW.
iv. PR Gifting. FWB, through partnership with Brands, offers Members gifted products, services, or other promotional items from Brands, for the purpose of public relations, which will be provided to Members on no less than a quarterly basis (“Gifting”). Gifting shall be made available only to Members subscribing to a membership tier which includes Gifting, and shall be disbursed at times and locations selected by FWB at its sole and exclusive discretion. For disbursements of Gifting, Member authorizes FWB to either: (i) charge the associated shipping costs or flat-rate shipping charges for delivery of Gifting, where applicable; or (ii) make available the Gifting at a pick-up location or Event designated by FWB, as and when available in FWB’s discretion. Member’s entitlement to receive PR Gifting shall require Member to be an active paying Member at the time of the quarterly PR Gifting disbursement. Where Member terminates its Subscription prior to such disbursement, Member expressly waives their right to collect the PR Gifting or request a refund of previously paid Fees.
v. Events. FWB will provide FWB Active Members the opportunity to register for various types of events and popups, and will host events on no less than a quarterly basis, subject to restrictions on number of attendees. Events are only included for members who purchase a membership Subscription tier which includes Events. Events may be hosted and offered at FWB’s sole and exclusive discretion, which may include public events, members-only events, members plus guest events, or any combination of the foregoing, offered by FWB on either an invite-only basis or a “first come first served” basis. In any case, Members are required to register for Events when registrations open within the FWB Platform and comply with all Event terms, including completing waivers and other documentation where requested. Members must at all times adhere to the cancellation policies disseminated from time to time by FWB or risk losing access to Events. Due to limitations on the size, frequency, and availability of venues, and the limited availability of Brand participants to host events, FWB DISCLAIMS ANY WARRANTY OR GUARANTEE THAT ANY MEMBER SHALL BE ENTITLED TO ATTEND ANY PARTICULAR EVENT, OR ANY QUANTITY OR FREQUENCY OF FWB EVENTS. Members are advised to closely monitor FWB’s social media accounts and announcements in the Platform in order to increase their likelihood of registering for and attending Events.
vi. Promotion on FWB Social Media Accounts. FWB retains the right, but not the obligation, to promote Members’ social media accounts or other NIL Materials at any time during or after the Term of this Agreement.
e. Disclaimers. Member acknowledges and agrees that Member is obligated to abide by the terms of Section 2 - Product Gifting Guidelines and Disclaimers below for all Giftings and Brand Partnerships.
2. PRODUCT GIFTING AND BRAND PARTNERSHIP GUIDELINES AND DISCLAIMERS.
These Product Gifting and Brand Partnership Guidelines and Disclaimers govern the use, posting, and handling of Gifting received by Members through FWB’s Quarterly Gifting, Gifting at Events, or any Brand Partnership which may include Gifting as part of the consideration.
a. No Compensation or Consideration.
i. Products or services included in Gifting or Brand Partnerships are provided as a promotional consideration or as a courtesy to Member, and are included as a part of Member’s Subscription. Member and FWB agree that the products included in Gifting or Brand Partnerships shall have no cash value. Notwithstanding the foregoing, Member acknowledges and understands that Gifting and Brand Partnerships may require FTC disclosures as referenced further below.
ii. Member acknowledges and agrees that receipt of Gifting or Brand Partnerships shall not constitute employment, agency, endorsement, or legal partnership with FWB or the Brand.
iii. Member acknowledges that Gifting does not constitute wages, commissions, or contractual consideration unless otherwise agreed in writing by FWB. Brand Partnerships may include payments and shall be subject to the terms of the separate SOW.
b. Ownership and Use.
i. Once received, Member may use or retain Gifted Products at their discretion, subject to any restrictions communicated by FWB or the Brand.
ii. Member agrees that the intellectual property associated with any products or services included in a Gifting or Brand Partnership remain the property of the Brand, and shall be limited only by any intellectual property rights which are owned by FWB.
iii. Gifting products and services may not be resold, transferred, or otherwise commercialized without prior written consent from FWB and the Brand.
c. Content and FTC Compliance.
