End User License Agreement (eula)
Proche – END USER LICENSE AGREEMENT ("EULA")
PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY. BY TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE ALL OR ANY PORTION OF PROCHE, YOU AND YOUR COMPANY (“LICENSEE”) ACCEPT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA IF YOU ACQUIRE THIS SOFTWARE FOR YOUR COMPANY’S USE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR COMPANY TO THIS EULA. IF LICENSEE DOES NOT AGREE TO THIS EULA, LICENSEE MAY NOT USE THIS SOFTWARE AND MUST IMMEDIATELY REMOVE THE SOFTWARE FROM THE LICENSEE'S MOBILE DEVICE, MOBILE COMMUNICATION TERMINAL OR COMPUTER.
UPDATES TO THIS EULA
This EULA may be updated from time to time. Once this EULA is updated or amended, the updated terms of the EULA will be available in the Software or at https://sites.google.com/view/proche/eula. Once the updated terms of the EULA are released, the updated terms will effectively substitute the original terms of the EULA. The Licensee may login the Software or visit the website to review the latest version of the terms of this EULA at any time.
1.OWNERSHIP OF THIS SOFTWARE
This Software was developed and is owned by Proche. All the ownership of intellectual property rights in this Software (including but not limited to any code, image, data, text and add-in programs contained in this Software and in any and all future updates, modifications, revisions and/or derivative works of the Software), and attached supporting documentation belong to Proche and may not be used, reproduced, altered, distributed, exploit or otherwise dealt with by the Licensee without written authorization from Proche, unless said usage, reproduction, alteration, distribution exploitation and dealing are expressly provided for in this EULA. The Software is protected by law, including without limitation the Copyright Ordinance (Cap. 528) of USA, International Copyright Treaties and other intellectual property laws and treaties.
2.1 Subject to the terms of this EULA, Proche grants to Licensee a personal,non-exclusive, non-transferable, limited license to install and use one (1) copy of the Software on one (1) mobile communication terminal, internally for the personal, non-commercial purposes described in the documentation of the Software. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement or “Read Me” file located near such materials. Except as expressly stated herein, this EULA does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by Proche.
2.2 This EULA is valid for an indefinite period until termination pursuant to this EULA.
3.1 The Licensee may use the Software and enjoy various Services provided by Proche and/or its Affiliates by registering a Weixin account (“Weixin account”). The Weixin account is the property of Proche. After completing the registration application for a Weixin account, the Licensee then has the right to use the account. The Weixin account can only be used by the initial registrant and is prohibited as gift, loan, lease, transfer or sale. Proche reserves the right to reclaim the Weixin account for the purpose of business development.
3.2 The Licensee has the right to change, delete the Licensee’s personal data, registration information and content submitted to the Weixin account. The Licensee hereby acknowledges that deleted data will not be recovered and the Licensee should bear the risk associated with such action.
3.3 The Licensee shall be responsible for the safekeeping of the Weixin account and the password, and be fully and legally responsible for all activities performed through the use of the Weixin account and the password. The Licensee should not use accounts and passwords of other Licensee under any circumstances. If the Licensee suspects his or her account is being used by others without permission, the Licensee hereby agrees to immediately notify Proche.
3.4 The Licensee should comply with the terms of this Agreement, the correct and appropriate use of the Services. If the Licensee violates any provision of this Agreement, Proche reserves the right to terminate the Weixin service to the Licensee based on this Agreement. Meanwhile, Proche also reserves the right to reclaim the Licensee’s Weixin account.
3.5 For those Licensee who has not logged in to his/her Weixin account for a long time, Proche reserves the right to reclaim his/her Weixin account in order to avoid waste of resources. The Licensee shall bear the responsibility for the issues caused.
