These Tems of Use (the “Terms”) constitute a legal agreement between you (together with the business entity, if any, that you represent, or any household or family members or other individuals to whom you provide App login credentials, “Licensee,” “you,” “your” or “yours”) and Hangzhou CE-soft Technology Co., Ltd., with offices at Room 842, 8th floor, No.6 Yinhu Innovation Center, No.9 Fuxian Road, Yinhu Street, Fuyang District, Hangzhou, PRC 310052 (tgether with its Affiliates, “CE-soft,” “we,” “us” or “our”), establishing terms and conditions under which you may access and use the App on your modible device(s) or tablet(s) in conjunction with Compatible Hardware. The App enables cloud-based storage of, and mobile device or tablet access to, video surveillance recordings and data captured or generated by Compatible Hardware.
BY CHECKING THE CONSENT BOX FOR THESE TERMS AND THE PRIVACY POLICY (WHICH IS INCORPATED HEREIN BY REFERENCE) OR ACCESSING OR USING THE APP, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND THE PRIVACY POLICY; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS AND THE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OR THE PRIVACY POLICY, DO NOT ACCESS OR USE THE APP AND DELETE IT FROM ALL OF YOUR MOBILE DEVICES AND TABLETS.
YOU HEREBY REPRESENT AND WARRANT THAT, TO THE EXTENT APPLICABLE, YOU HAVE THE LEGAL AUTHORITY TO BIND THE BUSINESS ENTITY, IF ANY, THAT YOU REPRESENT, OR ANY HOUSEHOLD OR FAMILY MEMBERS OR OTHER INDIVIDUALS TO WHOM YOU PROVIDE LOGIN CREDENTIALS. IF YOU ARE REPRESENTING A BUSINESS ENTITY, SUCH BUSINESS ENTITY SHALL BE DEEMED TO BE THE “LICENSEE” REFERRED TO IN THESE TERMS.
THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH (A) REQUIRES THAT YOU AND CE-SOFT ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND (B) LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION (SEE SECTION 10). NOTWITHSTANDING THE PRECEDING SENTENCE, THE AGREEMENT TO ARBITRATE DOES NOT APPLY TO RESIDENTS OF CANADA.
1. DEFINITIONS.
Capitalized terms shall have the meanings set forth below or as otherwise defined in these Terms.
1.1 “Affiliate” means, as to a Party, any corporation or entity directly or indirectly controlled by, controlling or under common control with such Party. For purposes of this definition, “control” shall mean the right to exercise directly or indirectly the power to direct the management or policies of a corporation or entity, whether through ownership of securities, by contract or otherwise.
1.2 “App” means the DMSS software application for mobile devices and tablets, including any services made available for use or purchase in the App for the storage, transmission, analysis, viewing or other use of your video feeds, recordings and images captured, collected or recorded using Compatible Hardware.
1.3 “Compatible Hardware” means third-party, App-compatible video surveillance cameras and related hardware products.
1.4 “Documentation” means any user documentation made available to you by CE-soft for use with the App, including any documentation available online or otherwise, as amended or updated by CE-soft from time to time in its discretion.
1.5 “Effective Date” means the date you first consent to these Terms and the Privacy Policy, or that you otherwise access or use the App.
1.6 “Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, or renewals or extensions of, any of the foregoing in any jurisdiction.
1.7 “Party” means you or CE-soft.
1.8 “PII” means information that can be used to identify, contact, locate, distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.
1.9 “Surveillance Data” means (a) video and audio recordings or live feeds or streams and still photographic images; and (b) readings or data from physical or virtual sensors (to the extent offered by or included with Compatible Hardware and supported by the App), including motion detection sensors, event sensors, temperature sensors, window/door sensors, passive infrared sensors, water sensors, carbon dioxide sensors and ambient light sensors, in each case as used or accessed in or though the App.
2. THE APP.
2.1 License to the App. Subject to these Terms, CE-soft hereby grants to you a limited, non-exclusive, non-transferable right and license, without the right to sublicense, to download, install, access and use the App, in each case only (a) in object code form and in accordance with the relevant Documentation, (b) for your internal business, household or personal purposes and not for the benefit of any other person or entity, and (c) in connection with Compatible Hardware. Except for the express licenses granted herein, CE-soft does not grant you any rights, by implication, estoppel or otherwise.
