TouchPal SwiftCall Terms of Use

 

PLEASE READ CAREFULLY BEFORE DOWNLOADING TOUCHPAL SWIFTCALL (“THE SOFTWARE”) OR USING THE PRODUCTS.

 

KEY POINTS

It is important that you read the entirety of and understand this document. There are, however, a few key points that we need to emphasize:

 

NO ACCESS TO EMERGENCY SERVICES: The Software is not a replacement for your ordinary mobile or fixed line telephone, and the Software does not allow you to make emergency calls to emergency services. You must make alternative communications arrangements to ensure that you can make emergency calls if needed.

 

CHECK RESTRICTIONS ON USE: In some regions, 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.

 

TOUCHPAL SWIFTCALL CREDIT BECOMES INACTIVE AFTER 90 DAYS: If you purchase TouchPal SwiftCall Credit, please be aware that it becomes inactive after 90 days of inactivity. Please see also paragraphs 9.2.

 

1. YOUR AGREEMENT WITH TOUCHPAL

1.1 TouchPal SwiftCall and associated documentation (whether in printed or electronic form) including any improvements, modifications, enhancements, fixes, updates, upgrades and future versions thereto (“Updates”) and whether made available for free or for a fee, (collectively the “Software”) are licensed (not sold) to you by Shanghai Chule (TouchPal) Information Technology Co., Ltd.  

1.2 The features and products that are made available through the Software for free (excluding products or features available for free on a trial basis only) (“Free Products”) are provided to you by Shanghai Chule (TouchPal) Information Technology Co., Ltd.

1.3 Any additional products or features of the Software that you pay for (including products or features available for free on a trial basis only) (“Paid For Products”) are provided to you by TouchPal HK Co., Limited.

1.4 “TouchPal’’ means Shanghai Chule (TouchPal) Information Technology Co., Ltd. and TouchPal HK Co., Limited as the context requires.  “Products” means collectively the Free Products and Paid For Products.  “you” or “your” means you, the registered holder of the User Account (as described in paragraph 6.1) and licensee under these Terms.

1.5 Your agreement with TouchPal is made up of the terms and conditions set out in this document, together with any fair usage policies described in this document (collectively the “Terms”). To the extent of any inconsistency between the fair usage policies and this document, this document shall take precedence.

 

2. ACCEPTANCE OF THE TERMS

2.1 In order to download and/or use the Software and the Products, you must first accept these Terms. These Terms are accepted by you (a) when you click to accept or agree to the Terms; or (b) when you download and/or use the Software and Products. We advise you to print a copy of these Terms for your records. These Terms remain effective from the date of acceptance until terminated by you or TouchPal in accordance with paragraph 11.

2.2 You cannot accept these Terms if: (a) you are not lawfully entitled to use the Software and/or Products in the country in which you are located or reside; or (b) if you are not of legal age to form a binding agreement with TouchPal.

 

3. CHANGES TO THE TERMS

3.1 TouchPal may make changes to these Terms from time to time. The changes will be effective when published. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Software and/or Products after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with TouchPal in accordance with paragraph 11 below.

 

4. LICENCE

4.1 Licence. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to download and install the Software on a personal computer, mobile phone or other device; and personally use the Software through your individual user account, acting as an individual and not as a business entity (“User Account”). TouchPal reserves all rights not expressly granted to you under these Terms.

4.2 Restrictions. You may not and you agree not to:

(a) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party in the Software;

(b) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Software or any part or features thereof (except to the extent permitted by law);

(c) remove, obscure or alter any copyright notices or other proprietary notices included in the Software;

(d) use the Software or cause the Software (or any part of it) to be used within or to provide commercial products or services to third parties. The foregoing shall not preclude you from using the Software for your own business communications;

(e) other than for the purposes of download and installation, use the Software except through your User Account.