1. Without the prior written consent of Proche, the Licensee may not:
(i) reproduce the Software in whole or in part;
(ii) sell, assign, sub-license, disclose, or otherwise transfer or make available the Software in whole or in part to any third party;
(iii) use the Software to provide services to third parties;
(iv) implement, use, sell, distribute, transfer or permit any third party to implement, use, sell, distribute or transfer the Software and all the intellectual property rights thereof for the purpose of profit making;
(v) copy, alter, amend, run by mount or create any derivative works based on the Software or any part or component thereof, data released to any mobile communication terminal’s internal memory by the Software and interactive data between client terminal and server’s terminal during the Software’s operation for the avoidance of doubt, the forms of such restricted acts include, but not limited to, the creation of plug-ins, add-on programs, outside hanging or any unauthorized third party’s tool/service accessing the Software and correlative systems);
(vi) remove, delete or alter any proprietary notices or marks (including without limitation the copyright statements) on the Software;
(vii) reengineer, de-compile, disassemble, alter, translate or reverse engineer the Software or any part or component there to applicable laws which permit such activities notwithstanding this contractual prohibition;
(viii) amend or destroy the original state of the Software;
(ix) use the Software to take any actions to threaten the security of the network, including but not limited to using data or entering server/account without permission; entering public networks or others’ operating systems and deleting, amending or adding the stored information without permission; attempting without permission to detect, scan or test the weakness of the Software system or the network or attempting without permission to conduct any other activities to damage the network security system; attempting without permission to intervene with or affect the normal operation of the Software or the website; intentionally spreading malicious programs or viruses, and taking other actions to damage or intervene with the normal information service of the network; forging part or all of the titles of TCP/IP packets;
(x) log in or use the Software and Services of Proche by means of a third party’s compatible software or system not developed, authorized or approved by Proche; as to the Software and Services of Proche, the Licensee uses the plug-ins and outside hanging not developed, authorized or approved by Proche;
(xi) use the Software without the prior written consent of Proche to use, lease, lend, copy, revise, link to, cite, compile, issue or publish the information related to the Software, or to build mirror websites of said information or to develop related derivative products, works, services, plug-ins, outside hanging, compatibility or interconnection without authorization;
(xii) use the Software to publish, deliver, transmit or store any content that contravenes the laws of any country, or threatens the national security, social stability, public order and morals of any country, or to publish, deliver, transmit or store any content that is inappropriate, insulting, defamatory, obscene, violent and against the laws, regulations and policies of any country;
(xiii) use the Software to publish, deliver, transmit or store content that infringes other's intellectual property rights, trade secrets or other legal rights;
(xiv) use the Software, to issue, deliver or transmit bulk advertisements, unsolicited communications, spam and junk information;
(xv) use the Software to deliver, transmit or otherwise accomplish the transmission of the files including pictures, photos, software or other materials, which are under the protection of intellectual property laws, such as (but not limited to), copyright or trademark laws (or right of privacy or right to publicize), unless the Licensee owns or controls the related rights or have obtained the necessary authorization;
(xvi) use the Software to use any material or information that contains pictures or photos which have been acquired by infringing existing trademark, copyright, patent, trade secrets or other exclusive rights of other third parties;
(xvii) use the Software to amend or forge the instruction, data and data packet in the running of software works, add, delete, decrease or change the functions or running effects of software, spread the Software for the foresaid purposes to the public through information network, or operate them;
(xviii) use the Software to apply the Software and Services offered by Proche to the running of equipment putting humans and their belongings in danger. The Licensee understands that the Software and Services offered by Proche are not designed for the above purposes and to the maximum extent as permitted by applicable law, Proche will not bear any liability or be responsible for the personal injury or death, grave losses of belongings and destruction of environment due to the above unsuccessful operations arising from the Software and Services;
(xix) sell, lease, lend, spread, transfer or sub-license the Software and/or Services or gain profits from using the Software and/or Services regardless of whether the above acts were committed for the purpose of achieving direct economic or money earnings;
(xx) use the Software and other Services offered by Proche in any other illegal manner, for any illegal purpose or in any form inconsistent with this EULA.
4.TERMINATION OF LICENSE
4.1 Notwithstanding anything contrary to this EULA and to the maximum extent as permitted by law, Proche shall have the right to terminate this EULA on thirty (30) days written notice to the Licensee without giving reasons for such termination and without incurring penalties of any nature whatsoever.
