By downloading/installing/using the Application, you, as end-user:
(a) acknowledge that you have read and understood all the terms and conditions herein set forth;
(b) guarantee that you are 18-years old or older; and
(c) accept and conform to all stipulations set forth herein and agree that you are legally bound thereby.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/INSTALL/USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
You, the End-User, agree to the following:
You are granted a limited, nonexclusive, and nontransferable license to:
1.1 download, install, and use the Application for your personal, noncommercial use on a single mobile device owned or otherwise controlled by you (the “Mobile Device” ) strictly in accordance with the Application’s documentation; and
You will not:
2.1 copy the Application, except as expressly permitted by this agreement;
2.2 modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
2.3 reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part of it;
2.4 remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy of it;
2.5 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
2.6 remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
You acknowledge that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this agreement, or any other rights to it other than to use the Application in accordance with the license granted, and subject to this Agreement. The Company / App Owner and its licensors and service providers will retain their entire interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights in it or relating to it, except as expressly granted to you in this agreement.
6.1 The Company / App Owner may on one or more occasions in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, the “ Updates” ). Updates may also modify or delete in their entirety certain features and functionality. You acknowledge that the Company is not required to provide any Updates or to continue to provide or enable any particular features or functionality.
6.2 Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either: (a) the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
6.3 You will promptly download and install all Updates and acknowledge that the Application or parts of it might not properly operate if you fail to do so. You acknowledge that all Updates will be considered part of the Application and be subject to this agreement.
The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (the “Third-Party Materials” ). You acknowledge that the Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of Third-Party Materials. The Company does not assume and will not have any liability or responsibility to you or any other individual or entity for any Third-Party Materials. Third-Party Materials and links to Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to those third parties’ terms and conditions.
8.1 The term of this agreement begins when download/install the Application and will continue in effect until terminated by you or the Company as set out in this section 8.
8.2 You may terminate this agreement by deleting the Application and all copies of it from your Mobile Device.
8.3 The Company may terminate this agreement at any time without notice if it stops to support the Application, which the Company may do in its sole discretion. In addition, this agreement will terminate immediately and automatically without any notice if you violate any part of this agreement.
8.4 On termination of this agreement, (a) all rights granted to you under this agreement will also terminate; and (b) you must stop all use of the Application and delete all copies of the Application from your Mobile Device and account.
8.5 Termination will not limit any of the Company’s / App Owner's rights or remedies at law or in equity.
9.1 The Application is provided to you “as is” and with all faults and defects without warranty. To the greatest extent permitted under applicable law, the Company, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. The Company is not making any warranty that the Application will meet your requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error-free, or that any errors or defects can or will be corrected.
9.2 Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all the above exclusions and limitations might not apply to you.
10.2 The limitations set out in section 10.1 will apply whether those damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether those damages were foreseeable or the Company was advised of the possibility of those damages. Some jurisdictions do not allow certain limitations of liability so some or all the above limitations of liability might not apply to you.
11.1 In General
You will pay the Company / App Owner for any loss of the Company’s that is caused by your (i) breach of this agreement; (ii) abuse, misuse, or unauthorized use of the Application; (iii) actual or alleged violation or infringement of third-party rights, including intellectual property rights; (iv) actual or alleged violation of law; or (v) actual or alleged tortious conduct. But you are not required to pay if the loss was caused by the Company’s actual intentional misconduct.
11.3 Company’s Duty to Notify
The Company / App Owner will notify you before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that you might be obligated to pay. The Company’s / App Owner's failure to give you timely notice does not terminate your obligation, except to the extent that the failure prejudices your ability to defend the claim or mitigate losses.
You and the Company will cooperate with each other in good faith on a claim.
11.5 No Exclusivity
The Company’s / App Owner's rights under this section 11 do not affect other rights that the Company might have.
12.1 Litigation Election
Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this section 12
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met its obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of, or relating to the subject matter of, this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice” ). A primary representative designated by each party will try to resolve the dispute.
If the parties’ primary representatives are unable to resolve the dispute no later than 30 days after receiving the dispute notice, either party may, by notice to the other party and the Hong Kong International Arbitration Centre (HKIAC), demand mediation under the HKIAC Mediation Rules. Mediation will take place in Hong Kong. The mediation proceedings will be conducted in English. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
12.5 Equitable Relief
You acknowledge that breach of threatened breach of any of your obligations in this agreement may result in irreparable harm to the Company that cannot be adequately relieved solely by money damages. The parties intend that after any breach or threatened breach, the Company may request from a court of competent jurisdiction any applicable equitable remedies, including injunctive relief, without proving actual damage or posting a bond or other security.
12.8 Jury Trial Waiver
Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
12.9 Class Action Waiver
The parties will conduct any proceedings to resolve a dispute in any forum on an individual basis only. Neither party will try to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
12.10 Limited Time to Bring Claims
A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
13.1 Entire Agreement
The parties may amend this agreement only by a written agreement of the parties that identities itself as an amendment to this agreement.
13.3 Assignment and Delegation
You will not assign any rights or delegate any performances under this agreement without the Company’s advance written consent. The Company may assign its rights or delegate its performances under this agreement without your written consent. Any purported assignment of rights or delegation of performance in breach of this section 13.3 is void.
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person
The parties intend as follows:
13.7 Governing Law
Hong Kong law—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
13.9 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
13.10 Relationship of the Parties
The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
13.11 Successors and Assigns
This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 13.11 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 13.3 addresses these matters.