- End User License Agreement -
Effective Date: August 1, 2018
Update Date: August 16, 2019
This End User License Agreement
("Agreement") is a legal agreement between you and Shanghai ChuLe (CooTek) Information Technology Co., Ltd., including its affiliates,
subsidiaries (collectively, “CooTek”, “we”, “us” or “our”), governing your access to and use of the website
at http://www.touchpal.com/ (the “Website”), the TouchPal mobile applications
(the “Apps”) and the TouchPal Keyboard along with any revisions, updates and/or modifications thereto
(collectively, “TouchPal Keyboard”),and any data, products, services and associated materials or media
supplied with the TouchPal Keyboard (together with the Website, Apps, and the TouchPal
Keyboard, the “Services”).
NOTE THAT SECTION 15 OF THIS AGREEMENT CONTAINS A
MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF
CERTAIN DISPUTES.
BY CLICKING “ACCEPT” OR BY ACCESSING OR USING THE SERVICES, YOU AGREE
TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, INCLUDING THE MANDATORY ARBITRATION
PROVISION AND CLASS ACTION WAIVER IN SECTION 15, YOU ARE NOT
AUTHORIZED TO ACCESS OR USE THE SERVICES FOR ANY PURPOSE.
1. Privacy.
To learn about how we collect, use, and
disclose information about you, please review our Privacy Policy.
2. Eligibility.
The Services are not targeted toward or intended for use by anyone under
the age of eighteen (18). If you are under eighteen (18) years of age, your
parent or guardian must agree to this agreement (both for themselves and on
your behalf) before you can use the Services. By using the Services, you
represent and warrant that you (a) are eighteen (18) years of age or older, (b)
have not been previously suspended or removed from the Services, or engaged in
any activity that could result in suspension or removal from the Services, and
(c) have full power and authority to enter into this Agreement and in so doing
will not violate any other agreement to which you are a party.
3.
Registration, Account and Communication Preferences.
To access and use certain areas or features
of the Services, you will need to register for a CooTek account. By creating an
account, you agree to (a) provide accurate, current and complete account
information, (b) maintain and promptly update, as necessary, your account
information, (c) maintain the security of your account credentials, (d) be
responsible for the acts or omissions of any third party who has authority to
access or use the Services on your behalf, and (e) immediately notify us if you
discover or otherwise suspect any security breaches related to the Services or
your account.
By creating a CooTek account, you also consent to receive electronic
communications from CooTek (e.g., via
email, text message or by posting notices to the Services) about password
changes and other transactional and account information. You agree that any
notices, agreements, disclosures or other communications that we send to you
electronically will satisfy any legal notice requirements, including, but not
limited to, that such notices be in writing. You should maintain copies of
electronic communications from us by printing a paper copy or saving an
electronic copy. We may also send you promotional communications via email,
including, but not limited to, newsletters, special offers, surveys and other
news and information we think will be of interest to you. You may opt out of
receiving these promotional emails at any time by sending an email to privacy@touchpal.com.
4. Terms of Sale
4.1.
Continuous Subscriptions. WHEN
YOU REGISTER FOR OUR PREMIUM SERVICE SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE
AND AGREE THAT (A) WE ARE (OR OUR THIRD PARTY PAYMENT PROCESSOR IS) AUTHORIZED
TO CHARGE YOU ON A YEARLY BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY
APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES,
AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR
STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT.
4.2.
Cancellation and
Refund Policy. YOU MAY
CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CANCEL SUBSCRIPTION FROM GOOGLE PLAY OR
APPLE CONTACTING CUSTOMER SUPPORT.
4.3.
Payment and Billing Information. By providing a credit card or other
payment method that we accept, you represent and warrant that you are
authorized to use the designated payment method and that you authorize us (or
our third-party payment processor) to charge your payment method for the total
amount of your subscription or other purchase (including any applicable taxes
and other charges) (collectively, as applicable, an “Order”). If the payment
method cannot be verified, is invalid or is otherwise not acceptable, your
Order may be suspended or cancelled. You must resolve any payment method
problems before we proceed with your Order. If you want to change or update
your payment method information, you can do so at any time by logging into your
account.
You acknowledge that the amount billed may
vary due to promotional offers, preferences you select, changes you make to
your subscription or changes in applicable taxes or other charges, and you
authorize us (or our third party-payment processor) to charge your payment
method for the corresponding amount.
