Conditions Générales
EFFECTIVE AS OF MARCH 1, 2022
IMPORTANT NOTICE:
THIS TERMS OF USE GOVERNS THE END-USER'S ACCESS TO AND USE OF THE
SOFTWARE, CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES CONTAINED
IN THE COMPANY'S PLATFORM (THE "SERVICES"). BY USING OR
OTHERWISE ACCESSING THE SERVICES PROVIDED BY THE COMPANY OR BY
CONFIRMING THE ORDER AS PART OF THE DOWNLOADING OR ORDERING PROCESS,
THE END-USER ("YOU", "END-USER") AGREES TO THIS TERMS
OF USE WHICH WILL BIND IT AND ITS EMPLOYEES IF APPLICABLE. THIS
TERMS OF USE FORMS PART OF THIS AGREEMENT BETWEEN THE END-USER AND
THE COMPANY IN RELATION TO THE SERVICES. YOU SHOULD ENSURE THAT YOU
CAREFULLY READ THESE TERMS.
IF YOU ARE ENTERING INTO THIS TERMS OF USE ON BEHALF OF A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO
BIND SUCH ENTITY TO THIS TERMS OF USE, IN WHICH CASE THE TERM
END-USER SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH
AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF
THIS TERMS OF USE, YOU MAY NOT USE OR ACCESS THE SERVICES. IF YOU DO
NOT INTEND TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS
TERMS OF USE, DO NOT ACCESS OR OTHERWISE USE THE SERVICES AND DO NOT
CLICK "ACCEPT" OR OTHERWISE ASSENT TO THIS TERMS OF USE.
1.Interpretation
1.1 The definitions and rules of interpretation in this Clause and
in Clause 15.7 apply in this Terms of Use.
"Authorised Users", (i) where You are an entity other than an
individual: those employees, agents and independent contractors of
You and those employees, agents and independent contractors of
End-user’s affiliate(s) and partners who are authorised by You to
use or access the Services, and (ii) where You are an individual,
You.
"Business Day", any day which is not a Saturday, Sunday or
public holiday in Hong Kong;
"Company" means Transsnet Music Limited, a limited company
with offices at Room 604, 6/F, South Tower, World Finance Centre,
Harbour City, 17 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong
"Company Data", the information and data used in or in
conjunction with the Software or Services that is proprietary of, or
licensed by third parties to, the Company;
"Confidential Information", information that is proprietary
or confidential and is either clearly labelled as such, identified
as confidential information or any information that You ought
reasonably regard to as confidential;
"Content", means data provided by You or the Authorised Users
to the Company under this Terms of Use, including and without
limitation music recordings, images, videos, metadata, names,
photographs and likenesses, artwork images and biographical
information as well as lyrics, text, etc;
"Consumer Stores", means digital services providers such as
music download portals, music and video streaming services, mobile
music platforms, digital (and terrestrial) radio stations and
television networks, and mobile networks that enable the purchasing
streaming or downloading of Content.
