APPLICATIONS AND/OR SOFTWARE (COLLECTIVELY, THE “APPLICATIONS”) OFFERED BY SKYVIEW TECHNOLOGY LIMITED AND ITS AFFILIATES
(“SKYVIEW”, “WE”, “US” OR “OUR”) . BY DOWNLOADING, USING, OR
ACCESSING OUR APPLICATIONS, AND/OR ANY DATA OR CONTENT THAT IS ACCESSED,
CONTAINED, OR UTILIZED IN OR BY THE APPLICATIONS IN ANY MANNER, YOU AGREE THAT
YOU HAVE READ AND CONSENT TO BE BOUND BY AND ARE A PARTY TO THE TERMS TO THE
EXCLUSION OF ALL OTHER TERMS. THE TERMS MAY BE
OTHER LEGAL NOTICES, WHICH ARE INCORPORATED HEREIN BY REFERENCE. IF THE TERMS ARE CONSIDERED AN OFFER,
ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO BE BOUND BY THE
TERMS, DO NOT USE THE APPLICATIONS, AND YOU MUST UNINSTALL THE APPLICATIONS
FROM ALL OF YOUR DEVICES IMMEDIATELY.
Table of Contents
1. ACCESS TO THE APPLICATIONS
- Access to the Applications
- Ownership of Intellectual Property
- In-Applications Currencies/Goods
- User Generated Content
- Posting on Other Websites
- Usage Rules
- Protection of Personal Information
- Disputes with Other Users
- Disclaimer of Warranties
- Limitation of Liability
- Fees and Payment
- Third Party Services and Websites
- Dispute Settlement
- Terms Required By Apple (If Applicable)
to your acceptance of and continuing compliance with the Terms, we
grant you a non-exclusive, non-transferable, non-assignable (without
right to sublicense) and revocable limited license to install and use
the Applications and related software solely in machine executable
object code form (excluding source code) for your personal,
non-commercial use, and not for the benefit of any third party, on your
personal computer or mobile device(s) of which you are the primary
user. We own and operate the Applications. You agree not to
use the Applications for any other purpose, or to copy, reproduce,
alter, modify or distribute the content of the Applications except as
specifically permitted herein. We reserve all rights not granted herein.
reserve the right, at our sole discretion, to add, change, modify or
remove portions of the Terms in any way and at any time. However, no
amendment to the Terms shall apply to a dispute of which we had actual
notice before the date of the amendment.
will notify you of any modifications to the Terms by posting them on
your Application distributor’s website. You agree that you will
periodically check your Application distributor’s website for updates
to the Terms. You agree that you will be considered to have been given
notice of any modifications once we post them on your Application
distributor’s website and that your continued use of the Applications
after such notice is posted shall be deemed your acceptance of the
Terms as modified.
at any point you do not agree to any portion of the then-current
codes of conduct in relation to your use of the Applications, your
license to use the Applications shall immediately be terminated and you
must immediately cease using the Applications.
reserve the right to suspend or discontinue the Applications or to
modify the Applications’ content in any way and at any time without
liability, with or without notice to you.
may also impose limitations on certain features and services or
restrict your access to portions or all of the Applications without
notice or liability.
||You also agree to be bound by any application, forum, or game specific rules published within the Applications.
use of the Applications is conditioned upon your compliance with the
Terms, and any use of the Applications in violation of the Terms will
be regarded as an infringement of our intellectual property rights in
and to the Applications. We reserve the right to terminate your
access to the Applications without notice if you violate any of the
represent and warrant that (i) you are an individual (not a
corporation) and are 13 years old or older; if you are between the ages
of 13 and 18, you represent that you have obtained the consent of your
parent or legal guardian and the Terms have been reviewed and agreed by
them; (ii) all registration information you submit is accurate and
truthful; and (iii) you will maintain the accuracy of such
information. You also certify that you are legally permitted to
use and access the Applications and are fully responsible for the
selection and use of and access to the Applications. The Terms
are void where prohibited by law, and the right to access the
Applications is revoked in such jurisdictions.
2. OWNERSHIP OF INTELLECTUAL PROPERTY
otherwise specified in writing, all materials that are part of the
Applications (including without limitation any animations, artwork,
audio-visual effects, catch phrases, character names, character profile
information, characters, computer code, concepts, dialogue,
documentation, game titles, games, graphics, illustrations, images,
methods of operation, moral rights, musical compositions, objects,
photographs, sounds, stories, text and themes) are owned, controlled or
licensed by us and are protected by law from unauthorised use. All
contents of the Applications are protected by international copyright
laws. “Aurum Apps” and all names and logos of Applications or games
published by us are trademarks owned by us and may not be used without
our express written consent. We reserve all rights, including
without limitation, all intellectual property rights or other
proprietary rights, in connection with the Applications. All
trademarks not owned by us that appear in the Applications are their
respective owners’ property, who may or may not be affiliated with,
connected to, or sponsored by us.
do not acquire any of our ownership rights by using the Applications,
downloading material from or uploading material to the Applications, or
by purchasing any virtual goods therein.
shall comply with all trademark rules, copyright notices, information
and restrictions contained in any content accessed through the
Applications. You agree not to broadcast, copy, create derivative
works based on, display, license, modify, participate in the transfer
or sale of, perform, publish, redistribute, reproduce, translate,
transmit, upload or otherwise exploit for any purposes whatsoever any
content or material from the Applications, except as expressly
permitted herein, without our express prior written consent.
