Teacher Terms of Service

Last updated: October 2, 2020

 

These Terms of Service (“Agreement”) are between you and Mochy Kid Limited (the “Company”, “we”, “us”, or “our”) concerning your use of the OhMyClass Website (defined below) located at ohmyclass.org that provides online marketplace designed specifically for courses and experiences (“Platform Service”).

Please read this Agreement carefully. By registering for, accessing, browsing, and/or otherwise using the Platform Service (or enabling your Affiliate to access or use the Platform Service), you acknowledge that you have read, understood, and agreed to be bound by its terms. If you do not agree with the terms of this Agreement, you must immediately discontinue your access to or use of the Platform Service. If you register for a free trial for our Platform Service, the applicable provisions of this Agreement will also govern that free trial.

If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the terms “you” and “your” shall refer to that entity. If you do not have such authority, or if you do not agree with the terms of this Agreement, you must immediately discontinue your use of the Platform Service.

You may not access or use the Platform Service if you are our direct competitor, except with our prior written consent. Furthermore, you may not access the Platform Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement means these Terms of Service generally and with respect to any Platform Service provided hereunder, shall include the Listing Form (defined below).

 

1. DEFINITIONS

Certain capitalized terms are defined in this Section 1, and others are defined contextually in this Agreement.

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive the Platform Service under this Agreement. “Control”, for purposes of this definition, means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any franchisees that have been designated to receive Platform Service under this Agreement.

Confidential Information” means (a) all code, inventions, know-how and business, technical and financial information that constitute the confidential property of the disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving Party to be confidential or proprietary, and (b) any special pricing or other non-standard terms agreed to by the Parties in a Listing Form or other separate written document.

Effective Date” means the date signed by the last Party to sign the Listing Form (as indicated by the date associated with that Party’s signature). If any party signs but fails to date a signature, the date that we receive the signing Party’s signature will be deemed to be the date that the signing Party signed the Listing Form.

Your End User” means (a) individuals using the Platform Service as your customer, and (b) individuals you or your Affiliate permits or invites to use the Platform Service.

Listing Form” means a separate listing document, invoice, online form, or other documentation that specifies the Platform Service to be provided entered into between you and us (or any of your Affiliates or franchisees), including any addenda and supplements thereto.

Party” means either you or the Company.

Third Party Offering” means any third party tools, products, services, applications, websites, implementations, software or technologies (including website hosting, data analysis, payment processing, email delivery and other services) that the Platform Service link to, or that interoperate with or are used in conjunction with the Platform Service.

User” means (a) any individual or entity who accesses or use the Platform Service, and (b) individuals who book courses, purchase services and otherwise interact with you or your Affiliates through the Platform Service.

Website” means ohmyclass.org (or such other URLs as specified by the Company), as may be updated by us from time to time and any other websites through which we make the Platform Service available.

Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Platform Service, including company profile, course name, course description, price, available slot, photo(s) and video(s) associated with your course, teacher qualification and cancellation policy.

 

2. SERVICES

2.1 Platform Service

2.1.1 Access to Platform Service. Subject to the terms of this Agreement and during the applicable Listing Term (defined below), we will make the Platform Service to which you have subscribed available to you.

Being exposed to advertising is a condition of accessing the Platform Service.

2.1.2 Modification to Platform Service. The Platform Service is considered available if it can be accessed by one or more users. Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 6.4, we reserve the right to suspend any Platform Service because of (a) Force Majeure event (as indicated in Section 13.3) or other factors outside of our reasonable control, including Internet access or related problems; (b) your equipment, software, network connections or other infrastructure; (c) Your Data; (d) Third Party Offerings; (e) any malicious software is being used suspiciously in connection with your account; or (f) scheduled downtime or reasonable emergency maintenance. We may change, suspend, discontinue, or impose limits on any aspect of Platform Service, including the availability of any functionality or features, at any time without notice or liability.

2.2 Third Party Offerings. The Platform Service may offer functionality or features that are designed to interoperate with, or are contingent on access to or use of, Third Party Offerings. Third Party Offerings are not Platform Service under this Agreement and are not subject to any of the warranties or other obligations in connection with Platform Service hereunder.

Your use of any Third Party Offerings (and the third party provider’s use of Your Data) is subject to any additional and separate terms, conditions and policies applicable to such third party (“Third Party Terms”). If you enable or use any Third Party Offerings, you agree the Company to disclose Your Data or other details to the extent necessary to utilize the Third Party Offerings. You agree to ensure that you have all necessary rights to use Third Party Offerings in connection with the Platform Service and to allow us to access the data, content and other information on such Third Party Offerings to enable the Platform Service.

We disclaim all liability and responsibility to you or your Affiliates for any Third Party Offerings (whether support, availability, security or otherwise) or for the acts or omissions of any third party providers. 

