SuperCab SOFTWARE LICENSE AGREEMENT
The following is the Software License Agreement for SuperCab (hereinafter “SLA”), an internet enabled mobile telephony device (hereinafter “Smartphone”) for the iOS and Android operating system applications (hereinafter “App”) available from Google Play and the Apple Store, owned and operated by Easy Planet Limited, a company incorporated in Hong Kong, with its registered office at Units 823-825, Level 8, Cyberport 1, 100 Cyberport Road, Hong Kong (hereinafter “App Operator”). This SLA is to be read in accordance with the T&Cs for the app, whose terms and conditions are implied and deemed incorporated into this SLA where applicable and necessary. Any definitions defined in the T&Cs of the App apply herein, unless specifically stated otherwise. You are advised to read the T&Cs in order that you can comply with them and you are aware of your rights and obligations thereunder. This SLA is supplied with the App for the purposes of informing any prospective Registered Account Holder (applicable to persons operating under the Terms and Conditions of Use for SuperCab Service Drivers “DT&Cs” and the Terms and Conditions of Use for SuperCab Passenger Service Users “PT&Cs”) of the obligations under which SuperCab is made available for purchase and use in the App, and the terms and conditions under which use is licensed by App Operator. In this SLA reference to a Registered Account Holder is referred to as “You” or “you” or “Your” or “your”, depending upon the context. This SLA governs your use and provision of 1 (one) individual and unique, one-time only SuperCab App (hereinafter referred to as “Software”). If you wish to download, install, view, use and or purchase or make purchases from and/or through SuperCab and the Software upon which the App is built, you do so in strict accordance with this SLA and your acceptance of it is a precondition of your use of SuperCab and its Software.
IF YOU DO NOT AGREE TO BE SO BOUND AND ACCEPT IN ADVANCE, THIS SLA, YOUR USE OF SUPERCAB AND THIS SOFTWARE IS STRICTLY FORBIDDEN AND YOU SHOULD NOT USE SUPERCAB AND THIS SOFTWARE OR PROCEED ANY FURTHER. THIS SLA EXPRESSLY GOVERNS THE SOFTWARE, IT DOES NOT GOVERN THE USE OF THE OPERATING ENVIRONMENT FROM WHICH IT WAS DOWNLOADED AND PURCHASED, A SEPARATE LICENSING AGREEMENT GOVERNS YOUR USE OF THE OPERATING SYSTEM ENVIRONMENT IN WHICH THIS SOFTWARE OPERATES AND YOU SHOULD MAKE YOURSELF AWARE OF AND AGREE TO THOSE PROVISIONS, AS WELL. THIS SLA EXPRESSLY GOVERNS SUPERCAB AND ITS SOFTWARE IT DOES NOT GOVERN THE USE OF ANY THIRD-PARTY SOFTWARE, PRODUCTS, APPLICATIONS, CONTENT AND SERVICES AND SEPARATE LICENSING AGREEMENTS GOVERN YOUR USE OF ANY SUCH THIRD-PARTY SOFTWARE, PRODUCTS, APPLICATIONS, CONTENT AND SERVICES AND YOU SHOULD MAKE YOURSELF AWARE OF AND AGREE TO THOSE THIRD-PARTY PROVISIONS, AS WELL.
1.1 The software, documentation, interfaces, content, fonts and any data that came with your Software, as may be updated or replaced by feature enhancements, Software Updates (hereinafter defined) or system restore software provided by SuperCab, whether in read only memory, on any other media or in any other form are licensed, not sold, to you for use only under the provisions of this SLA. App Operator and its licensors retain full, sole, exclusive and absolute ownership of the Software and any and all Intellectual Property (hereinafter “IP”) rights, titles and interests of any kind or nature whatsoever, whether proprietary or otherwise, throughout the world in perpetuity (in which case the provisions of this SLA may also apply to any successors, novators and assigns of App Operator if App Operator has been restructured or so assigned any or all of its IP rights), including all present, future, contingent, beneficial, registered and unregistered rights which subsist in, but are not limited to, copyright, patents, trademarks, designs, databases, software codes, designs and models and circuit layouts itself and reserves all rights not expressly granted to you.