3. IN-APPLICATIONS CURRENCIES/GOODS
||The Applications may include a virtual, in-application currency (“Virtual Currency”)
including, but not limited to cash, chips, coins or points, that may be
purchased from us for “real world” money if you are a legal adult in
your jurisdiction. The Applications may also include virtual,
in-application digital items (“Virtual Goods”)
that may be purchased from us for “real world” money or for Virtual
Currency. Our Virtual Currency has no monetary value and does not
constitute currency or property of any type. Regardless of the
terminology used, Virtual Currency and Virtual Goods may never be
redeemed for “real world” money, goods or other items of monetary value
from us or any other party. You acknowledge that your purchase of the
Virtual Currency or Virtual Goods is final and is not refundable,
exchangeable or transferable, in particular when we cease making the
Applications available, whether such action is taken at our sole
discretion or due to unforeseen events.
price to be paid by you is the price indicated on the applicable
website for the Applications or within the Applications. When you
purchase a license to use our Virtual Currency or Virtual Goods, or
purchase a subscription to use an Application, you agree to pay the
applicable taxes that we or our agent assesses on your purchase. If you
reside in Europe, the price includes any applicable VAT. We reserve the
right to amend the price and specifications shown in relation to any
Applications, any subscription, Virtual Currency and Virtual
Goods. Where applicable, we will also state the period for which
the relevant offer or price remains valid. If you decide not to
complete a purchase, you should, if enabled by your device’s operating
system, select “no” or close the window that requests your
confirmation. Otherwise, to the extent the operating system,
distributor and other factors permit, we may be able to provide you
with a credit against your future purchases; we do not offer any
returns or cancellations of purchases.
you wish to purchase a subscription and you later decide to cancel it,
you must contact your Application distributor (for example, Amazon and
Google) for its cancellation policies. Your cancellation may not become
effective for a certain period of time after your cancellation is
communicated to them (i.e. may not be effective until the end of the
then current subscription period) and is subject to the terms of
may only use the services of any billing and payment provider
identified on the applicable website or in the applicable Application
to pay for the Virtual Currency. Until the billing and payment
provider has authorized the use of your credit card or other applicable
method for payment, we will not supply any products or services to
you. You will be bound by such third party provider's terms and
conditions when using the billing and payment provider’s
services. You may be required to create an account with the
billing and payment provider, and to provide that provider with your
bank account or credit or debit card details. Costs, specifically data
charges and related tariffs, associated with accessing and using the
Applications depends on your internet service provider and/or wireless
carrier. Please refer to your provider's terms and conditions for
Currency may only be held by legal residents of countries where access
to and use of the Applications is permitted. A license to use Virtual
Currency in our Applications may be purchased or acquired only from us
through means we provide on the applicable website(s) or applicable
Applications or otherwise expressly authorize. We reserve the right to
limit, refuse or block your request(s) to purchase and/or acquire a
license to use Virtual Currency in our Applications for whatever reason.
than a limited, personal, revocable, non-transferable,
non-sublicensable license to use the Virtual Goods or Virtual Currency
in the Applications, you do not own and have no right or title in or to
any such Virtual Goods or Virtual Currency appearing in the
Applications, or any other attributes associated with the use of the
Applications or stored within the Applications. Any Virtual Currency
balance shown in your account does not constitute a “real world”
balance or reflect any stored value, but rather indicates the extent of
your limited license to use the Virtual Currency in the Applications.
have the absolute right to manage, regulate, control, modify and/or
eliminate such Virtual Currency and/or Virtual Goods as we see fit in
our sole discretion, and we are not liable to you or anyone for the
exercise of such rights. Prices and availability of Virtual Goods
are subject to change without notice to you and we are not liable to
you or any third party for the exercise of such rights.
purported transfers of Virtual Currency or Virtual Goods are strictly
prohibited except where explicitly authorised within the
Applications. You are not allowed to sublicense, trade, buy, sell
or attempt to sell or exchange any Virtual Currency or Virtual Goods
for “real world” money or otherwise exchange items for value outside of
the Applications. Any attempt to do so is prohibited and void, and is
in violation of the Terms and may result in the termination of your
license to use the Applications, a permanent ban from the Applications
and possible legal action against you.
agree that all sales of Virtual Goods and Virtual Currency are final.
No refunds will be given, except in our sole and absolute
discretion. If your account is terminated or suspended for any
reason or if we discontinue providing the Applications, all Virtual
Goods and Virtual Currency will be forfeited at our sole and absolute
4. USER GENERATED CONTENT
Applications may invite you to chat or participate in blogs, message
boards, online forums and other functionality and may provide you with
the opportunity to create, submit, post, display, transmit, perform,
publish, distribute or broadcast content and materials to us and/or to
or via the Applications, including, without limitation, comments, data,
graphics, images, personal information, photographs, sounds,
suggestions, text, writings or other material (collectively “User Content”).
