Terms of Service and Subscription Agreement
These Terms of Service (this “Agreement”) are entered into by and between FMP World, a California corporation (“FMP” or “we”) and you (“you” or “your”). You and FMP may also be referred to individually as a “Party” and, collectively, as the “Parties.”
IT IS ESSENTIAL THAT YOU READ THESE TERMS OF SERVICE AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.
THIS IS A LEGAL AGREEMENT. IF YOU ARE UNCERTAIN AS TO WHAT ANYTHING IN THIS AGREEMENT MEANS, PLEASE ASK AN ATTORNEY OR SOMEONE YOU TRUST AND DO NOT PUT YOURSELF IN DANGER BY DOING SO. YOUR USE OF THIS SITE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
FMP has developed, owns and operates the platform known as “findmyparent.org” and such other related online websites and applications as FMP may create and with which it may partner (collectively, the “Site”).
The Site provides tools with which parents or children (each, a ”User” and, collectively, the “Users”) who have been separated by adoption, disaster, kidnapping, theft or other means can find one another (collectively, the“Services”).
The Services provided to you shall be included in any reference to your use of the Site.
Therefore, the Parties agree as follows:
- Agreement to be Bound
You agree to be bound by this Agreement by your use of the Site. If you do not agree with or do not wish to be bound by any provision hereof, cease using this Site immediately.
In addition to the definitions provided throughout the Agreement, the following terms have the following meanings when used herein:
- “Documentation” means any websites, manuals, videos, documentation, emails and other supporting materials related to the Site that FMP provides to you or that you can access under this Agreement. Documentation is considered part of the Site.
- “Information” means the contents of your profile and any search criteria you may choose.
- “Subscription” means the result of purchasing a Subscription Plan.
- “Subscription Fee” means the amount paid for a Subscription Plan.
- “Subscription Plan” means a package of Services described on the Site.
- “Subscription Term” means the period from the commencement of a Subscription Plan to its termination.
- The Services.
You can register with the Site, create your profile and search for profiles of parents and children that match the search criteria requested. Profiles and criteria can, at your sole discretion, include information relating to names, addresses, birth dates or ranges, physical characteristics, family and relationships, photographs and other personal information only a parent or child may know.
FMP utilizes state-of-the-art encrypted security measures (including but not limited to username and password protections).
WE NEVER DISCLOSE YOUR INFORMATION TO ANY OTHER PERSON, PUBLICLY OR PRIVATELY, EXCEPT PURSUANT TO A COURT ORDER OR APPROPRIATE LAW ENFORCEMENT.
YOUR ENCRYPTED INFORMATION IS USED BY OUR SITE ONLY TO FIND SOMEONE WHO IS CONSISTENT WITH THE CRITERIA YOU GIVE US AND YOUR INFORMATION IS NOT AVAILABLE TO US OR ANY EMPLOYEE OF OURS.
We will provide you with information as to the degree or percentage by which your Information and criteria and the other person’s Information and criteria match. Based on that information, should you and the other person both desire to communicate, all communications will be through the Site. You do not have to give out your address, telephone or email until YOU ARE COMFORTABLE.
At such time as both you and the person with whom you are communicating request, we will request from the non-minor such identity verification that we may use to verify that person’s identity.
If, at any point, you choose to terminate communication with the other person, we can block that person. On the other hand, if you decide to communicate with someone outside the Site, we shall have no responsibility for anything that may happen.
There is no cost for you, whether you are a parent or a child, to register or create a profile.
While there is no cost for a child to look for a parent, we still must pay the bills, so a search for children by parents will require a subscription.
A Subscription Plan will require a valid credit card on which we will charge the Subscription Fee on a recurring basis in accordance with the Subscription Plan chosen by you. Charges will be made commencing on the date you purchase the Subscription Plan and will automatically renew at the end of the term of the Subscription Plan you chose
You may upgrade or terminate a Subscription Plan at any time. If you terminate a Subscription Plan other than at the end of its term, there will be no credits or offsets for the portion of the then-current Subscription Term (see below) after you downgrade.
Client Paid Subscriptions – Termination.
Subscription Plans do not expire and will continue to renew until it is terminated, as provided herein. Upon renewal, the method of payment provided by you shall be charged the Subscription Fee as specified for the Subscription Plan you selected.