1.2 App Operator, at its sole, absolute and exclusive discretion, may in future make available adaptations, improvements, revisions, bug fixes, or rewrites (hereinafter “Software Updates”) for your Software. The Software Updates, if any, may not necessarily include all existing Software features or new features that App Operator releases. The provisions of this SLA will govern any Software Updates provided by App Operator that replace and/or supplement the software code installed originally in the Software, unless such Software Update is accompanied by a separate license in which case the terms of that license shall prevail.
2. PERMITTED LICENSE USES AND RESTRICTIONS
2.1 Subject to you having legally downloaded, installed, activated and purchased the Software from Google Play, the Apple Store or an officially authorized Android sales affiliate or authorized sales outlet, and further subject to the terms and conditions of this SLA, you are granted a limited, non-transferrable, non-exclusive license to use the Software on a single Smartphone, device or mobile telephony device. Except as permitted in Section 2.2 hereinafter, and unless as provided in a separate agreement between you and App Operator, this SLA does not allow the Software to exist on more than 1 (one) Smartphone, mobile telephony device or device at any 1 (one) time, and you may not distribute or make the Software available over a network where it could be used by multiple Smartphones or devices at the same time. This SLA does not grant you any rights to use Intellectual Property of App Operator in the design, development, manufacture, licensing, sale, or distribution of third-party devices and accessories, or third-party software applications.
2.2 Subject to the terms and conditions of this SLA, you are granted a limited, non-transferrable, non-exclusive license to download Software Updates that may be made available by App Operator for your Smartphone, mobile telephony device or device to update or restore the Software on any such Smartphone or device that you own or have the right to control. This SLA does not allow you to update or restore any Software that you do not have the right to control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple Smartphones or devices at the same time. If you download a Software Update to your Smartphone or mobile device, you may make 1 (one) copy of the Software Updates stored on your Smartphone or mobile device in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original.
2.3 YOU SHALL NOT AND ARE HEREBY EXPRESSLY FORBIDDEN FROM, UNDER PAIN OF ACTION BEING TAKEN AGAINST YOU BY APP OPERATOR TO THE FULLEST EXTENT AVAILABLE UNDER THE LAW, AND YOU AGREE NOT TO OR NOT ATTEMPT TO OR ENABLE OTHERS TO, COPY (EXCEPT AS EXPRESSLY PERMITTED IN THIS SOFTWARE LICENSE AGREEMENT), DECOMPILE, REVERSE ENGINEER, DISASSEMBLE, ATTEMPT TO DERIVE THE SOURCE CODE OF OR REDUCE TO ANY HUMAN OR MACHINE READABLE FORM, DECRYPT, MODIFY, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE OR ANY SERVICES PROVIDED BY THE SOFTWARE OR ANY PART THEREOF (EXCEPT AS AND ONLY TO THE EXTENT ANY FOREGOING RESTRICTION IS PROHIBITED BY APPLICABLE LAW).
2.5 You agree to use the Software in compliance with all applicable laws. A Wi-Fi or cellular data connection is required for use of the Software and you will be responsible solely for payment of the charges for your Wi-Fi or cellular connection.
2.7 If you choose to allow automatic Software Updates, your Smartphone or device will periodically contact for Software Updates, if 1 (one) is available, the Software Update will automatically download and install onto your Smartphone or device.
2.8 Only the services specifically stated herein are provided by or supported by the Software. Furthermore, App Operator hereby disclaims absolutely any and all liability for the outcome of any such services offered and provided in contravention of this clause. Absolutely nothing contained herein operates to usurp this immunity.
YOU SHALL NOT AND ARE HEREBY EXPRESSLY FORBIDDEN FROM, UNDER PAIN OF ACTION BEING TAKEN AGAINST YOU BY APP OPERATOR TO THE FULLEST EXTENT AVAILABLE UNDER THE LAW, AND YOU AGREE NOT TO OR NOT ATTEMPT TO RENT, LEASE, LEND, SELL, DISTRIBUTE, REDISTRIBUTE, FOR GAIN MONETARY OR OTHERWISE, OR LICENSE OR SUB-LICENSE THE SOFTWARE.