2.2 Login Credentials; Group Usage. You are required to establish login credentials (user name and password) in connection with your access to and use of the App. You agree to establish login credentials with strong security such as passwords that use a combination of upper- and lower-case letters, numbers and symbols. You are responsible for securing the confidentiality of your login credentials, and you shall be responsible for any and all actions taken on the App using your login credentials, including those of any other individual from the business entity you represent or any household or family member or other individual using your login credentials. You should only request login credentials for individuals that you are comfortable with having access to your Surveillance Data. If you request login credentials for any individual, you are responsible for that individual’s compliance with these Terms. If you use login credentials that have been requested by another individual, you agree to comply with these Terms. If you permit another individual to use your login credentials, you understand and agree that such individual may view PII of yours. You represent and warrant to us that you have the authority to enter into these Terms on behalf of the business entity you represent, if any, and each other individual for whom you request, or to whom you provide, login credentials. If you become aware of unauthorized use of your login credentials, you agree to notify us immediately.
2.3 Compatible Hardware. The App does not include include any Compatible Hardware. All Compatible Hardware is sold separately by third parties and is subject to the separate usage or licensing terms, if any, under which you acquire or otherwise obtain such Compatible Hardware.
2.4 In-App Fee-Based Services. Certain services available in the App may require a fee for purchase or a paid subscription plan. You agree to pay any fees when due and otherwise abide by the relevant payment terms and permitted methods of payment for such services.
2.5 Special-Term Services. You acknowledge that certain services available in the App may require special additional terms for which your consent must be provided prior to your use of such services. By using such services, you agree to such additional terms, which shall be deemed incorporated into these Terms by reference with respect to those services.
2.6 Open Source. Certain items of independent, third-party code may be included in the App that are subject to open-source licences (“Open-Source Software”). The Open-Source Software is licensed under the terms of the licence that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user licence for such Open-Source Software.
2.7 Updates. We may from time to time, in our sole discretion, develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain App features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device or tablet settings, when your mobile device or tablet is connected to the Internet, either (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to these Terms.
3. YOUR OBLIGATIONS.
3.1 Hardware and Software. You are responsible for (a) obtaining, deploying and maintaining any computer hardware, software, modems, routers and other communications equipment necessary for you to access and use the App; (b) contracting with third-party ISP, telecommunications or other service providers to access and use the App; (c) making sure your firewall is secure and updated, and (d) paying all third-party fees and access charges incurred in connection with the foregoing. Except as set forth in these Terms, CE-soft shall not be responsible for supplying any hardware, firmware, software or other equipment to you under these Terms.
3.2 Compliance with Laws. You are responsible for compliance with applicable laws in the jurisdiction where you access or use the App. The App may be subject to export control laws. You shall not export or re-export the App in violation of export control laws, including, without limitation, the United States Bureau of Export Administration’s Export Administration Regulations, and the United States Department of State’s International Traffic and Arms Regulations.
3.3 Prohibited Content. You shall not include any of the following in your Surveillance Data: (a) any content that is unlawful, threatening, abusive, exploitative, defamatory, obscene, pornographic or otherwise objectionable, as determined by us; (b) any content that advocates for violence or the use of illicit drugs; (c) any content that infringes, misappropriates or violates any Intellectual Property Rights of a third party; (d) any content that harasses or stalks a person; (e) any solicitation, whether as an advertisement, seeking information from a third party or otherwise; or (f) any other content that we determine to be prohibited from time to time.
3.4 Prohibited Conduct. You agree not to, and not to permit any other person or entity to (a) use the App for any unfair or deceptive practices, in violation of any applicable law or to denigrate or disrupt any network capacity, hardware or software; (b) use the App in any fraudulent or tortious manner; (c) use the App to monitor a guest or invitee without that individual’s knowledge; or (d) introduce any worm, Trojan horse, virus or other harmful code to the App. If you use the App to monitor or secure a rental property, you shall ensure that each individual renting such property is aware of such usage.