FMP reserves the right to change its prices for the Subscription Plans at any time PROVIDED no increases in prices will be effective for any Subscription Plan that has already commenced.
Any Subscription Plan and/or this Agreement may be terminated by either you or FMP at any time, for any or no reason, effective immediately .
Upon the effective date of termination of a Subscription Plan and in the absence of termination of this Agreement,
- the Subscription Term shall end;
- you will continue to be able to access your Information for One (1) year from the date of termination; and
- you shall not be billed for any recurring Subscription Fees.
In the event of a termination other than on the renewal date of a Subscription Plan, there shall be no refunds, discounts or credits for amounts paid with respect to any portion of the Subscription Term remaining after the effective date of termination. In addition to the foregoing, in the case of a termination of a Subscription Plan or this Agreement by FMP due to a breach by you of this Agreement, FMP reserves the right to claim additional damages as FMP determines to be appropriate and warranted.
- Your Use of the Site.
Your Responsibilities. You will (a) be responsible for your compliance with this Agreement, (b) use reasonable efforts to prevent unauthorized access to or use of the Site and notify FMP promptly of any such unauthorized access or use, and (c) use the Site only in accordance with the Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions (as provided in more detail below). You are solely and exclusively responsible for the security of the usernames and passwords issued to you. FMP shall be entitled to rely on the authority of any person using the username and password in providing information to and taking all actions that the authorized user would be entitled to take or direct.
Restrictions. You will not (a) make the Site available to, or use the Site for the benefit of, anyone other than yourself, (b) sell, resell, license, sublicense, distribute, rent, or lease the Site, or include the Site in a service bureau or outsourcing offering, (c) use the Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Site to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Site or any third-party data contained therein, (f) attempt to gain unauthorized access to the Site or any related systems or networks, (g) permit direct or indirect access to or use of the Site in a way that circumvents a contractual usage limit, (h) copy the Site or any part, feature, function, or user interface thereof, (i) frame or mirror any part of the Site, other than as permitted in the Documentation, (j) access the Site in order to build a competitive product or service, or (k) reverse engineer, disassemble or decompile the Site.
Ownership of Information.
- You will have sole and exclusive ownership of, responsibility for and access to all Information received by us and transmitted to you.
- Customer service does not have access to your Information. Consequently, customer service can assist you with the use of the Site, but not with the specifics of any Information. The only information customer service has access to is credit card information for billing purposes and to confirm your account.
- FMP will not read, access or change the Information unless ordered by a court of competent jurisdiction to produce the Information. If such disclosure is ordered, we will use reasonable effort to notify you of such order to enable you to, should you so choose, oppose such order or attempt to obtain a protective order as to some or all of the Information particularly in light of the fact that some of your Information may be that of minors.
- Your Representations and Warranties
You represent and warrant the following:
For the purposes of this Agreement, “Confidential Information” means any business or technical information that either Party discloses to the other Party, in writing, orally or by any other means, that should reasonably have been understood by the receiving Party due to “confidential” and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other Party, including, without limitation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. Neither Party will use the other Party’s Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other Party’s Confidential Information using at least the same degree of care as such Party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to such Party’s employees, independent contractors, consultants and legal and financial advisors (collectively,“Representatives”) (a) with a need to know such information, (b) who are parties to appropriate agreements sufficient to comply with this Section and (c) who are informed of the nondisclosure obligations imposed by this Section. Each Party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable them to contest such order or requirement. The restrictions set forth in this Section shall remain in effect during the Subscription Term, and for five (5) years thereafter. The restrictions set forth in this Section will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party who has a right to disclose it; (iii) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; or (iv) the receiving Party independently develops without access to or use of the other Party’s Confidential Information.
Your Confidential Information expressly includes the Information. We follow generally accepted best practices to safeguard the Information. We conduct background checks on and have confidentiality agreements with all personnel who have or may have access to the Information, including but not limited to those in technical support. NOTWITHSTANDING THE FOREGOING, THE INFORMATION YOU PROVIDE IS NOT AVAILABLE TO US OR ANY OF OUR PERSONNEL AND WILL NOT BE DISCLOSED PUBLICLY OR PRIVATELY UNLESS WE ARE ORDERED TO DO SO BY A COURT OF LAW OR APPROPRIATE LAW ENFORCEMENT.
