I. INTRODUCTION TO AND ACCEPTANCE OF THE TERMS
A. that you are at least 18 years of age, or the statutory age of majority in your state of nationality and residence, whichever is higher;
B. that you are not restricted from using the Services, by law, by contract, or by us;
C. that you fully agree with the terms and conditions set forth in this Agreement; and
D. where necessary, your legal guardian has reviewed and consented to this Agreement, and agreed to be responsible for any of your liability arising hereof.
Your fundamental rights as a Registered User to the Services are mainly set forth in this Agreement, so please read all of the terms and conditions carefully. This Agreement includes an agreement to resolve disputes by arbitration on an individual basis. The venue of such arbitration may not be in the country where you reside. Due to fast developing technologies and law and policies, as well as volatile market conditions, the Company reserves the right, in its sole discretion, to modify or revise This Agreement from time to time at any time, and to the extent permitted by applicable law, you agree to be bound by such modifications or revisions. Any such modified or revised version will be effective at the time we first post it onto our Services (or at any other time designated in the terms of such version, if any). We will give you notification or provide you the opportunity to review such version by other means. Your continued use of the Services thereafter will constitute your acceptance of, and consent to, such modifications or revisions. If you object to any such modification or revision, your sole recourse shall be ceasing to use all of the Services.
II. USER RIGHTS AND LICENSES
1. Rights to Access the Services: Subject to your compliance with this Agreement, the Company grants you a conditional, limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services. You agree not to (and not to attempt to):
A. access or use the Services for any use or purpose other than as expressly permitted by this Agreement;
B. attack, hack, interfere with other user’s use of, reverse-engineer, disassemble, attempt to derive the source code of, the Service or any part thereof;
C. conduct any action that may infringe or jeopardize the lawful rights or interests of any person; or
D. copy, modify, adapt, produce derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or any portion thereof, except as expressly permitted in this Agreement or authorized by the Company.
2. Use of Data
You agree that the Company may collect and use technical data and related information including but not limited to technical information about your device, system, network access and other software and peripherals installed on your devices. These may be gathered periodically to facilitate the provision of the Services, inclusive of customer service, technical support, and other services to you (if any) related to the Services. The Company may use this information to improve its products or to provide services or technologies to you or third parties, as long as it is in a form that is not capable of personally identifying you.
3. Except for the permissions and rights expressly granted in this Agreement, no other licenses or rights are granted to you by implication or otherwise under this Agreement.
4. Your Account
A. Typically, you need not register a user account with us for certain part of the Services. However, for the rest part of the Services, especially those advanced features and functions of the Services, you must register a user account (“Account”) with us before you can use them.
B. When you access some part of the Services, you may be prompted to apply for (register, or sign up) an Account by providing us certain information of you, or log-in with an existing Account. You represent and warrant that the information you provide to us upon such Account registration and at all other times will be true, accurate, current, and complete. If any such information changes, you agree to forthwith update such information to us. You become a registered user (“Registered User”) of our Services once your Account is opened with us, and cease to be a Registered User when you no longer maintain an Account with us.
C. You may choose a combination of certain characters unused by other users as your username. We reserve the right to restrict the use of certain such combinations for legal compliance purpose or prevention of personal attack, humiliation, intellectual property rights infringement or other improper use of the Account.
D. You are primarily responsible for maintaining the confidentiality of your log-in credentials (including without limitation your account number (ID), username, password) and are fully responsible for all activities that occur through the use of your credentials or otherwise on or through your Account. You agree to notify us immediately if you believe the confidentiality of your log-in credentials has been compromised or if you suspect any unauthorized use of your Account. You agree that we will not be liable for any loss or damage arising from unauthorized use of your log-in credentials.
