Metalk Terms of Service

Last modified: 13th December 2016

1. YOUR ACCEPTANCE

Welcome to Metalk! This is an agreement between Logicquest Technology Limited at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands (“Metalk”), the operator of www.immetalk.com (“we” or “our”) and the Metalk software (collectively the “Metalk Service”, or the “Service”), and you (“you” or “You”), a user of the Service. By using the Service, you acknowledge and agree to these Terms of Service (these “Terms”), and Metalk’s Privacy Policy, which can be found at www.immetalk.com/privacy-policy, and which are incorporated herein by reference. If you choose to not agree with any of these terms, you may not use the Service.

1.1 Compliance with these Terms

These Terms apply to you if you are a user of the Service anywhere in the world other than the People’s Republic of China (and you are not a citizen of the People’s Republic of China). If you are: (i) a user of the Service in the People’s Republic of China; (ii) a citizen of the People’s Republic of China using the Service anywhere in the world; or (iii) a Chinese-incorporated company using the Service anywhere in the world, please refer to the Terms of Service (PRC Users) for the terms that apply to you in your use of the Service.

You must comply with these Terms in your use of the Service and only use the Service as permitted by applicable laws and regulations, wherever you may be when you use it. You must review these Terms and our policies and instructions to understand how you can and cannot use the Service. If you do not agree to these Terms, you must not use the Service.

1.2 Other terms in relation to these Terms

If you are below 18 years old (or the relevant age in your jurisdiction where you are considered a minor), your parent or guardian must agree to these Terms (both for themselves and on your behalf) before you can use the Service.

If you are using the Service on behalf of a company, partnership, association, government or other organisation (your “Organisation”), you warrant that you are authorised to do so and that you are authorised to bind your Organisation to these Terms and in such circumstances “you” will include your Organisation.

We may translate these Terms into multiple languages, and in the event there is any difference between the English version and any other language version of these Terms, the English version will apply (to the extent permitted by applicable law).

2. ADDITIONAL POLICIES

2.1 Additional country-specific terms

If you are a citizen or a habitual resident of the following countries, the following country-specific terms will also apply to your use of the Service:

  • USA; and
  • Australia.

2.2 Inconsistencies

To the extent that any additional terms of service or policies are different from these Terms, the relevant additional terms of service or additional policies will apply, except that nothing in those additional terms of service or policies will (unless expressly indicated otherwise in those additional terms of service or policies) amend the following sections of these Terms (which will apply in the event there is any difference):

  • “Changes to these Terms and the Service”;
  • “Our intellectual property rights and software”; and
  • “Liability for the Service and software”.

However, to the extent that any country-specific terms differ from these Terms or any additional terms of service or policies, the relevant country-specific terms will apply, regardless of which section of these Terms is in question.

3. CHANGES TO TERMS AND THE SERVICE

These terms may be revised periodically and this will be reflected by the “effective date” above. Please revisit this page to stay aware of any changes. Your continued use of the Metalk Service constitutes your agreement to these Terms and any amendments.

In addition, as the Service and user experience are constantly evolving, we may from time to time (and to the extent permitted by applicable law) add, change or remove features from the Service (including in relation to whether a service is free of charge or not), or suspend or terminate a service altogether.

Where we consider that any changes to these Terms or the Service are reasonably material, we will notify you (via http://www.immetalk.com, direct communication to you, or other means), prior to the change becoming effective. By continuing to use the Service after we make any changes to these Terms or the Service, with or without notice from us, you are agreeing to be bound by these revised Terms.

4. YOUR ACCOUNT

You may need to create an account with us in order to access and use some of the Service.

Any account you open with us is personal to you and you are prohibited from gifting, lending, transferring or otherwise permitting any other person to access or use your account. Your account name, user ID and other identifiers you adopt within the Service remains our property and we can disable, reclaim and reuse these once your account is terminated or deactivated for whatever reason by either you or us.

You are responsible for: (i) safeguarding any passwords used to access your account and the Service, and (ii) all use of the Service under your account. You must promptly notify us at support@immetalk.com if you know or suspect that your password or account has been compromised.

4.1 Account deactivation

The Service may offer methods for deactivating your service-specific account – please refer to the relevant service for further guidance.

5. PAYMENTS

You may, from time to time, make payments to us as part of your use of the Service (including for the provision of the Service or provision of certain additional features within the Service). The Service-specific terms may set out further terms applying to such payments (including in relation to refunds (if any), billing arrangements and any consequences of failing to make timely payments). You must comply with all such terms in relation to your payments to us.