4.3 Other Technology. If you are using Software pre-loaded on, embedded in, combined, distributed or used with or downloaded onto other products, hardware, software applications, programs or devices (“Other Technology”), you agree and acknowledge that: (a) you may be required to (i) enter into a separate license agreement with; and/or (ii) purchase a subscription from; and/or (iii) pay a fee, to the relevant third party owner or licensor for the use of such Other Technology; (b) some Products and/or functionality may not be accessible through the Other Technology; and (c) TouchPal cannot guarantee that the Software shall always be available on or in connection with such Other Technology.

4.4 Third Party Notices. The Software may include third party code that TouchPal, not the third party, licenses to you under this agreement. Notices, if any, for the third party code are included for your information only. Third party scripts, linked to, called or referenced from the Software, are licensed to you by the third parties that own such code, not by TouchPal.

 

5. USE OF THE SOFTWARE AND PRODUCTS

5.1 Equipment: In order to use the Software and the Products you will need an Internet broadband connection. You are responsible for providing all equipment required to access the Internet or enable communications such as headsets, microphones and webcams. Connecting to the Internet via a corporate or other private network which masks your location may cause charges to be different from those displayed for your actual location.

5.2 Use of Your Equipment: The Software may use the processing capabilities, memory and bandwidth of the computer (or other applicable device) you are using, for the limited purpose of facilitating the communication and establishing the connection between users. If your use of the Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, you acknowledge and agree that your licence to use the Software is subject to you obtaining consent from the relevant third party for such use. You represent and warrant that by accepting these Terms, you have obtained such consent.

5.3 Updates to the Software: TouchPal may automatically check your version of the Software. We may also automatically download configuration changes and updates to the Software from time to time. You may be required to update the Software in order to continue using the Software and Products. You agree to accept such updates subject to these Terms unless other terms accompany the updates. If you do not agree, please discontinue use of and uninstall the Software. TouchPal is not obligated to make any updates available and does not guarantee that we will continue to support the version of the operating system or device for which you licensed the Software or that updated Software will be compatible for use with end users running older versions of the Software.

5.4 Suspension, technical improvement and maintenance: From time to time, TouchPal may need to perform maintenance on or upgrade the Software, Products or the underlying infrastructure that enables you to use the Software or Products. This may require TouchPal to temporarily suspend or limit your use of some or all of the Software or Products until such time as this maintenance and/or upgrade can be completed. You will not be entitled to claim damages for such suspension or limitation of the use of any Software or Products.

5.5 No Access to Emergency Services: Neither the Products nor the Software are intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of services that connect a user to emergency services personnel or public safety answering points (“Emergency Services”). There are important differences between traditional telephone services and the Products. You acknowledge and agree that: (i) TouchPal is not required to offer access to Emergency Services under any applicable local and/or national rules, regulations or law; (ii) it is your responsibility to purchase, separately from the Products, traditional wireless (mobile) or fixed line telephone services that offer access to Emergency Services, and (iii) the Software and the Products are not a replacement for your primary telephone service.

5.6 Content of Communications: TouchPal is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Software, including but not limited to any media that is shared through our communication features. By using the Software, you grant TouchPal an intellectual property license to use the content of communications to provide the Products, for example to transmit your communication to the intended recipient.

TouchPal reserves the right to review content submitted on or through the Software and Products for the purpose of enforcing these Terms. TouchPal may, in its sole discretion, block or otherwise prevent delivery of any instant message, SMS, video, media, or other communication to or from the Software and Products as part of our efforts to protect the Software, Products or our customers, or to otherwise enforce these Terms. The following rules apply to your conduct and content when using the Software and Products:

(a) Do not use the Software or Products to do anything illegal. You are responsible for your actions and the consequences of your actions.

(b) Do not send spam or use your account to help others send spam. Spam is unsolicited bulk email, calls, instant messages, other communications and bulk contact requests.

(c) Do not upload, download or share inappropriate images (e.g. nudity, bestiality, pornography).

(d) Do not upload or share images or engage in any activity that exploits or harms children.

(e) Do not engage in activity that is false or misleading (e.g. attempting to ask for money under false pretenses or impersonating someone else).

(f) Do not engage in activity that is harmful to our Software, Products, or their users (e.g. viruses, stalking, engaging in hate speech, harassment, advocating violence against others).