E. If you lose or forget the password or other log-in confidential of your Account, you may apply to retrieve your Account by reporting to us and following the instructions given by our staff. Our Account retrieval mechanism can only validate the consistency of the information given by the applicant with the information recorded in our system. We are unable to identify whether the applicant is the correct and legitimate user of the Account. Therefore, we cannot guarantee that your Account is always retrievable, and we cannot prevent imposters who assume the identity of you and retrieve the Account fraudulently (although we will make every endeavor to identify such imposters). On this ground, we shall not be held liable for any loss and damage incurred due to such failure of retrieval, or imposture or fraud.
F. We retain the ownership of the Account. You enjoy only the right to use your Account during the period that you maintain it with us. Your Account shall be exclusively used by you. Any form of lending, borrowing, renting, transferring, gifting or selling of such Account is prohibited and shall be null and void. You are liable for any and all activities done using your Account, even if such activities are not actually conducted by you. If we detect any inconsistency between the actual user of an Account and the person who registered it, or it is in dispute on who shall be the legitimate user of an Account, we have the right to recover, withdraw, suspend (freeze) or terminate such Account in our discretion, without any notice or any liability to any person. The loss and damage arising thereof, including but not limited to the loss of communication, data and virtual properties, shall be assumed solely by the user.
G. For safety, compliance, operational or other concerns, and on a reasonable ground (for example, the Account is inactive for a long period and is wasting service resources), we reserve the right to suspend (freeze), terminate or reclaim your Account in our sole discretion, temporarily or permanently, with or without notice, giving reasons or not, and without any liability to you.
H. For provisioning some products or services, We may require additional identity information for further identity authentication or qualification validation. In this case your account will only be entitled to use relevant products or services if successfully passing authentication or validation.
III. LAWFUL AND PROPER USAGE OF THE SERVICES
As a precondition and requirement for your access to and use of the Services, you are obliged to always observe certain Platform Rules and Codes of Conduct (each as defined below, collectively “Regulations”) during your access to and use of the Services.
1. Platform Rules
When accessing and using the Services, you may be subject to additional rules applicable to specific parts and features of the Services, as promulgated by us online from time to time (the “Platform Rules”). Such Platform Rules set forth the way, method and procedures for you to use such Services, including without limitation what roles will you play under a product or service, what operations you may perform, what rules or procedures you have to follow, and what consequences will you face if you fail to follow. We may promulgate new rules, post notices or make announcements online from time to time to improve the Platform Rules. All such rules, notices and announcements shall be deemed incorporated into this Agreement by reference. If you do not agree with any of the Platform Rules, your sole recourse is to cease to use the corresponding product and service.
2. Codes of Conduct
A. The Services may provide you ways of communication to enable you to communicate and/or interact with other users of the Services. The Company has no obligation to monitor or review all these communication channels, but it may do so and correct all improper use of such communication channels.
B. As a condition of your use of the Services, and without limiting your other obligations under this Agreement, you agree to always maintain a lawful and proper behavior, doing no harm to us and other persons, and comply with the restrictions and rules set forth in this Agreement. For example, you agree not to use the Services in any way to:
A. post, upload, transmit or otherwise disseminate information that is obscene, indecent, vulgar, pornographic, sexual or otherwise illegal or objectionable as provided by applicable laws or Regulations;
B. defame, libel, ridicule, mock, stalk, threaten, harass, intimidate, humiliate or abuse any person;
C. violate the contractual, personal, intellectual property or other rights of any person including using, uploading, transmitting, distributing, or otherwise making available any information made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other right of any person (including rights of privacy or publicity);
D. upload or transmit (or any attempt thereof) files that contain viruses, Trojans, worms, time bombs, cancelbots, corrupted files or data, or any other malicious software or programs that may damage the operation of the Services or other users’ devices or data;
E. attempt to obtain passwords or other log-in confidential or private information of other users of the Services;
F. develop, distribute, inform other users of, or use automating, cheating or injecting programs, software or scripts which may cast detriment to the Services or to the lawful rights or interests of us or other users;
G. exploit, distribute or publicly inform other users of any error, defect or bug which gives an unintended advantage; or violate any applicable laws or regulations, or promote or encourage any illegal activity including, but not limited to, hacking, cracking or distribution of counterfeit software, or cheats or hacks against the Services; or
H. improperly use our customer service, technical support or complaint channels to make false or malicious reports or requests to us; or use the Services to infringe upon the commercial or other interests of us, including but not limited to posting or overlaying advertisements without express permission of us.