i. If Member posts or creates content featuring Gifting or Brand Partnerships, including but not limited to any instance where Member receives free products, services, or access to facilities, Member agrees to use its sole and exclusive judgement to ensure it complies with all applicable laws, including but not limited to FTC endorsement and disclosure requirements. Member agrees that FWB has advised Member to seek publicly available links and resources to the FTC’s regulatory guidance on influencer and consumer disclosures.
ii. Member expressly acknowledges and agrees that FWB does not provide professional advice, nor shall Member rely on any statements provided by FWB, regarding the applicability of laws or disclosure requirements.
iii. Acceptable disclosure examples and guidance are provided on the most current version of the FTC website (www.ftc.gov/influencers), Member agrees to review the FTC materials, including updates which may be provided by the FTC from time to time, before posting or creating content which may require such a disclosure.
iv. Member represents and warrants that all content Member posts in connection with FWB or Brands is truthful, not misleading, and consistent with the actual experience of the product or service. Member further acknowledges that public review sites may have community guidelines and rules which Member agrees to follow at all times.
d. Product Liability and Use Disclaimer.
i. FWB is not the manufacturer or distributor of any products or services included in a Gifting or Brand Partnership, and makes no warranties regarding the safety, quality, or fitness for purpose of such products or services.
ii. Member assumes all risks arising from possession, use, or misuse of any Gifted Product, including but not limited to allergic reactions, defects, or damage.
iii. To the fullest extent permitted by law, Member releases FWB and its affiliates from any claims or damages arising from or related to Member’s use of Gifted Products.
iv. If FWB or a Brand requests the return or disposal of a Gifted Product (e.g., due to safety recall or campaign change), Member agrees to promptly comply with such instructions.
v. If Gifted Products are provided before public release, Member agrees not to disclose, post, or share any information, imagery, or impressions until the Brand or FWB authorizes such disclosure.
vi. FWB reserves the right to suspend or revoke a Member’s Gifting or Brand Partnership privileges at any time for non-compliance with the guidelines in this section or breach of any other term of this Agreement.
3. EVENT WAIVER.
This Event Waiver and Release of Liability (“Waiver”) is incorporated by reference into the Terms of Service between Member and FWB. By registering for, attending, or participating in any Event in any capacity, Member agrees to the terms of this Waiver. As between Member and FWB, in the event that any separately executed waiver conflicts with the terms of this Waiver, this Waiver shall control.
a. Voluntary Participation. Member acknowledges that participation in any FWB Event, whether in person or virtual, is entirely voluntary and at Member’s own risk. Member understands that events may involve social, physical, or recreational activities that carry inherent risks of injury, illness, property damage, or other loss.
b. Assumption of Risk. Member expressly assumes all risks associated with participation in an Event, including but not limited to travel to and from the event, crowd interaction, use of facilities, consumption of food or beverages, physical activity, exposure to communicable diseases, or other hazards whether caused by negligence or otherwise.
c. Release of Liability. To the fullest extent permitted by law, Member releases and forever discharges FWB, its affiliates, owners, officers, directors, employees, contractors, sponsors, venue operators, and agents (“Released Parties”) from any and all claims, demands, causes of action, damages, losses, or liabilities, whether known or unknown, arising out of or relating to Member’s attendance at or participation in any Event.
d. Indemnification. Member agrees to indemnify, defend, and hold harmless the Released Parties from any and all claims, damages, liabilities, or expenses (including attorneys’ fees) arising out of Member’s acts, omissions, or participation in any Event.
e. Health and Safety Compliance. Member agrees to comply with the law, and all health, safety, and security procedures established by FWB or any Brand associated with or venue hosting an Event, including any: (i) age-restricted use of products including alcohol served by a Brand or Event venue; (ii) screening, vaccination, or testing requirements; or (iii) guidelines or instructions provided at an Event; that may apply. FWB reserves the right to refuse or revoke admission for any violation of such policies or for any unsafe or disruptive behavior, without refund.
f. Photo, Video, and NIL Release. Member understands that events may be recorded, photographed, or streamed, and hereby grants to FWB the NIL License and Grant of Ownership in NIL Materials as described further below in Section 4, without further notice or compensation.
g. No Warranties or Representations. FWB makes no warranties regarding the safety, security, or conditions of any event or venue and is not responsible for acts or omissions of any third party, including vendors, Brands, sponsors, or attendees.
h. Binding Effect; Governing Law. This Waiver is binding upon Member and Member’s heirs, assigns, and representatives, and shall be governed by the laws of the State of California, without regard to conflict-of-law principles. Member agrees that any disputes shall be resolved exclusively in the state or federal courts located in San Diego County, California.