3.5 Restrictions. You shall not, directly or indirectly, and you shall not permit any third party to, or attempt to (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of all or any portion of the App; (b) modify, translate or prepare derivative works based on any portion of the App or any Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer any right to use the App; (d) use the App for timesharing purposes or otherwise for the benefit of any person or entity other than for your benefit; (e) remove or alter any proprietary notice from the App or any Documentation; (f) publish or disclose to any third party any evaluation of any of the App; (g) use the App for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the App; (i) attempt to gain unauthorized access to the App; (j) use the App to violate any right of a third party or any applicable law, rule or regulaiton (collectively, “laws”); (k) circumvent or disable any copyright protection mechanism or license management mechanism in the App; (l) use the App to monitor any product other than Compatible Hardware; (m) use the App to create a product or service that competes with the App; (n) upload, transmit or distribute any computer viruses, worms, or software intended to damage or alter a computer or communication network, mobile device, tablet, data, the App, any Compatible Product, or any other system, device or property; or (o) use the App in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, or air traffic control systems; medical or life-support systems; or military or aerospace applications, weapons systems, or environments.
3.6 Legal Exception. You agree that, to the extent that any applicable law (including national laws implementing 2009/24/EC on the Legal Protection of Computer Programs) grants you the right to reverse engineer the App, before you exercise such rights, you will notify us of your desire to do so. No later than sixty (60) days after our receipt of your request, we will decide to perform the work to achieve interoperability and charge you our standard rate to do so or permit you to reverse engineer only those parts of the App that you have specified in your notice to us and only to the extent necessary to achieve such interoperability. Only if and after we deny your request may you exercise your statutory right, if any, to reverse engineer.
4. REPRESENTATIONS AND WARRANTIES.
4.1 No App Warranty. THE APP IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THE APP MAY NOT WORK ON YOUR MOBILE DEVICE. YOU UNDERSTAND THAT NO THIRD PARTY, INCLUDING APPLE, INC. OR GOOGLE, INC., IS RESPONSIBLE FOR THE APP. YOUR USE OF THE APP IS AT YOUR OWN RISK. NEITHER CE-SOFT NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS MAKE, AND EACH OF THEM HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO AGENT OF CE-SOFT IS AUTHORIZED TO OFFER ANY WARRANTY WITH RESPECT TO THE APP. NEITHER CE-SOFT NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS WARRANTS THAT THE APP WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS, MEET ANY RELIABILITY OR PERFORMANCE STANDARDS; OR BE UNINTERRUPTED, SECURE, ERROR FREE OR COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE OR SYSETMS. YOU ACKNOWLEDGE AND AGREE THAT THE APP (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR BUGS) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, YOU MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE APP. NEITHER CE-SOFT NOR OUR LICENSORS OR SERVICE PROVIDERS WARRANT THAT ERRORS WILL BE CORRECTED, OR THAT SERVERS THAT MAKE THE APP AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. ACCORDINGLY, YOU SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE YOU TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY DOWNTIME OR ERROR. IN ADDITION, NEITHER CE-SOFT NOR OUR LICENSORS OR SERVICE PROVIDERS WARRANT THAT THE APP WILL MAKE A NOTIFICATION OF A MALFUNCTION, SECURITY BREACH OR OTHER OCCURRENCE IN A TIMELY MANNER OR AT ALL.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
4.2 Security. WE, OUR LICENSORS AND OUR SERVICE PROVIDERS WILL IMPLEMENT REASONABLE MEASURES TO PROTECT THE APP FROM SECURITY BREACHES, BUT THERE IS NO GUARANTEE THAT ANY SUCH BREACHES WILL NOT OCCUR. YOU ACKNOWLEDGE AND AGREE THAT CE-SOFT, OUR LICENSORS AND OUR SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR ANY SECURITY BREACHES THAT OCCUR IN CONNECTION WITH THE APP.