(g) Do not infringe upon the legal rights of others (e.g. unauthorized sharing of copyrighted music, photographs and other content).

(h) Do not engage in activity that violates the privacy of others.

(i) Do not circumvent, disable or otherwise interfere with the security related features of the Software or Products or features that prevent or restrict the use of any content.

We may ask you to remove your content if it violates these Terms or the law. Failure to comply may result in loss of access to, or cancellation of, your User Account. Additionally, TouchPal may remove your content, terminate or suspend your use of the Software, User Account(s) or Products without asking you if we determine it is in violation these Terms or the law or if we receive a notice of intellectual property infringement from a third party.

5.7 Notice and Take-Down: If TouchPal receives any notification that any material that you post, upload, edit, host, share and/or publish through the Software (excluding your private communications) (“User Submission”) is inappropriate, infringes any rights of any third party, or if TouchPal wishes to remove your User Submission for any reason whatsoever, TouchPal reserves the right to automatically remove such User Submission for any reason immediately or within such other timescales as may be decided from time to time by TouchPal in its sole discretion. The User Submission shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. You acknowledge and agree that TouchPal is under no obligation to put back such User Submission at any time. If User Submissions infringe, or if you believe that User Submissions infringe any of your rights (including intellectual property rights) or are unlawful, please contact us immediately by following our notice and takedown procedure. TouchPal reserves the right to ask for verification of your identity and to seek further information to verify your complaint. You agree that you are solely responsible for the consequences resulting from your complaint (including but not limited to removal or blocking of the User Submission) and you acknowledge and agree that any complaint may be used in court proceedings. Any false, misleading or inaccurate information provided by you may result in civil and criminal liability.

5.8 Quality: TouchPal cannot guarantee that the Software or Products will always function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the Software or Products (depending on the Products used), and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply. TouchPal takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.

5.9 Changes to Products: TouchPal is constantly improving the Software and Products and may change them at any time. Additionally, there are reasons why TouchPal may stop providing the Software and Products (or portions thereof) including (without limitation) that it is no longer feasible for us to provide it, the technology advances, customer feedback indicates a change is needed, external issues arise that make it imprudent or impractical to continue, or any reason set out in paragraph 11.2. As a result of such changes, you may need to use an upgraded version of the Software. If you do not agree with any changes to Software and Products you may terminate your relationship with TouchPal in accordance with paragraph 11. You may need to upgrade to a new version in order to enjoy the benefit of certain Products. In addition, you acknowledge and agree that certain Products may be subject to usage limits or geographical restrictions, which may vary from time to time.

5.10 Unsolicited Ideas: TouchPal does not consider or accept unsolicited proposals or ideas, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements (“Unsolicited Feedback”). If you send any Unsolicited Feedback to Touchpal, you acknowledge and agree that TouchPal shall not be under any obligation of confidentiality with respect to the Unsolicited Feedback.

5.11 Reports: Certain parts of the Software may ask for written suggestions or problem reports such as using our contact form or problem report form (“Reports”). Please read carefully any specific terms, which govern those Reports. The Reports shall be deemed the property of TouchPal. TouchPal shall exclusively own all now known or hereafter existing rights to the Reports throughout the universe in perpetuity and shall be entitled to use the Reports for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Reports. Any Reports you send to TouchPal will not be treated as confidential and TouchPal shall not be liable for any disclosure of the Reports.

 

6. YOUR OBLIGATIONS

6.1 User Account: Prior to your first use of the Software, you will be asked to create a User Account and choose a user ID and password. We recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You may only use the Software through your User Account. You are solely responsible and liable for all activities conducted through your User Account. To prevent unauthorised use, you shall keep your password confidential and shall not share it with any third party. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. TouchPal takes no responsibility for your failure to comply with the obligations in this paragraph 6.1.

6.2 Lawful Use: You must use the Software and Products in accordance with the laws of where you are located. In some countries there are restrictions on the download and use of the Software or Products. It is your responsibility to ensure that you are legally allowed to use the Software and/or Products where you are located.