4.4.
Pricing. All prices are shown in U.S. dollars and applicable
taxes and other charges, if any, are additional. We reserve the right to adjust
prices as we may determine in our sole discretion, at any time and without
notice; provided, however, that if we change the amounts or other charges
associated with our various subscription plans, we will provide advance notice
of such changes in accordance with Section 3. We will not, however, be able to
notify you of changes in any applicable taxes.
4.5.
Taxes. We will collect applicable sales tax on Services for
which we determine we have a duty to collect sales tax. If any of our Services
are subject to sales tax, you agree that the amount of taxes shown at checkout
may be adjusted. Several factors may cause this, such as variances between
processor programs and changes in tax rates.
4.6.
Free Trials. From time to time, to the extent legally
permitted, we may offer free trials of certain subscriptions for specified
periods of time without payment. If we offer you a free trial, the specific
terms of your free trial will be provided in the marketing materials describing
the particular trial or at registration. Free trials are limited to one (1) per
household.
ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD-PARTY PAYMENT PROCESSOR) WILL BEGIN
BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR
SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR
SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF
YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN
SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM
US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION
HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME,
WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
5. User Supplied
Material.
Our Services may allow you to upload, store
and share content, including messages, text, photos and other materials
(collectively, "Your Content"). Except for the license you grant
below, as between you and Listen to the Doctor, you retain all rights in and to
your User Content.
You hereby grant us a nonexclusive,
royalty-free, worldwide, fully-paid, and sub-licensable license to use,
reproduce, modify, adapt, publish, translate, create derivative works from,
distribute, and display your User Content in all media formats and channels now
known or later developed without compensation to you.
If you supply or transmit any User Content
via the Services, you represent and warrant to us that you have the legal right
necessary to grant us the license described above, and that such material will
not violate any law or the rights of any person or entity (including, without
limitation copyright, trademark, patent, trade secret, or other intellectual
property right, or moral right or right of publicity).
Any User Content posted publicly or sent
privately is the sole responsibility of the person that submitted it. Although we
reserve the right to review or remove all User Content on the Services, we do
not necessarily review all of it. As such, we do not take responsibility for
any User Content provided through the Services.
6. Appropriate Use of the Services.
You agree to use the Services in accordance
with all applicable local, state, national and foreign laws, treaties and
regulations. You will not violate any contract, intellectual property or other
third-party right or commit a tort, and you are solely responsible for your
conduct while accessing or using our Services.
In addition, without limitation, you will
not, directly or indirectly, do any of the following while using or accessing
the Services:
·
Engage in
any harassing, threatening, intimidating, predatory or stalking conduct;
·
Use or
attempt to use another User’s Account without authorization from that User and Listen
to the Doctor;
·
Use our
Services in any manner that could interfere with, disrupt, negatively affect or
inhibit other Users from fully enjoying our Services or that could damage,
disable, overburden or impair the functioning of our Services in any manner;
·
Reverse
engineer any aspect of our Services or do anything that might discover source
code or bypass or circumvent measures employed to prevent or limit access to
any part of our Services;
·
Attempt
to circumvent any content-filtering techniques we employ or attempt to access
any feature or area of our Services that you are not authorized to access;
·
Develop
or use any third-party applications that interact with our Services without our
prior written consent, including any scripts designed to scrape or extract data
from our Services;
·
Use our
Services for any illegal or unauthorized purpose, or engage in, encourage or promote
any activity that violates this Agreement.
You may also only upload or otherwise share User Content
that you have all necessary rights to disclose. You may not upload, store or
share any User Content that:
·
is
unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd,
suggestive, harassing, threatening, invasive of privacy or publicity rights,
abusive, inflammatory or fraudulent;
·
would
constitute, encourage or provide instructions for a criminal offense, violate
the rights of any party or otherwise create liability or violate any local,
state, national or international law;
·
may
infringe any patent, trademark, trade secret, copyright or other intellectual
or proprietary right of any party;
·
contains
or depicts any statements, remarks or claims that do not reflect your honest
views and experiences;
·
impersonates,
or misrepresents your affiliation with, any person or entity;
·
contains
any private or personal information of a third party without such third party’s
consent;
·
contains
any viruses, corrupted data or other harmful, disruptive or destructive files
or content; or
·
is, in
our sole judgment, objectionable or that restricts or inhibits any other person
from using or enjoying our Services, or that may expose we or others to any
harm or liability of any type.