Any material you transmit to us will be treated as non-confidential and
non-proprietary. We cannot guarantee that other users will not use the
ideas and information that you share. Therefore, if you have an
idea or information that you would like to keep confidential and/or do
not want others to use, do not post it on the Applications. We
shall not be responsible for evaluating, using or compensating you for
any ideas or information that you may choose to submit.
||If you submit suggestions, proposals, comments or other materials (collectively “Submissions”)
within the Applications you understand and agree that we (i) have no
obligation to keep your Submissions confidential; (ii) have no
obligation to return your Submissions or respond in any way; and (iii)
may use your Submissions for any purpose in any way without notice or
compensation to you. We are not responsible for a member’s misuse
or misappropriation of any content or information you post in any
forums, blogs and chat rooms.
are solely responsible for the information that you post on, through or
in connection with the Applications and that you provide to
others. You represent and warrant that your User Content is
wholly original to you and you exclusively own the rights to your User
Content, including the right to grant all of the rights and licenses in
the Terms without us incurring any third party obligations or liability
arising out of its exercise of the rights thereto granted herein by you.
submitting or transmitting any User Content while using the
Applications, you affirm, represent and warrant that such submission or
transmission is (i) accurate and not confidential; (ii) free of
viruses, adware, spyware, worms or other malicious code; and (iii) not
in violation of any applicable laws, contractual restrictions or other
third party rights, and that you have permission from any third party
whose personal information or intellectual property are in the User
grant to us the unrestricted, unconditional, unlimited, worldwide,
irrevocable, transferable, perpetual fully-paid up and royalty-free,
non-exclusive and unlimited right and license to adapt, archive,
broadcast, cache copy, commercialize, create derivative works of,
disclose, distribute, enter into computer memory, excerpt, fix, host,
improve, introduce into circulation, lease, manufacture, modify,
publicly display, publicly perform, publish, re-format, re-title, rent,
reproduce, resell, sell, store, sublicense, transfer, translate,
transmit, use, or otherwise exploit in any manner whatsoever, all or
any portion of your User Content to which you have contributed, for any
purpose whatsoever, in any and all formats, on or through any and all
media, software, formula or medium now known or hereafter known or
discovered, and with any technology or devices now known or hereafter
developed and to advertise, market and promote the same.
||To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.
license you grant us to use your User Content terminates when you
remove or delete your User Content or you close your account, unless
your User Content has been shared with others, and they have not
removed or deleted it. However, you understand and accept that
any removed or deleted content may remain in back-up copies for a
reasonable period of time.
have no obligation to monitor any User Content or enforce any
intellectual property rights that may be associated with your User
Content, but we are entitled to enforce such rights through any means
as we deem fit, including taking and controlling actions on your
behalf. We reserve the right to limit the storage capacity
of the User Content that you post on, through or in connection with the
have no obligation to accept, display, review, monitor or maintain any
User Content. If we choose at any time, in our sole discretion,
to monitor the Applications, we have the right, in our sole discretion,
to remove or delete User Content from the Applications without notice
to you for whatever reason at any time. By entering into the
Terms, you hereby provide your irrevocable consent to such monitoring
and recording. We may move, re-format, edit, alter, distort,
remove or refuse to exploit User Content without notice to you and
without liability; provided, however, that we reserve the right to
treat User Content as content stored at the direction of users for
which we will not exercise editorial control except to enforce the
rights of third parties and the Content Restrictions set forth in
Section 6 below when violations are brought to our attention.
acknowledge that you do not rely on us to monitor or edit the
Applications and that the Applications may have content which you find
offensive and you hereby waive any objections you might have with
respect to viewing such content.
also understand that we cannot guarantee (i) the identity of any other
users with whom you may interact in the course of using the
Applications; and (ii) the authenticity of any data which users may
provide about themselves. You acknowledge that all content
accessed by you using the Applications is at your own risk and you will
be solely responsible for any damage or loss to any party resulting
5. POSTING ON OTHER WEBSITES
to the Terms, we agree to grant you a limited, revocable,
non-exclusive, non-transferable license to post an image of your
personal avatar and/or screen shot from your account within the
Applications and any other materials that we specifically authorize in
writing may be posted, for non-commercial purposes only, on other
websites, on your own personal website or on a third party website that
permits posting of content at the direction of users, provided that
such third party website (i) is not our commercial competitor, (ii)
does not criticize, or take other actions that could reasonably
expected to result in harm to, us, (iii) does not obtain any rights to
such posted content other than a non-exclusive license to post it at
your direction, (iv) does not charge for access to such posted content
and does not associate products, services or advertising with such
posted content, and (v) together with all website to which it links,
complies with all applicable laws, and does not in any way abuse,
defame, stalk, threaten or violate the rights of privacy, publicity,
intellectual property or other rights of any kind of any third party
or, in any way, post, publish, distribute, disseminate or facilitate
any inappropriate, infringing, defamatory, profane, indecent, obscene,
illegal/unlawful or otherwise objectionable contents, information,
topic, name or other material (an “Authorised Website”).