4.3 Emergencies. YOU ACKNOWLEDGE THAT THE APP IS NOT CERTIFIED FOR EMERGENCY RESPONSE, AND THAT IT IS NOT AN EMERGENCY RESPONSE, MEDICAL MONITORING OR LIFESAVING SERVICE OR SOLUTION. YOU UNDERSTAND THAT THE APP IS NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM AND THAT NEITHER CE-SOFT NOR OUR LICENSORS OR SERVICE PROVIDERS WILL MONITOR EMERGENCY NOTIFICATIONS OR DISPATCH EMERGENCY AUTHORITIES TO YOUR LOCATION IN THE EVENT OF AN EMERGENCY. YOUR USE OF THE APP IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSSES, LIABILITIES OR DAMAGES ARISING OUT OF YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION DEATH OR PERSONAL INJURY TO ANY PERSON OR DAMAGES TO PERSONAL OR REAL PROPERTY, INCLUDING WITHOUT LIMITATION YOUR HOME, YOUR PERSONAL POSSESSIONS OR YOUR SURVEILLANCE DATA. IF YOU HAVE AN EMERGENCY, PLEASE CONTACT THE EMERGENCY AUTHORITIES.
4.4 Release. YOU RELEASE ALL CLAIMS AGAINST CE-SOFT AND OUR LICENSORS AND SERVICE PROVIDERS FOR ANY LOSSES RELATED TO ANY EMERGENCY OR COVERED BY ANY INSURANCE POLICY OF YOURS. IF YOU ARE CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
5. SURVEILLANCE DATA; USAGE DATA.
5.1 Compression of Your Surveillance Data. You agree that we may compress, or otherwise implement functionality to reduce the file size of, your Surveillance Data at any time and with no notice to you. Such compression may result in the loss of some data.
5.2 Surveillance Data. CE-soft and our service providers will only access your Surveillance Data (a) with your consent for the limited purpose of providing support services to you in connection with the App and/or the Compatible Hardware or for such other purposes as you may authorize or designate; (b) to the extent legally compelled, including, without limitation, as required by subpoena, judicial order, civil investigative demand, or other similar legal process; or (c) as otherwise permitted by and in accordance with the terms of our Privacy Policy.
5.3 [Usage Data. Notwithstanding anything else in these Terms to the contrary, CE-soft and service providers may monitor data and information (excluding your Surveillance Data, which is addressed in Section 5.2) related to your use of the App, including to compile statistical and performance information related to the provision and operation of our services. Such monitoring may include automatic means (e.g., cookies or web beacons). You agree that CE-soft may make such data and information publicly available in aggregated or de-identified form and use such information to the extent and in the manner required by applicable law or for purposes of data gathering, analysis, service enhancement or marketing, as long as such data and information does not identify you. CE-soft retains all Intellectual Property Rights in such data and information.]
6. PROPRIETARY RIGHTS.
6.1 Ownership. You acknowledge and agree that (a) the App is provided under license, and not sold to you, and (b) that the App and all Intellectual Property Rights therein, are the sole and exclusive property of CE-soft and its licensors and service providers.
6.2 Limited Feedback License. You hereby grant to CE-soft, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the App provided by or on behalf of you to CE-soft, including Feedback regarding features, usability and use, and bug reports, to reproduce, distribute, publicly perform, display, and create derivative works of Feedback in any manner and for any purpose.
7. LIABILITY.
7.1 Indemnity. You shall indemnify and hold harmless, and at CE-soft’s request defend, CE-soft and its Affiliates, licensors, service providers, suppliers, successors and assigns (and its and their officers, directors, employees, contractors, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to (a) any third-party claim or threat thereof that your Surveillance Data infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) your use or alleged use of the App (other than claims arising from CE-soft’s breach of these Terms or claims that the App violates a third party’s Intellectual Property Rights); (c) any breach or alleged breach by you of any of your covenants, representations, warranties or obligations set forth in these Terms; or (d) any claim made by an insurer of yours, including a claim in subrogation. CE-soft shall notify you promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure. You may not settle any claim for which indemnification is sought under this Section without the prior written approval of CE-soft, not to be unreasonably withheld or delayed.