6. YOUR CONTENT

When you submit, upload, transmit or display any data, information, media or other content in connection with your use of the Service (“Your Content”), you understand and agree that:

  • you will continue to own and be responsible for Your Content;
  • we will not sell Your Content to any third party;
  • our use of Your Content will be subject to our Metalk Privacy Policy;
  • you are giving us and our affiliate companies the right to use Your Content (with no fees or charges payable by us to you) solely for the purposes of providing, promoting, developing and trying to improve the Service, including new services that we may provide in the future;
  • in using Your Content for these purposes, we and our affiliate companies may copy, reproduce, host, store, process, adapt, modify, translate, perform, distribute and publish Your Content worldwide in all media and by all distribution methods, including those that are developed in the future, provided that they are incorporated into the Service which you use; and
  • we may share Your Content with third parties that we work with to help provide, promote, develop and improve the Service, but these third parties (other than our affiliate companies) will not make any separate use of Your Content for their own purposes (i.e. for any purposes that are not related to the Service).

In addition, you agree that we and our affiliate companies (subject to these Terms, our Metalk Privacy Policy and applicable laws and regulations):

  • are allowed to retain and continue to use Your Content after you stop using the Service- for example, where you have shared Your Content with other users of the Service; and
  • may be required to retain or disclose Your Content in order to comply with applicable laws or regulations, or in order to comply with a court order, subpoena or other legal process, or we and our affiliate companies may disclose Your Content in response to a lawful request by a government authority, law enforcement agency or similar body (whether situated in your jurisdiction or elsewhere). You also agree that we may need to disclose Your Content in order to enforce these Terms, protect our rights, property or safety, or the rights, property or safety of our affiliate companies or other users of the Service.

You understand that even if you seek to delete Your Content from the Service, it may as a technical and administrative matter take some time or not be possible to achieve this.

6.1 Responsibility for Your Content

You are solely responsible for Your Content and we recommend that you keep a back-up copy of it at all times. You must at all times ensure that: (i) you have the rights required to submit, transmit or display Your Content, and to grant us the rights as set out in these Terms; and (ii) Your Content (and our use of Your Content in accordance with these Terms) does not infringe or violate the rights of any person or otherwise contravene any applicable laws or regulations.

7. ACCEPTABLE USE

You agree not to engage in any of the following prohibited activities on or in relation to our services, or allow any person to use your account with us to do the same:

  • impersonate any person or misrepresent your affiliation with any person or entity in registering an account (including by creating a misrepresentative account name or accessing another user’s account) or in making any communications or sharing or publishing any content or information using our services;
  • name squat via your account name in a way that infringes any third party’s intellectual property rights or other rights;
  • send any unsolicited, unauthorised spam, advertising or promotional messages, or any other commercial communications;
  • submit, upload, transmit or display, through our services, any content which in fact or in our reasonable opinion:

– breaches any laws or regulations (or may result in a breach of any laws or regulations when used in a manner permitted by the Metalk Terms of Service);
– creates a risk of loss or damage to any person or property;
– is fraudulent, false, misleading or deceptive;
– harms or exploits any person (whether adult or minor) in any way, including via bullying, harassment or threats of violence;
– is hateful, harassing, abusive, racially or ethnically offensive, defamatory, humiliating to other people (publicly or otherwise), threatening, profane or otherwise objectionable;
– promotes or encourages selfarming;
– infringes our rights or any third party’s rights, including any intellectual property rights, contractual rights, confidentiality rights or privacy rights;
– is pornographic, sexually explicit, violent or otherwise of a mature nature; or
– encourages or is likely to encourage any of the above;

  • violate any applicable laws or regulations, including credit card fraud or bank account fraud;
  • engage in any illegal or potentially illegal (as determined by us) activities or transactions, including sale of any illicit drugs or money laundering;
  • gamble, provide gambling information or entice others to engage in gambling through any method;
  • use or exploit any of our intellectual property rights (including our trademarks, brand name, logo, any other of our proprietary information or the layout or design of any page), or otherwise infringe on any of our intellectual property rights (including attempting to reverse engineer any applications or software used to access our services);
  • access any of our services, collect or process any content made available through our services, send or redirect any communications through our services, in each case, through the use any automated bots, software, engines, crawlers, scrapers, data mining tools or the like, or attempt to do any of the foregoing;
  • engage in any “framing,” “mirroring,” or other techniques directed at simulating the appearance or function of our services.
  • use our services for any commercial purpose or for the benefit of any third party, except as permitted by the Metalk Terms of Service;
  • interfere with, or attempt to interfere with, any user’s or any other party’s access to our services;
  • intentionally distribute viruses, worms, Trojan horses, corrupted files or other malicious code or items;
  • share or publish any other person’s personally identifiable information using our services without their express consent;
  • probe or test the vulnerability of, or otherwise circumvent (or attempt to circumvent) any security features on, our services, our systems or the systems of other users;
  • decompile, reverse compile or reverse engineer of the software used to provide our services, or seek to do any of the foregoing, except to the extent that applicable laws and regulations do not allow us to prevent you from doing this;;
  • create multiple accounts for disruptive or abusive purposes; or
  • engage in any other activity that encourages any person or entity to breach the Metalk Terms of Service.

