General Terms – All Users
Welcome to ImageWith (the “Platform”), which is provided and controlled by Vivalive (Hong Kong) Limited (the “Company”, “we” or “us”).
You are reading the Terms of Service (the “Terms”), which govern the relationship and serve as an agreement between you and the Company and set forth the terms and conditions by which you may access and use the Platform and our services, content (collectively, the “Services”). Our services are provided for private, non-commercial use. For purposes of these Terms, “you” and “your” means you as the user of the Services.
The Terms form a legally binding agreement between you and the Company. Please take the time to read them carefully. By accessing or using the Services, you agree to be bound by these Terms. If you disagree with any part of the Terms, then you may not access the Service.
Your Agreement with the Company
Individual users. If you are a minor (usually under the age of 18, some regions may have different age regulations for minors), please obtain the permission of your legal guardian or accompanied by your legal guardian to use ImageWith.
Non-individual users. If you are accessing or using the Services on behalf of a business or entity, then (a) “you” and “your” includes you and that business or entity, (b) you represent and warrant that you are an authorized representative of the business or entity with the authority to bind the business or entity to these Terms, and that you agree to these Terms on behalf of the business or entity, and (c) your business or entity is legally and financially responsible for your access or use of the Services as well as for the access or use of your account by others affiliated with your business or entity, including any employees, agents or contractors.
Supplemental Terms. If you access or use the Services from a jurisdiction for which there are separate supplemental terms, you also hereby agree to the supplemental terms applicable to users in each jurisdiction as outlined in the relevant “Supplemental Terms – Jurisdiction Specific” section below. In the event of a conflict between the provisions of the Supplemental Terms – Jurisdiction Specific that are relevant to your jurisdiction from which you access or use the Services, and the rest of these Terms, the relevant jurisdiction’s Supplemental Terms – Jurisdiction Specific will supersede and control with respect to your use of the Services from that jurisdiction.
Changes to the Terms. We may amend these Terms from time to time, for instance when we update the functionality of our Services, when we combine apps or services operated by us or our affiliates into one single combined service or app, or when there are regulatory changes. We use commercially reasonable efforts to generally notify all users of any material changes to these Terms, such as through a notice on the Platform, however, you should look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflects the effective date of such Terms. Your continued access or use of the Services after the date of the new Terms constitutes your acceptance of the new Terms. If you do not agree to the new Terms, you must stop accessing or using the Services.
Use of the Services
License. Subject to the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable license to access and use the Services, and to access the Company’s Content (defined as below) solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. The Company reserves all rights not expressly granted herein in the Services and the Company’s Content. You acknowledge and agree that the Company may terminate this license at any time for any reason or no reason.
Restrictions on Use.
Your access to and use of the Services shall be subject to the Terms and all applicable laws and regulations. You may not:
access or use the Services if you are not fully able and legally competent to agree to these Terms or are authorized to use the Services by your parent or legal guardian;
make unauthorised copies, modify, adapt, translate, reverse engineer, disassemble, decompile or create any derivative works of the Services or any content included therein, including any files, tables or documentation (or any portion thereof) or determine or attempt to determine any source code, algorithms, methods or techniques embodied by the Services or any derivative works thereof;
incorporate the Services or any portion thereof into any other program or product;
distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;
market, rent or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;
use the Services, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
interfere with or attempt to interfere with the proper working of the Services, disrupt our website or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services;
use automated scripts to collect information from or otherwise interact with the Services;
impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Services;
promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
use the Services to upload, transmit, distribute, store or otherwise make available in any way files that contain viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful;
hack into, or insert malicious code, including viruses, or harmful data, into, our services;
use the Services in a manner that violates or infringes on someone else’s rights of publicity, privacy, copyright, trademark, portrait right or other legal rights and interests;
use the Services in a manner that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable;
in any way promote or incite anyone to commit or assist in any unlawful or criminal activity or anti-social behaviour, or encourage activities which could endanger the safety or wellbeing of others;
disclose anyone’s personal information or invade their privacy;
engage in any other conduct that restricts or inhibits any person from using or enjoying the Services, or that, in our sole judgment, exposes us or any of our users, affiliates, or any other third party to any liability, damage, or detriment of any type.
Violations of system or network security may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate the Terms. We may suspend or terminate your access to the Services for any or no reason at any time without notice.