FMP shall implement and maintain appropriate measures in accordance with generally accepted industry standards to (i) protect against any anticipated threats or hazards to the security or integrity of the Information; and (ii) protect against unauthorized access to the Information.
In addition to FMP’s Confidential Information, FMP owns all rights, title and interest in and to the FMP software and Site, as well as any trademarks, copyrights, trade secrets and inventions, whether or not any of the foregoing are registered, and any ideas, suggestions, proposals, research or test results obtained through, from or as a result of your use of the Site and/or feedback provided by you regarding the Site (collectively,“FMP Assets”). Your rights to the Site are limited to the rights expressly granted to you in this Agreement. FMP reserves all rights not expressly granted in this Agreement. You agree that you shall not attempt to claim, register or protect any interest in or to the FMP Assets.
FMP’s Indemnification Obligation. FMP will defend or settle, at its option and expense, any third-party claim brought against you to the extent that it is based on an allegation that your use of the Site as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third-party (each, a “Claim”), and, subject to Section 13, FMP will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify FMP in writing of any such Claim as soon as reasonably practicable and allows FMP to control, and reasonably cooperates with FMP in the defense of, any such Claim and related settlement negotiations.
Exclusions. You understand that FMP has no obligation to indemnify you for any Claim that is based on (i) modification of the Site by any party other than FMP; (ii) your use of the Site other than as authorized by this Agreement and the Documentation or in violation of your representations and warranties; (iii) use of the Site by any person other than you who accesses the Site using your username and password; or (iv) your failure to stop using the Site after receiving written notice to do so from FMP in order to avoid further infringement or misappropriation (subparts (i)-(iv) are referred to collectively as “Indemnity Exclusions”).
Right to Ameliorate Damages. If your use of the Site is, or in FMP’s reasonable opinion is likely to be, subject to a Claim under Section 9.1, FMP may, at its sole option and at no charge to you (and in addition to FMP’s indemnity obligation to you in Section 9.1) (i) procure for you the right to continue using the Site; (ii) replace or modify the Site so that it is non-infringing and substantially equivalent in function to the original Site; or (iii) if options (i) and (ii) above are not commercially practicable in FMP’s sole determination, FMP can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Site) and refund the Subscription Fees that you paid which are allocable to the remainder of the then-current Subscription Term.
Your Indemnification Obligation. Except to the extent that FMP is obliged to indemnify you in Section 9.1 above, you will defend, indemnify, and hold FMP harmless from and against any claims that may arise out of or be related to or connected with your use of the Site (including but not limited to collection, transmission and processing of the Information) or use of the Site by any person other than you who accesses the Site using your username and password (including, without limitation, any Indemnity Exclusion). For purposes of this section, any reference to FMP shall include FMP’s Affiliates, shareholders, directors, officers, employees, agents and contractors.
Sole Remedy. This Section sets forth FMP’s sole and exclusive obligations, and your sole and exclusive remedies, with respect to claims of infringement or misappropriation of third-party intellectual property rights.
FMP PROVIDES THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, FMP DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
FMP DOES NOT VERIFY ANY INFORMATION PROVIDED BY USERS OF THE SITE AND,DOES NOT WARRANT OR GUARANTEE THE TRUTH OF ANY INFORMATION OR THE IDNEITY OF ANY USER.
You expressly and unconditionally waive any and all claims against FMP, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions, and regardless of the source or the cause of the issue including but not limited to failures of third-party sites or applications with which the Site interacts:
- any communication, meeting or encounter between you and any other person you meet through the Site, including but not limited to any cause related to incorrect or false identity (unintentional or otherwise), physical or emotional injury, or damages of any kind;
- any unauthorized person uses your username and/or password to access the Site with any result, including but not limited to posting or signing Information or making changes in authorizations;
- the Site is partially or totally inoperative or inaccessible;
- use of the Site;
- viruses or other malicious software are transferred to your computer or other device by using the Site;
- there are bugs, errors or inaccuracies in the Site, Information or the results produced by the Site;
- third-party content, actions or inactions on or with respect to the Site;
- a suspension or other action taken with respect to your account by FMP; or
- deletion, corruption or destruction of any of the Information.
