App QA
Pricing

WeTest Terms of Service

Last Updated: [2020/3/20]
1. A few important notices—arbitration, refunds, class actions and damages
We want to be super upfront about three important things: First, by using our services you are agreeing to arbitrate almost all disputes rather than have them heard in a court of law or by a jury. Second, if you are in the US you are agreeing not to participate in a class action lawsuit against us. Third, unless otherwise stated herein and to the extent allowed by law, all purchases are non-refundable.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS TOS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 19 AND 20 "DISPUTE RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). THIS TOS ALSO INCLUDES A WAIVER OF RIGHTS BY YOU TO BRING A CLASS ACTION AGAINST US AND A LIMITATION ON DAMAGES THAT YOU CAN COLLECT FROM US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICES. BY USING THE SERVICES, YOU AGREE TO THESE PROVISIONS.
THESE TERMS APPLY TO YOU IF YOU ARE A USER OF OUR SERVICES ANYWHERE IN THE WORLD, EXCEPT IF YOU BELONG IN ANY OF THE FOLLOWING CATEGORIES: (I) A USER OF OUR SERVICES (REGARDLESS OF NATIONALITY) IN THE PEOPLE' S REPUBLIC OF CHINA; (II) A CITIZEN OF THE PEOPLE' S REPUBLIC OF CHINA USING OUR SERVICES ANYWHERE IN THE WORLD; OR (III) A CHINESE-INCORPORATED COMPANY USING OUR SERVICES ANYWHERE IN THE WORLD. IF YOU BELONG IN ANY OF THOSE CATEGORIES, YOU ARE SUBJECT INSTEAD TO THE TERMS OF SERVICES APPLICABLE TO PRC USERS AT [ https://wetest.qq.com/introduction/agreement ] IN YOUR USE OF OUR SERVICES.
BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ADDITIONAL TERMS REFERRED IN SECTION 4. IF YOU DO NOT AGREE TO THE TERMS OF THIS TOS, YOU MAY NOT INSTALL, COPY, ACCESS OR USE OUR SERVICES. WITH LIMITED EXCEPTION (SEE SECTION 10), ANYTHING YOU PURCHASE FROM US IS NON-REFUNDABLE.
2. What is this document? When can I use?
This is the agreement between you and us for our services you download, install, access or use, whether that' s a software, something that supports the software, or something else. You can only use these things once you agree to these terms.
You are now reading our WeTest Terms of Service ("TOS") which is a legal agreement between you and [Top Range Mobile Limited] ("we" or "us","our" , as appropriate) regarding the Services you use from us. "services" are further described at https://www.wetest.net/, and include, collectively, and sometimes individually, the following: (a) each of our Products, (b) any websites, software or other services we provide with or in support of the Product, whether or not they are installed or used on a computer, console, or a mobile device. "Product" means our software, API, applications, or other product that you download, install, access or use that is subject to this TOS and any documentation, updates and Technology (each defined below) included in it.
We've tried to be straightforward in this TOS and if you have any questions feel free to send us a note at [WeTest@wetest.net] (our "Support Email Address" ). You' ll notice that we added some text in italics throughout the TOS to make it easier to read however this text is provided for guidance only, and does not form part of the TOS.
3. Defined Terms
You'll notice some capitalized terms in this TOS. They're called "defined terms," and we use them so we don't have to repeat the same language again and again, and to make sure that the use of these terms is consistent throughout the TOS. We've included the defined terms throughout because we want it to be easy for you to read them in context
4. Additional Terms
The collection of information from you and related to the Services is governed by our Privacy Policy at https://www.wetest.net/introduction/agreement/tabprivacy Our Privacy Policy explains how we collect, use, and disclose information that we collect from and about you.
"User Data" means any data, information, media or other content submitted by you to the Services, but excluding any data provided to us as part of your general WeTest Account. We will access and process User Data only in connection with the provision of the Services and otherwise in accordance with this TOS and as described in our Privacy Policy.