7.2 No Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CE-SOFT AND ITS LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF CE-SOFT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE APP. NEITHER CE-SOFT NOR ITS LICENSORS OR SERVICE PROVIDERS SHALL BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
7.3 Limits on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CE-SOFT OR ITS LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE APP. IN NO EVENT SHALL THE LIABILITY OF CE-SOFT, ITS LICENSORS OR SERVICE PROVIDERS FOR ANY MATTER OR CAUSE OF ACTION ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS OR YOUR USE OF THE APP EXCEED THE GREATER OF (A) THE TOTAL AMOUNT HAVING THEN ACTUALLY BEEN PAID BY YOU TO CE-SOFT FOR THE APP OR ANY SERVICES AVAILABLE FOR PURCHASE THEREIN DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY CE-SOFT TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS, OR (B) ONE U.S. DOLLAR ($1).
7.4 Essential Purpose. You acknowledge that the terms in this Section 7 are an essential basis of the bargain described in these Terms and that, were CE-soft to assume any further liability, the fees that CE-soft charges for the App and for the services available for purchase therein would, out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.5 Miscellanous. THE FOREGOING LIMITATIONS IN THIS SECTION 7 SHALL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
8. TERM AND TERMINATION.
8.1 Term. Our and your agreement to these Terms shall become effective as of the Effective Date and continue until terminated by you or us as set forth in this Section 8.
8.2 Termination by You. You may terminate our and your agreement to these Terms by deleting the App and all copies thereof from all of your mobile devices and tablets.
8.3 Termination by Us. We may terminate your access to the App, in our sole discretion, for any reason and at any time, upon electronic notice to you via the App, or at your registered email address, social networking service or other means. Additionally, we may cease to support the App at any time and for any reason, in which case, our and your agreement to these Terms shall automatically terminate. With respect to any termination, you agree that we are not liable to you or any third party for any termination of your access to the App. Termination will not limit any of our rights or remedies at law or in equity.
8.4 Effects of Termination. This Section 8.5 and Sections 1, 3.2-3.5, 4, 5.2-5.3, 6-7, and 9-11 as well as any accrued obligations, shall survive any termination or expiration of this Agreement according to their respective terms.
9. MISCELLANEOUS.
9.1 Notices. Any consent, approval, authorization or other notice hereunder shall be in writing and shall be given or made by personal delivery, overnight courier (e.g., FedEx) or by registered or certified mail, return receipt requested, and with all postage prepaid, to our address set forth in the preamble of these Terms or to the address that you provide to us as part of your registration. In addition, you consent to receive electronic communications from us in relation to these Terms or the App, and you agree that any such electronic communication shall be deemed to satisfy any applicable legal requirement, including that a communication be in writing.
9.2 Amendment; Waiver. We reserve the right to modify or amend these Terms, by posting a notice via the App. Your continued use of the App following such a posting indicates your agreement to such modification or amendment. If you do not agree with a modification or amendment, your sole remedy is to terminate your access to and use of the App. No term or provision hereof shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different or subsequent breach by either Party.
9.3 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
9.4 Attorneys’ Fees. In any action to enforce these Terms, the prevailing Party or third-party beneficiary shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
9.5 Force Majeure. Neither Party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of these Terms); or any other event beyond the reasonable control of the Party whose performance is to be excused.
9.6 Assignment. You may not assign your rights or obligations under these Terms, whether voluntarily or by operation of law or otherwise, without the prior written consent of CE-soft. Notwithstanding the foregoing, to the extent Licensee is a business entity, you may assign these Terms in connection with an acquisition, sale or transfer of all or substantially all of your assets, stock or business by sale, merger, consolidation or similar transaction, which includes the Compatible Hardware. Any purported assignment or transfer in violation of this Section shall be void and invalid, the assignee shall acquire no rights whatsoever, and Ce-soft shall not recognize, nor shall we be required to recognize, the assignment. Subject to the foregoing restrictions, these Terms will bind and benefit the Parties and their successors and permitted assigns.
9.7 Relationship of the Parties. CE-soft is an independent contractor to you. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on its behalf.
9.8 Headings. Headings are for convenience only and shall not be used in interpreting these Terms.
9.9 No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns; except, that (a) the indemnified parties set forth in Section 7.1 shall be deemed third-party beneficiaries of the provisions of that Section with the right to enforce them, and (b) our licensors and service providers shall be deemed third-party beneficiaries of the provisons of Sections 4, 6.1, 7.2-7.4 and 9.4 with the right to enforce them.