4.2 If the Licensee breaches any of the stipulations in this EULA, in above, Proche may, at its sole and absolute discretion, immediately terminate, suspend in part or in whole, or restrict the Licensee’s right to use of the Software without notice.
5.SOFTWARE UPDATES AND SERVICE
5.1 If Licensee is receiving an update or an upgrade to, or a new version of the Software, ("Update") Licensee must possess a valid license to such previous version of the Software in order to use the Update. All Updates are provided to Licensee on a license exchange basis. Licensee agrees that by using an Update, Licensee voluntarily terminates Licensee’s right to use any previous version of the Software. Alternatively, Licensee may choose to continue using previous versions of the Software. Proche has no obligation to provide support, maintenance, Updates, or modifications under this EULA.
5.2 The Software activates automatically the function of “upgrade reminder”. Depending on the version of the Software, the Licensee may have an option to activate this function. After issuing Updates or new versions of the Software, Proche will not guarantee the continuous availability of the previous version(s) of the Software.
5.3 Proche reserves the right to unilaterally change or restrict part of the functional effects of the Software for the purpose of business development, and Proche assumes no liability whatsoever in respect of any damages suffered by the Licensee as a result of such change or restriction.
5.4 Proche reserves the right to amend or suspend its Service for the Software at any time and without prior notice to the Licensee. Proche shall not be responsible to the Licensee or any third party for Proche’s exercise of its right to amend or suspend the Service.
To the maximum extent permitted by applicable law, the Software is offered on an “as-is” basis and no warranty, either express or implied, is given. Proche expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement.
7.EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND OTHER DAMAGES
7.1 To the maximum extent permitted by applicable law, in no event shall Proche, its Affiliates (as defined below), employees, officers or agents be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software or any part or component thereof, or otherwise under or in connection with any provision of the EULA, even in the event of the fault, tort, strict liability, breach of contract, or breach of warranty of Proche, and even if Proche or its Affiliates, employees, officers or agents has been advised of the possibility of such damages. For the avoidance of doubt, in no event shall Proche or its Affiliates, employees, officers or agents be responsible or liable for any use of the Software by Licensee for the distribution of contents relating to obscenity, gambling, defamation, threats and information which inflicts hatred or dissension on individuals and/or certain groups of community based on ethnic group, religion, race, and group-based interest.
7.2 In this EULA, "Affiliates" shall mean any other person or entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with Proche from time to time. "Control" shall mean: (a) the ownership or control (whether directly or indirectly) of more than thirty percent (30%) of the voting share capital of the relevant undertaking; or (b) the ability to direct the casting of more than thirty percent (30%) of the votes exercisable at general meetings of the relevant undertaking on all, or substantially all, matters; or (c) the right to appoint or remove directors of the relevant undertaking holding a majority of the voting rights at meeting of the board on all, or substantially all, matters and "Controls" and "Controlled" shall be construed accordingly.
7.3. As with all mobile communication terminal software, the Software, as it is being used by the Licensee, could become susceptible to harassments in respect of security and use. Licensee hereby agrees and acknowledges that Proche or its Affiliates, employees, officers or agents will not bear any liability for such harassments, including but not limited to:
(i) other software downloaded and installed by the Licensee containing viruses, such as Trojan Horse, which threaten the security of the personal information and data and as a result, adversely affect the normal use of the Software;
(ii) the mobile communication terminal is infected by a virus or is damaged as a result of the browsing or visiting by Licensee of malicious web pages; or
(iii) the Licensee fails to normally download files due to the reasons of the supplier of the files to be downloaded, the network, the software and hardware used by the Licensee, and other reasons.
7.4 Proche and/or its Affiliates, employees, officers or agents shall bear no liability for the Licensee's all possible losses caused by a third party's communication line error, technical problem, network or mobile communication terminal failure, system instability, and other force majeure events.
7.5 All software derived from the Software that are not developed and formally released by Proche or not authorized by Proche are illegal. The download, installation or use of said illegal software may bring about unpredictable risks to the Licensee. Proche shall not be responsible for any legal liability and dispute arising from said download, installation or use.