"Data Protection Legislation", all laws relating to the
processing of Personal Data, privacy and information or data
security including the European Union General Data Protection
Regulation, "GDPR" and all applicable laws and regulations
relating to the processing of personal data, including the opinions,
guidance, advice, directors, order and codes of practice issued or
approved by a data protection regulator in the European Economic
Area;
"Deductions" means the deductions from the Income that is not
retained by the Company, its authorised distributors, or its
partners, including but not limited to money transfer costs, bank
exchange costs and other deductions as may be applied from time to
time;
"Fee" means the non-refundable fee You agree to pay the
Company, its authorised distributors, or its partners, for providing
the Services as referred to in Clause 6 below;
"Income" means income actually received by the Company from
time to time on behalf of You from the Consumer Stores in respect of
Content provided to the Consumer Stores deducting any fee, deduction
or other charge levied by the Consumer Stores;
"Intellectual Property Rights", all intellectual property
rights of whatever nature, including patents, copyright (present and
future), trademarks, business names, trade names, domain names,
rights in get-up, goodwill and the right to sue for passing of or
unfair competition, rights in computer software, design rights,
rights to inventions, database rights, rights in performances,
(whether or not any of these is registered and including any
applications for registration of any such rights), rights to
preserve the confidentiality of information (including trade secrets
and know-how) and any other intellectual property rights and
including all applications, or rights to apply for and be granted,
renewals or extensions of, and rights to claim priority from, such
rights and all similar or equivalent rights or forms of protection
which may now or in the future subsist in any part of the world;
"Net Income" means the Income deducting the Fees and
Deductions;
"Services", the services provided pursuant to this Terms of
Use, as more particularly described on the Company website, and
including the Company Data;
"Software", any software provided or used by the Company in
the provision of the Services;
"Start Date", when You clicks "Accept";
"Streaming Manipulation", any activity and/or method which
involves the artificial creation, by human or non-human means, of
online or offline plays on audio and/or audio-visual streaming
services, where such plays do not represent bona fide end-user
listening and/or views initiated by genuine consumers and taking
place in the reporting country. Streaming Manipulation may involve
or include, but is not limited to, increasing, generating or
manipulating play counts, sales, follow counts, engagement activity,
or other key metrics used by the Services and/or any Consumer Store,
through the use of (A) bots, scripts, viruses, worms or any other
computer codes, files, programs or automated processes; and/or (B)
click-farms, troll-farms, inauthentic accounts, shared account
information, or virtual private networks. Streaming Manipulation can
be the result of activities undertaken with respect to either
individual or groups of Recordings in order to artificially improve
chart positioning, increase market share, increase royalty or other
payments, or for any other fraudulent or dishonest purposes. For the
avoidance of doubt, any Streaming Manipulation done by a third party
on Your behalf or that relates to Your Recordings is a violation of
these Terms of Service. The factors used to determine whether any
particular consumption or marketing activity is Streaming
Manipulation will vary according to the specific circumstances of
each case and the examples and descriptions of Streaming
Manipulation set forth herein are not intended to be exhaustive.
Certain Consumer Stores that use your Recordings may also have
policies related to fraud and suspected fraudulent activities and
you agree that it is your responsibility to become aware of and
follow such policies, and such policies shall be binding upon You
hereunder.
"Virus", anything or device (including any software, code,
file or programme) which may: prevent, impair or otherwise adversely
affect the operation of any computer software, hardware or network,
any telecommunications service, equipment or network or any other
service or device; prevent, impair or otherwise adversely affect
access to or the operation of any programme or data, including the
reliability of any programme or data (whether by re-arranging,
altering or erasing the programme or data in whole or part or
otherwise); or adversely affect the user experience, including
worms, Trojan horses, viruses and other similar things or devices.
"Artificial Intelligence", the use of machines/computers,
aided by online and/or offline tools, that learn from experience,
adjust to new inputs and perform human-like tasks for the purpose of
creating and/or distributing music.
"Artificial Music Generator", Artificial Intelligence music
composer that creates original and/or personalized music and/or
creates variations of existing music.
"Robotic Means", machines/computers capable of performing
human functions required in the creation and/or distributing of
musical works.
2. Services
2.1 The Company will provide You with use of and access to the
Services in accordance with the terms of this Terms of Use.
2.2 In relation to the Authorised Users, You undertake that each
Authorised User shall keep a secure and confidential password for
his use of the Services and that each Authorised User shall comply
with good industry practice in respect of password security.
2.3 You shall not knowingly access, store, distribute or transmit
any Viruses, or any material, data or Content during the course of
its use of the Services that, in the sole opinion of the Company:
2.3.1 Is unlawful, harmful, threatening, defamatory, obscene,
harassing or racially or ethnically offensive;
2.3.2 violates or infringes any Intellectual Property Rights or
other rights of third parties;
2.3.3 facilitates illegal activity;
2.3.4 depicts obscenity content;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, colour, religious
belief, sexual orientation, disability, or any other illegal
activity; or
2.3.7 causes damage or injury to any person or property,
and the Company reserves the right, without liability to You, to
disable Your access to any material that breaches the provisions of
this Clause 2.3.
