Last Updated: July 31, 2017
PLEASE READ THIS AGREEMENT (“AGREEMENT”) BEFORE REGISTERING FOR OR USING KTPLAY OR ANY OF THE SERVICES PROVIDED BY KTPLAY (THE “SERVICES”) OR DOWNLOADING OR USING KTPLAY SOFTWARE DEVELOPMENT KIT (THE “SDK”) OR ANY OTHER KTPLAY SOFTWARE THAT IS AVAILABLE VIA THE SERVICES (SUCH SOFTWARE TOGETHER WITH THE SDK, COLLECTIVELY, THE “SOFTWARE”):
By clicking on the “I AGREE” button, or otherwise accessing and using the Services or downloading, installing or using the Software, you acknowledge and agree that: you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively “Developer”, “you” or “your”), have read and understood and agree to comply with the terms and conditions of this Agreement, and are entering into a binding legal agreement with Kryptanium HK Ltd (“Kryptanium”, “KT”, “KTplay”, “we”, “our” or “us”). If you are entering into this Agreement on behalf of your employer, company, business or organization (“Company”) then you represent and warrant that you have full authority to bind your Company to this Agreement. If you do not agree to comply with and be bound by this Agreement or do not have authority to bind the Company, please do not accept this Agreement or use the Services or Software. All references to the Services in this Agreement shall include the Software.
KTplay may offer functionality through the Software that enables you to apply the technology of one or more third party KTplay partners. If you wish to use such third party services, you may be required to enter into supplemental terms or terms directly with the third party provider of such technology services. Please see Section 2.4 below for details.
1.1. General. In order to use the Services, you must create an account (“Account”). You must not allow anyone other than yourself or an authorized employee or agent acting on your behalf (“Authorized User”) to access and use your Account. You acknowledge and agree: (i) to provide accurate and complete Account and login information; (ii) to keep, and ensure that Authorized Users keep all Account login details and passwords secure at all times; (iii) that you remain solely responsible and liable for the activity that occurs in connection with your Account, and (iv) to promptly notify us in writing if you become aware of any unauthorized access or use of your Account or the Services. You may send us an email request to support@KTplay.com to cancel or delete your Account at any time.
1.2. Company. If you create an Account for your Company, then you acknowledge that the Company will be our customer. In such an event (a) this Agreement will be a binding legal agreement between the Company named in the Account and KTplay and (b) all references in this Agreement to “you” or “your” shall mean your Company. As mentioned above, if you do not have authority to bind your Company, please do not accept this Agreement or use the Services or Software.
1.3. Age Restriction. The Services are only intended for individuals aged thirteen (13) years or older. If you are under 13 years old you are prohibited from registering an Account or using the Services. If you are between 13 and 18 years of age, then you must review this Agreement with your parent or guardian before registering an Account or using the Services to make sure that you and your parent or guardian understand the terms and conditions of this Agreement and agree to them.
2. License Grant.
2.1. Internal Use License. Subject to the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable, revocable, non-sublicensable, non-assignable license during the term of this Agreement to internally perform, and use the Software solely to create executable object code for incorporation in one or more of your software applications (“Developer Products”) to permit such Developer Products to operate together with the Software and/or with the Services in compliance with this Agreement.
2.2. Distribution License. Subject to the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, nontransferable, revocable, license to reproduce and distribute the Software solely as compiled into executable object code incorporated in Developer Products that comply with this Agreement as the same may be updated from time to time.
2.3. Distribution Channel Requirements. As a condition to the licenses granted in this Agreement, any Developer Product that incorporates any Software or operates with the Services must comply with all requirements, including the content standards, of all third party platform distribution channels, such as Apple App Store or Google Play, through which you choose to distribute the Developer Product (each a “Distribution Channel”). You are solely responsible for: (i) verifying that Developer Products may be distributed through the Distribution Channel; (ii) complying, and ensuring that Developer Products comply, with the rules and terms and conditions of any such Distribution Channel, (iii) submitting Developer Products to the Distribution Channel that you wish to use to distribute Developer Products and (iv) maintaining Developer Products for such time as you wish to distribute or otherwise make available Developer Product. You are solely responsible for your activities and relationships with Developer’s Users and any Distribution Channel.