2.3 Free Trial. We may, in our sole discretion, offer Platform Service on a trial basis free of charge from time to time. Notwithstanding anything to the contrary herein: (a) all free trials are provided “AS IS” without any warranty; and (b) the Company may discontinue any free trials or your ability to use such Platform Service at any time, with or without notice and without any further obligations to you.

Your Data enter into the Platform Service and any customizations made to the Platform Service by or for you during your free trial will be permanently deleted following termination of the free trial, unless you purchase a subscription to the same Platform Service as those covered by the free trial or export such data before the end of the trial period. The Company will have no liability for any harm or damages suffered by you or any third party in connection with any free trials.

 

3. YOUR RESPONSIBILITIES

3.1 Liability for Affiliates. You are responsible for all activity occurring under or relating to your account, including your staff, employees, consultants, advisors and independent contractors. You will ensure that your Affiliates comply with relevant provisions of this Agreement, including any supplemental terms and policies provided or made available by the Company, and any applicable laws, including those related to data privacy and transmission of personal data, at all times while using the Platform Service. Any reference in this Agreement to your “access” or “use” of Platform Service (or similar phrase) is deemed to include access or use by Affiliates, and any act or omission of an Affiliate that does not comply with this Agreement will be deemed a breach of this Agreement by you.

3.2 Your Data, Unauthorized Access, Third Party Terms, Maintain Network. You will:

(a) be solely responsible for the accuracy, quality and legality of Your Data, for ensuring that the means by which you acquire and submit Your Data comply with applicable laws, and for the consequence of submitting and using Your Data with the Platform Service;

(b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform Service, and immediately notify us of any unauthorized access or use of which you become aware;

(c) comply with the Third Party Terms with which you use the Platform Service; and

(d) be responsible for obtaining, maintaining and paying for all hardware, telecommunications and other services needed for you to use the Platform Service.

3.3 Restrictions. Except as otherwise expressly permitted in this Agreement, you and your Affiliates will not:

(a) copy, reproduce, modify, adapt, decompile, reverse engineer, disassemble, or create any derivative works based on the Platform Service (either in whole or in part);

(b) sell, resell, license, sublicense, distribute, transfer, assign, rent, lease, offer in a service bureau, or otherwise make the Platform Service available to any third party, other than to Affiliates as permitted herein;

(c) post, transmit or otherwise make available through or in connection with the Platform Service any content that are or may be false, inaccurate, misleading, infringing, obscene, indecent, defamatory, threatening, fraudulent or otherwise unlawful or tortious material to the Platform Service, including material that violates privacy rights;

(d) unduly burden, interfere with or disrupt the operation and/or functionality of any aspect of the Platform Service or the data contained therein;

(e) attempt to gain unauthorized access to the Platform Service or its related systems;

(f) post, transmit or otherwise make available through or in connection with the Platform Service any virus, Trojan horse, spyware or other harmful computer code, files, scripts, agents or programs;

(g) restrict or inhibit any other person from using the Platform Service;

(h) remove or obscure any copyright, trademark or other proprietary rights notice from any portion of the Platform Service;

(i) link to, mirror or frame any portions, features, functions, user interfaces or images of the Platform Service, or otherwise incorporate any aspect of the Platform Service into any product or service, without our express prior written consent;

(j) systematically download and store Platform Service content;

(k) use the Platform Service to send unsolicited electronic messages deemed by us to constitute spamming;

(l) access or use (or permit a third party to access or use) the Platform Service for competitive analysis, to build a competitive product or service, or otherwise for the benefit of any third party;

(m) publicly disseminate information regarding the performance of the Platform Service;

(n) cause or launch any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Platform Service content, or circumvent the navigational structure or presentation of the Platform Service, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of our Website, we grant to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice;

(o) encourage or assist any third party to do any of the foregoing; or

(p) otherwise use or exploit the Platform Service in any manner not expressly permitted under this Agreement.

3.4 Credentials and Business Details. You may need to register an account at https://ohmyclass.sp-seller.webkul.com/index.php?p=signup (as may be updated by the Company from time to time) to use the Platform Service.

The Company may reject, or require that you change, any user name, password or other information under your account. User names and passwords are for your business use only. You are solely responsible for maintaining the confidentiality of your credentials and for restricting unauthorized access to your mobile device, computer, and/or other means of accessing the Platform Service.

You are responsible for providing the Company with current, complete accurate, and not misleading in all respects, business account information, including your legal company name, address, email, bank account, and such other information as may be requested by the Company (collectively, “Business Details”).

You are solely responsible for all activities that occur under your account, either with or without your knowledge. The Company shall under no circumstances be liable for any loss or damages incurred, directly or indirectly, by failure to keep the credentials confidential or the Business Details accurate. You agree to promptly notify us in writing of any unauthorized use of your credentials or account, and of any changes in Business Details.