6.3 Prohibited Use: You may not:

(a) intercept or monitor, damage or modify any communication which is not intended for you;

(b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Software, Products, communication or protocols;

(c) send unsolicited communications (also referred to as “SPAM”, “SPIM” or “SPIT”) or any communication not permitted by applicable law or use the Software or Products for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity;

(d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way;

(e) use the Software or Products to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party;

(f) use (including as part of your User ID and/or profile picture) any material or content that is subject to any third party proprietary rights, unless you have a licence or permission from the owner of such rights;

(g) collect or harvest any personally identifiable information, including account names, from the Software or Products;

(h) impact or attempt to impact the availability of the Software or Products for example, with a denial of service (DOS) or distributed denial of service (DDoS) attack;

(i) use or launch any automated system, including without limitation, robots, spiders or offline readers that access the Software or Products.

6.4 Your Information: From time to time, TouchPal may request information from you for the purpose of supplying the Software or Products to you. You shall ensure that any such information (including, where applicable, your billing information) is complete, up-to-date and accurate.

6.5 No Reselling. The Software and Products are for your individual use. You shall not resell or commercialize the Software and/or Products to any third party.

6.6 Export Restrictions: The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use, destination restrictions issued by national governments or similar bodies, and restrictions on embargoed nations.

 

7. PROPRIETARY RIGHTS

7.1 The Software and Products contain proprietary and confidential information that is protected by intellectual property laws and treaties.

7.2 TouchPal and/or its licensors retain exclusive ownership of the Software and Products and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardise, limit or interfere with TouchPal’s intellectual property rights in the Software and/or Products.

7.3 “TouchPal”, associated trademarks and logos are trademarks of TouchPal. TouchPal has registered and filed applications to register its trademarks in many countries worldwide. TouchPal’s trademarks and trade dress may not be used in connection with any product or service that is not TouchPal’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits TouchPal. All other trademarks not owned by TouchPal or any of its related companies that appear on this site are the property of their respective owners. You are not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other name or sign that incorporates any of TouchPal’s intellectual property (in whole or part) or that is confusingly similar thereto.

 

8. CHARGES

8.1 Calling phones and premium rate numbers with TouchPal Credit:

(i) TouchPal may change the rates for calling phones and premium rate numbers at any time without notice to you by posting such change in apps. The new rate will apply to your next use after the new rates have been published. Please check the latest rates before you make your call. If you do not accept the new rates, do not make your call.

(ii) The duration of a call shall be based on one-minute increments. Fractions of minutes will be rounded up to the next minute. Charges incurred will be deducted automatically from the TouchPal Credit balance in your User Account.

8.2 Charges for other Paid For Products: The charges for other Paid For Products will be confirmed to you before you complete a purchase from TouchPal. TouchPal may change the charges payable for the purchase of such Products at any time without any notice to you. You can choose whether or not to accept the new charges prior to completing your next purchase of the applicable Product. The new charges will apply to your next purchase after the new charges have been published.

8.3 Promotional Offers: From time to time, TouchPal may offer Paid-For Products for free for a trial period. TouchPal reserves the right to charge you for such Products (at the normal rate) in the event that TouchPal determines (in its reasonable discretion) that you are abusing the terms of the offer, including if you are using any service, proxy or other devices or anonymous IP address that prevents us from locating you.

8.4 Tax: All prices for Paid For Products are inclusive of applicable taxes, including VAT, unless otherwise stated. You explicitly waive any right to VAT reimbursement from TouchPal if the amount of VAT ultimately payable by the latter to the tax authorities would for any reason be lower than the amount of VAT collected from you.

8.5 Third-Party Charges: Using the Software on mobile applications will use some of the data allowance available on the data package to which you have subscribed with your mobile network operator. Out-of-country usage may lead to significantly higher costs than regular usage, and you are solely responsible for keeping yourself informed and paying for possible roaming and other applicable charges levied by your mobile network operator.