2.4. Third Party Content and Licenses.
We may make available software and other content provided by other third parties to enable interoperability with their sites and products (“Third Party Content”). Such Third Party Content is made available to you solely as a convenience to you, and you agree that we have no responsibility or liability with respect to any such Third Party Content. You hereby agree that you will read the license agreement or such other terms and conditions for any Third Party Content made available to you (“Third Party Terms”) prior to downloading or using the Third Party Content, and if you download and/or use such Third Party Content, you will be automatically bound by the applicable Third Party Terms, including but not limited to the Third Party Terms located at http://ktplay.com/third-party-partners. You hereby release KTplay and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “KTplay Parties”) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any disputes arising out of any Third Party Content.
You hereby acknowledge and agree that KTplay shall have the right to deliver commercial advertisements and other types of commercial information through any means, including without limitation, posting advertisements in any place in connection with the Services or Software, and inserting advertisements in the Developer Products (the “Advertisement”). You hereby acknowledge and agree that if you choose to accept the Advertisement distributed by KTplay (if any), you may receive a revenue share from KTplay in connection with delivering such Advertisements (the “KTplay Revenue Share”), the details of which are described at http://www.ktplay.com, and any successor or related website designated by KTplay, as may be updated by KTplay from time to time (the “KTplay Website”). You may also choose to disable the Advertisement in your Account, and if you choose to disable the Advertisements, you will not receive any KTplay Revenue Share from KTplay until you accept the Advertisement again.
3.1. Restrictions. You may not directly or indirectly, and shall not permit any third party to: (i) use or access the Services in any manner that violates any applicable laws or regulation or is prohibited by this Agreement; (ii) alter, merge, adapt, modify, translate, reverse engineer, decompile or disassemble any part of the Services or Software; (iii) derive, or attempt to derive, the source code of the Services or Software, or reduce the Software to a human-perceivable form; (iv) create derivative works of the Software or Content; (v) sell, rent, lease, transfer, sublicense, or otherwise transfer or distribute rights to the Services or Software, except to the extent that the Software is integrated into your Developer Products in accordance with this Agreement (for the avoidance of doubt, you may not distribute the Software, including any portion thereof, as a stand-alone product); (vi) copy the Software (except for back-up or archival purposes or those portions that are specifically permitted to be and are incorporated in the Developer Products); (vii) disrupt any servers or networks connected to the Services; (viii) use or launch any automated system (including without limitation, “robots” and “spiders”) to access the Services; (ix) circumvent, disable or otherwise interfere with security-related features of the Services; (x) remove, alter or obscure any proprietary notices or labels on, affixed to, contained in or displayed on the Services or Software or any copies thereof, or use the KTplay Marks (defined below) for any purpose except as expressly permitted herein; (xi) use the Software to develop any product other than Developer Products; (xii) use the Services or Software to develop or in connection with any software, game or product which is the same as or similar to or competes with the Services, Software or KTplay; (xiii) except as permitted herein for your own internal testing and evaluation purposes in connection with Developer Products, use the Services or Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (xiv) access, store, distribute, or transmit during the course of use of the Services or Software any unlawful, threatening, libelous, obscene or infringing material; (xv) damage, disable, overburden, or impair the Services, including by sending, posting, transmitting or distributing anything that contains a virus or other code intended to damage or interfere with the Services or any portion thereof, or the software, hardware, equipment, system, data, or other information of KTplay or any third party; (xvi) interfere with or disrupt the integrity or performance of the Services or Software; (xvii) work around any technical limitations in the Services or Software, or use any tool to enable features or functionalities that are otherwise disabled in the Services or Software; and/or (xviii) use the Services or Software in any unlawful, harmful, irresponsible or inappropriate manner, or one that could associate KTplay or any of its affiliates with any improper or inappropriate purpose, or in any manner that violates this Agreement.