In addition, although we have no obligation to screen or
monitor User Content, we may delete or remove User Content at any time and for
any reason.
7. Intellectual Property; Limited License.
The Services, and the text, graphics, images, photographs, videos,
illustrations, trademarks, trade names, service marks, logos, slogans and other
content contained therein (collectively, the “Our Content”) are owned by or
licensed to us and are protected under both United States and foreign laws.
Except as explicitly stated in this
Agreement, we and our licensors reserve all rights in and to our Services and Our
Content.
We hereby grant you a limited, revocable,
non-transferable, non-exclusive and non-sublicensable license to access and use
the Services and Our Content; provided,
however, that such license is subject to this Agreement and does not include
any right to (a) sell, resell our Services and Our Content; (b) copy, reproduce, distribute,
publicly perform or publicly display Our Content, except as expressly permitted by us
or our licensors; (c) modify Our Content, remove any proprietary rights notices
or markings, or otherwise make any derivative uses of our Services and Our Content; (d) use any data mining, robots or
similar data gathering or extraction methods; and (e) use our Services and Our Content other than for their intended
purposes. Any use of our Services and Our Content other than as specifically authorized
herein, without our prior written permission, is strictly prohibited and will
terminate the license granted herein.
8. Termination; Cancellation.
We may change the
Services, and Our Content at any time. We may discontinue offering
our Services, and we may suspend or terminate your right to use our Services at
any time, in the event that you breach this Agreement, for any other reason, or for no reason at all, in
our sole discretion, and without prior notice to you.
All licenses and
other rights granted to you by this
Agreement will immediately
terminate upon termination of your right to use our Services or our termination
of the Services. This Agreement will survive and
continue to apply after any suspension, termination, or cancellation, except
that your access rights and other rights as a user will be suspended,
terminated or cancelled, respectively.
9. Links to Third Parties.
The Services may contain links to
websites, applications or other products or services operated by other
companies ("Third Party Services"). We do not endorse, monitor, have any control over
or be responsible for these Third Party Services, which may have separate terms
of use and privacy policies. Your dealings with any third parties or
advertisers found on or accessible through the Services are solely between you and such third party
and at your own risk for which we shall be have no responsibility. If there is a dispute
between you and any such third party, you understand and agree that we shall be under no obligation to become
involved. Your use of Third
Party Services is at your own risk, and we and our affiliates will not be liable for any of
losses arising out of or relating to Third Party Services.
10. Copyright Complaints.
We have a
policy of limiting access to our Services and terminating the accounts of users
who infringe the intellectual property rights of others. If you believe that
your work has been improperly copied and posted on the Services, such
that it constitutes infringement, you may notify our Designated Agent as
follows:
Send
copyright infringement complaints to:
Designated Agent: Legal Department of
Shanghai ChuLe (CooTek) Information Technology Co., Ltd.
E-Mail Address: privacy@touchpal.com.
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also,
please note that if you knowingly misrepresent that any activity or material on
our Services is infringing, you may be liable to us for certain costs and
damages.
11. Disclaimer
of Warranties.
WHILE WE ENABLE USERS TO COMMUNICATE WITH ONE
ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND
COMMUNICATIONS, AND WE ARE NOT A PARTY TO INTERACTIONS, AND ARE NOT RESPONSIBLE
FOR INTERACTIONS THAT MAY OCCUR BETWEEN USERS, WHETHER ONLINE OR OFFLINE.
YOUR USE OF THE SERVICES AND OUR CONTENT IS
AT YOUR SOLE DISCRETION AND RISK. THE SERVICES AND OUR CONTENT, ARE PROVIDED ON
AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND.
WE AND OUR LICENSORS AND AFFILIATES EXPRESSLY
DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING
TO THE SERVICES AND OUR CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
WE MAKE NO REPRESENTATIONS CONCERNING, AND DO
NOT GUARANTEE, (A) THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND
PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY OUR CONTENT OR
ITS APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES, OR (B) THAT THE SERVICES
WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED.
NO ADVICE OR INFORMATION PROVIDED TO YOU BY US
WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME
JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS
POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN
SUCH EVENT THE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW.
12. Limitation
of Liability.