9.10 Construction of Agreement. Each Party acknowledges that it has had the opportunity to have legal counsel review these Terms. Should any questions of construction or interpretation of these Terms arise, then the Parties agree that no presumption shall be applied against the Party drafting these Terms or any portion thereof and that the language of these Terms shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either Party.
9.11 Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
10. GOVERNING LAW AND DISPUTE RESOLUTION FOR ALL JURISDICTIONS EXCEPT CANADA.
This Section 10 applies to You unless You are a resident of Canada (residents of Canada refer to Section 11).
10.1 Governing Law. This Agreement, and any dispute between you on the one hand and us, our licensors and/or service providers on the other shall be governed by the laws of the State of California without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the United States Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 10.2 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you on the one hand and us, our licensors and/or service providers on the other must be resolved exclusively by a federal or state court located in Orange County, California, except that you or we are permitted (a) to the extent you are a resident of the United States, to bring small claims actions in state court in the U.S. county in which you reside if such court has a small claims procedure; (b) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (c) to seek enforcement of a judgment in any court having jurisdiction over the Parties. Each Party irrevocably consents to the exercise of personal jurisdiction by such courts and waives any claim of inconvenient forum or other challenge to venue. To the extent permitted by law, each Party waives trial by jury in any court proceeding. If you are a California resident, you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
10.2 Agreement to Arbitrate; Waiver of Class Action. Except for disputes relating to your, our or our licensors’ Intellectual Property Rights or for items (a)-(c) set forth in Section 10.1, you agree that all disputes between you on the one hand and us, our licensors and/or service providers on ther other (whether or not such dispute involves any other third party) arising out of or relating to these Terms or our Privacy Policy shall be finally resolved by arbitration conducted in the English language in Orange County, California, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in accordance with this Section (the “Agreement to Arbitrate”), and you on the one hand and we, our licensors and service providers on the other hereby expressly waive trial by jury. You and we shall appoint one arbitrator mutually agreed upon by you and us or, if you and we cannot agree within thirty (30) days of either Party’s request for arbitration, such arbitrator shall be selected by the AAA upon the request of either Party. The Parties shall bear equally the cost of the arbitration (except that the prevailing Party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both Parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.
Any claims brought by you on the one hand or us, our licensors and/or service providers on the other must be brought in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor we, our licensors or service providers will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.
You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your App account to which the opt out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out:
Hangzhou CE-soft Technology Co., Ltd, Room 842, 8th floor, No.6 Yinhu Innovation Center, No.9 Fuxian Road, Yinhu Street, Fuyang District, Hangzhou, PRC 310052, Attention: Legal Department
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us, our licensors and/or service providers prior to the effective date of the change. Moreover, if we seek to terminate this Agreement to Arbitrate from these Terms, such termination shall not be effective as to any claim that was filed in a legal proceeding against us, our licensors and/or service providers prior to the effective date of removal. This Agreement to Arbitrate will survive the termination of your relationship with us.
11. GOVERNING LAW AND DISPUTE RESOLUTION FOR CANADA.
This Section 11 only applies to you if you are a resident of Canada.
11.1 Governing Law; Jurisdiction. This Agreement, and any dispute between you on the one hand and us, our licensors and/or service providers on the other shall be governed by the laws of the Province of Ontario without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction. The exclusive venue for any action or proceeding arising out of or relating to these Terms shall be the federal and provincial courts in the Province of Ontario, except that you or we are permitted (a) to bring claims for injunctive relief in any court having jurisdiction over the Parties; or (b) to seek enforcement of a judgment in any court having jurisdiction over the Parties. Each Party irrevocably consents to the exercise of personal jurisdiction by such courts and waives any claim of inconvenient forum or other challenge to venue.
12. FOR ADDITIONAL INFORMATION.
If you have any questions about these Terms, please contact us at: Hangzhou CE-soft Technology Co., Ltd Room 842, 8th floor, No.6 Yinhu Innovation Center, No.9 Fuxian Road, Yinhu Street, Fuyang District, Hangzhou, PRC 310052 Attention: Legal Department or via [email protected].
Copyright © 2020, Hangzhou CE-soft Technology Co., Ltd, All Rights Reserved.
Updated: March 10, 2020