APPLICATIONS AND/OR SOFTWARE (COLLECTIVELY, THE “SERVICES”) OFFERED BY ACTIV8 LIMITED AND ITS AFFILIATES
(“ACTIV8”, “WE”, “US” OR “OUR”) . BY DOWNLOADING, USING, OR
ACCESSING OUR SERVICES, AND/OR ANY DATA OR CONTENT THAT IS ACCESSED,
CONTAINED, OR UTILIZED IN OR BY THE SERVICES IN ANY MANNER, YOU ACKNOWLEDGE 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 SERVICES, AND YOU MUST UNINSTALL THE SERVICES
FROM ALL OF YOUR DEVICES IMMEDIATELY.1. THE SERVICES
||Subject to your acceptance of and continuing compliance with the
Terms, we grant you a non-exclusive, non-assignable (without right to
sublicense), non-transferable, and revocable limited license to install and use
the Services 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 Services. You agree not
to use the Services for any other purpose, or to copy, reproduce, alter, modify
or distribute the content of the Services except as specifically permitted
herein. We reserve all rights not granted herein.
reserve the right to suspend or discontinue the Services or to modify
the Services’ content in any way and at any time without liability,
with or without notice to you. We may also impose limitations on
certain features and services or restrict your access to portions or
all of the Services without notice or liability. You also agree to be
bound by any application, forum, or game specific rules published
within the Services.
use of the Services is conditioned upon your compliance with the Terms,
and any use of the Services in violation of the Terms will be regarded
as an infringement of our intellectual property rights in and to the
Services. We reserve the right to terminate your access to the Services
without notice if you violate any of the Terms.
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 Services after
such notice is posted shall be deemed your acceptance of the Terms as
at any point you do not agree to any portion of the then-current
codes of conduct in relation to your use of the Services, your license
to use the Services shall immediately be terminated and you must
immediately cease using the Services.
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
Services and are fully responsible for the selection and use of and
access to the Services. The Terms are void where prohibited by law, and
the right to access the Services is revoked in such jurisdictions.
2. OWNERSHIP OF INTELLECTUAL PROPERTY
otherwise specified in writing, all materials that are part of the
Services (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 Services are protected by international copyright laws.
“Basalt Games” and all names and logos of Services 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 Services. All trademarks not owned by us
that appear in the Services are their respective owners’ property, who
may or may not be affiliated with, connected to, or sponsored by us.
shall comply with all trademark rules, copyright notices, information
and restrictions contained in any content accessed through the
Services. 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 Services, except as expressly permitted herein,
without our express prior written consent.
do not acquire any of our ownership rights by using the Services,
downloading material from or uploading material to the Services, or by
purchasing any virtual goods therein.
3. IN-SERVICES CURRENCIES/GOODS
||The Services 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 Services 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
Services 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 Services or within the Services. 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 Services,
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,
Apple 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
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.
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 Services depends on your
internet service provider and/or wireless carrier. Please refer to your
provider's terms and conditions for details.
than a limited, personal, revocable, non-transferable,
non-sublicensable license to use the Virtual Goods or Virtual Currency
in the Services, you do not own and have no right or title in or to any
such Virtual Goods or Virtual Currency appearing in the Services, or
any other attributes associated with the use of the Services or stored
within the Services. 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 Services.
Currency may only be held by legal residents of countries where access
to and use of the Services is permitted. A license to use Virtual
Currency in our Services may be purchased or acquired only from us
through means we provide on the applicable website(s) or applicable
Services 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 Services for whatever reason.
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 Services, all Virtual Goods and Virtual
Currency will be forfeited at our sole and absolute discretion.
purported transfers of Virtual Currency or Virtual Goods are strictly
prohibited except where explicitly authorised within the Services. 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 Services. 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
Services, a permanent ban from the Services and possible legal action
4. USER GENERATED CONTENT
Services 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 Services, including, without limitation, comments, data,
graphics, images, personal information, photographs, sounds,
suggestions, text, writings or other material (collectively “User Generated 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 Services. 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 “Submitted Materials”)
within the Services you understand and agree that we (i) have no
obligation to keep your Submitted Materials confidential; (ii) have no
obligation to return your Submitted Materials or respond in any way;
and (iii) may use your Submitted Materials 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.
submitting or transmitting any User Generated Content while using the
Services, 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
are solely responsible for the information that you post on, through or
in connection with the Services and that you provide to others. You
represent and warrant that your User Generated Content is wholly
original to you and you exclusively own the rights to your User
Generated 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.