Registration and Account Management
If you use any service that prompts you to log in, you must follow the relevant guidelines and use a legal and valid account to log in (if you do not have an account, you need to register one). You hereby promise not to engage in the following behaviors when logging in:1）deliberately using other people's information to log in;2)log in with another person's account without the legal authorization of others. Any user who violates this clause, the Company may force the account to log out and cancel the use of the account.
When you use a third-party platform account(such as Google、 AppleID)to authorize your login, we shall not be liable for any failure to log in or other losses caused to you or the third party due to reasons such as the third-party account being blocked.
You are responsible for all activities that occur from your account, even if that activity is not done by you or without your knowledge or consent. If you become aware of any unauthorized use of your account, please notify us for support immediately.
You should use, save and manage your account and password(or verification code) in a proper manner. Please do not disclose your account and password to anyone else, and do not log in or use anyone else’s account and password. If your account, password, device information, data, private data or property rights of you or others are damaged as a result of your failure to comply with this provision, you shall bear all legal consequences. If your actions cause damage to us or others, you shall assume all compensation responsibilities and eliminate any adverse effects to us and other parties whose rights and interests are damaged.
Fees. Certain Services, features or contents may offered for payment. You agree to pay whatever fees and other charges are presented to you when you decide to purchase such paid services (collectively the “Fees”).We will provide specific payment instructions and terms on the payment page, please read carefully before payment. Except as stated in those policies or stipulated in applicable laws, all Fees are non-refundable and non-cancellable.
Payment Methods and Processing. You must provide accurate billing information, and promptly update any changes to it (such as card numbers and expiry dates). If you are paying via credit or debit card, you represent that you are the authorized user of the card, and you authorize us to collect payment from you, on a recurring basis (if applicable), and to take all other necessary billing actions.
Intellectual Property Rights
The Services are protected under the laws of copyright, patent, trademarks and other intellectual property rights of the countries where Services are available. All copyrights in the Services are owned by us or our third-party licensors to the full extent permitted under all applicable laws. Consistent with the other terms in this document, you may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Services without our written consent.
We respect intellectual property rights and require you to do the same. As a condition of your access to and use of the Services, you agree not to infringe on any intellectual property rights while accessing or using the Services or use any content therein for any commercial or unauthorized purposes. We reserve the right, with or without notice, at any time and in our sole discretion to block access to the Services, including without limitation for any user who infringes or is alleged to infringe any intellectual property rights or proprietary rights.
The Company’s Content
As between you and the Company, all content, software, images, text, graphics, illustrations, logos, stickers, filters, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the Services, and all intellectual property rights related thereto (the “Company’s Content”), are either owned or licensed by the Company. Use of the Company’s Content or materials on the Services for any purpose not expressly permitted by these Terms is strictly prohibited. The Company’s Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
We make no representations, warranties or guarantees, whether express or implied, that any Company’s Content is accurate, complete or up to date. Where our Services contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
By using our Services, you provide us with information, media files, pictures, photos and final works that you submit to and create at the Platform (collectively your “User Content”).
You retain full ownership to your User Content. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your User Content or intellectual property except for the limited rights that are needed to provide the Services, as explained below.
In order to provide the Services, we need your permission to host, share, distribute, display, and perform your User Content. This is called a license. By uploading User Content to the Services, you grant us this license solely as is necessary to provide the corresponding Services.
You are solely responsible for maintaining and protecting all of your User Content. We will not be liable for any loss or damage of your User Content, or for any costs or expenses associated with backing up or restoring any of your User Content.
You agree to defend, indemnify, and hold harmless the Company, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, assigns, and advisors from and against any and all loss, claims, liabilities, damages, costs, and expenses, including, but not limited to, attorneys’ fees and expenses, arising out of a breach by you or any user of your account of these Terms or arising out of a breach of your obligations, representation and warranties under these Terms.
EXCLUSION OF WARRANTIES
NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO AS A CONSUMER.
THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO YOU WITH RESPECT TO THEM. IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR
DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS OR WARRANTIES AS TO SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PURPOSE, CONFORMANCE WITH DESCRIPTION, NON-INFRINGEMENT, OR OTHER VIOLATION OF RIGHTS) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS. WE MAY CHANGE, SUSPEND, WITHDRAW OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE PLATFORM FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.
LIMITATION OF LIABILITY
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED DIRECTLY BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES OR AGENTS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR:
(I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY); (II) ANY LOSS OF GOODWILL; (III) ANY LOSS OF OPPORTUNITY; (IV) ANY LOSS, MISUSE, MANIPULATION OR OTHER UTILIZATION OF DATA SUFFERED BY YOU OR COMPUTER VIRUS; OR (V) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER WHICH MAY BE INCURRED BY YOU.
