Terms of Services
MOBILE APPLICATION END USER LICENSE AGREEMENT
PLEASE READ THESE LICENCE TERMS CAREFULLY
BY CLICKING ON THE "ACCEPT" BUTTON IN THE APP YOU AGREE TO THESE TERMS WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE OUR SERVICES.
PROHIBITED USE
Without prejudice to the other terms of this agreement, no person may accept these Terms and Conditions (the “Terms”), register or use the App and related services thereof: (i) if a person is below legal age in order to enter into binding agreement (including cases when consent of parents or custodians is needed) or in any other way legally unable to form a binding agreement as indicated herein; or (ii) if a person is prohibited from using or receiving the App or similar type of products under applicable laws, including laws of the jurisdiction of such person’s residency or citizenship.
WHO WE ARE AND WHAT THIS AGREEMENT DOES
We TopMessenger license you to use:
- TopMessenger mobile application software (App) and any updates or supplements to it.
- The service you connect to via the App and the content we provide to you through it (Service).
as permitted in these terms.
YOUR PRIVACY
We only use any personal data we collect through your use of the App and the Services in the ways set out in our privacy policy.
Please be aware that internet transmissions are never completely private or secure and that any message or information you send using the App or any Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
COMPLIANCE OBLIGATIONS
In accordance with our internal compliance policies, we regularly check whether users are violating their contractual agreements with telecommunications services providers. You consent that we may make any enquiry to any and all of your telecommunications services providers about your contractual terms with them to determine whether you are prohibited from using the App or the Services. If your contractual terms do not permit the usage of the App or the Services, we will block your access to the App and the Services. It remains your responsibility to ensure that the usage of the App and the Services do not breach any applicable statutory or contractual obligations you may be subject to in any jurisdiction.
OPERATING SYSTEM REQUIREMENTS
This app requires a mobile device with the Android operating system with at least version 5.1.
SUPPORT FOR THE APP AND HOW TO TELL US ABOUT PROBLEMS
Support. If you want to learn more about the App or the Service or have any problems using them please take a look at our support resources at https://martinjohnsen1982.wixsite.com/website.
Contacting us (including with complaints). If you think the App or the Services are faulty or misdescribed or wish to contact us for any other reason please email our customer service team at martinjohnsen1982@outlook.com.
How we will communicate with you. If we have to contact you we will do so by email, using the contact details you have provided to us.
HOW YOU MAY USE THE APP, INCLUDING HOW MANY DEVICES YOU MAY USE IT ON
In return for your agreeing to comply with these terms you may:
- download or stream a copy of the App onto a handheld mobile device and view, use and display the App and the Service on such devices for your personal purposes only.
- use any Documentation to support your permitted use of the App and the Service.
- receive and use any free supplementary software code or update of the App incorporating "patches" and corrections of errors as we may provide to you.
YOU MUST BE 18 TO ACCEPT THESE TERMS AND BUY THE APP
You must be 18 or over to accept these terms and buy the App.
YOU MAY NOT TRANSFER THE APP TO SOMEONE ELSE
We are giving you personally the right to use the App and the Service as set out above. You may not otherwise transfer the App or the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the App is installed, you must remove the App from it.
CHANGES TO THESE TERMS
We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce. We will give you notice of any change with details of the change or notifying you of a change when you next start the App.
If you do not accept the notified changes you may continue to use the App and the Service in accordance with the existing terms but certain new features may not be available to you.
UPDATE TO THE APP AND CHANGES TO THE SERVICE
From time to time we may automatically update the App and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons.
If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and the Services.
IF SOMEONE ELSE OWNS THE PHONE OR DEVICE YOU ARE USING
If you download or stream the App onto any phone or other device not owned by you, you must have the owner's permission to do so. You will be responsible for complying with these terms, whether or not you own the phone or other device.
IF YOU ARE USING THE APP IN CONNECTION WITH TELECOMMUNICATIONS SERVICES
If you are using the App to facilitate the relaying or sending of short text messages (SMS) or other data, you must ensure that this is in compliance with your contractual arrangements with your telecommunications services provider prior to any use of the App or the Services, and you represent and warrant to us that you have obtained the telecommunications services provider’s express written permission to do so. You will be solely responsible for complying with these terms and remain in compliance with the terms of business of the telecommunications services provider. We forbid you to breach your contractual obligations with any party including any telecommunications services provider. If you are contractually prohibited from using the App and the Services due to any contractual relationship with any third party, you must abide by your contractual obligations and must refrain from using the App and the Services. Any breach of contract or other legal violations are solely your responsibility and we shall not be liable for any penalties, damages, compensations or other legal repercussions.