C. These Codes of Conduct are not meant to be exhaustive. We may promulgate new rules, post notices or make announcements online from time to time to improve these Codes of Conduct. All such rules, notices and announcements shall be deemed incorporated into this Agreement by reference. And we reserve the right to ultimately determine what conduct we reasonably consider to be an improper conduct and/or a violation of these Codes of Conduct (even such conduct is not listed in these Codes of Conduct and all subsequent rules, notices and announcements), and to take action in line with this Agreement.
3. Consequences of Misuse of the Services
A. If you violate applicable laws, regulations, this Agreement (particularly, including but limited to the Platform Rules and Codes of Conducts and/or our other agreements or terms and conditions you accepted, we have the right to make judgments in our discretion but in accordance with relevant rules, and take one or more countermeasures or penalties as we consider commensurate to your violation, including but not limited to:
A. removal of non-compliant content;
B. deducting your Account balance, or your revenue or other accounts receivable from us in relation to the Services;
C. restricting or terminating the provision of certain portions, features or functions of the Services to you; and
D. suspension or termination of your Account, and/or limitation or denial of further service to you.
B. Multiple or repeated violations and misconducts, and cases of extreme severity, may result in more serious consequences, as we reasonably consider.
C. You agree to indemnify and hold the Company harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with:
A. your use of and access to the Services;
B. your violation of any term of this Agreement;
C. your violation of any third party right, including without limitation any copyright, property, or privacy right or any third party agreement; or
D. any of your content or information in your Account or any other information you post or share on or through the Services.
D. The provision under this Clause III.3. are cumulative and in addition to any other rights or remedies provided by law, and not in substitution for them. Therefore, we may still claim against you for your violation against law and/or breach of contract, even if we have taken countermeasures or penalties under this Clause III.3.
IV. INTELLECTUAL PROPERTY RIGHTS
A. Platform Materials. All rights, title and interest in and to all materials that are part of the Services (including, but not limited to, designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement) with the exception of UGC (collectively, the “Platform Materials”), are, as between the Company and you, owned by the Company and/or its third party licensors. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by downloading the Platform Materials. You agree that you shall not modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, or sell in any form or by any means, in whole or in part, or otherwise exploit the Platform Materials without our express prior written permission. You acknowledge that you do not acquire any ownership rights by using the Services or by accessing any Platform Materials posted on the Services by the Company, or any derivative works thereof. All rights not expressly granted by this Agreement are reserved by the Company and its licensors, and no license is granted hereunder by estoppel, implication or otherwise.
B. UGC. You represent and warrant that your UGC is original to you and that you exclusively own the rights to such content, including the right to grant all of the rights and licenses in this Agreement without the Company incurring any third party obligations or liability arising out of its exercise of such rights and licenses. All of your UGC is your sole responsibility and the Company is not responsible for any material that you (and other users) upload, post, or otherwise make available. By uploading, distributing, transmitting or otherwise using your UGC with the Services, you grant to us a perpetual, nonexclusive, transferable, royalty-free, sub-licensable, and worldwide license to use, host, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display your UGC in connection with operating, providing and promoting the Services. The Company does not guarantee the accuracy, quality, or integrity of any UGC appeared on the Services. By using the Services you acknowledge and accept that you may be exposed to material you find offensive or objectionable. You agree that the Company will not under any circumstances be liable for any UGC, including, but not limited to, errors in any UGC, or any loss or damage incurred by use of such UGC. The Company reserves the right to remove and permanently delete your UGC from the Services with or without notice for any reason or no reason. You may notify the Company of any UGC that you believe violates this Agreement, or other inappropriate user behavior, by reporting to our customer service.