No waiver by FMP of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by FMP in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
For purposes of this section, any reference to FMP shall include FMP’s Affiliates, shareholders, directors, officers, employees, agents and contractors.
- Limitation of Liability.
To the extent permitted by law, in no event shall FMP have any liability to you for any indirect, special, incidental, punitive, or consequential damages (including for loss of profit, revenue, or data) arising out of or in connection with the Site or this Agreement, however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, indemnification or other tort theory of liability) even if advised of the possibility of such damages. To the extent permitted by applicable law, FMP’s total cumulative liability to you or any third-party arising out of or in connection with the Site or this Agreement, from all causes of action and all theories of liability, will be limited to and will not exceed the greater of the Subscription Fees paid by you during the Twelve (12) months immediately preceding the claim or One Hundred Dollars ($100.00). The Parties agree that this Section represents a reasonable allocation of risk.
- Governing Law and Venue.
This Agreement will be governed by and interpreted in accordance with the laws of the State of California, USA, without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California, USA, and the Parties irrevocably consent to personal jurisdiction and venue therein. If any Party incurs costs or expenses including but not limited to reasonable attorneys’ fees in connection with an action relating to the terms of and performance under this Agreement, the prevailing Party in such an action shall be entitled to recover its costs and reasonable attorneys’ fees incurred.
You agree that you may bring a claim against FMP only in your capacity as an individual User, not as the member of or participant in any group or class.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL AT ITS ADDRESS LISTED HEREIN.
Independent Contractors. FMP is and will be deemed to be an independent contractor with respect to you in regard to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between FMP and you.
Assignment.You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. FMP may assign this Agreement, in part or whole, inclusive of the Information and personal account information, without your consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Amendment. FMP may amend this Agreement at any time, in its sole and absolute discretion; provided any changes in this Agreement shall be applicable only to Projects created after the effective date of such change. You will be notified of such change(s) by email. Your continued use of the Site after the effective date of any such modification shall be conclusive evidence of your consent to be bound by such modification.
Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, governmental orders (including but not limited to quarantines and business closures) and power failures.
Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid addressed as follows, or to such other address as such Party may notify to the other Party in writing:
- To FMP: 740 Jarvis Drive
- Morgan Hill, California 95037
- To you: As provided by you at the time of registration and as may be amended by you from time to time.
- Notices, demands or requests which either Party is required or desires to give the other hereunder shall be deemed to have been properly given for all purposes if (A) hand-delivered to the Party’s notice address, (B) mailed by express, registered or certified mail of the United States Postal Service, return receipt requested, postage prepaid, or (C) delivered to a nationally recognized overnight courier service for next business day delivery, to its addressee at such Party’s notice address. Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if hand-delivered in accordance with clause (A) above, or (ii) three (3) business days after deposit thereof at any main or branch United States post office, if sent in accordance with clause (B) above, or the next business day after deposit thereof with the courier, if sent pursuant to clause or (C) above. The parties shall notify the other of any change in address, which notification must be at least two (2) business days in advance of it being effective. Notices may be given on behalf of any Party by such Party’s legal counsel. For a notice to be valid, an email copy shall accompany each of the foregoing modes of noticing a Party. An email notice, by itself, shall suffice as notice at such time as the sender receives a receipt acknowledgment or the recipient replies, directly or indirectly, to such notice.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
Section Headings.Section headings are included for ease of reference only and have no binding effect.
Interpretation. You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any Party as the drafter. This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
Headings The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
Blocked Persons. Each Party represents and warrants to the other that it is not a person or entity listed on Appendix A to Title 31, Chapter V of the Code of Federal Regulations (aka“Suspected Terrorist List”) (a “Blocked Person”). Each Party acknowledges that the reason for such certificate is that Executive Order 13224 and the regulations promulgated pursuant thereto provide that any transfer of property or interest in property with a Blocked Person is null and void and the Party entering such transaction with a Blocked Person could be subject to monetary penalties or imprisonment in accordance with 31 CFR 594.701.
Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement.
Survival. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 2, 4.3 and 6-14.