Agreement on terms of service
1. Acceptance of terms
By using OptiTable online and offline products and services (collectively, "the Service"), provided by OptiTable Technology Limited (collectively, "OptiTable", "OTL", "We" or "Us") you agree to be bound by the following Terms of Service ("TOS"). Details of Terms of service may be updated by OTL from time to time without notice. For the most current version of TOS please visit http://www.optitable.com/tos/.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind the entity to TOS, in which case the terms "you" or "your" shall refer to the entity. If you do not agree with these terms and conditions, you may not use the Service.
You understand and agree that the Service is provided "as is" and that OTL assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. Any changes and features that augment or enhance the current Service shall be subject to these TOS and additional charges may apply.
You may not access the Service for purpose of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without OTL prior written consent. You may not access and use the Service if you are a direct competitor of OTL, except with OLT's prior written consent.
2. Your account and obligations
In consideration of your use of the Service, you represent and warrant that (i) you will perform your obligations stipulated under these TOS in a timely manner, (ii) you shall not transmit or disseminate any short messages, content and/or materials via the website which are obscene, immoral, indecent, deceptive, fraudulent, defamatory, discriminatory, privacy-intrusive, intimidating, provocative, unlawful, in breach of confidence, likely to incite racial hatred or an infringement of any intellectual property right. OTL shall have the right to edit or delete those messages, content and/or materials at any time and in such manner as OTL thinks fit., (iii) you acknowledge and agree that the intellectual property rights in the Service and the Content (being any still picture or other series of moving images, whether animated or otherwise, music video, data, information and/or other materials that may be accessed through any of the Service) belong to OTL, its third party service providers and/or licensors and that nothing that it does will transfer any intellectual property rights therein to you or license you to exercise any intellectual property rights therein, (iv) the Service are intended for your own use only. You shall not resell or distribute the Service in whatever form to any third party, (v) you shall abide by all relevant and any operating rules, as amended from time to time, when using the Service, (vi) You shall not assign, transfer or sub-license any or all of its rights and obligations under these TOS, (vii) you acknowledge that except for content which is supplied by OTL as principal, it is not OTL's policy to exercise any editorial control over or to edit or amend any content, short messages and/or materials before it is transmitted or made available through any of the Service.
OTL will be billing you for subscription fees corresponding to your subscription plan, plus any applicable tax. You shall make full payment of all bills before the stipulated due dates. Failure to do so shall entitle OTL to suspend, discontinue or terminate your subscription to any or all of the Services.
Except otherwise expressly provided in these TOS, all payments made to OTL shall not be refundable to you in any event. Fees payable by you to OTL shall be calculated by reference to data recorded or logged by OTL and not by reference to any data recorded or logged by yourself. Records held and logging procedures adopted by OTL will be conclusive evidence of the actual usage of the Service and the charges payable by you. In the event of termination of services by you, OTL reserves the right to charge you in the last bill for service charges for a full month or the entire bill cycle irrespective of the date of termination and without pro-rata adjustment. You shall settle the amount as invoiced in full.
Please also note that no credit or refund is available in respect of any time when any Service is 'down' or suspended. If you have not paid any invoice by the due date, OTL reserves the right to (i) charge interest on any outstanding amount at 2% per month until the invoice has been paid in full and to charge a handling fee, collection agency fee, reconnection fee and/or require a security deposit if your access to any Service is suspended or terminated before payment is made; and (ii) transfer any amount that is owing to you or due to you under any of your accounts, if you have more than one account with OTL, so as to settle any outstanding amount due to OTL under any of your accounts whether they have been terminated or suspended.
You acknowledge that if OTL invoices you for Content as agent for a third party provider of that Content, OTL is not the supplier of that Content.
If you change your service level (downgrade it), it may cause the loss of Content or features for your account. OTL does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and cancellation will be effective immediately. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY FEATURE OF COMPONENT THAT YOU HAVE PAID FOR BUT NOT USED.
4. Warranty and indemnity
You expressly understand and agree that:
Save and except for the warranties expressly provided under these TOS, OTL provides no warranty (express or implied) as to the title, fitness for a particular purpose, merchantability and the Service provides to you. OTL will use its best commercial endeavors to provide the Service to you without abnormal interruption.