You hereby grant to us a non-exclusive, sublicensable license to access, copy, and use User Data to provide the Services, and otherwise use in accordance with this TOS. You acknowledge and agree that we may disclose User Data to third parties with or without notice to you: (i) to comply with applicable law or protect our rights; or (ii) to comply with court orders, a lawful government or law enforcement request, or other legal process. We may also block or remove User Data as required by applicable law, in which case we will make reasonable commercial efforts to promptly notify you if legally permissible. You are solely responsible for maintaining and backing up User Data. You represent and warrant that: (i) you have all rights required to provide User Data to us, for us to use the User Data as provided for in this TOS and for you to use in connection with your use of the Services; and (ii) User Data, and your use of User Data through the Services does not violate any laws or rights of any person. You retain all intellectual property rights in User Data.
5. Eligibility and Registration
The Services we offer have certain age restrictions. Others may require an outside account. When you give us information, you need to make sure it stays up to date. Also, don' t share your account with others without our permission.
(a)Age.Depending on the content of our Product that you download and access, you must be at least 18 years old (or such other minimum age as is applicable in the jurisdiction you live in) to use or access any of our Services. You may not use any of our Services if you are incapable of forming a binding contract with us or are barred from using the Services under applicable law. By using the Services, you (or your parent or guardian as the case may be) represent and warrant that: (i) you are legally capable of forming a binding contract with us; and (ii) you will comply with the terms of this TOS and all applicable local, state, national, and international laws, rules, and regulations.
(b)Account Creation.To access parts of a Product, you may need to create an account ( your "WeTest Account" ). You may be able to create your WeTest Account using an existing account you have with us or your email address. To the extent you create your WeTest Account through the use of a third party account (for example, your account with WeCom or Google), we may access certain personal information that this third party provides to us such as your email address and name to help create your WeTest Account. Further information about use of third party accounts is provided in the Privacy Policy at https://www.wetest.net/introduction/agreement/tabprivacy
(a)Keep Your Information Current.Keep Your Information Current. It' s important that you provide us with accurate, complete and up-to-date information for your WeTest Account and you agree to update such information to keep it that way. If you don' t, we may suspend or terminate your WeTest Account. You agree that you will not disclose your WeTest Account password to anyone and will notify us immediately of any unauthorized use of your WeTest Account. You are responsible for all activities that occur under your WeTest Account, whether or not you know about them. If you believe that your WeTest Account is no longer secure, then you must immediately notify us at our Support Email Address.
(d)No Account Sharing.You may not sell, rent, lease, share or provide access to your WeTest Account to anyone else. We reserve all available legal rights and remedies to prevent unauthorized use of our Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
(e)No False Accounts.You may not create a WeTest Account for anyone else or create a WeTest Account in a name other than your own.
6. License
As long as you agree to this TOS (and as long as the TOS isn' t terminated—see Section 20), we grant you permission to access and use our Services. If you break the rules or can' t agree, we can' t let you use our Services.
(a)License Grant.So long as you comply with this TOS, we grant you the following license: a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to download, install, access and use the Services, including any Product, for your personal and non-commercial purposes leveraging only the functionality of the Product and Services. We and our licensors reserve all rights not granted to you in this TOS. "Technology" means all software, technologies, functionalities, development kits, documentations, modifications, enhancements, upgrades and any other content within the Services. Technology also includes anything generated, created, or that is otherwise developed within the Services by any user (including you) as a result of interaction with the functionality of the Services.
(b)Application You Create Outside the Services."Application" means any applications, software, or other contents that you (or other WeTest Account holders) create or obtain outside the Services that you or another user makes available within the Services. Applications include any application that runs on the Services and any source code written by you to be used with the Services or otherwise hosted on our server. We do not pre-screen or review all Applications and does not approve or endorse any Application available on the Services or our other services.
(c)Service Limits Based on Where You Live.We may restrict, modify, or limit your access to and use of certain Technology, an entire Product, or any or all of the Services depending on the territory in which you are located.
7. License Restrictions
If you use our Services as intended, without being abusive, or being unfair, you are probably in the clear, but please read all of the terms of this TOS carefully to be sure.