2.4. You shall not and shall ensure that the Authorised Users do
not:
2.4.1 except as may be allowed by any applicable law which is
incapable of exclusion by Terms of Use:
(a) attempt to copy, modify, duplicate, create derivative works
from, frame, mirror, republish, download, display, transmit, or
distribute all or any portion of the Software or Services (as
applicable) in any form or media or by any means including any part
of the Company Data, the data models or screens, and any data that
has been entered by the Company or one of its agents; or
(b) attempt to reverse compile, disassemble, reverse engineer or
otherwise reduce to human-perceivable form all or any part of the
Software;
i.access all or any part of the Services or Software in order to
build a product or service which competes with the Software and/or
the Services;
ii.license, sell, rent, lease, transfer, assign, distribute,
display, disclose, or otherwise commercially exploit, or otherwise
make the Software or the Services available to any third party
except the Authorised Users;
iii.attempt to obtain, or assist third parties in obtaining, access
to the Software or the Services other than as provided under this
Terms of Use;
2.5. You shall not, and shall ensure that the Authorised Users do
not, do any of the following while using or accessing the Services
or the Software:
2.5.1. disable, hack, circumvent or otherwise interfere with
security related features of the Software or the Services;
2.5.2. use any metadata, meta tags or other hidden text utilising
the Company name, Intellectual Property Rights, URL or product name;
2.5.3. upload, submit, post, email or otherwise transmit any
unsolicited or unauthorised advertising, promotional materials, junk
mail, spam, chain letters, so-called pyramid schemes or any other
form of solicitation;
2.5.4. forge any TCP/IP packet header or any part of the header
information in any posting or in any way use the Services or the
Software to send altered, deceptive or false source-identifying
information;
2.5.5. attempt to scan, probe or test the vulnerability of any
Company system or network or breach, impair or circumvent any
security or authentication measures protecting and providing
security for the Services or the Software;
2.5.6. collect or store Personal Data about any third party except
in accordance with the Data Protection Legislation; or
2.5.7. misrepresent or impersonate its affiliate with any person or
entity, through pretext or some other form of social engineering or
otherwise commit fraud.
2.6. You shall use all reasonable endeavours to prevent any
unauthorised access to, or use of, the Services and, in the event of
any such unauthorised access or use, promptly notify the Company.
2.7. The Company may amend the Services in its sole and absolute
discretion from time to time on notice to the End- user.
3. Content
3.1 You shall submit all Content at its sole expense in the
format(s) required by the Company or the Consumer Stores. Technical
descriptions of such format(s) will be provided to You on request.
In the event that Content is provided by You in the incorrect
format, You shall be liable to pay any resubmission or similar fees
levied by the Consumer Stores in respect of any such Content
provided by the Company to the Consumer Stores.
3.2 You hereby grants to the Company, during the term of this Terms
of Use and for a reasonable period thereafter, a non-exclusive,
royalty-free, irrevocable and worldwide licence (including without
limitation the right to sub-license all of these rights) to:
3.2.1 use the Content to provide the Services;
3.2.2 sell, copy, display, distribute and otherwise exploit the
Content by all means and media (whether now known or existing in the
future) through any and all Consumer Stores or the Company website
(including for permanent download by End-users);
3.2.3 supplement any artwork provided for use with the Services;
3.2.4 make and perform clips of any Content of up to thirty (30)
seconds in length via streaming or download free of charge, for the
purposes of promotion of the Content, the relevant artists or the
Services;
3.2.5 to use the Content in connection with the Company's business
purposes; and
3.2.6 collect all income deriving from the activities specified in
this clause 3.2.
3.3 The Company shall make the Content available ‘as is’ through the
Services and shall not be liable for any reliance placed by You or
any third party on the Services, Software or Content.
3.4 The Company engages the services of third party providers who
also provide back-up services for data stored in or entered into the
Software, including Content. In the event of any loss or damage to
Content, You's sole and exclusive remedy shall be for the Company to
use reasonable commercial endeavours to have its service providers
restore the lost or damaged Content from the latest back-up of such
Content maintained in accordance with the archiving procedure
described in the relevant back up policies. The Company shall not be
responsible f or any loss, destruction, alteration or disclosure of
Content caused by any third party (except those third parties
sub-contracted by the Company to perform services related to Content
maintenance and back-up or the Company's duly authorised contractors
or agents).