You agree to indemnify and keep indemnified OTL against any action, liability, cost, claim, loss, damage, proceeding, and/or expense suffered or incurred by OTL arising from or which is related to (i) your use and/or any other person's use of any of the Service; and (ii) any breach or non-observance by you of any of these TOS or the terms and conditions (if any). You agree to indemnify and keep indemnified OTL against any of claims, loss or damage (including but not limited to legal fees) against intellectual property rights infringement and/or trademarks, service marks, trade names, patents, copyright and commercial design.
5. No resale of Service
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service, use of the Service, or access the Service unless you otherwise have an agreement with OTL which specifically grants you such right(s).
6. Termination and cancellation
You agree that OTL may without prior notice immediately terminate your OTL account and access to the Service. Such termination may be in OTL's sole and absolute discretion with or without cause. OTL may (i) deactivate any of the Service, with or without notice to you, to carry out system maintenance, upgrading, testing and/or repairs; (ii) limit or suspend your access to any of the Service with or without notice to you where OTL is of the opinion that such action is appropriate as a result of your use of any of the Service; (iii) take any steps or omit to take any steps, with or without notice to you, for any reason OTL deems relevant to the management or the operation of any of the Service and OTL's business, that may expand, reduce, modify, suspend, limit, make inaccessible or adversely affect any of the Service, or any Content. OTL may, upon discovery of suspected or inchoate, fraudulent, deceptive, unlawful or improper use of the Service by any party, suspend any or all of the Service to prevent such conduct from taking place.
You may terminate the subscription at any time upon giving 30 days' notice to OTL provided that you have paid all charges as invoiced. All payments made to OTL shall not be refundable to you. OTL may terminate the provision of the Service forthwith in any of the following circumstances: (i) any amount due to OTL has been outstanding for more than 30 days; (ii) You have committed a breach of any of these TOS. Without limiting the generality of the foregoing, OTL may terminate the provision of the Service at any time without cause by giving not less than 30 days' notice to you. OTL will refund to you the remaining paid subscription fee on a pro-rata basis.
Termination hereunder shall not affect OTL's right of action against you for any antecedent breach or liability incurred prior to the date of termination nor shall it affect the coming into force or the continuance in force of any provision contained herein which is expressly or by implication intended to come into or continue in force on or after such termination. All remaining benefits (whether monetary or non-monetary) under the subscription service at the date of termination shall be forfeited absolutely.
7. Limitation of liability
You expressly understand and agree that OTL and its parent, subsidiaries, affiliates, officers, directors, shareholders, employees, agents, attorneys, partners, licensors and other representatives shall not be liable to you for any direct, indirect incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if OTL has been advised of the possibility of such damages). Resulting from: (i) the use or the inability to use the Service; (ii) any damage to or loss of data suffered by you arising from its use of any of the Service; (iii) any claim based in contract, tort, or otherwise for any loss of revenue (whether direct or indirect), loss of profits or any consequential loss whether of an economic nature or not; (iv) any claim relating to any services made available by OTL (or any failure or delay to so supply, provide, sell or make available); (v) any injury, disease, seizure or loss of consciousness suffered by you or any person arising whether direct or indirectly from accessing and using the Service; and (vi) any disruption or suspension of the Service or any part thereof which is attributable to an event or circumstances beyond OTL's reasonable control.
To the extent permitted by law, OTL's aggregate liability to you shall in any event not exceed the total subscription fees paid by you to OTL for the immediately preceding 12 months prior to any incident giving rise to such liability or the fee for the remaining subscription period on prorated basis whichever is less.
8. General information
Entire Agreement. This agreement constitutes the entire agreement between you and OTL and governs your use of the Service, supersedes all representations and promises, whether oral or written made by OTL's staff or authorized dealers. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other OTL service, affiliate services, third-party content or third-party software. The English version of these TOS shall prevail over any other language version (if any) which is provided for information purposes only.
Choice of Law and Forum. This agreement shall be construed in accordance with the laws of Hong Kong and the parties hereby submit to the non-exclusive jurisdiction of the Hong Kong courts.
Waiver and Severability of Terms. If any term or condition herein becomes or is declared illegal, invalid or unenforceable for any reason, such term or condition shall be divisible from these TOS and shall be deemed to be deleted from these TOS.