You agree not to do any of the following with respect to the Services, as determined by us, as applicable:
(a) use them commercially, for a promotional purpose, or for the benefit of any third party or in any manner not permitted by this TOS;
(b) use, or provide, any unauthorized third party programs that intercept, emulate, or redirect any communication between the Services and us or that collect information about the Product;
(c) use, or provide ancillary offerings to anyone, that are not offered within the Services by us (or the functionality of the Product Store), such as hosting, "leveling" services, mirroring our servers, matchmaking, emulation, communication redirects, mods, hacks, cheats, bots (or any other automated control), trainers and automation programs that interact with the Services in any way, tunneling, third party program add-ons, and any interference with online or network play;
(d) access or use them on more than one device at a time;
(e) copy, reproduce, distribute, display, mirror, frame or use them (or any of our other materials, intellectual property, or proprietary information) in a way that is not expressly authorized in this TOS;
(f) sell, rent, lease, license, distribute, or otherwise transfer the Services, Product or any Technology, including participating in or operating so called "secondary markets" for Services, Technology or Product;
(g) attempt to reverse engineer (except as otherwise permitted by applicable local law), derive source code from, modify, adapt, translate, datamine, decompile, or disassemble or make derivative works based upon the Services or any Technology;
(h) remove, disable, circumvent, or modify any technological measure we implement to protect them or any of their associated intellectual property;
(i) violate any applicable law or regulation;
(j) attempt to probe, scan or test its vulnerability or breach any security or authentication measures;
(k) access, tamper with, or use non-public areas of the Services;
(l) behave in a manner which is detrimental to the enjoyment of the Services by other users as intended by us, in our sole judgment, including, without limitation, harassment, use of abusive or offensive language, game abandonment, game sabotage, spamming, behaving in a disruptive manner, social engineering, or scamming, or contrary to public morals or public policy;
(m) upload, publish, submit or transmit any Application or create a user name or account name that: (i) infringes, misappropriates or violates a third party' s patent, copyright, trademark, trade secret, contractual rights, moral rights or other intellectual property rights, or rights of publicity or privacy, or any other rights of third parties; (ii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is grossly harmful, racially or ethnically objectionable, disparaging, blasphemous, libelous, defamatory, obscene, pornographic, paedophilic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent, bullying, or threatening or promotes violence, money laundering or gambling, terrorism, or actions that are threatening or disrespectful to any person or entity; (vii) harms minors in any way; or (viii) promotes illegal or harmful activities or substances;
(n) engage in any behavior that: (i) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (ii) is fraudulent, false, misleading or deceptive, including "trolling;" (iii) is defamatory, obscene, pornographic, vulgar or offensive; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (v) is disruptive to the Product, its users or user community, is violent, bullying, or threatening or promotes violence, terrorism, or actions that are threatening or disrespectful to any person or entity; or (vi) promotes illegal or harmful activities or substances;
(o) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services or any of its users;
(p) collect or store any information that could be used to identify an individual, either itself or combined with other information, from the Services from other users of the Services without their express permission;
(q) trespass, or attempt to gain access to a property or location where you do not have permission to be or engage in any activity that may result in injury, death, property damage, nuisance or other liability;
(r) impersonate or misrepresent your affiliation with any person or entity, or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(s) use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on the Services or for any other purpose;
(t) use the Services in any way that would affect us adversely or reflect negatively on us or the Services or discourage any person from using all or any portion of the features of the Services; or
(u) encourage, promote, take part in or enable anyone else to do any of the foregoing.
8. Ownership of the Services
Our Service including our Technology and Products is owned by us or our licensors. Our Services may let you upload, post, submit and store other content that you own. You retain your ownership of this content, to which we take a license.
We and our affiliates and licensors own all title, ownership and intellectual property rights in the Services. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. You understand and agree that you have no ownership interest in the Services or any Products or Technology therein.
Although we are not obligated to monitor access to or use of the Services or to review or edit any Technology, we have the right to do so for the purpose of operating and publishing the Services, to ensure compliance with this TOS, to protect the health or safety of anyone that we believe may be threatened, to protect our legal rights and remedies, to report a crime or offensive behavior, or to comply with applicable law. We may (but don' t have to) remove or disable access to any Technology, at any time and without notice. We may (but don' t have to) investigate violations of this TOS or conduct that affects the Services.
9. Fees and Payments
We may offer you some cool Products in our Services for which you must pay. We need special permission to charge your payment method. These features are owned by us.