3.5 You warrant and represents that:
3.5.1 It has the authority to enter into this Terms of Use;
3.5.2 It is the owner or licensee of the Content, including the
sound recording right and publishing right (if applicable), and is
permitted to provide the rights to the Content as specified in this
Terms of Use to the Company and the Consumer Stores; and
3.5.3 the use and exploitation by the Company or any of the Consumer
Stores of Content as contemplated by this Terms of Use shall not
infringe the Intellectual Property Rights of any third party.
3.6 For clarity, You shall be solely responsible for obtaining and
paying for any licences from the owners of any Intellectual Property
Rights in Content, including sound recording right and publishing
right (if applicable), required in connection with the use or
exploitation of Content by the Company or the Consumer Stores as
contemplated in this Terms of Use.
3.7 You acknowledge that in providing the Services and payments
hereunder, the Company will be required to enter into certain
agreements with various Consumer Stores. The selection of these
Consumer Stores shall be within the sole discretion of the Company.
3.8 Nothing in this Agreement shall require the Company, and the
Company does not guarantee, that it will use or exploit any Content
or upload it to any Consumer Stores.
3.9. Not to use Artificial Intelligence, Artificial Music Generator,
or any other artificial and or robotic means.
4.Third Party Providers
You acknowledge that the Services may enable or assist it to access
third party software and/or application programming interfaces and
the website content of, correspond with, and purchase products and
services from, third parties via third-party websites, software and
application programming interfaces, and that it does so solely at
its own risk. The Company makes no representation or commitment and
shall have no liability or obligation whatsoever in relation to the
content or use of, or correspondence with, any such third-party
website or application programming interfaces, or any transactions
completed, and any contract entered into by You, with any such third
party. Any contract entered into and any transaction completed via
any third-party website or application programming interfaces is
between You and the relevant third party, and not the Company. The
Company recommends that You refers to the third party's website or
application programming interface terms and conditions and privacy
policy prior to using the relevant third-party website or
application programming interface. The Company does not endorse or
approve any third-party website or application programming interface
nor the content of any of the third-party website made available via
the Services.
5. The Company's Obligations
5.1 The Company warrants that the Services and any Software: (i)
will be performed in accordance with reasonable skill and care, and
(ii) does not infringe any third-party Intellectual Property Rights.
5.2 The warranty at Clause 6.1 shall not apply to the extent of any
non-conformance which is caused by use of the Services contrary to
the Company's instructions, or modification or alteration of the
Services or the Software by any party other than the Company or the
Company's duly authorised contractors or agents. If the Services or
the Software do not conform with the warranty at Clause 6.1 above,
the Company will, at its expense: (i) use reasonable commercial
endeavours to correct any such non-conformance promptly, or provide
You with an alternative means of accomplishing the desired
performance; or (ii) re-perform the relevant Services (as
applicable). Such correction, substitution or re-performance
constitutes Your sole and exclusive remedy for any breach of the
warranty set out in Clause 6.1. Notwithstanding the foregoing, the
Company:
5.2.1. does not warrant that Your use of the Services or the
Software will be uninterrupted or error-free, nor that the Software
or the information obtained by You through the Services will meet
Your requirements; and
5.2.2.is not responsible for any delays, delivery failures, or any
other loss or damage resulting from the transfer of data over
communications networks and facilities, including the internet, and
You acknowledges that the Services may be subject to limitations,
delays and other problems inherent in the use of such communications
facilities. The Company shall use commercially reasonable endeavours
to prevent and/or minimise any such delays or loss of data resulting
from the transfer of data over communications networks and
facilities to the extent that such matters are within the Company’s
control.
6.Payments
6.1 By using the Service, You shall pay to Us the Fees corresponding
to the Services contracted, which can be found at any time in the
"Payment-Subscription Plans" section of your Account. The
abovementioned Service Fees, sales commission percentage and the
minimum payment threshold for You are listed in the Platform, in the
"Payment-Subscription Plans" section.