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 Generated 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 Generated Content.
license you grant us to use your User Generated Content terminates when
you remove or delete your User Generated Content or you close your
account, unless your User Generated 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 accept, display, review, monitor or maintain any
User Generated Content. If we choose at any time, in our sole
discretion, to monitor the Services, we have the right, in our sole
discretion, to remove or delete User Generated Content from the
Services 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 Generated Content without
notice to you and without liability; provided, however, that we reserve
the right to treat User Generated 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 Restricted
Contents set forth in Section 6 below when violations are brought to
have no obligation to monitor any User Generated Content or enforce any
intellectual property rights that may be associated with your User
Generated 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 Generated Content that you post on, through or in connection with
acknowledge that you do not rely on us to monitor or edit the Services
and that the Services may have content which you find offensive and you
hereby waive any objections you might have with respect to viewing such
also understand that we cannot guarantee (i) the identity of any other
users with whom you may interact in the course of using the Services;
and (ii) the authenticity of any data which users may provide about
themselves. You acknowledge that all content accessed by you using the
Services is at your own risk and you will be solely responsible for any
damage or loss to any party resulting therefrom.
5. POSTING ON OTHER SITES
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
Services 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 Site”).
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 Site:
- you must display a
prominent link to the Services’ 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 Activ8 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 Services and within e-mail page(s), when
displaying an avatar or images from our Services, 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. THIRD PARTY SERVICES AND WEBSITES
Services 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 Services and that you will act in
accordance with them.
using and accessing to the Services, 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
Services, including delivery and payments of goods or Services, 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.”
7. USAGE RULES
a condition of your use of and access to the Services, 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 Services. 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
Services and to take action up to and including termination of your
account and exclusion from further participation in the Services. We
may also post additional rules that apply to your conduct during your
use of and access to the Services.
use of the Services 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 Services, including undermining or
manipulating the legitimate operation of any of the Services is a
violation of our policy and may constitute a violation of criminal and
||You agree that your use of and conduct on the Services shall be lawful and your User Generated Content will not:
(collectively “Restricted Contents”).
- include profanity or any obscene, indecent, pornographic, sexual or otherwise objectionable content or language.
- promote violence or describe how to perform a violent act.
the contractual, personal, intellectual property or other rights of any
party, or promote or constitute illegal activity.
- include any
offensive comments that are connected to gender, national origin,
physical handicap race or sexual preference; hate speech is strictly
- abuse defame, disparage, embarrass, harass,
intimidate, libel, mock, ridicule, spam, threaten or do anything else
to anyone that is unwanted.
- be in violation of the Terms or the Services’ rules of conduct.
||You also agree that you will not, under any circumstances:
Unauthorised Use or Connection to the Services
- make improper use of our support services or submit false reports of abuse or misconduct.
in cheating or any other activity deemed by us to be in conflict with
the spirit or intent of the Services, including but not limited to
circumventing or manipulating the Terms, our game rules, game mechanics
- use abusive, offensive, or defamatory screen names and/or personas.
the Services, 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 Services, or do
anything that promotes the violation of the above.
Cheating and Hacking
reverse assemble, reverse engineer, modify or attempt to discover any
software (source code or object code) that the Services create to
generate web pages or any software or other products or processes
accessible through the Services.
- upload, 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
Services and User Generated Content or alters, disrupts, impairs,
interferes with or modifies the use, features, functions, operation or
maintenance of the Services or the User Generated Content.
- disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
with or circumvent any security feature of the Services or any feature
that restricts or enforces limitations on use of or access to the
Services or User Generated Content.
- interfere or attempt to
interfere with the proper functioning of the Services or connect to or
use the Services in any way not expressly permitted by the Terms.
facilitate, create, or maintain any unauthorized connection to the
Services, including without limitation (i) any connection to any
unauthorized server that emulates, or attempts to emulate any part of
the Services; or (ii) any connection using programs, tools, or software
not expressly approved by us.
- attempt to gain unauthorized
access to the Services, other party’s registered accounts or to the
computers, Servers, or networks connected to the Services 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
- make 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.
examine or otherwise observe any proprietary communications protocol
used by a client, a Server, or the Services, whether through the use of
a network analyzer, packet sniffer or other device.
- use any
unauthorized third party software that accesses, intercepts, “mines”,
or otherwise collects information from or through the Services or that
is in transit from or to the Services, including, without limitation,
any software that reads areas of RAM or streams of network traffic used
by the Services 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.
any robot exclusion headers or other measures we employ to restrict
access to the Services or use any software, technology, or device to
send content or messages, scrape, spider, or crawl the Services, or
harvest or manipulate data.
- copy, 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
Services except as specifically allowed in the Terms.
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.
- create user accounts by automated means or under false pretences or mislead others as to the origins of your communications.
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.
- upload any software or content that you do not own or have permission to freely distribute.
defraud or mislead us or other users of the Services, especially in any
attempt to learn sensitive account information such as passwords.
- 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 Services, or use or launch
any unauthorised script or other software.
- disguise the source
of your User Generated Content or other information you submit to the
Services or use tools which anonymise your internet protocol address
(e.g. anonymous proxy) to access the Services.