(a)Purchasing our Products.You may, from time to time, be required to make payments to us as part of your use of the Services ("Fees"). Except as otherwise specified in the TOS, all Fees are non-refundable. You agree that you are solely responsible for payment of all Fees and all taxes associated with any such payments. All payments made by you shall be made free and clear of and without deduction for any tax. To the extent that you are required by applicable law to make such a deduction or withholding of tax, you shall provide us with an official tax receipt or other appropriate supporting documentation within 30 days after payment of the deduction or withholding tax and increase the amount paid to us to the extent necessary to ensure that we receive a sum equal to the amount we would have received had no such deduction or withholding been made.
(b)Payment Methods.Payment Methods. At the time you create a WeTest Account, purchase a Product or otherwise sign up for Services you may be asked to provide a credit card or other payment-related information, and thereafter may be able to link alternative means of payment to your WeTest Account (each a "Payment Method" ). You agree that (subject to applicable laws and regulations): (i) you authorize us to: (1) save your chosen Payment Method's information (e.g., credit card information) on our systems or that of our payment processor; and (2) periodically bill your chosen Payment Method for Services consumed during the prior month or pursuant to an alternative payment structure we agree to; and (ii) if any payment made via your chosen Payment Method is rejected, denied, not received by us or returned unpaid for any reason: (1) we may suspend or terminate your access to the Services until your payment is properly processed; (2) charges will continue to be incurred and you are liable to us for any fees, costs, expenses or other amounts we incur arising from such rejection, denial or return (and we may charge you for such amounts); and (3) we may charge late fees up to the maximum amount permissible under law. Your card issuer may charge you an online handling fee or processing fee in connection with your payment of Fees. We are not responsible for this fee
(c)Changes to Fees and Payment Methods.We may change or introduce any charges for the Services at any time after prior notice by publication within the Services. Any new or changed charges will immediately apply to your use of the Services. If you and us agree to other payment terms or Payment Methods in writing (including email), then those alternative provisions shall apply in the event of a conflict with this Section.
(d)Changes to Product.Except as otherwise prohibited by applicable law, we, in our sole discretion, may modify, substitute, replace, suspend, cancel or eliminate any Product, including your ability to access or use Product, without notice or liability to you. YOU AGREE THAT YOU WON' T ASSERT OR BRING ANY CLAIM AGAINST US, OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS (THE "COMPANY PARTIES") RELATING TO (A) A CLAIM THAT YOU HAVE A PROPRIETARY INTEREST IN ANY PRODUCT; OR (B) A CLAIM FOR AN ALLEGED MONETARY VALUE OF PRODUCT LOST UPON (I) DELETION OR SUSPENSION OF YOUR WETEST ACCOUNT, (II) ADJUSTMENTS TO THE SERVICES THAT RESULT IN THE VALUE OF PRODUCT CHANGING, OR (III) MODIFICATION, TERMINATION OR EXPIRATION OF THIS TOS.
10. Refunds
Subject to applicable law, (i) all Products remain our property, have no monetary value and are not redeemable, refundable, or eligible for any other alternate remedy for any "real world" money or anything of monetary value, unless they are defective, unavailable, or do not perform in accordance with the specifications we provide; and (ii) by purchasing and using any Product, you hereby waive any statutory right you may have to withdraw from your agreement to purchase the applicable Product and you agree that you will therefore not be eligible to receive a refund (or any alternative remedy) in relation to such Product. Where applicable law does not permit you to waive your right to so withdraw, you hereby agree that such withdrawal right expires immediately upon purchase and delivery of the Product, as permitted by applicable law.
11. Technology Support and Service Levels
We will provide any related Services in accordance with the relevant services level agreement, if any, as mutually agreed in writing.
Except to the extent required by applicable law with respect to consumers, we are under no obligation to provide technical support or other services unless you have purchased support services. You acknowledge and agree that technical support or other services may require you to pay additional costs and other fees.
You are responsible for technical support of your Applications.
12. Feedback
We' d love to hear your feedback, good or bad. It helps us improve! But if you give us feedback, we need to be free to use it how we want and without paying you.