6.2 All payments and associated claims: (i) will be made through the
corresponding "Payment-Payout" section of the Platform; (ii)
will be made in the currency stated by Us; and (iii) will be payable
via PayPal transfer to the account designated by You. If any
authority imposes a duty, tax, levy, or fee, You agree to pay that
amount or supply exemption documentation. For the avoidance of
doubt, such payment is non-refundable.
6.3 Payment of royalty under these Terms of Use shall be made once a
month, within days from receipt of an out-payment request from you,
provided always that the due amount exceeds the corresponding
minimum payment threshold for the relevant requested payout.
Nonetheless, You authorize Us to withhold any payment during an
additional period of twenty-four (24) months in the event the
Company deem that such payment contains incomes or fees totally or
partially generated fraudulently or contravening these Terms of Use
or the Anti-Fraud Policy. Any payment You receive from Us will be
subject to all and any applicable taxes (including VAT, withholding
taxes, etc.).
6.4. If any Digital Music Service deducts any amount due to any
passed contingency, overpayment or conclusion in relation to Your
Content or an investigation by Us reasonably demonstrates that any
of Your fees for any prior month should have been lesser, The
Company may, at the conclusion of such investigation and at our sole
discretion, provide a revised sales report for the applicable
month(s) and deduct the corresponding amount from future payments,
what You acknowledge and accept.
6.5 Therefore, You expressly and irrevocably authorize Us to collect
all incomes from the exploitation of Your Content through the
Platform, including but not limited to author rights, performing
rights, publishing rights and sound recording rights, any levy
established by law for private copies, or for any other concept,
without limitation. For this purpose, The Company may ask you to
sign a specific authorization letter as solicited by the
corresponding Performing Right Organization, which You undertake to
provide as soon as requested by Us.
6.6 The Company will make any corresponding invoices and receipts,
including mandatory taxes, available to You according to the
applicable regulations.
6.7 The Company reserve the right to change in the future the
Service price, the sales commission percentage or the minimum
payment threshold, in which case the new terms will be notified to
You not less than thirty (30) days prior to the effective date and
will be applicable to future incomes.
6.8 The Company may decide not to charge you initially for the use
of the Service and any optional service, however, You authorize Us
to deduct the corresponding amounts from your future payments.
6.9 In the event that after one year from the start of the
relationship, You have distributed Your Content on credit, without
having generated enough sales to pay back the outstanding balance,
the Company reserve the right to request the payment of the
outstanding balance.
6.10 The Company shall not be responsible for the payment of any
income tax or corporation tax or comparable taxes levied on You or
the Company in respect of the Net Income or Income. If any
withholding tax is incurred under income tax or corporation tax
enforced anywhere, the Company shall be entitled to deduct the
statutory amount of withholding tax from the payments due to You.
6.11 The Company (on its own behalf or, where applicable, on behalf
of its authorised distributors or partners) shall be entitled to
deduct the Fee, taxes, sale commission from any Income prior to
applying the Net Income to Your account.
6.12 To the extent that You elects to use Content to distribute free
to any third parties (by whatever means), You agrees that it will be
solely responsible for any fees or charges levied by Consumer Stores
or taxes in respect of such distribution.
6.13 In the event that the Company determines, in its sole
discretion, that Your account has been subject to and / or involved
in fraudulent or infringing activities, the Company reserves the
right to discontinue the application of Net Income to Your account
and block You's ability to otherwise withdraw funds therefrom until
resolution of the suspect activities to the satisfaction of the
Company. The End- user agrees that any Net Income obtained as a
result of Your fraud or infringement of third party Intellectual
Property Rights shall be forfeited to the Company. Certain Consumer
Stores may also have policies related to fraud and suspected
fraudulent activities and You agrees that it is its responsibility
to investigate such policies and such policies shall be binding on
You hereunder.
6.14 To the extent that any Net Income applied to Your account bears
any interest prior to the withdrawal by You of such Net Income, You
agrees that it will not receive interest or other earnings on the
Net Income. In consideration for Your use of the Services, You
transfers and assigns to the Company any ownership rights You may
have in any interest or other earning that may accrue on Net Income
prior to its withdrawal by You.