All of our rights and remedies are expressly reserved, and we may
revoke this limited license, in whole or in part, upon notice.
limitation to the generality of Section 5.1, the following terms and
conditions apply to your posting of a copy of your avatar and/or screen
shots on an Authorised Website:
- you must display a prominent
link to the Application’s homepage in connection with any of your use
of the content or material permitted hereunder, including, without
limitation, in e-mails you are sending friends.
- you must display the statement “Copyright Skyview Technology Limited. All Rights Reserved. Used With Permission.” on every page on which the posting appears.
agree to include, and not remove or alter, our trademark, copyright,
intellectual property rights or other proprietary rights notices, as
provided by us on the Applications and within e-mail page(s), when
displaying an avatar or images from our Applications, and you agree to
comply with usage guidelines that may be provided by us from time to
time. You agree that all goodwill that arises in connection with your
use of our trademarks inures exclusively to us, and you agree not to
challenge our ownership or control of any of our trademarks, nor use or
adopt any trademarks that might be confusingly similar to such of our
6. USAGE RULES
a condition of your use of and access to the Applications, you agree to
comply with these Usage Rules, which are provided as an example rather
than as a limitation, and any application or game specific rules
published within the Applications. These Usage Rules are not
meant to be exhaustive, and it is at our sole discretion to determine
what conduct it considers to be a violation of the Terms or improper
use of the Applications and to take action up to and including
termination of your account and exclusion from further participation in
the Applications. We may also post additional rules that apply to
your conduct during your use of and access to the Applications.
use of the Applications in violation of these Usage Rules, as
determined by us in our sole discretion, is strictly prohibited, and
can result in the immediate revocation of your limited license granted
under Section 1, and you may be liable for violations of law. Any
attempt by you to disrupt or interfere with the Applications, including
undermining or manipulating the legitimate operation of any of the
Applications is a violation of our policy and may constitute a
violation of criminal and civil laws.
||You agree that your use of and conduct on the Applications shall be lawful and your User Content will not:
(collectively “Content Restrictions”).
- include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language.
any offensive comments that are connected to gender, national origin,
physical handicap race or sexual preference; hate speech is strictly
- promote violence or describe how to perform a violent act.
defame, disparage, embarrass, harass, intimidate, libel, mock,
ridicule, spam, threaten or do anything else to anyone that is unwanted.
the contractual, personal, intellectual property or other rights of any
party, or promote or constitute illegal activity.
- be in violation of the Terms or the Applications’ rules of conduct.
||You also agree that you will not, under any circumstances:
- use abusive, offensive, or defamatory screen names and/or personas.
in cheating or any other activity deemed by us to be in conflict with
the spirit or intent of the Applications, including but not limited to
circumventing or manipulating the Terms, our game rules, game mechanics
- make improper use of our support services or submit false reports of abuse or misconduct.
the Applications, intentionally or unintentionally, in connection with
any violation of the Terms or any applicable law, rule or regulation or
any other requirements or restrictions posted by us on the
Applications, or do anything that promotes the violation of the above.
Cheating and Hacking
encourage or take part in any activity involving hacking, cracking,
phishing, taking advantage of exploits or cheats and/or distribution of
counterfeit software and/or Virtual Goods or Virtual Currency.
to impersonate any other person, indicate falsely that you are our
employee or representative, or attempt to mislead users by indicating
that you represent us or any of our partners or affiliates.
defraud or mislead us or other users of the Applications, especially in
any attempt to learn sensitive account information such as passwords.
- create user accounts by automated means or under false pretences or mislead others as to the origins of your communications.
- use any game cheating/hacking/altering software or tools.
as may be the result of standard search engine or web browser usage,
use or launch, develop or distribute any automated system, including,
without limitation, any cheat utility, robot (or “bot”), spider,
scraper or offline reader that accesses the Applications, or use or
launch any unauthorised script or other software.
- block or obscure any notice, banner or advertisement on the Applications.
the source of your User Content or other information you submit to the
Applications or use tools which anonymise your internet protocol
address (e.g. anonymous proxy) to access the Applications.
overburden, or aid or assist in the disruption or overburdening of (i)
any computer or server used to offer or support the Applications or any
of our game environment (each a “Server”); or (ii) the enjoyment of the
Applications or any of our games by any other person.
- upload any software or content that you do not own or have permission to freely distribute.
the Applications or any part thereof including but not limited to
Virtual Goods or Virtual Currency, user accounts and access to them in
exchange for real currency or items of monetary value.
- post or transmit unsolicited advertising, promotional materials or other forms of solicitation in-application or in the forums.
in any commercial activities, including, without limitation, any
attempt to raise money for anyone or advertise or promote a product,
service, website, pyramid scheme or other multi-tiered marketing scheme.
messages for any purpose other than personal communication, or transmit
unauthorized communications through the Applications, including
advertising or promotional messaging, chain letters, pyramid schemes,
or other commercial activities.