8. THIRD PARTY CONTENT AND SERVICES

We are not responsible for and we do not endorse, support or guarantee the lawfulness, accuracy or reliability of any content submitted to, transmitted or displayed by or linked by the Service, including content provided by other users of the Service or by our advertisers. You acknowledge and agree that by using the Service you may be exposed to content which is inaccurate, misleading, defamatory, offensive or unlawful. Any reliance on or use of any content on or accessible from the Service by you is at your own risk. Your use of the Service does not give you any rights in or to any content you may access or obtain in connection with your use of the Service.

We also do not guarantee the quality, reliability or suitability of any third party services provided, made available or linked through the Service and we will bear no responsibility for such third party services. If you access third party services through the Service, you must comply with any terms and conditions applicable to those services.

We may review (but make no commitment to review) content or third party services made available through the Service to determine whether or not they comply with our policies, applicable laws and regulations or are otherwise objectionable. We may remove or refuse to make available or link to certain content or third party services if they infringe intellectual property rights, are obscene, defamatory or abusive, violate any rights or pose any risk to the security or performance of the Service.

There may be, from time to time, third party content and services on the Service that are subject to further terms, including terms from the relevant third party that originally produced such content and services. In such cases, you agree to comply with any such further terms and conditions as notified to you.

If you have any concerns regarding any content on or any other aspects of the Service, please contact support@immetalk.com.

9. ADVERTISING CONTENT ON THE SERVICE

The Service may include advertising or commercial content. You agree that we are allowed to integrate advertising or commercial content into the Service and that (where reasonably practicable) we will identify paid services and communications. You also agree that, as explained in more detail in our Metalk Privacy Policy, we use targeted advertising to try to make advertising more relevant and valuable to you.

10. DIRECT MARKETING

We may use your information for the purpose of sending you advertising or direct marketing (whether by messaging within the Service, by email or by other means) that offer or advertise products and services of ours and/or selected third parties. Such products and services include:

  • products and services of ours (or our affiliate and subsidiary companies and joint venture partners), including services in relation to messaging, online media and advertising, interactive entertainment, social networking, e-commerce, news and information, payment, internet search, location and mapping, applications, data management, and other related software and services (“Internet Services”); and
  • third party providers of Internet Services and products and services relating to dining, food and beverages, sports, music, film, television, live performances and other arts and entertainment, books, magazines and other publications, clothing and accessories, jewellery, cosmetics, personal health and hygiene, electronics, collectibles, housewares, appliances, home decoration and furnishings, pets, automobiles, hotels, transport and travel, banking, insurance and financial services, loyalty and reward programs and other products and services that we think may be relevant to you.

If required by applicable laws, we will honour your request for us to not use your personal information for the direct marketing purposes noted above. If you wish to make such a request, please: (i) notify us using the contact details as set out in the Metalk Privacy Policy ; (ii) follow the relevant instructions on our marketing messages; or (iii) if available, follow the instructions as set out in certain service-specific guidance (in relation to the relevant service).

Please note that we will not share your personal information with advertisers unless you have given us your consent to do so. We do, however, share non-personal information with advertisers for the purposes of offering you advertising that is more relevant to you.

11. OUR INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights in or to the Service and software (including any future updates, upgrades and new versions) will continue to belong to us and our licensors. Except as expressly provided in these Terms, you have no right to use our intellectual property rights. In particular, you have no right to use our trademarks or product names, logos, domain names or other distinctive brand features without our prior written consent. Any comments or suggestions you may provide regarding the Service are entirely voluntary and we will be free to use these comments and suggestions at our discretion without any payment or other obligation to you.

Where the Service involve you downloading and using any software from us, we grant you a limited, personal, non-exclusive, non-sublicensable, non-transferrable, royalty-free and revocable licence to use the software in order to use the Service in accordance with these Terms (including any specific technical requirements that relate to the software or its use on your particular device). Please note that these licence terms may be supplemented by terms and conditions applicable to the specific software.