7. End-User's Obligations
7.1 You shall:
7.1.1. provide the Company with all necessary:
a.co-operation in relation to this Terms of Use; and
b.access to such information as may be required by the Company,
in order to render the Services and other Company services as may be
available from time to time and in relation to security and
configuration services;
7.1.2. comply with all applicable laws and regulations with respect
to its activities under this Terms of Use;
7.1.3. carry out all other End-user responsibilities set out in this
Terms of Use in a timely and efficient manner. In the event of any
delays in Your provision of such assistance as agreed by the
parties, the Company may adjust any agreed timetable or delivery
schedule as reasonably necessary;
7.1.4. ensure that the Authorised Users use the Services in
accordance with the terms and conditions of this Terms of Use and
shall be responsible for any Authorised User's breach of this Terms
of Use;
7.1.5. obtain and maintain all necessary licences (including sound
recording right and publishing right, if applicable), consents, and
permissions necessary for the Company, its contractors and agents to
perform their obligations under this Terms of Use;
7.1.6. ensure that its network, systems and devices comply with the
relevant specifications provided by the Company from time to time
and with good industry practice; and
7.1.7. be solely responsible for procuring and maintaining its
network connections and telecommunications links from its systems to
the Company's systems, and all problems, conditions, delays,
delivery failures and all other loss or damage arising from or
relating to Your network connections or telecommunications links or
caused by the internet.
7.1.8 not engage in (or to permit, encourage, enlist, retain, or
employ third parties to engage in), activities that, in Company’s
sole discretion, constitute Streaming Manipulation. In the event
that Company has, in its good faith discretion, reason to suspect
that your account or Recordings have been subjected to, involved in,
or generated revenue from: violating the Terms of Service; fraud;
infringement of copyright, trademark, right of publicity or any
other intellectual property right; failure to comply with any
third-party license requirement; or Streaming Manipulation
(collectively, "Improper Conduct"), Company reserves the
right to (i) discontinue the posting of income, including any Net
Income or other payments to your account, (ii) block Your ability to
otherwise withdraw funds therefrom until resolution of the suspect
activities to the satisfaction of Company is obtained, and (iii)
remove any or all of your Recordings from any or all Consumer
Stores. You further agree that such revenues will be forfeited by
you if Company determines, in its good faith discretion, that your
account or Recordings have been subjected to, involved in, or
generated revenue from Improper Conduct.
8. Proprietary Rights
8.1 You acknowledges and agrees that the Company and/or its
licensors own all Intellectual Property Rights in the Software and
the Services. Except as expressly stated herein, this Terms of Use
does not grant You any rights to, or in, any Intellectual Property
Rights.
8.2 You shall ensure that all titles, logos, trademarks, copyright
and other notices applied by the Company to the Software or any
materials provided or produced by the Company or the Software in
connection with this Terms of Use shall be reproduced and not
deleted or removed.
9. Confidentiality
9.1 You may be given access to Confidential Information from the
Company in the course of the provision of the Services under this
Terms of Use. The Company's Confidential Information shall not be
deemed to include information that:
9.1.1.is or becomes publicly known other than through any act or
omission of You;
9.1.2.was in Your lawful possession before the disclosure;
9.1.3.is lawfully disclosed to the receiving party by a third party
without restriction on disclosure;
9.1.4.is independently developed by You, which independent
development can be shown by written evidence; or
9.1.5.is required to be disclosed by law, by any court of competent
jurisdiction or by any regulatory or administrative body.
9.2 You shall hold the Company's Confidential Information in
confidence and, unless required by law, not make such Confidential
Information available to any third party, or use the Company's
Confidential Information for any purpose other than the
implementation of this Terms of Use.
9.3 You shall take all reasonable steps to ensure that the Company's
Confidential Information to which it has access is not disclosed or
distributed by its employees or agents in violation of the terms of
this Terms of Use.
9.4 You acknowledges that details of the Software and the Services
constitute the Company’s Confidential Information.
9.5 This Clause 10 shall survive expiry or termination of this Terms
of Use, however arising.
