Last Updated: July 20, 2017
PLEASE READ THIS AGREEMENT CAREFULLY. BY TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE, YOU AND YOUR COMPANY (EACH AND COLLECTIVELY REFERRED TO AS “LICENSEE”) ACCEPT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ACQUIRE THE SOFTWARE FOR YOUR COMPANY’S USE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR COMPANY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT, LICENSEE MAY NOT USE THE SOFTWARE AND MUST IMMEDIATELY REMOVE THE SOFTWARE FROM THE LICENSEE'S MOBILE DEVICE, MOBILE COMMUNICATION TERMINAL OR COMPUTER.
In some countries there are restrictions on the use of the Software. It is your responsibility to ensure that you are legally allowed to use the Software where you are located. You cannot accept this Agreement if (a) you are not lawfully entitled to use the Software or any website operated by MGA in the country in which you are located or resident or (b) if you are not of legal age to form a binding agreement with MGA.
This Agreement may be updated by MGA from time to time by posting the amended Agreement on www.anytalkapp.com.. The changes will be effective when published. You should check this website regularly to review the latest version of the terms of this Agreement at any time. You understand and agree that your use of the Software after the date of publication shall constitute your agreement to the updated Agreement. If you do not agree with the amended Agreement, you must cease using the Software immediately.
1.1.Anytalk is a downloadable software application for mobile and desktop devices that allows its users to send and receive text and multimedia messages, including (but not limited to) photos, videos, sounds, contact information; make and receive voice and video calls.
2.1.Subject to your compliance with this Agreement, MGA hereby grants you a limited, revocable, non-exclusive, non-sublicensable, and non-transferable right and license to use the Software and the services in connection with the Software (the “Services”) only for the purposes of accessing, viewing, posting or submitting User Content and committing other actions solely for your non-commercial, personal use and for no other purposes.
2.2.The rights granted to you under this Agreement are subject to the following conditions:
You may not: (a) sublicense, rent, lease, loan, sell or otherwise transfer the Software or the Services (or any part thereof); (b) modify, alter, adapt, reverse engineer or decompile the Software, or otherwise attempt to derive source code from the Software; (c) create any derivative works in respect of the Software or the Service; or (d) otherwise use the Software or the Service except as expressly provided in this Agreement.
Title to the Software, and all rights with respect to the Software and Service not specifically granted under this Agreement, including without limitation all rights of reproduction, modification, distribution, display, disassembly and de-compilation and all copyright, patent, trademark, trade secret and other proprietary rights and interests in the Software and Service are reserved to MGA or its licensor(s).
You may not, nor will you allow any third party (whether or not for your benefit) to: (a) alter, delete or conceal any copyright notices contained in the Sofware, including notices on any content you download, transmit, display, print or reproduce. Any unauthorized or prohibited use of any content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state and local laws.
3.2.An Account can only be used by the initial registrant and is prohibited as a gift, loan, lease, transfer or sale. MGA reserves the right to terminate any Account in its sole discretion and without any liability to you and without prior notification.
3.3.Your Account is synced with the mobile phone numbers, e-mail addresses and social networking accounts you register at the time you register to use an Account. You are responsible for controlling access to your Account, as well as access to the corresponding mobile phone numbers. You shall be responsible for the safekeeping of your Account access details and related passwords, and be fully and legally responsible for all activities performed through the use of your Account. You should not use Accounts of other Licensees under any circumstances. If you suspect your Account is being used by others without permission, you hereby agree to immediately notify MGA.
3.5.In order to access and use the Software and Service, you acknowledge and agree that you will have to provide MGA with your mobile phone number. You expressly acknowledge and agree that in order to provide the Service, MGA may periodically access your contact list and/or address book on your mobile device to find and keep track of mobile phone numbers of other users of the Software and Service. You hereby give your express consent to MGA to access your contact list and/or address book for mobile phone numbers in order to provide and use the Service. When creating an Account you must provide a user name.
3.6.When you register with the Service and provide your mobile phone number, a 4digit pincode will be sent via SMS to the number that you register with. You must then use that pincode as instructed to access the Service.
3.7.If you do not use your Account for six or more months, it may be removed and deleted by us in our sole discretion without prior notification.
3.8.MGA permits you to link to materials on the Service for personal purposes only. MGA reserves the right to discontinue any aspect of the Software or Service at any time.