You may not copy, modify, reverse compile, reverse engineer or extract source codes from our software, except to the extent that we may not prohibit you from doing so under applicable laws or regulations or you have our prior written consent to do so. Where applicable laws or regulations entitle you to reverse compile or extract source codes from our software, you will first contact us to request the information you need.

We may from time to time provide updates to our software. Such updates may occur automatically or manually. Please note that the Service may not operate properly or at all if upgrades or new versions are not installed by you. We do not guarantee that we will make any updates available for any of our software, or that such updates will continue to support your device or system.

12. WARRANTY DISCLAIMER

We warrant to you that we will provide the Service using reasonable care and skill.

APART FROM THIS WARRANTY, TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATION, ALL OF THE SERVICE AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NEITHER US NOR ANY OF OUR AFFILIATE COMPANIES MAKE ANY REPRESENTATION OR WARRANTY OR GIVES ANY UNDERTAKING IN RELATION TO THE SERVICE, OUR SOFTWARE OR ANY CONTENT SUBMITTED, TRANSMITTED OR DISPLAYED BY THE SERVICE, INCLUDING: (I) ANY REPRESENTATION, WARRANTY OR UNDERTAKING THAT THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR FREE FROM VIRUSES; (II) THAT THE SERVICE OR SOFTWARE WILL BE COMPATIBLE WITH YOUR DEVICE; OR (III) THAT THE SERVICE OR SOFTWARE WILL BE OF MERCHANTABLE QUALITY, FIT FOR A PARTICULAR PURPOSE OR NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON. TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATION, YOU WAIVE ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.

13. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, THE TOTAL AGGREGATE LIABILITY OF US AND OUR AFFILIATE COMPANIES FOR ALL CLAIMS IN CONNECTION WITH THESE TERMS, THE GENERAL END USER LICENCE AGREEMENT OR THE SERVICE OR SOFTWARE, ARISING OUT OF ANY CIRCUMSTANCES, WILL BE LIMITED TO THE GREATER OF THE FOLLOWING AMOUNTS: (I) THE AMOUNT THAT YOU HAVE PAID TO US FOR YOUR USE OF THE SPECIFIC SERVICE OR SOFTWARE TO WHICH THE CLAIM RELATES IN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE MOST RECENT CLAIM; AND (II) USD100.

TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, IN NO EVENT WILL WE OR ANY OF OUR AFFILIATE COMPANIES BE LIABLE IN CONNECTION WITH THESE TERMS, THE GENERAL END USER LICENCE AGREEMENT OR THE SERVICE OR SOFTWARE FOR ANY DAMAGES CAUSED BY: (I) ANY NATURAL DISASTER SUCH AS FLOODS, EARTHQUAKES OR EPIDEMICS; (II) ANY SOCIAL EVENT SUCH AS WARS, RIOTS OR GOVERNMENT ACTIONS; (III) ANY COMPUTER VIRUS, TROJAN HORSE OR OTHER DAMAGE CAUSED BY MALWARE OR HACKERS; (IV) ANY MALFUNCTION OR FAILURE OF OUR OR YOUR SOFTWARE, SYSTEM, HARDWARE OR CONNECTIVITY; (V) IMPROPER OR UNAUTHORISED USE OF THE SERVICE OR SOFTWARE; (VI) YOUR USE OF THE SERVICE OR SOFTWARE IN BREACH OF THESE TERMS OR THE GENERAL END USER LICENCE AGREEMENT; OR (VII) ANY REASONS BEYOND OUR REASONABLE CONTROL OR PREDICTABILITY. NOR WILL WE, TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF BUSINESS, REVENUES, PROFITS, GOODWILL, CONTENT OR DATA.

Nothing in these Terms limits or excludes any of the following liabilities, except to the extent that such liabilities may be waived, limited or excluded under applicable laws and regulations:

  • any liability for death or personal injury;
  • any liability for gross negligence or wilful misconduct; or
  • any other liability to the extent that such liability cannot be waived, limited or excluded under applicable laws and regulations.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY OF YOUR STATUTORY RIGHTS IN YOUR JURISDICTION (INCLUDING ANY RIGHTS UNDER APPLICABLE CONSUMER PROTECTION REGULATION), TO THE EXTENT THESE MAY NOT BE EXCLUDED OR WAIVED UNDER APPLICABLE LAWS AND REGULATIONS.

Please note that we are not responsible for any third party charges you incur (including any charges from your internet and telecommunication services providers) in relation to or arising from your use of the Service or software.