8. LICENSEE'S WARRANTIES
8.1 Except as expressly set out in this EULA or as permitted by any applicable mandatorylaw, Licensee warrants, represents and undertakes that it shall:
(i) bear the risks for the use of this Software and possess the rights and conditionsrequired;
(ii) for the running of this Software;, and the Licensee must ensure that it has the right to use the Symbian, Java, s60v3, s60v5 and Android series operating systems;
(iii) use the Software in accordance with the provisions of this EULA and all applicable laws.
9.1 The Licensee agrees and acknowledges that personal information means such information that can directly or indirectly identify the Licensee, including the following: the Licensee’s name, ID card no., mobile number, IP address, e-mail and certain information regarding the Licensee's use, internet browsing and surfing habits. The non-privacy information means the basic recorded information explicitly and objectively reflected at Proche server’s terminal, such as the Licensee’s operating state to the Software.
9.2 Proche respects the privacy of the Licensee’s personal information and Proche will take reasonable measures to protect the Licensee’s personal information. Unless with the Licensee's consent, save for the purpose(s) of complying with laws, requests by courts or government departments, or purposes as listed in Clause 9.3 for which Licensee has given consent, Proche will not make the Licensee’s personal information public or disclose them to a third party. The Licensee hereby agrees and acknowledges that usage of the Software to visit websites could result in the collection of the Licensee's personal information by the websites, and that Proche its Affiliates, employees, officers or agents shall not be responsible or liable for the data privacy practices of those websites, including without limitation the collection, handling, use, processing and retention of the Licensee's personal information. The Licensee further agrees and acknowledges that, in order to operate and improve the technologies and quality of Services of Proche, Proche might have to collect and use the Licensee’s non-personal information and/or provide third parties with such information.
9.3 The Licensee hereby agrees, consents and acknowledges that Proche may collect, use, handle, process and/or the transfer the Licensee's personal information for the following purposes:
(i) to carry out the Software verification service;
(ii) to carry out the Software upgrade service;
(iii) to improve the security of the Licensee's use of the Software and provide customer support;
(iv) to carry out commercial activities including, but not limited to, value-added services offered to a third party, advertising, advertising positioning, marketing, joint registration of other services, sales promotion or any other activity;
(v) To implement the Privacy Protection Statement of Proche as annexed in Schedule 1 hereto (for the avoidance of doubt, the Licensee hereby agrees and consents to the terms of said Privacy Protection Statement);
9.4 In the event the Licensee uses specific functions of Proche’s Software, or when the Licensee requests Proche or its partners to offer particular services, Proche or its partners may have to provide the Licensee's personal information to the relevant third parties.
9.5 To the maximum extent as permitted by applicable law, Proche has the right to release advertisements and/or information for propaganda during or through Services and such advertisements and/or information may appear in the form of system message or popup window, etc.
10.CONSENT TO THE USE OF MOBILE COMMUNICATION TERMINAL RESOURCES.
10.1 The Software requires all Licensees to use the Software jointly and to maintain the benefit and functionality provided by the Software. The Licensee hereby acknowledges, consents and agrees that the Software may make use of the Licensee's resources, such as the processor of the Licensee's mobile communication terminal and the bandwidth, for the limited purpose of allowing other Licensees of the Software to communicate with the Licensee and share the Software and the ServicesServices. Where applicable, the costs of such use by the Software of the Licensee's resources (including without limitation costs of service providers) shall be solely borne by the Licensee. The Licensee hereby agrees and acknowledges that the Licensee's enjoyment and/or experience in using the Software for communicating with other Licensees could be affected depending on the actions of other Licensees beyond the control of Proche and for which Proche, its Affiliates, employees, officers or agents shall not be responsible in any way.
10.2 The Licensee acknowledges that Proche will use its commercially reasonable effort to protect the Licensee's mobile communication terminal resources and the privacy and completeness of the Licensee's communications via the mobile communication terminal. However, the Licensee acknowledges and agrees that Proche will not provide any warranty therefor.