Unauthorised Use or Connection to the Applications
disseminate or transmit (or attempt to upload, disseminate, or
transmit) adware, bombs, cancelbots, corrupted data, keyboard loggers,
time spyware, Trojan horses, viruses, worms or any other malicious or
invasive code or program or other material, including excessive use of
capital letters and spamming (continuous posting of repetitive text)
that interferes with any person’s uninterrupted use and enjoyment of
the Applications and User Content or alters, disrupts, impairs,
interferes with or modifies the use, features, functions, operation or
maintenance of the Applications or the User Content.
reverse assemble, reverse engineer, modify or attempt to discover any
software (source code or object code) that the Applications create to
generate web pages or any software or other products or processes
accessible through the Applications.
- disparage, tarnish, or otherwise harm, in our opinion, us and/or the Applications.
or attempt to interfere with the proper functioning of the Applications
or connect to or use the Applications in any way not expressly
permitted by the Terms.
to gain unauthorized access to the Applications, other party’s
registered accounts or to the computers, Servers, or networks connected
to the Applications by any means other than the user interface provided
by us, including but not limited to, by circumventing or modifying,
attempting to circumvent or modify, or encouraging or assisting any
other person to circumvent or modify, any security, technology, device,
or software that is part of the Applications.
with or circumvent any security feature of the Applications or any
feature that restricts or enforces limitations on use of or access to
the Applications or User Content.
any automated use of the system, or take any action that imposes or may
impose (in our sole discretion) an unreasonable or disproportionately
large load on our infrastructure.
any robot exclusion headers or other measures we employ to restrict
access to the Applications or use any software, technology, or device
to send content or messages, scrape, spider, or crawl the Applications,
or harvest or manipulate data.
any unauthorized third party software that accesses, intercepts,
“mines”, or otherwise collects information from or through the
Applications or that is in transit from or to the Applications,
including, without limitation, any software that reads areas of RAM or
streams of network traffic used by the Applications to store
information about our game characters, elements, or environment; we
may, at our sole and absolute discretion, allow the use of certain
third party user interfaces.
modify or distribute rights or content from any of our sites or games,
or our copyrights or trademarks or use any method to copy or distribute
the content of the Applications except as specifically allowed in the
facilitate, create, or maintain any unauthorized connection to the
Applications, including without limitation (i) any connection to any
unauthorized server that emulates, or attempts to emulate any part of
the Applications; or (ii) any connection using programs, tools, or
software not expressly approved by us.
examine or otherwise observe any proprietary communications protocol
used by a client, a Server, or the Applications, whether through the
use of a network analyzer, packet sniffer or other device.
Collection and Publication of Personal Information
or reveal through the Applications any personal information (whether in
text, image or video form) about another individual, including another
person’s address, phone number, e-mail address, credit card number,
financial information or any information that may be used to track,
contact or impersonate that individual.
- solicit or attempt to solicit personal information from other users of the Applications.
or transmit (or attempt to upload or to transmit) any material that
acts as a passive or active information collection or transmission
mechanism, including, without limitation, clear graphics interchange
formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar
devices (sometimes referred to as “spyware”, “passive collection
mechanisms” or “pcms”).
we do not control or endorse the content, messages or information found
in User Content portions of the Applications or external sites that may
be linked to or from the games or their forums, we specifically
disclaim any responsibility with regard thereto. However, we
reserve the right to access and/or record any online activity during
your use of and access to the Applications and you hereby consent to
our access and record of your activities. We also reserve the
right to remove any of the User Content at our sole discretion.
7. PROTECTION OF PERSONAL INFORMATION
information regarding our treatment of your personally identifiable
for Android users, which is incorporated herein by reference; your
acceptance of the Terms shall constitute your acceptance and agreement
8. DISPUTES WITH OTHER USERS
are solely responsible for your interaction with other users of the
Applications and other parties that you come in contact with through
the Applications. We hereby disclaim any and all liability to you
or any third party relating to your use of the Applications. We
reserve the right, but have no obligation, to monitor and/or manage
disputes between you and other users of the Applications. If you have a
dispute with other users or other parties, you agree to release us and
indemnify us from any claims, demands, and damages (actual and
consequential) of every kind and nature, known and unknown, arising out
of or in any way connected with such dispute.
9. DISCLAIMER OF WARRANTIES
HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. YOU
ACKNOWLEDGE THAT WE DO NOT HAVE CONTROL OVER OR DUTY TO TAKE ANY ACTION
REGARDING: WHICH USERS GAIN ACCESS TO THE APPLICATIONS; WHAT CONTENT
YOU ACCESS THROUGH THE APPLICATIONS; HOW YOU MAY INTERPRET, USE OR BE
AFFECTED BY THE APPLICATIONS OR THE CONTENT ACCESSED THEREIN; OR WHAT
ACTIONS YOU MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE
APPLICATIONS. YOU HEREBY RELEASE US FROM ALL LIABILITY FOR YOU
HAVING ACQUIRED OR NOT ACQUIRED ANY CONTENT THROUGH THE SOFTWARE.
THE APPLICATIONS MAY CONTAIN, OR DIRECT YOU TO WEBSITES CONTAINING,
INFORMATION THAT SOME PEOPLE MAY FIND OFFENSIVE OR INAPPROPRIATE.
WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT
CONTAINED IN OR ACCESSED THROUGH THE APPLICATIONS, AND WE WILL NOT BE
RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY
OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE
TO THE MAXIMUM EXTENT PERMITTED BY ANY APPLICABLE
LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE APPLICATIONS IS AT YOUR
SOLE RISK. THE APPLICATIONS ARE PROVIDED ON AN “AS IS” BASIS FOR
YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, QUALITY,
FUNCTIONALITY, AVAILABILITY OR PERFORMANCE OR IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. WE ARE
NOT LIABLE FOR INABILITY TO OBTAIN OR USE ANY CONTENT, ENTITLEMENTS,
GOODS OR SERVICES. WE PROVIDE THE APPLICATIONS ON A COMMERCIALLY
REASONABLE BASIS AND DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS
OR USE THE APPLICATIONS AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT
WE WILL HAVE ADEQUATE CAPACITY FOR THE APPLICATIONS AS A WHOLE OR IN
ANY SPECIFIC GEOGRAPHIC AREA. WITHOUT LIMITING THE FOREGOING,
NEITHER WE NOR OUR AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT
PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “OUR PARTIES”) WARRANT THAT THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE.
10. LIMITATION OF LIABILITY
THE MAXIMUM EXTENT PERMITTED BY ANY APPLICABLE LAW, YOU ACKNOWLEDGE AND
AGREE THAT THE DISCLAIMERS OF WARRANTIES CONTAINED HEREIN APPLY TO ANY
AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO THE
SUBJECT MATTER OF THE TERMS AND THE USE OF, OR INABILITY TO USE, THE
APPLICATIONS UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION,
INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY AND THAT
OUR PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS,
GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR
INABILITY TO USE, THE APPLICATIONS.
YOU FURTHER SPECIFICALLY
ACKNOWLEDGE THAT OUR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK
TO HOLD OUR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING
OTHER USERS OF THE APPLICATIONS AND OPERATORS OF EXTERNAL WEBSITES, AND
THAT THE RISK OF THE APPLICATIONS AND EXTERNAL WEBSITES AND OF INJURY
FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE MAXIMUM
EXTENT PERMITTED BY ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL OUR
PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID US IN
THE NINETY DAYS (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU
FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF
YOU HAVE NOT PAID US ANY AMOUNTS IN SUCH PERIOD, YOUR SOLE AND
EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE
APPLICATIONS AND TO CANCEL YOUR ACCOUNT.
WHILE WE USE
COMMERCIALLY REASONABLE MEANS TO PROTECT YOUR PERSONAL INFORMATION, WE
ASSUME NO LIABILITY FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE
GOOD OR SERVICES, DAMAGE CAUSED TO YOUR SOFTWARE OR HARDWARE, ANY OTHER
LOSS OR DAMAGE SUFFERED BY YOU OR ANY THIRD PARTY, AND ANY MATTER
BEYOND OUR REASONABLE CONTROL (INCLUDING WITHOUT LIMITATION ANY DAMAGE
YOU MAY SUFFER BY USING THE APPLICATIONS WHILE OPERATING A MOTOR
VEHICLE, IN VIOLATION OF THE TERMS, ACTS OF GOD, WAR, TERRORISM, RIOTS,
EMBARGOES, ACTS OF CIVIL OR MILITARY AUTHORITIES, FIRE, FLOODS,
ACCIDENTS, NETWORK INFRASTRUCTURE FAILURES, STRIKES, OR SHORTAGES OF
TRANSPORTATION FACILITIES, FUEL, ENERGY, LABOR OR MATERIALS), WHETHER
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL AND HOWEVER
ARISING, AS A RESULT OF ACCESSING OR USING THE APPLICATIONS, CONTENT,
SOFTWARE TO YOUR COMPUTER AND/OR DEVICE.
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, OUR
PARTIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY
APPICABLE LAW IN SUCH JURISDICTIONS. IN PARTICULAR, NOTHING IN
THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR
EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING
FROM ANY OUR NEGLIGENCE OR FRAUD. WE ALSO DO NOT ENDORSE, WARRANT
OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH US AND
WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY
TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR
our request, you agree to defend, indemnify and hold Our Parties, their
licensors, contractors, vendors, and content providers harmless
(including, without limitation, all damages, liabilities, settlements
and expenses, including attorneys' fees and costs) from any claim or
demand made by any third party arising out of your use or misuse of the
Applications, your violation of any term, condition, obligation,
representation or warranty in the Terms for which you are responsible,
in connection with your distribution of any User Content on or through
the Applications, or your infringement of any intellectual property or
other rights of any person or entity. Without limiting the generality
of the foregoing, you agree to indemnify and hold Our Parties harmless
for any improper or illegal use of your account, including the illegal
or improper use of your account by someone to whom you have given
permission to use. You agree that you will be personally responsible
for your use of the Applications and for all of your communication and
activity on or through the Applications, including any User Content you
contribute, and that you will indemnify and hold harmless Our Parties
from any liability or damages arising from your conduct on the
Applications, including any User Content that you contribute.
reserve the right, at your expense, to assume the exclusive defense and
control of any matter for which you are required to indemnify us and
you agree to cooperate with our defense of these claims. We will use
reasonable efforts to notify you of any such claim, action, or
proceeding upon becoming aware of it. You acknowledge and agree that
the provisions in this Section shall survive any termination of your
account(s), the Applications or the Terms.