IN NO EVENT WILL WE, OUR LICENSORS, AFFILIATES, AND OUR RESPECTIVE
OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND
REPRESENTATIVES, (COLLECTIVELY, “OUR PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES
WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING
BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA OR LOST PROFITS, WHETHER IN AN
ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM
RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR FROM THE CONDUCT OF
YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO BODILY INJURY, DEATH OR
PROPERTY DAMAGE), WHETHER ONLINE OR OFFLINE, ARISING OUT OF OR IN CONNECTION
WITH YOUR USE OF THE SERVICES, OR OUR CONTENT, WHETHER THE DAMAGES ARE
FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE.
IF YOU ARE DISSATISFIED WITH THE SERVICES, OUR
CONTENT, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE
USING THE SERVICES. IF THE FOREGOING IS NOT ENFORCEABLE AGAINST YOU, IN NO
EVENT WILL THE CUMULATIVE LIABILITY OF OUR PARTIES TO YOU, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNT YOU PAID US TO
ACCESS OR USE THE SERVICES IN THE MOST RECENT THREE-MONTH PERIOD, OR (II) $50.
SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT
OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT
APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS WILL APPLY TO
THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
13. Indemnification.
You will indemnify, defend, and hold harmless
Our Parties from and against any and all claims, causes of action, demands,
liabilities, losses, costs or expenses (including, but not limited to,
reasonable attorneys’ fees and expenses) arising out of or relating to any of
the following matters:
13.1. your
access to or use of the Services, or Our Content;
13.2. your
User Content;
13.3. your
violation of any of the provisions of this Agreement;
13.4. any
activity related to your registration by you or any other person accessing the
Services through your account, including, without limitation, negligent or
wrongful conduct;
13.5. your
conduct in connection with our Services; or
13.6. your
violation of any third party right, including, without limitation, any
intellectual property right, publicity, confidentiality, property or privacy
right.
We reserve the right, at our own expense, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you will cooperate with us in asserting
any available defenses.
14. Release.
To the fullest extent permitted by applicable
law, you release us and Our Parties from responsibility, liability, claims,
demands, and/or damages (actual and consequential) of every kind and nature,
known and unknown (including, but not limited to, claims of negligence),
arising out of or related to disputes between users and the acts or omissions
of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS
YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR
COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE
TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR
FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
15. Dispute Resolution;
Binding Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY
BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND
LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
15.1.
Binding Arbitration
Except for any disputes, claims, suits,
actions, causes of action, demands or proceedings (collectively, “Disputes”)
arising out of or related to a violation of Section 6 or Disputes in which either party seeks to
bring an individual action in small claims court or seeks injunctive or other
equitable relief for the alleged unlawful use of intellectual property,
including, without limitation, copyrights, trademarks, trade names, logos,
trade secrets or patents, you and we agree (a) to waive your and our respective
rights to have any and all Disputes arising from or related to this Agreement,
or the Services, resolved in a court, and (b) to waive your and our respective
rights to a jury trial. Instead, you and we agree to arbitrate Disputes through
binding arbitration (which is the referral of a Dispute to one or more persons
charged with reviewing the Dispute and making a final and binding determination
to resolve it instead of having the Dispute decided by a judge or jury in
court).
15.2.
No Class Arbitrations, Class Actions or
Representative Actions
You and we agree that any Dispute arising out
of or related to this Agreement or the Services is personal to you and us, and
that such Dispute will be resolved solely through individual arbitration and
will not be brought as a class arbitration, class action or any other type of
representative proceeding. You and we agree that there will be no class
arbitration or arbitration in which an individual attempt to resolve a Dispute
as a representative of another individual or group of individuals. Further, you
and we agree that a Dispute cannot be brought as a class or other type of representative
action, whether within or outside of arbitration, or on behalf of any other
individual or group of individuals. The arbitrator does not have the power to
vary these class action waiver provisions.
15.3.
Federal Arbitration Act
You and we agree that this Agreement affects
interstate commerce and that the enforceability of this Section 15 shall be both substantively and procedurally
governed by and construed and enforced in accordance with the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent
permitted by applicable law.
15.4.