3.2. Security Mechanism. KTplay reserves the right to include security or other mechanisms within the Services or Software to control access to and/or use of the Services or Software in order to enforce the terms of this Agreement.
4. Additional Developer Agreements.
4.1. You represent, warrant and covenant that:
(a) Developer Products do not, and will not, use any robot, spider, site search, or other retrieval application or device to scrape, retrieve, or index services provided by KTplay or its licensors, or to collect information about users for any unauthorized purpose;
(b) Developer Products do not, and will not, disable, override, or otherwise interfere with any KTplay implemented system alerts, warnings, display panels, consent panels and the like intended to notify the user that the user’s location data is being collected, transmitted, maintained, processed, or used, or intended to obtain consent for such use;
(c) Developer Products do not, and will not, contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that may damage, harm, detrimentally interfere with, surreptitiously intercept or expropriate any system, network, services, data, or personal information;
(d) Developer shall ensure that any open source software used in the development of Developer Products does not cause any portion of the Services or Software to become subject to any open source obligation or condition;
(e) Developer owns, or has obtained, the right to integrate Developer Products with our Software and to distribute Developer Products to Developer’s Users;
(f) Developer Products do not, and will not, infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(g) Developer Products do not, and will not, violate any law, statute, ordinance or regulation (including those governing export control, consumer protection, unfair competition, privacy (including children’s privacy), antidiscrimination, or false advertising);
(h) Developer acknowledges and will acknowledge that Developer should arrange for and carry out examination, inspection and management of Developer Products and any part of Developer Products made, uploaded, copied, sent, posted or transmitted by Developer’s Users or any third party, and shall prohibit and clear up anything, including those identical or similar to any part of Developer Products, that is made, uploaded, copied, sent, posted or transmitted as part of Developer Products in violation of applicable laws, orders, rules or regulations (including those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising) by deleting, removing, modifying, or invalidating the internet links to the same;
(i) Developer Products do not, and will not, access or use the Services or Software except in the manner prescribed by laws and regulations and by us and this Agreement;
(j) Developer Products do not, and will not, contain content that is defamatory, libelous, offensive, threatening or harassing, obscene or pornographic, or is otherwise inappropriate;
(k) Developer Products do not, and will not, collect or attempt to collect personally identifiable information of any person, except in compliance with all applicable laws;
(l) Developer Products do not, and will not, be harmful or potentially harmful to the Services, Software or the systems and server structure, security mechanisms, services used by us to provide and support the Services as determined in our sole discretion;
(m) Developer Products and your activities do not, and will not, create liability for us; and
(n) If Developer authorizes a third party to operate Developer Products, a clause to the effect that any party operating Developer Products shall fulfill the obligations under Section 4 and 5 of this Agreement shall be included in the main agreement made by and between Developer and such third party.
4.2. You shall monitor content posted by Developer’s Users through the Services, to remove content which is offensive or in violation of applicable privacy, intellectual property or other laws and regulations, and to suspend or blacklist such users who distribute such content. KTplay reserves the right, in its sole discretion, to remove such content or users from the Services without notice.
5. Responsibility for the Developer Products.
As between you and KTplay, you are solely responsible and liable for: (i) Developer Products; (ii) the content posted by Developer’s Users through the Services; (iii) marketing, offering, distributing or otherwise making available Developer Products; (iv) providing any and all maintenance and support services in connection with Developer Products to Developer’s Users; (v) arranging for and carrying out examination, inspection and management of any part of Developer Products made, uploaded, copied, sent, posted or transmitted by Developer’s Users or any third party, and promptly prohibiting or clearing up anything, including those identical or similar to any part of Developer Products, that is made, uploaded, copied, sent, posted or transmitted as part of Developer Products in violation of applicable laws, orders, rules or regulations (including those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising) by deleting, removing, or modifying, or invalidating the internet links to the same; (vi) any Developer Product-related warranties, whether express or implied by law, to the extent not effectively disclaimed; and (vi) addressing any Developer Product claims that an end user, or any third party, may have relating to the Developer Product, including, but not limited to: (a) product liability claims; (b) any claim that a Developer Product fails to conform to any applicable legal or regulatory requirement; (c) claims arising under consumer protection or similar legislation, and/or (d) a third party claim that any Developer Product infringes or violates the intellectual property, privacy, publicity or other rights of a third party. You agree to defend, indemnify, hold us harmless, and expressly release us, from any and all liability arising from the foregoing.