We welcome your feedback, comments and suggestions for improvements to the Services (" Feedback "). You can submit Feedback by emailing us at [WeTest@wetest.net] or via the functionality of the Services (if available). If you provide us with any Feedback, you hereby grant us the following license: a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, distribute copies of, publicly perform, publicly display and otherwise exploit the Feedback for any purpose and in any country. This license does not lapse or expire even if we do not exercise our rights under this license within a period of one year. If you have rights in the Feedback that cannot be licensed to us under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert those rights. You understand and agree that you are freely giving your Feedback, that we don' t have to use it, and that you will not be compensated in any way for your Feedback. You represent and warrant that you have rights in any Feedback that you provide to us sufficient to grant us and other affected parties the rights described above, including, without limitation, intellectual property rights or rights of publicity or privacy.
In posting such Feedback, you warrant that you will not use obscene or offensive language or submit any material that is, or may potentially be, defamatory, abusive or hateful, an invasion of anyone's privacy, harmful to other users, or breach the applicable laws.
13. DMCA/Copyright Policy
We respect copyright law and expect our users to do the same. It' s our policy to terminate in appropriate circumstances WeTest Accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
You are solely responsible for any software used by you in connection with your use of the Services ( "Third Party Software" ), including third party software made available in connection with the Services. We are not responsible for and is not liable for any damages or losses arising from the use of the Third Party Software, and we do not endorse, support or guarantee the quality, reliability, or suitability of any Third Party Software. You will comply with any terms and conditions applicable to Third Party Software. We do not provide any technical support for any Third Party Software. Please contact the relevant supplying third party for technical support.
14. Third Party Websites, Resources and Software
Outside links are for your convenience, but we can' t guarantee them.
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
You are solely responsible for any software used by you in connection with your use of the Services ( "Third Party Software" ), including third party software made available in connection with the Services. We are not responsible for and is not liable for any damages or losses arising from the use of the Third Party Software, and we do not endorse, support or guarantee the quality, reliability, or suitability of any Third Party Software. You will comply with any terms and conditions applicable to Third Party Software. We do not provide any technical support for any Third Party Software. Please contact the relevant supplying third party for technical support.
15. Service and TOS Modifications
When we update this TOS, you need to agree to the updated version to keep using our Services. We also need the freedom to update any part of the Services whenever we see fit, so we are letting you know we can do so at any time.
We may (but don't have to) update this TOS at any time whenever we think there is a need. Subject to applicable law, if we do so, you will be prompted to agree to the updated TOS upon your next access to the Services or when the updated TOS is otherwise communicated to you. You must agree to these updates to continue using the Services.
We may provide patches, updates, or upgrades to the Services that must be installed in order for you to continue to use the Services. We may update the Services remotely without notifying you, and you hereby consent to us applying such patches, updates, and upgrades. If your device can prevent automatic updates, you may not be able to access the Services until you manually update the Services yourself on your device. We may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Services at any time. Subject to applicable law, you acknowledge that any character data, game progress, game customization or other data related to your use of any particular Product and other elements unique to the Services may cease to be available to you at any time without notice from us, including, without limitation, after a patch, update, or upgrade is applied by us. You agree that we do not have any maintenance or support obligations with respect to the Services.
Subject to applicable law, we may change the price of the Services, Products, Technology, at any time, for any reason, without notice or liability to you.
16. Export Control
In connection with the Services, you must comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations.
You, nor any of your officers, directors, shareholders, agents or employees, are:
(a) listed in any list of designated persons maintained by the United States (including, without limitation, the list of "Specially Designated Nationals" as maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, the United Nations Security Council, the United Kingdom (including the Consolidated List of Financial Sanctions Targets as maintained by Her Majesty' s Treasury), the European Union and any Member State thereof (including the Consolidated List of Persons, Groups and Entities Subject to Financial Sanctions), or any other list of sanctioned persons maintained by an authority with jurisdiction over you (any person so listed being a "Restricted Person");
(b) organized in, operating from or resident in a country or territory that is the target of comprehensive sanctions (as of the date of this Agreement, Iran, Cuba, North Korea, Syria and the Crimea/Sevastopol region(“Sanctioned Territories"); or
(c) controlled or owned by 50% or more by any of the foregoing.
