1. GENERAL INFORMATION
1.1. The following are the Terms and Conditions governing the relationship between Clickky Group Limited, the company registered under the registration number 2193592 at Unit F, 11/F, CNT Tower, 338 Hennessy Road, Wan chai, Hong Kong, (“Clickky”) and any legal entity or individual (“Party”), collectively referred to as the “Parties”, during the Party’s use of any website associated with Clickky’s services (hereinafter “Site“).
1.2. The Party is an independent party and no joint venture, employment, or agency relationship exist between the Party and Clickky as a result of these Terms and Conditions or the Party’s consuming of the Services.
1.4. Clickky reserves the right to amend this Agreement at any time and indicate the date of the last amendments on the top in the “Last amended” field. The Party’s continued use of the Site after any such amendments and notification thereof (which may be provided by e-mail to the email address provided in the course of the Party’s creating the account) shall constitute the Party’s consent to and acceptance of such amendments.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. “Intellectual Property Rights” in this Section shall mean any and all intellectual property rights, whether registrable or not, in any jurisdiction worldwide, inter alia, patents and trademarks (including applications), copyrights (including moral rights), domain names, trade secrets, know-how and the Confidential Information (as provided in Section 7 hereof).
2.2. Clickky retains all rights, title, and interest in and to all Intellectual Property Rights embodied in or associated with the Site, all of the Services and the related Content as well as any derivative therefrom. “Content” shall mean any part of the Site, inter alia, text, graphics, user interface, visual interface, photographs, trademarks, logos, artwork, and computer code, including but not limited to design, structure, selection, coordination, expression.
2.3. Except as expressly stated herein, Clickky grants no ownership hereunder to the Party or any third party of any part of the Site, all of the Services and the related Content as well as any derivative therefrom. Arrangement of such Content is owned by Clickky and is protected by the Intellectual Property Rights and fair competition laws.
2.4. No part of the Content may be copied, reproduced, republished, posted, displayed, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or medium for publication or distribution or for any commercial enterprise, without Clickky’s prior written consent.
2.5. Clickky hereby provides the Party with a limited, non-exclusive, non-sub licensable, non-transferable right, under its Intellectual Property Rights and the licenses provided to it by third parties, only during the term of this Agreement, to use the Site for obtaining the Services according to the terms hereof.
2.7. There are no implied licenses under the Agreement, and any rights not expressly granted to Party hereunder are reserved by Clickky.
2.8. The Party retains all rights, title, and interest in and to all Intellectual Property Rights embodied in or associated with their Apps.
2.9. Except as expressly stated herein, the Party grants no ownership hereunder to Clickky or any third party of any portion of their Apps.
3. WARRANTIES AND REPRESENTATIONS
3.1. Each Party hereby represents and warrants to the other Party that:
3.1.1. it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
3.1.2. this Agreement is a valid and binding obligation of such Party; and
3.1.3. it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals, and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules, and regulations (including with regard to the Intellectual Property Rights).
3.2. Party represents and warrants that:
3.2.1. at all times they will be compliant with all relevant laws, regulations, and generally accepted standards in any relevant jurisdiction as well as with the applicable AppStore rules and policies, including without limitations with respect to privacy, collection, and processing of personal data and information, protection of minors, the rights of third parties, and fair competition. For the purpose hereof, the “AppStores” shall mean Android or iOS application distribution platforms that may include, without limitation, Google Play Store, Apple App Store, Amazon Appstore, etc.;
3.2.2. they will use the Site, all of the Services and the related Content as well as any derivative therefrom, to which Clickky has Intellectual Property Rights, exclusively under the terms hereof;
3.2.3. at all times he will be compliant to the relevant data protection laws (including, but not limited to: General Data Protection Regulation), shall have legally obtained rights to use and transfer personal data of data subjects for the purposes Party enters into agreements with Clickky, shall have necessary level of security measures and data protection policies in order to comply with the relevant data protection laws, shall assist Clickky in all the ways reasonably necessary for Clickky to comply with relevant data protection laws, requests of data subjects or data protection authorities.
4.1. The Party shall indemnify, defend, and hold Clickky and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors, and permitted assignees harmless from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, and/or liabilities (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) filed/incurred by any third party against Clickky arising out of a breach of any warranty, representation, or obligation under the Agreement.
5. DISCLAIMER OF WARRANTIES
5.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTY EXPRESSLY AGREES THAT ACCESS TO AND USE OF THE SITE IS AT THEIR SOLE RISK. THE SITE IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND. CLICKKY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NON-INFRINGEMENT.
5.2. CLICKKY DOES NOT GUARANTEE THAT THE SITE AND ANY SERVICES WILL BE AVAILABLE AT ALL TIMES, IN ALL COUNTRIES AND/OR ALL GEOGRAPHIC LOCATIONS, OR AT ANY GIVEN TIME, OR THAT CLICKKY WILL CONTINUE TO OFFER PARTICULAR SERVICES FOR ANY PARTICULAR LENGTH OF TIME (UNLESS WE EXPRESSLY SAY OTHERWISE AS PART OF THE SERVICES).