4. CONSENT TO USE OF DATA
4.1 Diagnostic and Usage Data. If you opt in to diagnostic and usage collection, you agree that App Operator may collect, maintain, process and use diagnostic, technical, usage and related information (“Diagnostic and Usage Data”), including but not limited to unique system or hardware identifiers, information about your Smartphone or device, system and application software, that is gathered periodically to provide and improve SuperCab, facilitate the provision of Software Updates, and other services to you (if any) related to the Software, and to verify compliance with the conditions of this SLA. App Operator may use this information, for the purposes described above. If you have opted in and have Location Services turned on, the location of your Smartphone, device or mobile telephone device may also be sent to help App Operator to improve the Software.
4.2 Location Data. SuperCab will provide information through the Software on your Smartphone, mobile telephony device or device that rely upon location information. To provide and improve these services, where available, SuperCab may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your Smartphone, mobile telephony device or device, location search queries, and location of where you purchase and activate the Software. The location data and queries collected may be used by App Operator and its partners and licensees to provide and improve location-based products and services. By using any location-based services on your Smartphone, device or mobile telephony device, you herby agree and consent to App Operator and App Operator’s partners' and licensees' transmission, collection, maintenance, processing and use of your location data and queries to provide and improve the Software. You may withdraw this consent at any time by changing the settings on your Smartphone or device settings in the Software itself. You should be aware however that in so doing you may disable vital components of the Software, without which the Software may not be able to function as specified and may not be able to receive Software Updates, in any such circumstance App Operator hereby disclaims any liability for the Software failing to function as expected, desired, specified, designed or warrantied.
5. SERVICES AND THIRD-PARTY MATERIALS
5.1 The Software requires Internet access and a Registered User Account. By using this Software in connection with any third-party content, services, products or materials (hereinafter “Third-Party Services”) you agree to be bound by the applicable terms and conditions of Third-Party Services. Each Third-Party Service may have different terms and conditions operating and governing use in each country applicable and you are therefore urged to make yourself familiar with these Third-Party Service terms and conditions.
5.2 You understand that by using any of the Third-Party Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Third-Party Services at your full, sole and absolute risk and that App Operator, App Operator’s affiliates, or licensors shall have no liability to you for content that may be found to be offensive, indecent, obscene, objectionable or violate any of the provisions of the DT&Cs PT&Cs.
5.3 Third-Party Services may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third-party apps or web sites. By using the Third-Party Services, you acknowledge and agree that App Operator is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright or any other form of intellectual property rights compliance, legality, decency, quality or any other aspect of such Third-Party Services, apps or web sites. App Operator, its officers, staff, affiliates and licensors do not warrant or endorse and do not assume and shall not have, and hereby disclaim and deny absolutely and to the fullest extent permissible by law, any liability to you or any other person for any Third-Party Services.
5.4 Location data provided by Google Inc and/any Third-Party Services, is provided for basic navigational and/or planning purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. You agree that the results you receive from any such Third-Party Service may vary from actual conditions and inaccuracy of data, such as, but not limited to, weather, road and traffic conditions and geopolitical events. For your safety when using the navigation feature, always pay attention to posted road signs and current road conditions. Follow safe driving practices and traffic regulations and note that walking directions may not include sidewalks or pedestrian paths.
5.5 To the extent that you upload any content through the use of SuperCab and its Software, you represent that you own all rights in or to or over, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to App Operator or SuperCab and its Software or Third-Party Services. You agree that the SuperCab Services, Third-Party Services and Software contain proprietary content, information and material that is owned by App Operator, the website owner and/or their licensors, and is protected by applicable intellectual property and other laws. You agree that you will not use such Intellectual Property of App Operator or Third-Party Services other than for uses permitted by App Operator or Third-Party Services or Software or in any manner that is inconsistent with the terms of this SLA or that infringes any intellectual property rights of a third-party or the Intellectual Property rights of App Operator. No portion of SuperCab and its Software may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, whether for gain monetary or otherwise, license or sub-license, or create derivative works based on SuperCab and its Software, in any manner, and you shall not exploit SuperCab and its Software in any unauthorized way whatsoever, including but not limited to, using SuperCab and its Software to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use SuperCab and its Software in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; and that SuperCab is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using SuperCab. App Operator reserves the right to change, suspend, remove, or disable access to SuperCab and its Software or Third-Party Services at any time without notice to you. In no event shall App Operator be liable for the removal of or disabling of access to SuperCab or Third-Party Services. App Operator may also impose limits on the use of or access to SuperCab and Third-Party Services, in any event and without notice or liability to you.