If you become a Restricted Person or controlled or owned by 50% or more by a Restricted Person or if provision of the Services becomes otherwise restricted or prohibited as a consequence of the imposition of sanctions or by operation of export control laws or regulations (a "Sanctions Event" ), we shall not be obliged to perform any of its obligations or provide Services and shall be entitled to terminate these Terms with immediate effect.
In connection with the Services, you will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including U.S. or EU restrictions that prohibit or restrict the export, re-export or transfer of products, technology, services or data - directly or indirectly - to or for Sanctioned Territories, Restricted Persons, or other relevant end-users (collectively, "Export Laws" ). You agree not to engage in any activities in connection with the Services that would risk placing us in breach of any Export Laws and are solely responsible for compliance with Export Laws related to the manner in which you choose to use the Service, including: (a) your transfer and processing of User Data; (b) the provision of User Data to End Users; and (c) specifying the service region in which any of the foregoing occur.
17. Warranty Disclaimers
We don' t make any guarantees about the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE COMPANY PARTIES EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
The Company Parties make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. The Company Parties make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Services.
18. Limitation of Liability
This section limits what you can recover from us in a dispute.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE COMPANY PARTIES WILL NOT BE LIABLE IN ANY WAY FOR ANY:
(a) LOSS OF PROFITS,
(b) LOST REVENUE,
(c) LOST SAVINGS,
(d) LOSS OF DATA, OR
(e) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES,
ARISING OUT OF OR IN CONNECTION WITH THIS TOS OR THE SERVICES, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE SERVICES, EVEN IN THE EVENT OF ONE OF A COMPANY PARTY' S FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THAT COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE COMPANY PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS TOS OR THE SERVICES WILL NOT EXCEED: (A) THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) OR ARE PAYABLE BY YOU TO US FOR THE PARTICULAR PRODUCT OR SERVICE IN QUESTION DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; OR (B) IF (A) DOES NOT APPLY, FIFTY DOLLARS ($50 USD). THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
Notwithstanding the foregoing, some countries, states, provinces or other jurisdictions do not allow the exclusion of certain warranties or the limitation of liability as stated above, so the above terms may not apply to you. Instead, in such jurisdictions, the foregoing exclusions and limitations will apply to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in this TOS will prejudice such rights that you may have as a consumer of the Services.
19. Indemnity
If someone sues us based on your breach of this TOS or your access/use of the Services, you agree to defend us or pay for our defense in that lawsuit.
You agree to indemnify (in other words, compensate for all and any losses incurred), pay the defense costs of, and hold the Company Parties and their employees, officers, directors, agents, contractors, and other representatives harmless from all claims, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees, costs, and expert witnesses' fees) that arise out of or in any way are connected with: (a) your access to or use of the Services; or (b) any claim that, if true, would constitute a breach by you of this TOS. You agree to reimburse us for any payments made or loss suffered by us, whether in a court judgment or settlement, based on any matter covered by this Section 19.
20. Termination
We reserve the right to terminate this TOS as we see fit in accordance with the applicable law. Reasons we may terminate this TOS include, but are not limited to: if we wind down our product offerings in your region, if you failed to pay any Fees or other amounts owed by you to us, if you violate this TOS.
To the fullest extent consistent with applicable law, we may suspend, modify or terminate your access to and use of the Services, including any Product, and Technology with no liability or notice to you in the event that (a) we cease providing the Product in your jurisdiction or for all of its users or customers; (b) you breach any terms of this TOS and our other policies specified in this TOS); (c) you have not paid any Fees or other amounts owed by you to us within 10 days after the applicable due date; (d) you enter into liquidation, administrative receivership, bankruptcy or make any voluntary agreement with your creditors or are unable to pay your debts as they fall due; or (e) we otherwise deem it necessary to suspend or modify your access to and use of the Services or terminate this TOS in our sole discretion. You may also terminate this TOS by deleting, uninstalling and unable the Product on any and all of your devices. A suspension or modification of your access to and use of the Services will result in your inability to access and use some or all features of the Services, as determined by us in our sole discretion. Upon any termination of this TOS, the rights granted to you will automatically terminate, you may no longer exercise any of those rights or this TOS. Subject to applicable law, we may, in our sole discretion, provide continued access to and use of the Services prior to such termination.