10. Indemnity
10.1 You shall defend, indemnify on demand and hold harmless the
Company and its authorised distributors or partners against any and
all claims, actions, proceedings, losses, damages, fees expenses and
costs (including without limitation court costs and reasonable legal
fees) arising out of or in connection with: (i) Your and its
Authorised Users' use of the Services otherwise than as permitted
under this Terms of Use, or (ii) any claim by any third party that
the use or exploitation of Content by the Company or any of the
Consumer Stores infringes a third party's Intellectual Property
Rights or other rights.
11. Limitation of Liability
11.1 Except as expressly and specifically provided in this Terms of
Use:
11.1.1.You assumes sole responsibility for results obtained from the
use of the Services by You, and for conclusions drawn from such use.
the Company shall have no liability for any damage caused by errors
or omissions in any information, instructions or scripts provided to
the Company by You in connection with the Services, or any actions
taken by the Company at Your direction;
11.1.2.all warranties, representations, conditions and all other
terms of any kind whatsoever implied by statute or common law (with
respect to the Services or otherwise) are, to the fullest extent
permitted by applicable law, excluded from this Terms of Use; and
11.1.3.the Services are provided to You on an "as is" basis.
11.2 Nothing in this Terms of Use shall limit or exclude the
liability of either party for a matter in respect of which it would
be unlawful to exclude or limit liability.
11.3 Subject to 11.2:
11.3.1.NEITHER THE COMPANY NOR ITS AUTHORISED DISTRIBUTORS OR
PARTNERS SHALL BE LIABLE TO YOU WHETHER IN TORT (INCLUDING FOR
NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT,
MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS,
LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR
LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR
FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES,
CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS TERMS OF USE.
11.3.2.THE COMPANY'S TOTAL AGGREGATE LIABILITY (AND THAT OF ITS
AUTHORISED DISTRIBUTORS OR PARTNERS) IN CONTRACT, TORT (INCLUDING
NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION,
RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE
OR CONTEMPLATED PERFORMANCE OF THIS TERMS OF USE SHALL BE LIMITED TO
THE TOTAL AMOUNT OF THE FEES RECEIVED BY THE COMPANY PURSUANT TO
THIS TERMS OF USE DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE
ON WHICH THE CLAIM AROSE.
11.4 For the purposes of Clause 11.3, the Company is acting on its
own behalf and as an agent for and on behalf of its authorised
distributors and partners, and accordingly the Company may enforce
and rely on Clause 11.3 on its own behalf and/or in its capacity as
agent of its authorised distributors and partners.
12. Term & Termination
12.1 The duration of our contractual relationship is initially
undetermined. It shall begin when registering at the Platform and
upon the explicit acceptance of these Terms of Use, and You or Us
may elect to terminate the Service at any time by providing notice,
in accordance with these Terms of Use, of thirty (30) days from the
termination date.
In the event of termination, You must pay all outstanding amounts to
Us in a maximum period of five (5) days from the notification date
or the Company will transfer to you any positive balance, whichever
is the case. Prior to requesting the termination, You must remove
the Content from the DMSs using the "Takedown" functionality
that is available to you within the Platform. Moreover, in the event
of termination, You authorize Us suspend your account, block your
access to your account and delete all the files and information
uploaded by You to the Platform. The termination shall not affect the
accrued rights and obligations of the parties at the date of
termination.
12.2 Additionally, the Company may terminate our relationship and
the Service:
In the event You breach any term or condition established by Us
(here or in any other document accepted by You) and You fail to
remedy such breach within two (2) days of the date of notice from
Us;
In case the outstanding balance is not paid, the Company will have
the right to terminate the relationship and cease the Service.
If You become the subject of any proceeding related to your
liquidation or insolvency (whether voluntary or involuntary) which
is not dismissed within sixty (60) calendar days;
If You infringe our Intellectual Property Rights.
If You infringe our Anti-Fraud Policy.
In case you commit any unlawful activity using the Platform or the
Service.
12.3 In all cases, all costs due for any Service provided by Us
until the termination date, must be duly paid by You.
12.4 The Company will not be liable to You for damages of any kind
because of the termination of our relationship in accordance with
these Terms of Use. Our respective rights and obligations contained
in sections that by their nature are intended to survive, will
survive the termination of this relationship.