4.USER CONTENT AND USER CONTENT LICENSE
4.1.The Service allows users to submit text messages, profile photos and other communications and share these with other users of the Service (collectively, "User Submissions" or “User Content”). All User Submissions may be published as part of the Service, and may be visible to any users of the Service. MGA do not claim any intellectual property rights in the User Submissions, other than as described in this Agreement.
4.3.By transmitting, posting, making available, submitting or otherwise communicating User Submissions to or throughthe Service, you represent and warrant to MGA that you own, have a license to or otherwise control all of the rights to your User Submissions, and that our use of your User Submissions (in accordance with this Agreement) will not infringe or violate the rights of any third party including, but not limited to, any privacy or intellectual property rights, or constitute a violation of any applicable law. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any of your User Submissions.
4.4.You shall not have any right to terminate the licenses to your User Submissions granted in this Agreement, nor to seek, obtain, or enforce any injunctive or other equitable relief against MGA in connection with its use of your User Submissions in accordance with this Agreement, all of such rights being hereby expressly and irrevocably waived by you in favour of MGA.
4.5.MGA is not the source of, does not verify or endorse and takes no responsibility for User Content. By using the Software and Service, you agree that any User Content that you submit may be transmitted to the recipient of your communication or be otherwise made available as described in this Agreement. User Content is entirely the responsibility of the person from whom such content originated. You may be exposed to User Content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. User Content and User Communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Software and Service.
4.6.WE ARE NOT OBLIGATED TO BACK-UP (AND CAN NOT TECHNICALLY) ANY OF YOUR USER CONTENT AND YOU ACKNOWLEDGE AND AGREE THAT ANY OF YOUR USER CONTENT MAY BE DELETED AT ANYTIME. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UP COPIES OF YOUR USER CONTENT IF YOU DESIRE.
5.RULES OF CONDUCT
5.1.As a condition of your use of the Software and Service, and without limiting any other obligations under this Agreement, you agree to comply with the limitations and rules of use set forth in this Section 5 as well as any additional restrictions or rules notified by us to you from time to time (hereinafter – Rules of Conduct). Any use of the Software and Service in violation of these Rules of Conduct is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 2, and may subject you to liability for violations of law.
5.2.ILLEGAL CONTENT. You agree that you will not post, publish, communicate, transmit, make available or otherwise promote or support, under any circumstances:
(a) any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, sexual, libelous, invasive of another's privacy, hateful, discriminatory or disparaging or otherwise objectionable or inappropriate on a reasonable basis;
(b) any abusive, offensive, or defamatory screen names or user names;
(c) any content that promotes illegal activity, such as drug use;
(d) any content that infringes any patent, trademark, trade secret, copyright or other intellectual property, proprietary or other rights of any party;
(e) any unsolicited or unauthorized advertising, promotional content, “junk mail," “spam," “chain letters," “pyramid schemes," or any other form of solicitation;
(f) any spyware, passive collection mechanism or any other code or content that acts as a passive or active information collection or transmission mechanism;
(g) cheats, hacks, cracks, malicious programs, viruses or any other computer code, files or programs that have the effect of or are intended to modify, impair, disrupt, destroy, interfere with or limit the functionality of the Software and/or Service or any part thereof, take control of any computer software, hardware or telecommunications equipment or interrupt any user’s use and/or enjoyment of the Software and/or Service; or
(h) unreleased Service content (such as emojis, icons or graphics) that has been unlocked by hacking into the Software and/or the Service, or Service content not available through normal operation of the Software and/or the Service.
5.3.ILLEGAL ACTIVITY. You agree that you will not, under any circumstances:
(a) organize, effectuate or participate in any activity, group or guild that seeks to defraud or mislead MGA or users of the Software and/or Service;
(b) promote, encourage or take part in any activity involving hacking, cracking or phishing relating to the Software and/or Service;
(c) interfere with, disrupt or circumvent any security feature of the Software and/or Service or any feature that restricts or enforces limitations on use of or access to the Software and/or Service;
(d) upload files that contain a virus, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt the Software of the Service;
(e) interfere with or disrupt the Service or servers or networks connected to the Service;
(f) create any Account by automated means or false pretenses, create more than one Account, or use any other user’s Account for any purpose, including to circumvent a decision not to allow you access to the Service;
(g) log in or use the Software and/or Services by means of incompatible software or a system not developed, authorized or approved by MGA;
(h) use the Software and/or Service to intentionally or unintentionally violate any applicable local, state, national or international law;
(i) abuse or exploit bugs, design errors or problems in the Software;
(j) use the Software and/or Service to engage in any commercial activity, including without limitation any attempt to raise money for any party or any purpose or to advertise, promote or attempt to trade or sell goods or services.