BY ATTENDING OR PARTICIPATING IN ANY FWB EVENT, MEMBER ACKNOWLEDGES HAVING READ AND VOLUNTARILY ACCEPTED THIS EVENT WAIVER AND FULLY UNDERSTANDS ITS TERMS.
4. NIL LICENSE AND GRANT OF OWNERSHIP IN NIL MATERIALS.
FWB IS COMMITTED TO A POLICY OF TRANSPARENCY AND FAIRNESS REGARDING THE USE, OWNERSHIP, AND LICENSING OF MEMBERS’ NAME, IMAGE, AND LIKENESS (ALSO KNOWN AS MEMBERS’ “NIL”). FWB URGES MEMBERS TO SEEK QUALIFIED PROFESSIONAL ADVICE TO ENSURE MEMBER FULLY UNDERSTANDS THE TERMS OF THIS NIL LICENSE BEFORE AGREEING TO THESE TERMS. MEMBER MUST AGREE TO AND ACCEPT THESE TERMS AS A CONDITION OF MEMBER’S FWB SUBSCRIPTION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT REGISTER FOR FWB OR PARTICIPATE IN THE FWB COMMUNITY OR ATTEND FWB EVENTS.
Being a member of the FWB community requires granting FWB rights to own and use content you create, including photography, audio, video, and personal information about you, whether created either by you alone or in collaboration with FWB or with its brand clients. FWB uses members’ content both for the benefit of the FWB products and services, and for FWB’s commercial benefit. Unless expressly agreed in a separate written SOW with compensation terms, you are not entitled to any compensation or other economic consideration in exchange for granting this NIL License.
PLEASE REVIEW THE BELOW INFORMATION CAREFULLY AS IT CONTAINS WAIVERS AND GRANTS OF YOUR LEGAL RIGHTS. FWB DISCLAIMS ANY EXPRESS OR IMPLIED OBLIGATIONS OR WARRANTIES TO ACT AS MEMBER’S AGENT OR PROFESSIONAL ADVISOR, AND MEMBER AGREES THAT THE AGREEMENT DOES NOT CREATE OR IMPLY THE EXISTENCE OF SUCH A RELATIONSHIP.
a. License Grant and Scope. As a material element of the Agreement between the parties, Member hereby irrevocably grants to FWB and its affiliates, licensees, successors, and assigns, the perpetual, worldwide, royalty-free, fully transferable, sublicensable right and license to use, reproduce, display, perform, distribute, modify, creative derivative works thereto, adapt, publish, broadcast, transmit, synchronize, commercialize, and otherwise exploit, in any manner and in any and all media now known or hereafter developed (the “NIL License”), Member’s name, image, likeness, voice, signature, biographical information, social media handles, performance, persona, and all other materials or content (“NIL Materials”) where:
i. Submitted by Member into FWB’s Platform, or as otherwise sent by Member to FWB or any of its Brand clients;
ii. Created, captured, or produced at any FWB Event or function, or at any location where Member and FWB are both present; or
iii. Posted by Member on Member’s own social media accounts (whether or not FWB or a Brand client is “tagged” in such content).
b. Exclusivity. To the fullest extent permitted by law, the rights to NIL Materials described in Section 1(a)(i) and 1(a)(ii), and in Section 1(a)(iii) but only with respect to content where FWB is either “tagged,” or has created the content, shall be exclusive, as against Member, for FWB use.
c. Purpose. FWB may use the NIL Materials for the following purposes:
i. To promote FWB to third parties including other members, potential new members, and other FWB customers;
ii. To improve, benefit, or otherwise enrich FWB’s products and services, in FWB’s sole and exclusive discretion; and
iii. To commercialize, market, and sell the products and services of Brands, which may involve such Brands making financial payments or providing other in-kind consideration to FWB or its affiliates.