14. INDEMNITY

YOU AGREE THAT YOU (AND YOUR ORGANISATION, IF YOU ARE USING THE SERVICE OR SOFTWARE ON BEHALF OF SUCH ORGANISATION) INDEMNIFY US, OUR PARTNERS AND OUR AFFILIATE COMPANIES FROM AND AGAINST ANY CLAIM, SUIT, ACTION, DEMAND, DAMAGE, DEBT, LOSS, COST, EXPENSE (INCLUDING BUT NOT LIMITATED TO LITIGATION COSTS AND ATTORNEYS’ FEES) AND LIABILITY ARISING FROM: (I) YOUR USE OF THE SERVICE OR SOFTWARE; OR (II) YOUR BREACH OF THESE TERMS OF SERVICE. THISE DEFENSE AND INDEMNIFICATON OBLIGATION WILL SURVIVE THESE TERMS OF SERVICE AND YOUR USE OF THE METALK SERVICE.

15. TERMINATION

These Terms will apply to your use of the Service until access to the relevant services is terminated by either you or us.

We may suspend or terminate your access to your account or any or all of the Service: (i) if we reasonably believe that you have breached these Terms; (ii) if your use of the Service creates risk for us or for other users of the Service, gives rise to a threat of potential third party claims against us or is potentially damaging to our reputation; (iii) if you fail to use the Service for a prolonged period; or (iv) for any other reason. Where reasonably practicable, we will give you notice of any suspension or termination.

15.1 Retention and back-up of Your Content

Following termination of these Terms, we will only retain and use Your Content in accordance with these Terms, in particular the MeTalk Privacy Policy. Where we suspend or terminate a service, or where your access to the Service is terminated by you or us, we do not guarantee that we will be able to return any of Your Content back to you and we may permanently delete Your Content without notice to you at any time after termination. Please ensure that you regularly back up Your Content.

16. GENERAL

These Terms are the entire agreement between you and us in relation to the Service. You agree that you will have no claim against us for any statement which is not explicitly set out in these Terms. The invalidity of any provision of these Terms (or parts of any provision) will not affect the validity or enforceability of any other provision (or the remaining parts of that provision). If a court holds that we cannot enforce any part of these Terms as drafted, we may replace those terms with similar terms to the extent enforceable under applicable law, without changing the remaining terms of these Terms. No delay in enforcing any provision of these Terms will be construed to be a waiver of any rights under that provision. Any rights and obligations under these Terms which by their nature should survive, including but not limited to any obligations in relation to the liability of, or indemnities (if any) given by, the respective parties, will remain in effect after termination or expiration of these Terms.

No person other than you and us will have any right to enforce these Terms against any person, and you may not delegate, assign or transfer these Terms or any rights or obligations under these Terms, by operation of law or otherwise without our consent. We may freely assign, transfer or sub-contract these Terms or our rights and obligations under these Terms, in whole or in part, without your prior consent or notice. You acknowledge and agree that in no event will our partners or affiliate companies have any liability under these Terms.

17. GOVERNING LAW AND DISPUTE RESOLUTION

Except to the extent that: (i) any applicable additional terms incorporated into these Terms provide differently, or (ii) the applicable laws and regulations of your jurisdiction mandate otherwise (for instance, you may have statutory rights in your jurisdiction in relation to bringing or defending claims in a local court (including small claims court (or similar court), these Terms and any dispute or claim arising out of or in connection with these Terms will be governed by the law of the Hong Kong Special Administrative Region.

Any dispute, controversy or claim (whether in contract, tort or otherwise) arising out of, relating to, or in connection with these Terms, including their existence, validity, interpretation, performance, breach or termination, will be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre under the Hong Kong International Arbitration Centre Administered Arbitration rules in force when the Notice of Arbitration is submitted. The seat of the arbitration will be Hong Kong. There will be one arbitrator only. The arbitration proceedings will be conducted in English.

18. METALK TERMS OF SERVICE (USA-SPECIFIC TERMS)

If you are a user of the Service in the United States of America, the below terms are incorporated into these Terms, and override these Terms to the extent of any inconsistency.

If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

19. METALK TERMS OF SERVICE (AUSTRALIA-SPECIFIC TERMS)

If you are a user of the Service in Australia, the below terms are incorporated into these Terms, and override these Terms to the extent of any inconsistency.

All express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms or their subject matter, not contained in these Terms, are excluded from these Terms to the maximum extent permitted by law.

Nothing in these Terms excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by any applicable law which cannot lawfully be excluded, restricted or modified.

If any guarantee, condition, warranty or term is implied or imposed by any applicable law and cannot be excluded (a “Non-Excludable Provision”), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

  • in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
  • in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.