WE MAY COLLECT TECHNICAL DATA ABOUT YOUR DEVICE
By using the App or any of the Services, you agree to us collecting and using technical information about the devices you use the App on and related software, hardware and peripherals to improve our products and to provide any Services to you.
WE ARE NOT RESPONSIBLE FOR OTHER WEBSITES YOU LINK TO
The App or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any).
You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
LICENCE RESTRICTIONS
You agree that you will:
- not rent, lease, sub-license, loan, provide, or otherwise make available, the App or the Services in any form, in whole or in part to any person without prior written consent from us;
- not use the App or the Services in breach of any applicable laws or regulations or any contractual obligations you are subject to, for example any contractual terms with telecommunications providers;
- not copy the App, Documentation or Services, except as part of the normal use of the App or where it is necessary for the purpose of back-up or operational security;
- not translate, merge, adapt, vary, alter or modify, the whole or any part of the App, Documentation or Services nor permit the App or the Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the App and the Services on devices as permitted in these terms;
- not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App or the Services nor attempt to do any such things, except to the extent that such actions cannot be prohibited because they are necessary to decompile the App to obtain the information necessary to create an independent program that can be operated with the App or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
- is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
- is not used to create any software that is substantially similar in its expression to the App;
- is kept secure; and
- is used only for the Permitted Objective;
- comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the App or any Service.
ACCEPTABLE USE RESTRICTIONS
You must:
- not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the App, any Service or any operating system, or by violating the terms of business issued by any party you are contracting (each a “Contract Party”) with including but not limited to any telecommunications services provider and you represent and warrant that you have obtained the prior written consent of every Contract Party allowing you to use the App and all Services made available through it, and that you have obtained a written legal opinion from a law firm in each jurisdiction connected to your use of the App and the Services confirming the legality of your use of the App and the Services;
- not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including by the submission of any material (to the extent that such use is not licensed by these terms);
- not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
- not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights in the App, the Documentation and the Services throughout the world belong to us (or our licensors) and the rights in the App and the Services are licensed (not sold) to you. You have no intellectual property rights in, or to, the App, the Documentation or the Services other than the right to use them in accordance with these terms.
LIMITATION OF LIABILITY
Our terms shall not operate to exclude or restrict liability based on fraud or reckless disregard of duties or any other liability that cannot be excluded or restricted by applicable laws or regulations. Without prejudice to the preceding sentence, you agree that our total liability towards you and third parties is excluded to the maximum extent not prohibited by law. Subject to this paragraph, you agree that we do not accept any responsibility for any losses whatsoever. You should review those provisions to check that you are fully satisfied with their accuracy and effect.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
We are not liable for business losses. The App is for domestic and private use. If you use the App for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Limitations to the App and the Services. The App and the Services are provided for general information and entertainment purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the App or the Service. Although we make reasonable efforts to update the information provided by the App and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
Please back-up content and data used with the App. We recommend that you back up any content and data used in connection with the App, to protect yourself in case of problems with the App or the Service.
Check that the App and the Services are suitable for you. The App and the Services have not been developed to meet your individual requirements. Please check that the facilities and functions of the App and the Services (as described on the appstore site and in the Documentation) meet your requirements.
We are not responsible for events outside our control. If our provision of the Services or support for the App or the Services is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end your contract with us and receive a refund for any Services you have paid for but not received.
WE MAY END YOUR RIGHTS TO USE THE APP AND THE SERVICES IF YOU BREAK THESE TERMS
We may end your rights to use the App and Services at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right we will give you a reasonable opportunity to do so.
If we end your rights to use the App and Services:
- You must stop all activities authorised by these terms, including your use of the App and any Services.
- You must delete or remove the App from all devices in your possession and immediately destroy all copies of the App which you have and confirm to us that you have done this.
- We may remotely access your devices and remove the App from them and cease providing you with access to the Services.
WE MAY TRANSFER THIS AGREEMENT TO SOMEONE ELSE
We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
YOU NEED OUR CONSENT TO TRANSFER YOUR RIGHTS TO SOMEONE ELSE
You may only transfer your rights or your obligations under these terms to another person if we agree in writing.
NO RIGHTS FOR THIRD PARTIES
This agreement does not give rise to any rights to enforce any term of this agreement.
IF A COURT FINDS PART OF THIS CONTRACT ILLEGAL, THE REST WILL CONTINUE IN FORCE
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
EVEN IF WE DELAY IN ENFORCING THIS CONTRACT, WE CAN STILL ENFORCE IT LATER
Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
WHICH LAWS APPLY TO THIS CONTRACT AND WHERE YOU MAY BRING LEGAL PROCEEDINGS
These terms are governed by Hong Kong law. Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.