If we suspend your access to any or all of the Services: (a) you remain responsible for all Fees accrued through the date of suspension (including where the charges were incurred before suspension date but performance of the relevant obligations were after the suspension date); (b) you remain responsible for any applicable charges for any part of the Services to which you have access; and (c) you will not be entitled to any service credits under any applicable service level agreement for any period of suspension.
Where required by applicable law, termination of this TOS does not require a court decision to effect termination or a notice served by a court bailiff as a prerequisite to termination.
Except to the extent required by law, all payments and fees are non-refundable under all circumstances, regardless of whether or not this TOS has been terminated.
The following sections will survive termination of this TOS: 8 (first two sentences only), 12, 18, 19, 21 through 25, and this sentence of Section 20.
21. Dispute Resolution and Governing Law - United States
You are agreeing to the laws of California. Any court cases will be handled in the Northern District of California.
(a)Governing Law and Forum Choice.This TOS and any action related thereto including but not limited to any dispute, controversy, difference, or claim arising out of or relating to this TOS, a Product, or the Services, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this TOS, a Product, the Services (collectively, "Disputes" ) will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in this Section 21, the exclusive jurisdiction for all Disputes (defined below) that you and we are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and we each waive any objection to jurisdiction and venue in such courts.
US residents—if there is a dispute between us, we agree we'll resolve it through arbitration (in your home area) instead of through the courts. You are also agreeing not to participate in a class-action lawsuit against us. (This section is long so we' re providing mini-explanations for each part.)
(b)Mandatory Arbitration of Disputes.We each agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this TOS, and that you and we are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this TOS.
(c)Location of Arbitration.If you are a resident of the United States, any arbitration will take place in your county of residence, to the exclusion of all other venues.
Disputes that can be resolved in small claims court or relate to the infringement of our intellectual property do not have to be arbitrated. You can opt out of arbitration within 30 days of accepting this TOS.
(d)Exceptions.As limited exceptions to Section 21(b) above, the following Disputes can be resolved in court and need not be resolved through arbitration: (i) any Dispute that can be resolved in small claims court (if it qualifies); and (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights.
(e)Opt-out.You have the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at our Support Email Address within thirty (30) days following the date you first agree to this TOS.
The American Arbitration Association' s Consumer Arbitration Rules will apply. You may be able to choose the types of evidence you and we can submit depending on the size of your claim. Arbitration will be near where you live unless we agree otherwise.
(f)Conducting Arbitration and Arbitration Rules.Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ( "AAA" ) under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this TOS. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Unless your claim is frivolous or for more than $10,000, we' ll pay the filing, administration, and arbitrator fees. We won' t seek attorney fees from you, but if you win you can seek them from us to the extent allowed by law.
(g)Arbitration Costs.Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We' ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we' ll pay all of our attorneys' fees and costs and won' t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law.
You agree not to participate in a class action and only bring claims as an individual. Your dispute can' t be combined with other people' s claims.
(h)Class Action Waiver.
YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution (Section 22) shall be null and void.
Similar to how you can opt out of arbitration within 30 days, you can also opt out of any changes to this provision within 30 days of us notifying you of the changes.
(i)Effect of Changes on Arbitration.Notwithstanding the provisions of Section 15 above, if we change any of the terms of this Section 21 after the date you first accepted this TOS (or accepted any subsequent changes to this TOS), you may reject any such change by sending us written notice (including by email to our Support Email Address) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of our notice to you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the terms of this Section 21 "Dispute Resolution—United States" as of the date you first accepted this TOS (or accepted any subsequent changes to this TOS).
If a court decides a part of this section is unenforceable, the rest still applies.
(j)Severability.With the exception of any of the provisions in Section 21(h) above, if an arbitrator or court of competent jurisdiction decides that any part of this TOS is invalid or unenforceable, the other parts of this TOS will still apply.
22. Dispute Resolution and Governing Law - Outside the United States
This section only applies if you are accessing, using, or have purchased the Services outside of the United States.
If you are outside the United States—You are agreeing to Hong Kong Law. If there is a dispute between us, we agree it' ll be resolved through arbitration, with each of us paying our own costs.