 

9. PAYMENT

9.1 TouchPal Credit. You can pay for select Paid-For Products using TouchPal Credit. You can purchase TouchPal Credit using any payment method made available to you by TouchPal from time to time. The TouchPal Credit that you purchase will be credited to your User Account at the time of purchase.

9.2 Inactive TouchPal User Account. If you do not use your TouchPal Credit for a period of 90 days, TouchPal will place your TouchPal User Account on inactive status. You can reactivate your User Account by ways provided by TouchPal.

9.3 Recurring Payments. Where you purchase Products on a subscription basis (monthly, every 3 months or annually (as applicable)), you acknowledge and agree that this is a recurring payment and payments shall be made to TouchPal by the method you have chosen at the recurring intervals chosen by you, until the subscription for that Product is terminated by you or by TouchPal.

9.4 Auto-Recharge.

(a) You can enable the Auto Recharge feature when you buy TouchPal Credit by ticking the appropriate box. If enabled, your TouchPal Credit balance will be recharged with the same amount and by the same payment method chosen when you first sign up for Auto-Recharge. For example, if you purchase 10 USD of TouchPal Credit with your credit card, the recharge amount charged to your credit card will also be 10 USD of TouchPal Credit. In future the same amount will be charged to your credit card every time your TouchPal account balance goes below the threshold set by TouchPal from time to time.

(b) You can disable Auto-Recharge at any time by accessing and changing your settings in your User Account.

 

10. REFUND POLICY

10.1 Unless otherwise provided by law or by a particular service offer, all purchases are final and non-refundable. If you believe that TouchPal has charged you in error, you must contact us within 3 days of such charge. No refunds will be given for any charges more than 3 days. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future. This refund policy does not affect any statutory rights that may apply.

 

11. ENDING YOUR RELATIONSHIP WITH TOUCHPAL

11.1 You may terminate your relationship with TouchPal at any time and without recourse to the courts by requesting closure of your User Account, ceasing to use the Software and/or Products and cancelling any recurring payments.

11.2 TouchPal may terminate its relationship with you, or may terminate or suspend your use of the Software, User Account(s) or Products at any time and without recourse to the courts:

(a) if you are in breach of these Terms;

(b) if TouchPal reasonably suspects that you are using the Software and/or the Products to break the law or infringe third party rights;

(c) if TouchPal reasonably suspects that you are trying to unfairly exploit or misuse any of our policies;

(d) if TouchPal reasonably suspects that you are using our Products and/or Software fraudulently or that your User Account is being used by a third party fraudulently;

(e) if you have purchased TouchPal Credit from an unauthorised reseller;

(f) in respect of a particular Product, on thirty (30) day’s notice if TouchPal decides to cease offering that Product;

(g) immediately, if (in TouchPal’s reasonable discretion) required due to a change in or adverse interpretation of laws/regulation or where required by a regulator or authority with a lawful mandate, or by any of TouchPal’s partners;

(h) on thirty (30) days notice if TouchPal decides to cease offering the Software to users in your jurisdiction generally.

11.3 TouchPal shall effect such termination by preventing your access to your User Account, the Software and/or Products (as applicable).

11.4 Consequences of Termination: Upon termination of your relationship with TouchPal: (a) all licenses and rights to use the Software and/or Products shall immediately terminate; (b) you will immediately cease any and all use of the Software and/or Products; and (c) you will immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control.

 

12. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY

12.1 For the purposes of this paragraph 12, "TouchPal" includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.

12.2 No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SOFTWARE, AND PRODUCTS ARE PROVIDED “AS IS” AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; TOUCHPAL DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND/OR PRODUCTS INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. TOUCHPAL FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE AND/OR PRODUCTS WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES TOUCHPAL WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SOFTWARE.

12.3 Nothing in these Terms shall exclude or restrict TouchPal's liability for (a) death or personal injury, (b) loss resulting from TouchPal's willful default or gross negligence, (c) fraud or deliberate misrepresentation, or (d) any liability which cannot be limited or excluded by applicable law.