Notice; Informal Dispute Resolution
You and we agree that each party will notify
the other party in writing of any arbitrable or small claims Dispute within
thirty (30) days of the date it arises, so that the parties can attempt in good
faith to resolve the Dispute informally. Notice to us shall be sent by
certified mail or courier to Floor 10-11, T2 Powerlong City, No. 16, Lane 399,
Xinlong Road, Shanghai, 201103 P.R. China. Your notice must include (a) your
name, postal address, telephone number, the email address you use or used for
your CooTek account and, if different, an email address at which you can be
contacted, (b) a description in reasonable detail of the nature or basis of the
Dispute, and (c) the specific relief that you are seeking. Our notice to you
will be sent electronically in accordance with Section 3, and will include (x) our name, postal address,
telephone number and an email address at which we can be contacted with respect
to the Dispute, (y) a description in reasonable detail of the nature or basis
of the Dispute, and (z) the specific relief that we are seeking. If you and we cannot
agree how to resolve the Dispute within thirty (30) days after the date notice
is received by the applicable party, then either you or we may, as appropriate
and in accordance with this Section 15, commence an arbitration proceeding or, to
the extent specifically provided for in Section 15.1, file a claim in court.
15.5.
Process
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED
TO A VIOLATION OF SECTION 6 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO
BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER
EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY,
INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS,
TRADE SECRETS OR PATENTS, YOU AND WE AGREE THAT ANY DISPUTE MUST BE COMMENCED
OR FILED BY YOU OR US WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE,
OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND WE
WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You
and we agree that (a) any arbitration will occur in the State of California, Santa
Clara County, or in the county in which you reside, (b) arbitration will be
conducted confidentially by a single arbitrator in accordance with the rules of
the American Arbitration Association (“AAA”) under its rules for consumer
arbitrations (“AAA Rules”), which are hereby incorporated by reference, and (c)
that the state or federal courts of the State of California and the United
States, respectively, sitting in the State of California, Santa Clara County,
have exclusive jurisdiction over any appeals and the enforcement of an
arbitration award. You may also litigate a Dispute in the small claims court
located in the county of your billing address if the Dispute meets the
requirements to be heard in small claims court.
15.6.
Authority of Arbitrator
As limited by the FAA, this Agreement and the
applicable AAA Rules, the arbitrator will have (a) the exclusive authority and
jurisdiction to make all procedural and substantive decisions regarding a
Dispute, including the determination of whether a Dispute is arbitrable, and
(b) the authority to grant any remedy that would otherwise be available in
court; provided, however, that the arbitrator does not have the authority to
conduct a class arbitration or a representative action, which is prohibited by this
Agreement. The arbitrator may only conduct an individual arbitration and may
not consolidate more than one individual’s claims, preside over any type of
class or representative proceeding or preside over any proceeding involving
more than one individual. Notwithstanding any other provision of this Section 15, any and all issues relating to the scope,
interpretation and enforceability of the class action waiver provisions
contained in this Section 15, are to be decided only by a court of
competent jurisdiction, and not by the arbitrator.
15.7.
AAA Rules
The AAA Rules and additional information
about AAA are available on the AAA website. By agreeing to be bound by this Agreement,
you either (a) acknowledge and agree that you have read and understand the AAA
Rules, or (b) waive your opportunity to read the AAA Rules and any claim that
the AAA Rules are unfair or should not apply for any reason.
15.8.
Severability
If any term, clause or provision of this
Section 15 is held invalid or unenforceable, it will be
so held to the minimum extent required by law, and all other terms, clauses and
provisions of this Section 15 will remain valid and enforceable. Further,
the waivers set forth in Section 15.2 are severable from the other provisions of
this Agreement and will remain valid and enforceable, except as prohibited by
applicable law.
This Agreement and our relationship with you
will be governed by the laws of the State of California, excluding its choice
of laws rules. You and we each irrevocably agrees that any Dispute between the
parties that is not subject to arbitration or cannot be heard in small claims
court, shall be resolved on an individual basis exclusively in the U.S.
District Court for the Northern District of California, or the state courts
located in Santa Clara County, California. You and we each irrevocably consents
to the personal jurisdiction of these courts and waives any and all objections
to the exercise of jurisdiction by these courts and to this venue.
Notwithstanding the foregoing, however, you and we agree that we may commence
and maintain an action or proceeding seeking injunctive or other equitable
relief in any court of competent jurisdiction. If any provision of this
Agreement is found by a court of competent jurisdiction to be invalid, the
parties nevertheless agree that the court should endeavor to give effect to the
parties’ intentions as reflected in the provision, and the other provisions of
the Agreement remain in full force and effect.