12. FEES AND PAYMENT
applicable fees, as described on the Applications, in relation to the
Applications selected by you, shall be paid by you. Upon providing
notice to you (which may be through email or posting on the
Applications), we reserve our rights to adjust our price list for the
Applications and to charge new fees at any time. Your use of the
Applications after such notification deemed your acceptance of such new
or increased charges. Some of our Applications are free to our users,
and we reserve our rights to require payment of fees for certain or all
parts of such Applications.
13. THIRD PARTY SERVICES AND WEBSITES
Applications may contain links to third party services or websites that
we do not own or control. When you access third party services or
websites, you do so at your own risk. We have no control over, and are
not responsible for, the content, accuracy, privacy policies, or
practices of or opinions expressed in any such third party services or
websites, and we will not and cannot monitor, verify, censor or edit
the content of any third party services or websites. You hereby
represent and warrant that, in addition to your obligations under the
Terms, you have read and agreed to be bound by all applicable
agreements and/or policies of any third party services or websites
relating to your use of the Applications and that you will act in
accordance with them.
using and accessing to the Applications, you expressly release us and
hold us harmless from any and all liability arising from your use of
any third party services or websites. You are solely responsible for
your dealings with organizations and/or individuals found on or through
the Applications, including delivery and payments of goods or
Applications, and any other terms, conditions, warranties or
representations associated with such dealings. You hereby acknowledge
that we shall not be responsible or liable for any loss or damage
incurred as a result of any such dealings, and we have no obligation to
be involved in any disputes between you and such third party. You
further acknowledge that if you have a dispute with other users, you
shall release us, our officers, directors, employees, agents, and
successors in rights from damages (actual and consequential), claims
and demands of every kind or nature, known or unknown, suspected or
unsuspected, disclosed or undisclosed, arising out of or in any way
related to such disputes and/or our service. If you are a resident of
the State of California, U.S.A., you shall and hereby do waive your
rights in California Civil Code Section 1542, which provides that: “A
general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing
the release, which if known by him must have materially affected his or
her settlement with the debtor.”
Terms shall remain effective while the Applications are being used by
you. Your use of the Applications may be terminated at any time by
uninstalling them from your computer and/or device. We may terminate or
suspend your use or access to any and all Applications immediately,
without prior notice or liability, (i) if you breach any of the terms
or conditions of the Terms; or (ii) for whatever reason or for no
reason, which may result in the forfeiture and destruction of all
information associated with your use of the Applications. Any fees
already paid by you hereunder are non-refundable. Upon termination of
your account, you no long have the right to use or access to the
Applications. Any and all provisions or obligations contained in the
Terms which by their nature or effect are required or intended to be
observed or performed after termination of the Terms will survive its
expiration or termination and remain binding upon and for the benefit
of the parties, their successors and permitted assigns.
15. DISPUTE SETTLEMENT
a dispute arises between you and us, we shall provide you with a
neutral and cost effective means of resolving the dispute quickly.
Therefore, both we and you agree that we will resolve any dispute,
claim or controversy at law or equity that arises out of the Terms or
the Applications (a “Dispute”) in accordance with this Section or as we and you otherwise agree in writing.
Terms and all aspects of the Applications shall be governed by and
construed in accordance with the laws of Hong Kong (excluding
principles relating to the conflict of laws) regardless of your
location. With respect to any Disputes not subject to informal dispute
resolution or arbitration (as set out below), you agree not to commence
or prosecute any action in connection therewith other than in the
courts in Hong Kong, and you hereby consent to, and waive all defences
of lack of personal jurisdiction and forum non conveniens with respect
to, venue and jurisdiction in the Hong Kong courts.
acknowledge that the rights granted and obligations made hereunder to
us are of a unique and irreplaceable nature, the loss of which will
cause us irreparable harm and which cannot be readily remedied in
monetary damages in an action at law. Accordingly, any breach or
anticipatory breach by you shall entitle us, in addition to any claim
or award for damages, injunctive relief and other equitable remedies
(without the obligations of posting any bond or surety or proof of
damages), costs, and reasonable attorney’s fees. You irrevocably waive
all rights to seek injunctive or other equitable relief and agree to
limit your claims to claims for monetary damages (if any).
expedite resolution and control the cost of any Dispute, we and you
agree to first attempt to negotiate any Dispute (except those Disputes
expressly provided in Section 15.6) informally for at least thirty (30)
calendar days before initiating any arbitration or court proceeding.