12.4 No Liability: YOU ACKNOWLEDGE AND AGREE THAT TOUCHPAL WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO TOUCHPAL, IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SUCH SOFTWARE IS TO IMMEDIATELY DEINSTALL SUCH SOFTWARE AND CEASE USE OF SUCH SOFTWARE.

12.5 Limitation of Liability: Subject to paragraphs 12.3 and 12.4 above, TouchPal shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to TouchPal, for:

(a) any indirect, special, incidental or consequential damages; or

(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or

(c) any damage to or corruption of data (whether direct or indirect);

(d) any claim, damage or loss (whether direct or indirect) arising from or relating to:

(i) your inability to use the Software, including any Enabled Versions, to contact Emergency Services;

(ii) your failure to make additional arrangements to access Emergency Services in accordance with paragraph 5.5 above;

(iii) the limitations set out in paragraph 5.6;

(e) any claim, damage or loss (whether direct or indirect) arising from or relating to:

(i) any product or service provided by a third party under their own terms of service;

(ii) any Other Technology;

(iii) any third party website.

12.6 Subject to paragraphs 12.3 - 12.5 above, TouchPal’s total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability)) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF ONE THOUSAND US DOLLARS IN ALL CASES.

12.7 If any third party brings a claim against TouchPal in connection with, or arising out of (i) your breach of these Terms; (ii) your breach of any applicable law of regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); (iv) your User Submissions or (v) your complaint in relation to any User Submission, you will indemnify and hold TouchPal harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim.

 

13. YOUR CONFIDENTIAL INFORMATION AND YOUR PRIVACY

TouchPal is committed to respecting your privacy and the confidentiality of your personal data, traffic data and communications content. The following Privacy Policy is designed to assist you in understanding how TouchPal uses and safeguards the information you provide in using the Software and the Products.

13.1 What Information Does TouchPal Collect and Use?

TouchPal may gather and use information about you, including (but not limited to) information in the following categories:

(a) Identification data (e.g. name, username, address, telephone number, mobile number, email address);

(b) Profile information (e.g. age, gender, country of residence, language preference and any information that you choose to make available to others as part of your user profile);

(c) Electronic identification data (e.g. IP addresses, cookies);

(d) Banking and payment information (e.g. credit card information, account number);

(e) Call quality and survey results;

(f) Information about your usage of and interaction with the Software and Products (including computer, platform, device and connection information, client performance information, error reports, device capability, bandwidth, and usage statistics);

(g) Products or services ordered and delivered;

(h) List of your contacts and related data;

(i) Correspondence between you and TouchPal;

(j) Traffic data (data processed for the purpose of the conveyance of communications or the billing thereof, including, but not limited to, the duration of the call, the number calling and the number called);

(k) Location information, derived from your mobile carrier or from the mobile device that you use;

(l) Mobile device information, such as manufacturer’s name, device model number, operating system, carrier network, IMEI, mac address;

(m) Access tokens for other accounts you associate with your User Account (such as Google or Facebook account), which are like an electronic key provided by the service that acts in place of a password for authentication.

13.2 How Does TouchPal Use These Information and For What Purpose?

Our primary purpose in collecting information is to provide you with a safe, smooth, efficient, and customized experience. TouchPal collects and uses, or has third party service providers acting on TouchPal’s behalf collecting and using, personal data relating to you, as permitted or necessary to:

(a) provide internet communication and other products in particular to convey the communications you and others make by means of the Software and Products;

(b) change and customize the Software’s and Products’ features and functionality;

(c) take, process or deliver orders made via the Software and/or Products, invoice you or notify you of the status of your order;

(d) provide other services for you (as described when we collect the information);

(e) provide you with customer support and troubleshoot problems;

(f) compare information for accuracy;

(g) inform you about service updates and faults;

(h) request feedback or participation in on-line surveys;

(i) resolve disputes;

(j) verify your identity;

(k) customize, measure, and improve the Software and Products;

(l) improve our search functionality and help you find and contact other users more easily and accurately;

(m) organize and carry out TouchPal’s marketing or promotional operations/offers, contests, games and similar events; and

(o) protect your and TouchPal’s interests, including in particular to enforce these Terms and prevent and fight against fraud.