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES)；
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES.
THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT PUBLISHED BY US OR BY AUTHORISED THIRD PARTIES.
Termination by us. We reserve the right to suspend and/or terminate our Services at any time, with or without cause, and with or without notice.
Termination by you. You may stop using the Services at any time. We are not responsible for any loss of your rights and interests caused by your voluntary termination of the Services.
Survival. Upon the expiration or termination of the Terms, some or all of the Services may cease to operate without prior notice. Your indemnification obligations, our warranty disclaimers and limitations of liabilities, and dispute resolution provisions stated in the Terms will survive.
Open Source. The Platform contains certain open source software. Each item of open source software is subject to its own applicable license terms.
Entire Agreement. These Terms constitute the whole legal agreement between you and the Company and govern your use of the Services, superseding any prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us.
No Waiver. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by us with respect to such use.
Security. We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to access our Services. You should use your own virus protection software.
Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
Third Party Services. If our service includes and links to features and services that are provided by a third party, we do not control such third-party sites or services and are not responsible for the content or functionality of such sites or services. Our inclusion of links does not imply any endorsement or association with their operators. The terms applicable to the use of such third-party services will apply and we will not be responsible for anything that is done by you or the third party service provider in connection with your use of their service.
Contact. If you have any questions regarding these terms, please feel free to contact us: [email protected]
Supplemental Terms – Jurisdiction Specific
THE UNITED STATES
If you are a user of our Services in the United States of America, the below Additional Terms: (a) are incorporated into these Terms; (b) apply to your use of our Services; and (c) override the head terms of these Terms to the extent of any inconsistency.
If you are a user of the Services in the United States of America, the following terms expressly replaces the above “Applicable Law and Jurisdiction” section of these Terms.
If you live in (or, if a business, your principal place of business is in) the United States, the laws of the state where you live govern all claims, regardless of conflict of law principles, except that the Federal Arbitration Act governs all provisions relating to arbitration. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts of California, for all disputes arising out of or relating to these Terms that are heard in court (excluding arbitration).
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.
In the event of a dispute, you and we agree to try for sixty (60) days to resolve it informally. If you and we are unable to come to informal resolution within sixty (60) days, you and we agree to binding individual arbitration before the American Arbitration Association ("AAA") under the Federal Arbitration Act ("FAA") (with such arbitration to be conducted under the AAA's Commercial Arbitration Rules), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. You and we must file in arbitration any claim or dispute (except intellectual property disputes) within one year from when it first could be filed.
CLASS ACTION WAIVER. ANY CLAIM MUST BE BROUGHT IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). THE PARTIES EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM. IF THE CLAIM IS SUBJECT TO ARBITRATION, THE ARBITRATOR WILL NOT HAVE AUTHORITY TO COMBINE OR AGGREGATE SIMILAR CLAIMS OR CONDUCT ANY CLASS ACTION NOR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. ANY CLAIM THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, UNCONSCIONABLE, VOID, OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR.
If any other provision of these provisions regarding arbitration is found to be illegal or unenforceable, that provision will be severed but the rest of these provisions regarding arbitration still apply.
If for any reason a claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial.
California Resident. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
If you are a California resident, then (except to the extent prohibited by applicable laws) 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”.
The following terms apply if you reside in the European Union:
Dispute Resolution. Notwithstanding the "Applicable Law and Jurisdiction" section of these Terms, if you are a "consumer" as defined under the EU Direction 83/2011/EU, any dispute, controversy or claim (whether in contract, tort or otherwise) between us and you, arising out of, relating to, or in connection with these Terms will be referred to and finally resolved by the court of your place or residence or domicile. You can also file a complaint at the online platform for alternative dispute resolution (ODR-platform). You can find the ODR-platform through the following link: https://ec.europa.eu/consumers/odr.
Loss or damage. If any ImageWith services or features which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you reasonable compensation for such damage. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us. We only supply the Services accessible via Platform for domestic and private use. If you use the Services for any commercial or business purpose, we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Nothing in the Terms affects any legal rights that you are entitled to as a consumer under European Union member state laws which cannot be contractually altered or waived. Accordingly, some of the exclusions and limitations in Sections Ⅶ and Ⅷ of the Terms will not apply to you if you are a consumer living in a European Union country.