- block or obscure any notice, banner or advertisement on the Services.
overburden, or aid or assist in the disruption or overburdening of (i)
any computer or server used to offer or support the Services or any of
our game environment (each a “Server”); or (ii) the enjoyment of the
Services or any of our games by any other person.
Collection and Publication of Personal Information
- post or transmit unsolicited advertising, promotional materials or other forms of solicitation in-application or in the forums.
the Services 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 messages for
any purpose other than personal communication, or transmit unauthorized
communications through the Services, including advertising or
promotional messaging, chain letters, pyramid schemes, or other
- engage 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.
- solicit or attempt to solicit personal information from other users of the Services.
or reveal through the Services 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.
- upload 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 Generated Content portions of the Services 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 Services and you hereby consent to our
access and record of your activities. We also reserve the right to
remove any of the User Generated Content at our sole discretion.
8. DISPUTES WITH OTHER USERS
are solely responsible for your interaction with other users of the
Services and other parties that you come in contact with through the
Services. We hereby disclaim any and all liability to you or any third
party relating to your use of the Services. We reserve the right, but
have no obligation, to monitor and/or manage disputes between you and
other users of the Services. 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. 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
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 SERVICES; WHAT CONTENT YOU
ACCESS THROUGH THE SERVICES; HOW YOU MAY INTERPRET, USE OR BE AFFECTED
BY THE SERVICES OR THE CONTENT ACCESSED THEREIN; OR WHAT ACTIONS YOU
MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE SERVICES. YOU HEREBY
RELEASE US FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED
ANY CONTENT THROUGH THE SOFTWARE. THE SERVICES 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 SERVICES,
AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT
COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED
THROUGH THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY ANY
APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT
YOUR SOLE RISK. THE SERVICES 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 SERVICES ON A COMMERCIALLY REASONABLE BASIS
AND DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE
SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT WE WILL HAVE
ADEQUATE CAPACITY FOR THE SERVICES 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 SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
11. 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
SERVICES 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 SERVICES.
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 SERVICES AND OPERATORS OF EXTERNAL WEBSITES, AND
THAT THE RISK OF THE SERVICES 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 SERVICES AND TO CANCEL
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
SERVICES 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 SERVICES, CONTENT, SOFTWARE TO YOUR COMPUTER AND/OR DEVICE.
SOME 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 SERVICES.
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
Services, 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 Generated Content on
or through the Services, 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 Services and for all of your
communication and activity on or through the Services, including any
User Generated Content you contribute, and that you will indemnify and
hold harmless Our Parties from any liability or damages arising from
your conduct on the Services, including any User Generated Content that
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 Services or the Terms.
13. FEES AND PAYMENT
applicable fees, as described on the Services, in relation to the
Services selected by you, shall be paid by you. Upon providing notice
to you (which may be through email or posting on the Services), we
reserve our rights to adjust our price list for the Services and to
charge new fees at any time. Your use of the Services after such
notification deemed your acceptance of such new or increased charges.
Some of our Services are free to our users, and we reserve our rights
to require payment of fees for certain or all parts of such Services.
Terms shall remain effective while the Services are being used by you.
Your use of the Services 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 Services 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 Services.
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
Services. 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 Services (a “Dispute”) in accordance with this Section or as we and you otherwise agree in writing.
Terms and all aspects of the Services 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 Activ8 Limited, Unit 903A,
9/F, Yue Xiu Building, 160-174 Lockhart Road, Wanchai, Hong Kong,
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)
||In the event you obtained the Services through Apple Inc.’s App Store (“Apple”), the following provisions shall apply.
||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 Services or any part thereof;
which may affect or be affected by your using of the Services; and
and Apple’s subsidiaries are third party beneficiaries of the Terms,
and that by your accepting of 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.
||You acknowledge and agree that
- you will only use the Services on an Apple device that is owned or controlled by you;
- Apple is not responsible for any maintenance or support services on the Services;
- we, and not Apple, shall address any claims you or any third party may have on the Services; and
there is any third party claim that the Services or your possession and
use of the Services infringes their intellectual property rights, we,
and not Apple, will be responsible for the investigation, defense,
settlement and discharge of any such claim.
may notify Apple if any of the Services 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 the
purchase price, if any, of the Services to you.
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.
In the event you use the Services to provide you with real-time route
guidance, your use of this real time route guidance application is at
your sole risk. You acknowledge that location data may not be accurate.
operate and control the Services from our offices in Hong Kong. We make
no representation that the Services are appropriate or available in
other locations. The information provided through the Services 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 Services 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
Terms are effective until terminated by either party. You may terminate
the Terms by destroying all Services-related materials obtained from
the Services, 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.
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.
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.
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.
use of the Services 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 Services.
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.
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
Services, and cannot be changed or modified by you except as we posted
on the relevant website.
our request, you will furnish us with any documentation, substantiation
or releases necessary to verify your compliance with the Terms.
||The section headings used herein are for reference only and shall not be read to have any legal effect.