5.3. CLICKKY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE PARTY’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. CLICKKY DOES NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. CLICKKY MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, OF ANY KIND, REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, APPROPRIATENESS, AND TIMELINESS OF ANY CONTENT AVAILABLE THROUGH THE SERVICE.
5.4. CLICKKY IS NOT RESPONSIBLE FOR ANY DAMAGE TO THE PARTY’S MOBILE, TABLET, LAPTOP, OR DESKTOP DEVICE, COMPUTER SYSTEM, OTHER HARDWARE OR SOFTWARE, OR FOR ANY LOSS OF OR DAMAGE TO DATA THAT MAY RESULT FROM THE PARTY’S USE OF THE SITE AND SERVICES.
6. LIMITATION OF LIABILITY
6.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, REGARDLESS OF THE FORM OF ACTION, AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVICES OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
6.2. EXCLUDING PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR DELAY OR DEFAULT IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER IF SUCH DELAY OR DEFAULT IS CAUSED BY CONDITIONS BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, FIRE, FLOOD, ACCIDENT, EARTHQUAKES, TELECOMMUNICATIONS LINE FAILURES, ELECTRICAL OUTAGES, NETWORK FAILURES, ACTS OF GOD, OR LABOR DISPUTES.
6.3. THE TOTAL AMOUNT OF CLICKKY’S AGGREGATE LIABILITY HEREUNDER MAY NOT EXCEED THE AMOUNT OF PAYMENTS MADE BY THE PARTY TO THE CLICKKY WITHIN THE LAST 180 (ONE HUNDRED AND EIGHTY) DAYS FROM THE DAY THE LIABILITY OBLIGATIONS AROSE.
7. PRIVACY AND CONFIDENTIAL INFORMATION
7.1. The Receiving Party may use the Disclosing Party’s Confidential Information only as necessary to exercise rights and perform obligations hereunder. During the term of this Agreement and three (3) years hereafter, the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party without prior written consent. The Receiving Party will protect the Disclosing Party’s Confidential Information from disclosure or misuse by using the same degree of care as for the Receiving Party’s own Confidential Information of like importance, but will at least use reasonable care.
7.2. For purposes hereof, the “Confidential Information” shall mean all non-public information whether disclosed orally, in writing, or in any other manner, in any form and in any media, including, without limitation, any and all financial, technical, business information relating to either Party, information related to clients, methods, ideas, concepts, software, trade secrets, or other intellectual property rights, formulations, data, know-how, designs, inventions, discoveries, processes, and any sales, financial, contractual, and marketing information, and any information of a confidential nature concerning products or services of the Parties.
7.3. However, the Confidential Information shall not include any information which is:
7.3.1. known by the Receiving Party (without breach of any confidentiality obligation by any third party) prior to disclosure by the Disclosing Party;
7.3.2. independently developed by the Receiving Party without the use of or reference to any Confidential Information;
7.3.3. legally received by the Receiving Party (without breach of any confidentiality obligation by any third party) from a third party that is not under a confidentiality obligation to the Disclosing
7.3.4. publicly available through no breach of this Agreement by the Receiving Party.
7.5. Neither Party shall be deemed to violate this Section, should the Receiving Party disclose the Confidential Information upon the Disclosing Party’s written approval or on the requirement of the competent legal or governmental authority.
8. TERMS AND TERMINATION
8.1. This Agreement shall be effective as of the date when the Party accepts its provisions under the terms hereof, and shall remain in force until terminated by either Party.
8.2. This Agreement may be terminated either by Clickky or by the Party at any time, for convenience upon prior written notice to the other Party. This Agreement may be also immediately terminated by Clickky under the terms provided herein.
8.3. Upon termination or expiration of the Agreement for any reason:
8.3.1. the Party will remain liable for any amount due to the Publisher prior to the effective date of termination and such obligation to pay shall survive any termination of this Agreement;
8.3.2. any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate;
8.3.3. any and all Confidential Information or proprietary information of either Party that is in the other Party’s possession or control must be immediately returned, destroyed, or kept confidential.
9.1. Governing Law and Disputes Resolution. This Agreement shall be governed by the laws of Hong Kong, without reference to its rules regarding conflicts of law. The Parties agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with this Agreement through negotiations. Should the Parties fail to resolve any such disagreement within thirty (30) business days, the dispute may be submitted to arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules. The number of arbitrators shall be one. The seat of arbitration shall be Hong Kong. The language of arbitration shall be English.
9.2. Assignment. Neither Party shall assign this Agreement, in whole or in part, without the other Party’s prior written consent, except that either Party may assign this Agreement without consent of the other in case of merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit and bind the Parties’ respective successors and permitted assignors.
9.3. Complete Agreement; Waiver. This Agreement is intended to fully reflect the terms of the original agreement of engagement of the Clickky’s Services. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights hereunder at any time to enforce strict compliance thereafter with every term and condition hereof.
9.4. Contacts. The Party may send any questions regarding the use of Site and the Clickky’s Services or regarding this Agreement via email at firstname.lastname@example.org.