//added for proche for release 1.0.3
11. USER BEHAVIOR
11.1. Proche has no tolerance for any objectionable content or abusive users. The licensee agree to input only appropriate contents, be reasonably friendly, act with reasonable integrity and behave in accordance with generally accepted ethical standards. Proche has the ultimate right in determining whether contents are objectionable, and whether a user's behavior is abusive. Should objectionable content is identified, Proche will remove such content as soon as possible and take actions against the user(s) who involved in generating such content at sole discretion of Proche. Should any user's behavior is considered to be abusive, Proche will take actions against the user at sole discretion of Proche.
11.2. Actions taken against any user who involved in generating objectionable content or being abusive include, but not limited to, temporarily or permanently ban the user from using Proche and any related product, report such activity to law enforcement as appropriate, etc.
12. LIMITATION OF LIABILITY
12.1 Notwithstanding any damages that Licensee might incur for any reason whatsoever and to the maximum extent permitted by applicable law, the entire liability of Proche and any of its suppliers under any provision of this EULA and licensee’s exclusive remedy for all of the foregoing shall be limited and in no event will Proche or its suppliers total cumulative liability exceed HK$5.
13.1 By accepting the EULA, Licensee agrees to indemnify and otherwise hold harmless Proche, its officers, employee, agents, subsidiaries, Affiliates, and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from Licensee’s use of the Software or any other matter relating to the Software or this EULA.
13.2 For the avoidance of doubt, if the Licensee's breach of this EULA (including but not limited to the acts stipulated in Clause 34.1 above) or relevant terms of Service brings about any third party's claims, demands or losses to Proche, including attorney's fee, the Licensee hereby agrees to indemnify and hold Proche harmless from all losses caused by said claims, demands or losses.
14.1 The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Licensee hereby acknowledges that all intellectual property rights in the Software (including but not limited to any images, text, audio, video, and "applets" incorporated into the Software) throughout the world belong to Proche, that rights in the Software are licensed (not sold) to Licensee, and that Licensee has no rights in, or to, the Software other than the right to use it in accordance with the terms of this EULA. Licensee acknowledges and agrees that Licensee has no right to access the Software in source code form.
14.2 The Licensee further agrees and acknowledges that all the contents in any advertisements and commercial information provided by Proche for the Licensee via the Software are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Licensee may only use content from said advertisements or commercial information with the written consent of Proche, and shall not copy, amend or compile said advertisements or commercial, or create derivative products based on the same without Proche's authorization.
13.3 Proche, the Proche logo, and other Proche names and logos are the trademarks of Proche, use of which for any purposes by the Licensee without the written consent from Proche is strictly prohibited. Proche reserves all rights to claim remedies against the Licensee, including without limitation damages and injunctive relief, in respect of any unauthorized use of Proche's intellectual property.
The EULA constitutes the entire agreement between Proche and Licensee and governs Licensee’s use of the Software, superceding any prior agreement between Licensee and Proche relating to the subject matter hereof. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the EULA will remain in force and effect.
Licensee may not assign this EULA, and any attempted assignment will be null and void.
This EULA will be governed by and construed in accordance with the laws of USA without regard to conflict of laws principles.
17.1 Any dispute or controversy under this EULA shall firstly be resolved through amicable negotiation. If no agreement is reached through such negotiations, the parties hereby agree to refer the dispute or controversy to arbitration pursuant to Clause 17.2 below..
17.2 Subject to Clause 17.1 above, the parties agree that any dispute, controversy or claim arising out or relating to this EULA, or the breach, termination or invalidity thereof, shall be settled by final and binding arbitration in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with these Rules. The place of arbitration shall be in Hong Kong at the Hong Kong International Arbitration Centre ("HKIAC").
17.3 The tribunal for any arbitration shall consist of three arbitrators with each party appointing one arbitrator and the two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the Tribunal.
17.4 The language to be used in the arbitral proceedings shall be English.
17.5 The applicable law shall be the laws of the USA.
This EULA is written in English, although it may be translated into another language at sole discretion of Proche or by the requirement of law, the English version shall prevail.
If the Licensee has any questions or comments as regards this Software, please inquire with the Customer Service Center of Proche, the contact details of which are as follows:
Customer Service Hotline of Proche: +1 650 289 8233. Service Website: www.proche.io.