5.4.These Rules of Conduct are not meant to be exhaustive, and MGA reserves the right to determine what conduct it considers to be in violation of the Rules of Conduct or otherwise outside the spirit of them and may take action including terminating your Account and exclusion from further participation in the Services.
5.5.You shall be solely responsible for your User Content and the consequences of posting or publishing it. Because MGA is only acting as a information intermediary, User Content does not necessarily represent the views or opinions of MGA, and MGA makes no guarantees as to the validity, accuracy or legal status of any status or User Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use it and authorize MGA to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Service and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person and to enable inclusion and use of the User Content in the manner contemplated by the Service and this Agreement.
5.6.You understand that when using the Service you will be exposed to User Сontent from a variety of sources, and that MGA is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content, and that such User Content are not the responsibility of MGA. You further understand and acknowledge that you may be exposed to User Content that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MGA with respect thereto, and agree to indemnify and hold MGA, its officers, directors, employees, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Software and Service.
5.7.MGA does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and MGA expressly disclaims any and all liability in connection with User Content. MGA does not permit copyright infringing activities and infringement of intellectual property rights via its Service, and MGA reserves the right to remove all content and User Content if properly notified that such content or User Content infringes on another's intellectual property rights. To file a copyright infringement notification, please send a written communication that includes substantially the following (see Section 512(c)(3) of the Digital Millennium Copyright Act): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material, including the mobile phone number of the user allegedly infringing the copyrighted work; (iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Such takedown notices may be emailed to support at email@example.com subject DMCA. MGA reserves the right to remove any User Content without prior notice. MGA may also terminate a user's access to the Service, if they are determined to be an infringer, or for any or no reason whatsoever. MGA reserves the right to decide whether User Content is appropriate and complies with this Agreement. MGA may remove such User Content and/or terminate a user's access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion without incurring penalties of any nature whatsoever.
6.1.MGA and its licensors reserve all right, title and interest in the Software and the Service and all associated copyrights, trademarks, and other intellectual property rights therein that are not expressly granted to you in this Agreement.
6.2.MGA reserves the rights to names and logos, and other graphics, logos, icons, and service names associated with the Software or Service and trademarks or trade dress all over the world. Such trademarks and trade dress may not be used in connection with any product or service that is not operated by or on behalf of MGA or its affiliates, or in any manner that is likely to cause confusion among consumers or that disparages or discredits MGA, its ffiliates, or the Service. Sofrware and Services operated by MGA belogs to MGA or its licensor(s) and are protected by United States and international copyright laws. You may not use, copy, transmit, modify, distribute, or create any derivative works from any such website content unless we have expressly authorized you to do so in writing. If you fail to adhere to this Agreement, other content owners may take criminal or civil action against you in addition to MGA. In the event legal action is taken against you for your acts and/or omissions in breach of this Agreement, you agree to indemnify and hold harmless MGA and its affiliates and their respective employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers.
7.ACKNOWLEDGEMENTS/LIMITATION ON WARRANTY AND LIABILITY
7.1.TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES AND THESOFTWARE IS AT YOUR SOLE RISK. THE SERVICES AND SOFTWARE MGAARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. NO WARRANTY IS GIVEN ABOUT THE QUALITY, FUNCTIONALITY, AVAILABILITY OR PERFORMANCE OF THE MGASOFTWARE OR MGASERVICES. MGA DOES NOT ASSUME LIABILITY FOR INABILITY TO OBTAIN OR USE ANY CONTENT, GOODS OR SERVICES. MGA DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AND/OR SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT MGA WILL BE IN A POSITION TO DELIVER THE SERVICES AS A WHOLE OR IN PART IN ANY SPECIFIC GEOGRAPHIC AREA.
7.3.BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITYAS DESCRIBED ABOVE, IN SUCH STATES AND/OR JURISDICTIONS, MGA AND ITS AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
7.4.You are responsible for making all arrangements necessary for you to have access to our websites and Service.
7.5.We do not represent or warrant that the Service is error free or free of viruses or other harmful components, or that defects will be corrected. We do not warrant or represent that the information available on or through the Service will be correct, accurate, timely or otherwise reliable. We may make improvements and/or changes to features, functionality or content on the Service at any time. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Service or to your downloading of any content on it, or on any website linked to it.