17. General Terms.
17.1. Severability: If any provision of this Agreement is found
to be invalid by any court having competent jurisdiction, the invalidity of
such provision shall not affect the validity of the remaining provisions, which
shall remain in full force and effect.
17.2. Waiver: A provision of this Agreement may be waived
only by a written instrument executed by the party entitled to the benefit of
such provision. Our failure to exercise or enforce any right or provision of
this Agreement will not constitute a waiver of such right or provision.
17.3. Independent
Contractor: You agree that no joint venture,
partnership, employment, or agency relationship exists between you and us as a
result of this Agreement or use of the Services.
17.4. Entire
Agreement: This Agreement (including the Apple Device
Additional Terms which apply to users of our iOS App) constitutes the entire
agreement between you and us relating to your access to and use of the
Services.
17.5. Headings: The heading references herein are for
convenience purposes only, do not constitute a part of this Agreement, and
shall not be deemed to limit or affect any of the provisions hereof.
18. Questions
and Comments.
If you have other question or suggestion
concerning the Services or this Agreement,
please contact us via privacy@touchpal.com.
APPLE DEVICE ADDITIONAL TERMS
If you access an App via a mobile device or tablet branded by Apple,
Inc. (“Apple”) and running Apple’s
iOS (an “Apple Device”), the
following terms (“Apple Device
Additional Terms”) are hereby made part of this Agreement:
● Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision
of this Agreement, then the Apple Device Additional Terms shall control with
respect to access and use of the Services via an Apple Device.
● Agreement with CooTek, Not Apple. You acknowledge that this Agreement is an agreement between we and you,
and not with Apple. We, not Apple, is solely responsible for any App you access
via your Apple Device (“iOS App”)
and the content thereof. If this Agreement is less restrictive with respect to
an iOS App or otherwise conflict with, the Apple App Store Terms of Service
(the “App Store Terms of Service”),
the App Store Terms of Service shall apply to the extent of any conflict.
● Scope of License. The license granted to use an iOS App is limited to a non-transferable
license to use the App on an Apple Device that you own or control and as
permitted by the usage rules set forth in the App Store Terms of Service.
● Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any
maintenance and support services with respect to any iOS App. If we decide (in our
sole discretion) to provide support and maintenance services for an iOS App, we
are solely responsible for providing such services.
● Warranty. In the
event of any failure of the an iOS App to conform to any applicable warranty
provided by us in this Agreement, you may notify Apple and Apple will refund
the purchase price for the iOS App (if any) and, to the maximum extent
permitted by applicable law, Apple will have no other warranty obligation
whatsoever with respect to the iOS App and any other claims, losses,
liabilities, damages, costs or expenses attributable to any failure to conform
to any warranty is our sole responsibility. Notwithstanding the foregoing, we
are not obligated to provide any warranty with respect to an iOS App and you
acknowledge and agree that this paragraph will not have any effect on the
warranty disclaimers provided in this Agreement.
● Product Claims. You
hereby acknowledge that CooTek, not Apple, is responsible for addressing your
or any third-party claims relating to an iOS App and/or use of an iOS App,
including, but not limited to: (i) product liability claims; (ii) any claim
that an iOS App fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar
legislation. Note that, pursuant to the limitation of liability provision set
forth in this Agreement, this Agreement will not limit our liability beyond
what is permitted by applicable law.
● Intellectual Property Rights. You acknowledge that, in the event of any third-party claim that an iOS
or your possession and use (in accordance with this Agreement) of an iOS App
infringes that third party’s intellectual property rights, CooTek, not Apple,
is solely responsible for the investigation, defense, settlement and discharge
of any such intellectual property infringement claim.
● Legal Compliance. You represent and warrant that (i) you are not located in a country that
is subject to a U.S. Government embargo, or that has been designated by the
U.S. Government as a “terrorist supporting” country; and (ii) you are not
listed on any U.S. Government list of prohibited or restricted parties.
● Third-Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries,
are third-party beneficiaries of this Agreement with respect to any iOS App,
and that, upon your acceptance of this Agreement, Apple has the right (and
deemed to have accepted the right) to enforce this Agreement against you with
respect to the iOS App as a third-party beneficiary thereof.
● Questions or Complaints. Please address your questions, complaints or claims with respect to an
iOS App to us at the contact information herein.