Such informal negotiations commence upon written notice from one party
to the other. You will send your notice to Skyview Technology Limited,
Unit 903 9th Floor, Yue Xiu Building, 160-174 Lockhart Road, Wanchai,
Attention: Legal Counsel.
we and you are unable to resolve a Dispute through informal
negotiations, either party may elect to have the Dispute (except those
Disputes expressly excluded in Section 15.6) finally and exclusively
resolved by binding arbitration under the UNCITRAL Arbitration Rules,
which Rules are deemed to be incorporated by reference into this
Section. Any election to arbitrate by one party shall be final and
binding on the other. The place of arbitration shall be in Hong Kong at
the Hong Kong International Arbitration Centre. The number of
arbitrators shall be one. The language to be used in the arbitral
proceedings shall be English. We and you shall be bound by the award
rendered by the arbitrator and judgment thereon may be entered in any
court of competent jurisdiction. Any award rendered by the arbitrator
shall be final, and neither we nor you shall have any right of appeal.
and you agree that the following Disputes are not subject to the above
provisions concerning informal negotiations and arbitration:
- any Disputes seeking to enforce or protect, or concerning the validity of, any of our or your intellectual property rights;
- any Disputes relating to, or arising from, allegations of invasion of privacy, piracy, theft or unauthorised use; and
- any claim for injunctive relief.
16. TERMS REQUIRED BY APPLE (IF APPLICABLE)
||If you obtained the Applications through Apple Inc.’s App Store (“Apple”), you shall comply with the following provisions.
||Both we and you acknowledge that:
Terms are concluded between you and us only (and not with Apple), and
that Apple is not responsible for the Applications or any part thereof;
and Apple’s subsidiaries are third party beneficiaries of the Terms,
and that when you accept the Terms, Apple shall be entitled (and will
be deemed to have accepted the right) to enforce the Terms against you
as the third party beneficiary hereof; and
- you will
may affect or be affected by your using of the Applications.
You acknowledge and agree that:
we, and not Apple, shall address any claims you or any third party may have on the Applications;
Apple is not responsible for any Applications’ maintenance or support services;
you will only use the Applications on an Apple device that you own or control; and
there is any third party claim that the Applications or your possession
and use of the Applications infringes their intellectual property
rights, we, and not Apple, will be responsible for the investigation,
defense, settlement and discharge of any such claim.
should inform Apple if any of the Applications fails to conform to any
applicable warranty, including those implied by law; upon notification
to Apple, Apple’s only warranty obligation to you is to refund to you
the purchase price of the Applications, if any.
you use the Applications to provide you with real-time route guidance,
you are using this real time route guidance application at your sole
risk and you acknowledge that location data may not be accurate.
represent and warrant that you are not located in a jurisdiction or
country subject to a U.S. Government embargo, or that has been
designated by the U.S. Government as a “terrorist supporting” nation,
and that you are not listed on any U.S. Government list of prohibited
or restricted parties.
operate and control the Applications from our offices in Hong Kong. We
make no representation that the Applications are appropriate or
available in other locations. The information provided through the
Applications is not intended for distribution to or use by any person
or entity in any jurisdiction or country where such distribution or use
would be prohibited by law or regulation or which would subject us to
any registration requirement within such jurisdiction or country.
Accordingly, those persons who choose to access the Applications from
other locations do so on their own initiative and are solely
responsible for compliance with local laws, if and to the extent local
laws are applicable.
Terms are effective until terminated by either party. You may terminate
the Terms by destroying all Applications-related materials obtained
from the Applications, us or any other website or source. The rights
granted to you under the Terms will terminate immediately and
automatically without notice from us if, in our sole discretion, you
fail to comply with any term or provision of the Terms.
failure on our part to exercise or to enforce any right given under the
Terms or at law or any of our custom or practice at variance with the
terms of the Terms will constitute a waiver of our rights under the
Terms or operate so as to prevent the exercise or enforcement of any
such right at any time. No right, power or remedy in the Terms
conferred upon or reserved for us is exclusive of any other right,
power or remedy available to us.
any provision of the Terms is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, in whole or in part, the
remaining provisions will nevertheless continue in full force and
effect without being impaired or invalidated in any way.
in part, to any person or entity at any time with or without your
consent. You may not assign or delegate any rights or obligations under
of your unauthorized assignment and delegation is void and ineffective.
may publish additional policies related to specific services such as
applications for mobile devices, forums, contests or loyalty programs.
Your right to use such services is subject to those specific policies
and the Terms.
use of the Applications includes the ability to enter into agreements
and/or to make transactions electronically. You acknowledge that your
electronic submissions constitute your agreement and intent to be bound
by and to pay for such agreements and transactions. Your agreement and
intent to be bound by electronic submissions applies to all records
relating to all transactions you enter into in or through the
we provide you with a translation of the English language version of
then you agree that the translation is provided for informational
purposes only and does not modify the English language version of Our
Policies. In the event of a conflict between a translation of Our
Policies and the English version, the English version of Our Policies
Terms, any supplemental policies and any documents expressly
incorporated by reference herein, contain the entire understanding
between you and us, and supersede all prior understandings of the
parties hereto relating to the subject matter hereof, whether
electronic, oral or written, or whether established by custom,
practice, policy or precedent, between you and us with respect to the
Applications, and cannot be changed or modified by you except as we
posted on the relevant website.
||The section headings used herein are for reference only and shall not be read to have any legal effect.
our request, you will furnish us with any documentation, substantiation
or releases necessary to verify your compliance with the Terms.