7.6.You are responsible for configuring your information technology, computer programmes and platform in order to access our Service. You should use your own virus protection software.
8.1. You agree to indemnify and otherwise hold harmless MGA, its officers, employees, agents, subsidiaries, affiliates, and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software and Service or any other matter relating to this Agreement.
8.2.Ifyour breach of this Agreement brings about any third party's claims, demands or losses to MGA, including causing MGA to incur attorney's fees, the Licensee hereby agrees to indemnify and hold MGA harmless from all such claims, demands or losses.
9.1.Entire Agreement. This Agreement, any supplemental policies and any documents expressly incorporated by reference herein constitutes the entire agreement between you and MGA hereto with respect to the subject matter hereof and supersedes all prior understandings or arrangements, oral or written, between you and MGA with respect to the subject matter hereof.
9.2.Waiver. The failure of MGA to require or enforce strict performance by you of any provision of this Agreement or failure to exercise any right shall not be construed as a waiver or relinquishment of MGA’s right to assert or rely upon any such provision or right in that or any other instance. The express waiver by MGA of any provision, condition, or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Except as expressly and specifically set forth in this Agreement, no representations, statements, consents, waivers, or other acts or omissions by MGA shall be deemed a modification of this Agreement nor be legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of MGA.
9.3.Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity, legality or enforceability of any other provisions. This Agreement shall continue in full force and effect except for any such invalid, illegal or unenforceable provision.
9.4.Enquiries. If you have any questions or comments as regards this Agreement please enquire with the Customer Service Center of MGA, the contact details of which are as follows:
Customer Service Hotline of MGA: firstname.lastname@example.org
Service Website: www.anytalkapp.com
Correspondence Address: Dimokritou, 15, PANARETOS ELIANA COMPLEX, flat/office 104 Potamos Germasogeias, 404, Limassol, Cyprus
9.5.Force Majeure. MGA shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of MGA, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond MGA’ control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labour or Content.
9.6.Language. These Terms of Service, has been written in English and translated into other languages for the convenience purposes. In the event of any ambiguity of interpretation thereof, and for all official purposes, the provisions set forth in English version of these Terms of Service shall prevail.
If a dispute arises between you and MGA, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and MGA agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a “Claim”) in accordance with one of the subsections below or as MGA and you otherwise agree in writing.
10.1.Informal Negotiations/Notice of Dispute. You and MGA agree to first attempt to negotiate any Dispute informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon receipt of written notice from one person to the other (Notice of Dispute). Notices of Dispute must:
1. include the full name and contact information of the complaining party;
2. describe the nature and basis of the claim or dispute; and
3. set forth the specific relief sought (Demand). MGA will send its Notice of Dispute to your billing address (if you provided it to us) or to the email address you provided to us. You will send your Notice of Dispute to: Dimokritou, 15, PANARETOS ELIANA COMPLEX, flat/office 104 Potamos Germasogeias, 404, Limassol, Cyprus ATTENTION: Legal Department.
10.2.Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules:
1. the arbitration shall be conducted by telephone, online and/or be based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration;
2. the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
3. any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
10.3.In case such dispute, controversies or differences, cannot be settled amicably through negotiations within a thirty 30-day period, and the Demand is in excess of $10,000 USD, it or they shall be shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules.
The appointing authority shall be the Chairman of Chartered Institute of Arbitrators, Ireland.
1. The number of arbitrators shall be one.
2. The place of arbitration shall be Dublin, Ireland.
3. The arbitration shall be held, and the award rendered, in English.
Each Party shall bear its own expenses, but Parties shall share equally in the expenses of the arbitration tribunal. The Parties agree that all arbitration proceedings conducted pursuant to this Section shall be kept strictly confidential, and all information disclosed in the course of such arbitration proceedings shall be used solely for the purpose of those proceedings. Any election to arbitrate by one party shall be final and binding on the other.
10.4.Restrictions. You and MGA agree that any arbitration shall be limited to a dispute between you and MGA individually. To the full extent permitted by law,
1. no arbitration shall be joined with any other;
2. there is no right or authority for any dispute to be arbitrated on a class action-basis or to utilize class action procedures; and
3. there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND MGA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MGA agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Customer Service Hotline of MGA: email@example.com Service Website: www.anytalkapp.com