d. Duration and Territory. This license shall be perpetual and irrevocable, unless otherwise expressly terminated in writing by FWB. For clarity, the termination of Member’s FWB subscription shall not terminate this NIL License. There shall be no geographical or territorial restrictions on this license except where required by law. Except for the license for content described in Section 1(a)(iii) of this section, which Member may terminate by providing one-hundred and twenty (120) days advanced written notice (provided notice must be provided by Member in the manner proscribed in the Terms), Member expressly agrees it has no termination rights regarding this license.
e. Compensation. The parties expressly agree that the following terms shall exclusively apply to any right to compensation for the NIL License by either party, notwithstanding any statements, impressions, or understandings by either party to the contrary.
i. No Compensation Owed. Member acknowledges and agrees that Member shall not be entitled to any compensation, royalties, payments, or reimbursement of any kind in connection with FWB’s use of the NIL Materials, unless a separate written agreement, executed by the CEO of FWB (or its corporate affiliates), expressly provides otherwise, in which case the terms of that separate written agreement shall govern the rights and obligations of the parties related to compensation and usage of the content. The license described herein shall continue in full force and effect between the parties.
ii. Voluntary Grant. The rights granted herein are provided by Member voluntarily, provided as good and valuable consideration in exchange for the benefits of membership in FWB, and without expectation of payment.
f. Ownership and Waiver of Rights.
i. No Rights Retained. Member acknowledges and agrees that FWB shall own all right, title, and interest in any derivative works, edits, compilations, or adaptations created by or for FWB (or its Brand clients) that incorporate NIL Materials.
ii. Work Made for Hire.
1. Work Made for Hire. In addition to the foregoing license, to the fullest extent permitted by law, Member agrees that all NIL Materials, and any content, recordings, photographs, video, audio, graphics, text, or other materials embodying or incorporating Member’s NIL that are created, captured, recorded, or otherwise generated by or for FWB or its Brand clients (alone or in conjunction with Member) shall be deemed “works made for hire” under applicable copyright law, with FWB deemed the sole author and exclusive owner thereof.
2. Assignment. To the extent any NIL Materials do not qualify as “works made for hire,” Member hereby irrevocably assigns, transfers, and conveys to FWB all right, title, and interest, including all copyrights, renewals, extensions, and related rights, in and to such NIL Materials, throughout the universe, for the maximum term allowed by law.
3. Power of Attorney. Member hereby irrevocably designates and appoints FWB, and its duly authorized officers and agents, as Member’s attorney-in-fact, with full power of substitution, to execute, acknowledge, and deliver any instruments or documents and to take any and all steps that FWB, in its sole discretion, deems necessary or desirable to perfect, record, evidence, enforce, or defend FWB’s rights in the NIL Materials, including the right to register copyrights in FWB’s name. This power of attorney is coupled with an interest and is irrevocable.
iii. Moral Rights Waiver. To the maximum extent permissible under applicable law, Member waives any and all claims to moral rights, droit moral, or similar rights in connection with FWB’s use of the NIL Materials.
iv. No Obligation. Notwithstanding FWB’s right to use NIL Materials at its discretion, FWB shall have no obligation to use any of Member’s NIL Materials.
g. Member Representations and Warranties. Member represents, warrants, and covenants that:
i. Member owns or controls all rights necessary to grant the rights set forth herein;
ii. Member’s NIL Materials do not and will not infringe, misappropriate, or violate any third-party rights or disparage any third-party;
iii. Member has obtained all necessary consents and permissions to grant FWB the rights provided herein; and
iv. Member will not revoke, challenge, or otherwise impair the rights granted to FWB under this Agreement.
h. Additional Terms Applicable. For the purposes of clarity, the Parties agree that the provisions of these FWB Member Terms (Exhibit A) shall prevail over the corresponding provisions of the Terms of Service in the event of a conflict between such terms. All remaining provisions of the Terms of Service shall remain in full force and effect.