 

4. LISTING FEES

4.1 Listing Fees. Unless otherwise agreed in a Listing Form, fees for the Platform Service (“Listing Fees”) are set forth on the applicable Website.

4.2 Change in Listing Fees. Unless otherwise specified in a Listing Form, the Listing Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable Website when each Renewal Term begins. We may also convert any free trial into a Platform Service subject to a Listing Fee upon notice to you, and your rights to such Platform Service will be suspended if you do not pay the Listing Fee.

4.3 Payment Terms. You agree to pay the Listing Fees and any other applicable fees stated on a Listing Form or otherwise specified in this Agreement. You are responsible for all listing fees for the entire Listing Term (defined below). All payment obligations under this Agreement are non-cancellable, non-refundable and non-creditable. Unless otherwise stated on a Listing Form, fees must be paid in advance of each billing period by the due date. You will provide the Company with valid and updated credit card information or another form of payment acceptable to the Company. If you pay by bank transfer, you must pay any and all bank charges and fees associated with the transfer on top of the Listing Fees. If you provide credit card information, you represent that you are authorized to use the card and you authorize the Company to charge the card for all payments hereunder. By submitting payment information, you grant the Company the right to provide that information to third parties for purposes of facilitating payment.

4.4 Overdue Charges. Any amounts not received by the due date may accrue late interest at: (a) 2% of the outstanding balance per month or (b) the maximum interest rate permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by the Company within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and the Company will be entitled to either suspend the Platform Service or terminate the Agreement in accordance with Section 8.2.

4.5 Payment Errors. If you believe a payment has been processed in error, you must provide written notice to the Company within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If such notice is not received by the Company within such thirty (30) day period, the payment will be deemed final.

4.6 Taxes. All fees under this Agreement exclude any taxes or duties payable in respect of the Platform Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under this Agreement.

 

5. INTELLECTUAL PROPERTY

5.1 Our Intellectual Property. You acknowledge that the Company or its affiliates own and reserve all right, title and interest in and to the Platform Service, including all intellectual property rights. Intellectual properties of the Company or the Users (as the case may be), including the text, images, information, comments, layout, database, graphics, photos, pictures, sounds or audio formats, software, brands and HTML, which are protected by applicable copyright and trademark laws and may not be downloaded or otherwise duplicated without the express written permission of the Company or the Users (as the case may be).

You agree not to display or use any logos, product and service names, and other intellectual properties used or otherwise owned (both registered and unregistered) by the Company and its affiliates, including OhMyClass, ohmyclass.org, the OhMyClass logo, the OhMyClass mascot(s), and other OhMyClass trademarks, service marks, graphics, and logos, in any manner without the Company’s prior written consent.

You acknowledge that your use of any trademarks, service marks, graphics, logos, and other intellectual properties associated with a Third Party Offerings may be subject to separate terms between you and the relevant third party provider.

5.2 License Grant to You. For purposes of this Agreement, the Company hereby grants to you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license and right to use the Platform Service set forth in a Listing Form, during the Listing Term and solely for your own business purposes.

5.3 License Grant to Us. You hereby grant to the Company and its affiliates a worldwide, perpetual, irrevocable, transferable, assignable, sublicensable, royalty-free, fully-paid license and right to (a) copy, modify, distribute and incorporate into the Platform Service (without attribution of any kind) any suggestion, input, enhancement request, recommendation, proposal, correction, specification, or other feedback or information provided by you or Affiliates relating to the Platform Service or the Company’s or its affiliates’ business(es); and (b) to use your business names, trademarks, service marks, graphics, logos, designs, or any publicly available images and videos (collectively, “Your Trademarks”) in connection with: (i) offering the Platform Service and (ii) for marketing and promotional purposes relating to the Company’s business. The Company agrees that any use by the Company of any of Your Trademarks will inure solely to the benefit and goodwill of your business.

 

6. DATA OWNERSHIP AND USE

6.1 Your Data. You retain all right, title and interest in and to Your Data. You hereby grant to the Company a non-exclusive, worldwide, perpetual, irrevocable, transferable, assignable, sublicensable, fully paid and royalty-free license and right to access, use, process, copy, modify, distribute, perform, export, display, publish, create derivative works of and otherwise use Your Data for the purposes of offering, improving and developing the Company’s or its affiliates’ products and services and/or complementary products and services of our partners. To maintain the Platform’s consistency, you also agree that we shall make changes to Your Data where we deem necessary, including spacing, letter case and wrong image size, without notifying you. You represent and warrant to the Company that you have all rights necessary to grant the licenses granted to us in this Section 6.1, and that your provision and use of Your Data through and in connection with the Platform Service does not violate any applicable laws or rights of any third party.

