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.