6.1 Fee. The prices, features, and options of the Services vary depending on which subscription plan you select, the details of which are described on KTplay Website. You will pay us the applicable fees and charges for use of the Services as described on KTplay Website using one of the payment methods we support. The prices described on KTplay Website exclude applicable taxes and currency exchange costs, unless stated otherwise. You are solely responsible for paying such taxes or other charges. We may suspend or cancel your access to the Services if we do not receive the full payment from you on time, or if the remaining amount of the pre-paid fee in your account is insufficient to pay for cost of the Services.
6.2 Refund Policy. Unless otherwise required by law or by a particular Service offer, all payments to us are final and non-refundable. If you believe that we have charged you in error, you must contact us within thirty (30) calendar days of such charge. No refunds will be given for any charges more than thirty (30) calendar days after the date of the charge.
7. Intellectual Property.
7.1. The Services and Software. All of the intellectual property and proprietary rights, title and interest of any nature in and to the Services and Software, including any updates and upgrades, and any modifications and derivative works (whether or not permitted under this Agreement) of the foregoing, are and shall remain the exclusive property of KTplay and/or its licensors. No legal or equitable title to, or ownership of, the Services or Software is transferred to you or any third party.
7.2. Content and Marks. The: (i) text, documents, statistical and analytical reports, articles, blogs, descriptions, graphics, photos, sounds, videos and interactive features on the Services (collectively, the “Content”), and (ii) the trademarks, service marks and logos contained therein (“Marks”), are the property of KTplay and our affiliates and/or our licensors and may be protected by applicable copyright or other intellectual property laws and treaties. ‘KT’, ‘Kryptanium’, ‘KTplay’, the Kryptanium logos and other marks are Marks of KTplay or our affiliates. All other trademarks, service marks, and logos used on the Services or within the Software are the trademarks, service marks, or logos of their respective owners.
7.3. Developer Products. All of the intellectual property and proprietary rights, title and interest of any nature in and to the Developer Product, including any modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) of the foregoing, except for the intellectual property of the Services and Software that belong to KTplay under the terms and conditions of this Agreement, are and shall remain the exclusive property of you and/or your licensors. No legal or equitable title to, or ownership of, the Developer Product is transferred to KTplay under this Agreement.
7.4. Usage Related Data. We may collect data related to the use of the Developer Product by you and your end users (“Usage Data”). We use the Usage Data to provide our Services and for our business purposes. As between you and us, we own all of the Usage Data that we collect or obtain.
7.5. Rights Reserved. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights to you or any third party. KTplay and our licensors reserve any and all rights not expressly granted in this Agreement.
8. Modifications to the Agreement and the Services.
8.1. We reserve the right, at our discretion, to change the terms of this Agreement from time to time. Any such changes will become effective ten (10) days following posting of the revised Agreement on our website or sending you an e-mail to the address that you provided us, and your continued use of the Services or Software thereafter means that you accept those changes.
8.2. We reserve the right to (and nothing in this Agreement shall limit our right to) change, modify, suspend or discontinue the Services (including the Software or Content) at any time with or without notice.
8.3. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Agreement or Services.
9. Term and Termination.
9.1. This Agreement shall become effective on the date that you start to access or use the Services or Software, and will continue until the end of applicable subscription period. We may suspend, disable or terminate your Account and your access to the Service, at our sole discretion, if we believe in good faith that you breach any of the terms of this Agreement or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the terms of this Agreement. For clarity, unless otherwise required by law or by a particular Service offer, all payments to us are final and non-refundable.