V. DISCLAIMERS OF WARRANTIES
1. THE SERVICES AND THE PLATFORM MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WHILE THE COMPANY ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
2. You specifically acknowledge that the Company shall not be liable for UGC, including without limitation your UGC, or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you. Similarly, the Company will not under any circumstances be liable for any communication made between our users.
3. When we restrict, suspend (freeze), reclaim, replace or terminate the use of Your Account in accordance with applicable laws and this Agreement, we shall not be responsible for any loss or damage (including but not limited to the loss of communication, data and virtual properties) arising from such measures, which shall be solely and entirely assumed by you.
4. We do not assume any liability in the following circumstances:
A. We provide or disclose your personal information in accordance with legal requirements or orders of governmental or judicial authorities;
B. The disclosure of personal information resulting from the your sharing your password or Account with others, or any other disclosure of personal information which is not attributable to us;
C. Any disclosure of personal information or other loss or damage due to hacking, computer virus attack, blackout, or interruption of telecommunication services;
D. Any disclosure of personal information or other loss or damage due to force majeure.
VI. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, BE LIABLE TO YOU OR TO ANY THIRD PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SERVICES OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES.THE COMPANY SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE AMOUNT YOU HAVE PAID TO US IN ACCORDANCE WITH THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM OR (B) 100 UNITED STATES DOLLARS. THE LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT DOES NOT PURPORT TO LIMIT LIABILITY OR ALTER RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
VII. TERMINATION AND MODIFICATION OF THE SERVICES
1. Termination and Interruption
A. You may apply for termination of your Account at any time and for any reason by sending an application to our customer service team. The Company may terminate your Account and your access to the Services if the Company finds your application reasonable and acceptable. The Company is not obliged to provide the Services, unless required by applicable law. Therefore, the Company may terminate the Services in its entirety, or any part thereof, without giving a reason, notice, and compensation to you. The Company is not required to provide you with any notice or warning prior to any such termination. You may, as the result of termination, lose your Account and all information and data associated therewith and the Company is under no obligation to compensate you for any such loss.
B. The Company reserves the right to deny the access of any user to the Services without notice for any reason, including but not limited to a violation of the Terms. If you violate this Agreement, the Company reserves the right to issue you a warning regarding the violation or immediately terminate or suspend any or all Accounts you have created using the Services. You agree that the Company need not provide you notice before terminating or suspending your Account, but it may do so.
C. You understand that we need to perform scheduled or unscheduled repairs and maintenance of the Services. If such situations cause an interruption of Services for a reasonable duration, we shall not bear any liability to you and/or to any third parties. However, we shall provide notice to you as soon as practicable.
The Company reserves the right to change, modify, reprice, or discontinue (temporarily or permanently) the Services or any part thereof, with or without notice to you. You have the right to discontinue the use of the Services if you do not agree to such changes to the Services or this Agreement made by us. Continued use of the Services shall be deemed as an acceptance of such changes.
VIII. GOVERNING LAW AND DISPUTE RESOLUTION
1. Governing Law
A. By accepting this Agreement or becoming a Registered User, you agree that the laws of Hong Kong, without regard to principles of conflict of laws thereof and regardless of your location, will govern this Agreement and any dispute of any sort that might arise between you and the Company.
B. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods (1980).
2. Dispute Resolution
A. Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted.
B. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in the English or Chinese language.
C. If the arbitration clauses above are determined to be totally invalid or non-enforceable, then any dispute, controversy, difference or claim arising out of or relating to this Agreement shall be decided exclusively by a court of competent jurisdiction located in Hong Kong, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the territory and the courts of Hong Kong.