13.3 Our Disclosure of Your Personal Information

(a) Except as provided below, TouchPal will not sell, rent, trade or otherwise transfer any personal and/or traffic data or communications content outside of TouchPal and its controlled subsidiaries and affiliates without your explicit permission, unless it is obliged to do so under applicable laws or by order of the competent authorities. Please note that information that you voluntarily make public in your user profile, or which you disclose on forums, discussions boards or by posting comments will be publicly available and viewable by others.

(b) TouchPal may disclose personal information to respond to legal requirements, exercise our legal rights or defend against legal claims, to protect TouchPal’s interests, fight against fraud and to enforce our policies or to protect anyone's rights, property, or safety.

(c) In order to provide you with the Products you have requested, TouchPal may sometimes, if necessary, share your personal and traffic data with TouchPal’s group companies, carriers, partner service providers and/or agents. For example the PSTN-VoIP gateway provider, WiFi access services providers, distributors of the Software and Products, and/or the third party banking organizations or other providers of payment, email delivery, analytical services, customer support, or hosting services. TouchPal will always require these third parties to take appropriate organizational and technical measures to protect your personal data and traffic data and to observe the relevant legislation.

(d) Some Products may be (i) co-branded; (ii) made available via a partner company’s website; and/or (iii) supported through a partner company. If you register for or use such products, you consent to both TouchPal’s and the partner company’s use of personal data collected in connection with the product and you understand that the partner company’s use of your personal data may be subject to the partner company’s privacy policy. TouchPal may offer its products in connection with other websites or services or may team with other online services to give you the combined results of both products/services or additional services and benefits.

(e) TouchPal, TouchPal's local partner, or the operator or company facilitating your communication may provide personal data, communications content and/or traffic data to an appropriate judicial, law enforcement or government authority lawfully requesting such information. TouchPal will provide reasonable assistance and information to fulfill this request and you hereby consent to such disclosure.

13.4 How Does TouchPal Protect Your Personal Information?

TouchPal will take appropriate organizational and technical measures to protect the personal data and traffic data provided to it or collected by it with due observance of the applicable obligations and exceptions under the relevant legislation. Your personal and traffic data can only be accessed by authorized employees of TouchPal or its affiliates, subsidiaries or service providers who need to have access to this data in order to be able to fulfill their given duties.

 

14. MISCELLANEOUS

14.1 You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with TouchPal.

14.2 These Terms constitute the entire agreement between you and TouchPal with respect to your use of the Software and/or Products and replace any prior agreements between you and TouchPal with respect to the Software and/or Products.

14.3 If any provision of these Terms (or part of it), is found by any court or administrative body of competent jurisdiction or an arbitrator to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Terms without affecting the legality, validity or enforceability of the remainder of the Terms.

14.4 The failure by TouchPal to exercise, or delay in exercising, a legal right or remedy provided by these Terms or by law shall not constitute a waiver of TouchPal’s right or remedy. If TouchPal waives a breach of these Terms, this shall not operate as a waiver of a subsequent breach of the Terms.

14.5 You may not assign these Terms or any rights or obligations contained in them. TouchPal may, without prior notice, assign these Terms or any rights or obligations contained in them to any third party.

14.6 This paragraph 14, along with paragraphs 4.2, 12 and any other provisions, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination of the Terms.

14.7 You acknowledge and agree that if TouchPal is unable to provide the Software and/or Products as a result of a force majeure event, TouchPal will not be in breach of any of its obligations towards you under these Terms. A force majeure event means any event beyond the control of TouchPal.

14.8 These Terms shall be governed by and interpreted in accordance with the laws of the People’s Republic of China and shall be subject to the jurisdiction of People’s court of Xuhui District, Shanghai, China.

 

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE OR USE THE SOFTWARE AND/OR PRODUCTS, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO TOUCHPAL THE RIGHTS SET FORTH HEREIN.