9.2. Upon the termination of this Agreement: (i) your right to access and use the Services and Software will immediately cease, (ii) you agree to cease using and to delete all copies of the Software that are in your possession or control, (iii) you will lose all access to any data that we may be storing on your behalf; and (iv) you should pay to us any amounts owed to us pursuant to this Agreement. This Section, any of your unpaid payment obligations, and Sections 3 (Restrictions), 5 (Responsibility for the Developer Products and Developer’s Users), 7 (Intellectual Property), 10 (Warranty Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 14 (Privacy) to 19 (General), shall survive termination of this Agreement.
9.3. You agree that we will not be liable to you or to any third party for loss, damage or liability that may result from the modification, suspension or termination of this Agreement, the Services or the Software, or your loss of access to the Services (or Software).
The Services and the Software are provided solely in accordance with this Agreement, and without warranties of any kind either express or implied. You assume all responsibility for the selection and use of the Services (including the Software), and any feature of the Services to achieve your intended results.
KTPLAY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KTPLAY DOES NOT WARRANT THAT THE SERVICE (INCLUDING THE SOFTWARE) WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. KTPLAY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICES. YOUR USE OF AND RELIANCE UPON THE SERVICES IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND KTPLAY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
11. Limitation of Liability.
11.1 TO THE FULLEST EXTENT PERMISSIBLE BY LAW, KTPLAY SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF DATA, OR LOST PROFITS OR REVENUE) ARISING UNDER OR OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF KTPLAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KTPLAY FOR ANY DAMAGES UNDER OR OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US FOR THE SERVICE HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO BRINGING THE CLAIM.
You agree to defend, indemnify and hold harmless KTplay and our affiliates and our respective officers, directors, employees, agents, consultants, suppliers, service providers and other users of the Services, from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from: (i) your use of the Services or any Third Party Content; (ii) Developer Products; (iii) the content posted by Developer’s Users through the Service; and/or (iv) your breach of this Agreement.
You agree that KTplay may: (i) display your name and logo, or your Company’s name and logo on whose behalf you are using the Services or Software, as part of the KTplay customers’ list; and (ii) send you messages, about KTplay’s and/or a third party’s products and services, via email, push notifications and other communication channels.
14.2. We may access, read, preserve, disclose and use any information that we obtain in connection with the Services, and your use thereof, for any lawful purpose, including as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, or (ii) enforce this Agreement.
15. Compliance with Laws.
You agree to comply with all applicable laws relating in any way to your performance of your obligations under this Agreement, including without limits, your use of the Software or Services.
Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between you and KTplay. You must not under any circumstances make, or undertake, any warranties, representations, commitments or obligations on behalf of KTplay.
This Agreement, including any rights and licenses granted hereunder, may not be transferred or assigned by you. This Agreement may be assigned or transferred in part or in whole by KTplay without restriction or notification.
18. Governing Law and Disputes.
This Agreement and the relationship between you and KTplay shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any dispute shall arise in connection with this Agreement, either party may initiate the dispute resolution procedures set forth in this Section by giving the other party written notice of such dispute (“Dispute Notice”). Following issuance of a Dispute Notice, the Parties shall endeavor to resolve the dispute through negotiations conducted in good faith. All negotiations that take place in connection with the dispute shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings. If the dispute cannot be resolved through good faith negotiations within thirty (30) calendar days from the date upon which the Dispute Notice was issued, either Party may submit the dispute to be finally resolved by arbitration under Hong Kong International Arbitration Center (the “HKIAC”) by written notice to the other Party and to HKIAC. The number of arbitrators shall be one, the language to be used in the arbitration proceedings shall be English and the place of arbitration shall be Hong Kong. The arbitration shall be conducted in accordance with the HKIAC’s arbitration rules in effect at the time of applying for arbitration. Once a dispute is referred to arbitration, such dispute shall be finally and exclusively settled through binding arbitration unless the Parties otherwise reach an agreement to resolve the dispute.
This Agreement shall constitute the entire agreement between you and KTplay concerning the Services and the Software. If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.