D. You acknowledge that the rights granted and obligations made to the Company under this Agreement are of a unique and irreplaceable nature, the loss of which may result in immediate and irreparable harm to the Company for which remedies at law are inadequate. The Company shall therefore be entitled to seek injunctive or other equitable relief (without the obligation to post any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief.
3. User Disputes
You are solely responsible for your interaction with other users of the Services and other parties that you come in contact with through the Services. The Company hereby disclaims any and all liability to you or any third party relating to your use of the Service. The Company reserves the right, but has no obligation, to manage disputes between you and other users of the Services.
IX. ADDITIONAL PROVISIONS
1. You agree to be responsible for obtaining and maintaining all telephone, computer hardware mobile devices and other equipment needed for access to and use of the Service, and all charges related thereto.
2. All notifications sent to you by us under this Agreement may be delivered via a webpage announcement, in-application pop-up message, email, text message or post; such notifications shall be deemed to have been received by the recipient on the date sent. Notifications from you to us should be sent to the contact address, fax number, email address or other contact details officially announced by us.
3. This Agreement constitutes the entire agreement between you and the Company with respect to your use of the Services and any other subject matter hereof and cannot be changed or modified by you except as expressly posted on the Services by the Company. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software.
4. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision, and no waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
5. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
6. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. This Agreement may not be assigned by you without the Company’s prior written consent, but are freely assignable by the Company.
7. We have the right to transfer all or part of the rights and obligations of this Agreement to our affiliated companies through announcements, internal messaging, or e-mail by the Jocloud website (https://www.jocloud.com/).
8. Unless otherwise agreed, we may entrust our affiliated companies or other companies to provide one or more specific services on Jocloud website for the sake of professional service, and you may be required to sign relevant terms or conditions with such companies. In this case, please carefully read and thoroughly understand the contents in the terms and conditions, and choose to accept the Terms of Service or not.
9. The section headings used herein are for convenience only and shall not be given any legal import. Upon the Company’s request, you will furnish the Company with any documentation, substantiation or releases necessary to verify your compliance with this Agreement.
10. You agree that this Agreement will not be construed against the Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
11. You agree that the provisions of this Agreement that by their nature should survive termination will survive any termination of this Agreement.
12. Third Party Services and Rights
A. We use third-party services to help us provide the Services, but such use does not indicate that we endorse them or are responsible or liable for their actions. In addition, the Service may link to third-party websites to facilitate its provision of services to you. If you use these links, you will leave the Services. Some of these third-party websites may use Platform Materials under license from us. We are not responsible for nor do we endorse these third-party websites or the organizations sponsoring such third-party websites or their products or services, whether or not we are affiliated with such third-party websites. You agree that we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a third-party website or as a result of the presence of any third-party advertising on the Services.
B. You hereby agree that we have the right to, when providing Services, place any type of commercial or non-commercial advertisement in any form or other types of commercial information (including, but not limited to, the placement of advertisements on any page of The Site); you also agree to receive promotional or other relevant commercial information from us via email, short message service (SMS) or other methods, to the extent permitted by applicable law.
C. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
13. International Use and Export Control
A. This Agreement may appear in different languages. If any discrepancy or inconsistency occurs between the versions of different languages, this English version shall always prevail.
B. Software available in connection with the Services and the transmission of applicable data, if any, is subject to Singapore export controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of Singapore export laws. Downloading or using the software is at your sole risk. You hereby represent and warrant that (i) you are not located in a country that is subject to a Singapore government embargo, or that has been designated by the Singapore government as a “terrorist supporting” country; and (ii) You are not listed on any Singapore government list of prohibited or restricted parties.
C. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. Particularly, you may not use or otherwise export or re-export the Services and its components except as authorized by United States (“U.S.”) law and the laws of the jurisdiction in which the Services was obtained. The software and applications comprise the Services may not be exported or re-exported into any U.S.-embargoed countries or to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By accessing and using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by U.S. law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.