Regardless the termination of the Service, You and the Company agree
to maintain in force those contracts signed by Us with third parties
before receiving the notification of termination in the event the
contracts with such third parties would be still in force.
12.5 On termination of this Terms of Use for any reason:
12.5.1. all licenses granted under this Terms of Use (subject to
Clause 3.2) shall immediately terminate;
12.5.2. You shall return and make no further use of any Software,
property, documentation and other items (and all copies of them)
belonging to the other party;
12.5.3. the Company may destroy or otherwise dispose of any of
Content in its possession unless the Company receives, no later than
thirty (30) days after the effective date of the termination of this
Terms of Use, a written request for the delivery to You of the then
most recent back-up of Content. The Company shall use reasonable
commercial endeavours to make available the back-up to You within 30
days of its receipt of such a written request, provided that You
has, at that time, paid all fees and charges outstanding at and
resulting from termination (whether or not due at the date of
termination). You shall pay all reasonable expenses incurred by the
Company in returning or disposing of Content; and
12.5.4. the accrued rights of the parties as at termination, or the
continuation after termination of any provision expressly stated to
survive or implicitly surviving termination, shall not be affected
or prejudiced.
13. Force Majeure
The Company shall have no liability to You under this Terms of Use
if it is prevented from or delayed in performing its obligations
under this Terms of Use, or from carrying on its business, by acts,
events, omissions or accidents beyond its reasonable control,
including, without limitation, strikes, lock-outs or other
industrial disputes (whether involving the workforce of the Company
or any other party), failure of a utility service or transport or
telecommunications network, act of God, war, riot, civil commotion,
malicious damage, compliance with any law or governmental order,
rule, regulation or direction, accident, breakdown of plant or
machinery, fire, flood, storm or default of suppliers or
sub-contractors, provided that You is notified of such an event and
its expected duration.
14. General
14.1. You shall not, without the prior written consent of the
Company assign, sub-License, delegate or transfer this Terms of Use
or any of its rights under this Terms of Use to any other person,
firm or company.
14.2. Failure or neglect by the Company to enforce at any time any
of the provisions hereof shall not be construed nor shall be deemed
to be a waiver of the Company's rights pursuant to this Terms of Use
nor in any way affect the validity of the whole or any part of this
Terms of Use nor prejudice the Company's rights to take subsequent
action.
14.3. In the event that any or any part of the terms, conditions or
provisions contained in this Terms of Use or any Schedule hereto
shall be determined by any competent authority to be invalid,
unlawful or unenforceable to any extent such term, condition or
provision shall to that extent be severed from the remaining terms
and conditions which shall continue to be valid and enforceable to
the fullest extent permitted by law.
15. Law & Jurisdiction
This Terms of Use shall be governed by and construed in accordance
with the laws of Hong Kong and the parties agree that any dispute
relating to its terms or subject matter shall be subject to the
exclusive jurisdiction of the Hong Kong courts.
16. Interpretation
In this Terms of Use (except where the context otherwise requires):
(a) any reference to a Clause or Schedule (if any) is to the
relevant Clause or Schedule of or to this Terms of Use; (b) the
Clause headings are included for convenience only and shall not
affect the interpretation of this Terms of Use; (c) use of the
singular includes the plural and vice versa; (d) use of any gender
includes the other genders; (e) any reference to
"persons" includes individuals, firms, partnerships,
companies, corporations, associations, organisations, foundations
and trusts (in each case whether or not having separate legal
personality); (f) any reference in this Terms of Use to any statute,
statutory provision, subordinate legislation, code or guideline
("legislation") shall be construed as referring to such
legislation as the same may from time to time be amended, modified,
extended, varied, superseded, replaced, substituted or consolidated;
(g) any phrase introduced by the terms "including",
"include", "in particular" or any similar expression
shall be construed as illustrative and shall not limit the sense of
the words preceding those terms. The Schedules form part of this
Terms of Use and shall have effect as if set out in full in the body
of this Terms of Use and any references to this Terms of Use
includes the Schedules.