6.1 This SLA shall remain in full force and effect until terminated. Your rights under this SLA will determine automatically or otherwise cease to be effective without notice from App Operator if you fail to comply with ALL provisions of this SLA. Upon the termination of this SLA you shall immediately discontinue use of the Software. In the event of termination, the clauses of this SLA that are intended to survive termination shall survive.
7. DISCLAIMER OR WARRANTY
7.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS YOURS.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED BY THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APP OPERATOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.3 APP OPERATOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT ANY SERVICE SUPPORTED OR PROVIDED BY THE SOFTWARE WILL CONTINUE TO BE MADE AVAILABLE; THAT DEFECTS IN THE SOFTWARE OR SERVICES SUPPORTED OR PROVIDED BY THE SOFTWARE WILL BE CORRECTED; OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. INSTALLATION OF SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES, AND IN ANY SUCH CIRCUMSTANCE APP OPERATOR HEREBY DISCLAIMS AND DENIES FULLY AND ABSOLUTELY ANY LIABILITY.
7.4 YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8. LIMITATION OF LIABILITY
8.1 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL APP OPERATOR OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND ANY SERVICES PROVIDED BY THE SOFTWARE OR ANY THIRD-PARTY SERVICES AND SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE OR ANY SERVICES PROVIDED BY THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APP OPERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APP OPERATOR’S TOTAL LIABLITY TO YOU FOR ANY AND ALL DAMAGE EXCEED THE AMOUNT OF HK$1,000.00 (ONE THOUSAND HONG KONG DOLLARS ONLY). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. GENERAL PROVISIONS
9.1 Governing Law and Arbitration. This SLA 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. For all purposes of this SLA, the parties consent to the exclusive jurisdiction of the laws of the Hong Kong SAR. In the event of a disagreement or dispute arising out the existence, operation, validity, applicability of this SLA, you or App Operator must send to the other party a notice of dispute, which is a written statement that sets forth the name, address and contact information of the party giving the notice, the facts giving rise to the dispute and the relief requested. You must send any notice of dispute to
Units 823-825, Level 8, Cyberport 1, 100 Cyberport Road, Hong Kong
Attention: Legal/Arbitration Notice.
App Operator will send any notice of dispute to you at the contact information we have for you. You and App Operator undertake to use your best endeavours to resolve a dispute through informal negotiation within 60 (sixty) calendar days from the date the notice of dispute is sent. After 60 (sixty) days, you or App Operator may commence arbitration. Any arbitration will take place before the Hong Kong Arbitration Tribunal. If you and App Operator do not resolve any such dispute by informal negotiation the dispute shall be settled by binding arbitration before a single, neutral arbitrator whose decision will be final except for a limited right of appeal in accordance with the law of Hong Kong, in which case the courts of Hong Kong shall enjoy exclusive jurisdiction.
9.2 If any provision of this SLA is found to be unenforceable or invalid for any reason that provision will be limited, redrawn or struck out only to the extent necessary to allow this SLA to be construed as they were originally intended and remain in full force and effect; and enforceable.
9.3 Your failure or delay or the failure or delay of App Operator to exercise in any respect any right provided for herein shall not be deemed a waiver of that right or waive the right to rely upon or make use of that right at any future time, subject to that right continuing to be active, or any further rights hereunder. Waiver of compliance in any particular instance does not mean that waiver of that compliance in the future. In order for any waiver of compliance with this SLA to be binding, App Operator must provide you with written notice of such waiver through one of its authorized representatives.
9.4 Any failure by you or App Operator to discharge any obligations shall not be deemed a breach of these SLA if such failure is caused by an event of Force Majeure. Force Majeure includes without limitation strikes, lockouts, boycotts, embargoes, governmental restrictions, wars, war-like actions, epidemics, fires, floods, other natural occurrence or any other event beyond the control of App Operator or you. The performance of App Operator or your obligations shall be suspended for as long as an event of Force Majeure continues to exist.
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