(a)Governing Law.You agree that any dispute, controversy, difference, or claim arising out of or relating to this TOS, a Product, or the Services, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this TOS, a Product, or the Services (collectively, "Disputes") will be resolved in accordance with the laws of Hong Kong Special Administrative Region of the People' s Republic of China ("Hong Kong") without reference to choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any law or regulation which provides that the language of a contract will be construed against the drafter will not apply to this TOS.
(b)Dispute Resolution.Any Dispute will 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 at the time of delivery of the arbitration notice.
(c)Arbitration Rules.The arbitration will be conducted in accordance with Hong Kong law with the seat of the arbitration in Hong Kong and the language of the proceedings will be in English. The number of arbitrators will be three (3), with each party nominating one arbitrator within thirty (30) days after the delivery of the arbitration notice. The appointment of such arbitrators will be confirmed by the HKIAC, and both arbitrators will be instructed to and will agree on the third arbitrator within ten (10) days of their confirmation by the HKIAC. Should either party fail to appoint an arbitrator, or should the two arbitrators fail within ten (10) days to reach agreement on the third arbitrator, such arbitrator(s) will be appointed by the Secretary General of the HKIAC. The arbitrators will award only such damages as are permitted to be awarded pursuant to this TOS.
(d)Costs.Each party will pay its own costs and expenses (including, without limitation, counsel fees) of any such arbitration; provided, however, that the parties will equally share the fees and expenses of the arbitrators.
(e)Injunctive Relief.Notwithstanding anything to the contrary in this TOS, either party may always apply to a court of competent jurisdiction for an injunction or any other legal or equitable relief. The parties hereby expressly agree that Sections 5, 6 and 7 of Schedule 2 to the Arbitration Ordinance (Chapter 609 of the Laws of Hong Kong) are to apply.
23. No Assignment
You cannot transfer or assign this TOS to anyone else.
You may not assign or transfer this TOS, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this TOS, without such consent, will be null and void. Notwithstanding the title of this Section, we may freely assign or transfer this TOS without restriction. Subject to the foregoing, this TOS will bind and inure to the benefit of the parties, their successors and permitted assigns.
24. Miscellaneous
This TOS is our whole agreement (no outside promises). The official version is English. If parts of this TOS don' t apply, the rest remains as much as possible. If we don' t enforce part of this TOS, it doesn' t mean we won' t in the future or we won' t enforce our other rights. Also, no one other than you or us can enforce this TOS.
(a)Independent Contractors.The relationship of the parties established by this TOS is that of independent contractors, and nothing contained in this TOS should be construed to give either party the power to 1) act as an agent or 2) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party' s business are the sole responsibility of that party.
(b)Entire Agreement.This TOS and any other document or information referred to in this TOS constitutes the entire and exclusive understanding between you and us regarding the Services and supersede any and all prior oral or written understandings or agreements between you and us regarding the Services.
(c)Language.The original language of this TOS is in English; any translations are provided for reference purposes only. You waive any right you may have under the law of your country to have this TOS written or construed in any other language.
(d)Severability.This TOS describes certain legal rights. You may have other rights under the laws of your jurisdiction. This TOS does not change your rights under the laws of your jurisdiction if the laws of your jurisdiction do not permit it to do so. As noted above, limitations and exclusions of warranties and remedies in this TOS may not apply to you because your jurisdiction may not allow them in your particular circumstance. In the event that certain provisions of this TOS are held by a court or tribunal of competent jurisdiction to be unenforceable, those provisions will be enforced only to the furthest extent possible under applicable law and the remaining terms of this TOS will remain in full force and effect.
(e)No Waiver.Your and our actions or inactions will not create any other rights under this TOS except as what is explicitly written within this TOS. Our failure to enforce any right or provision of this TOS will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by one of our duly authorized representatives. Except as expressly set forth in this TOS, the exercise by either party of any of its remedies under this TOS will be without prejudice to its other remedies under this TOS or otherwise.
(f)Third Party Rights.A person who is not a party to this TOS will have no right under to enforce any of its terms.
25. Contact Information
If you have any questions about this TOS or the Product, please contact us at our Support Email Address.