6.2. Personal Information. We are committed to protect your privacy. Our Privacy Policy governs how we collect and use personal information that is submitted through the Platform Service. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that the Company may collect and process Your Data, in accordance with our Privacy Policy, for the purpose of offering the Platform Service and related functions to you. You represent and warrant that you are authorized to process Your Data and make such data available to the Company for uses as set out in the Agreement and Privacy Policy.

6.3 Infringement. If either Party believes that there has been an unauthorized disclosure of Your Data, both Parties will reasonably assist each other in mitigating any potential damage.

6.4 Removals and Suspension. The Company has no obligation to monitor any content uploaded to the Platform Service. Nonetheless, we may remove Your Data from the Platform Service, or suspend your access to and use of the Platform Service at any time without notice or reason, if we believe (a) that any activity or use of Platform Service with respect to your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to the Company or any third party, or (b) that we are required to by law. We have no liability to you for removing Your Data from or suspending your access to the Platform Service as described in this Section 6.4.

6.5 Data-Related Conflicts. You are solely responsible for resolving conflicts regarding ownership of or access to Your Data, including those involving any owners, co-owners, employees or contractors of your business. You agree that the Company has no obligation to intervene in such conflicts.

 

7. CONFIDENTIALITY

7.1 Confidential Information. A Party agree to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but not less than reasonable care. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to fulfil its obligations or exercise its rights granted pursuant to this Agreement; (b) with the other Party's prior written consent; or (c) to the extent compelled by regulation, law or order of a court, provided the Party gives the other Party prior notice of the compelled disclosure (to the extent legally permitted).

Confidential Information will not include any information that: (a) is or becomes public knowledge without breach of any obligation owed to either Party; (b) was rightfully in its possession or known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was or is rightfully obtained from a third party without breach of any obligation owed to the other Party; or (d) was independently developed by a Party without breach of any obligation owed to the other Party.

7.2 Non-Solicitation. You also acknowledge and agree that you will not, either during, or in the three hundred and sixty five (365) days following, the period in which you receive the Platform Service, directly or indirectly, on your own behalf or on behalf of or in conjunction with any person or legal entity, recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any of our employee to terminate their employment with us.

 

8. TERM AND TERMINATION

8.1 Term. Unless otherwise specified in a Listing Form, the initial term of this Agreement (“Initial Term”) shall commence on the Effective Date and will automatically renew in successive and consecutive periods of the same length as stated in the Listing Form (each a “Renewal Term” and collectively with the Initial Term, the “Listing Term”) on the same terms and conditions, and you agree to continue to list your products and services and to pay the Listing Fee based on the pricing set forth on the Website at the time each Renewal Term starts, until this Agreement is properly terminated.

8.2 Termination. Either Party may terminate this Agreement for any or no reason, by giving the other Party at least thirty (30) days’ notice before the end of the relevant Listing Term.

If you elect to terminate this Agreement early, (a) you will not be entitled to a refund of any pre-paid fees and (b) any outstanding fees covering the remaining Listing Term will become immediately due and payable.

The Company may terminate this Agreement and/or any listing, effective immediately upon notice to you, if you or your Affiliate have materially breached this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to any sums you may owe the Company, any outstanding fees covering the remaining Listing Term will become immediately due and payable.

In no event will any termination relieve you of your obligation to pay any fees payable to the Company for the period prior to the effective date of termination.

8.3 Effects of Termination. In the event of expiration or termination of this Agreement, (a) this Agreement shall be of no further force or effect; (b) you must cease accessing or using the Platform Service; (c) you must delete and destroy all materials of ours and all copies and related documentation thereof; and (d) you will not have access to Your Data (and the Company will have no obligation to maintain your account or to retain or forward any of Your Data to you or any third party), except as required by applicable law.

8.4 Survival. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 3, 4 (other than Section 4.1), 5, 6, 7, 8.3, 9.4, 10-13.

 

9. WARRANTIES, EXCLUSIVE REMEDY AND DISCLAIMER

9.1 Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

9.2 Our Warranties. The Company warrants to you that during a Listing Term: (a) the Platform Service will perform materially in accordance with the applicable Listing Form; and (b) we will not materially decrease the overall functionality of the Platform Service.

9.3 Warranty Remedy. Your sole and exclusive remedy for a breach of the warranties as set out in Section 9.2 will be that the Company will use commercially reasonable efforts to revise the Platform Service to achieve the functionality described above. If the Company is unable to restore such functionality, you may terminate the Agreement by providing written notice to the Company and you will be entitled to receive a pro-rata refund of any pre-paid fees.

The warranties set forth in Section 9.2 will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed any material functionality problem; (ii) if the subscribed Platform Service has not been utilized in accordance with this Agreement or applicable laws; (iii) if the material functionality problem was caused by misuse, unauthorized modifications or Third Party Offerings; or (iv) to free trials of Platform Service.

9.4 Warranty Disclaimer. Except as expressly provided in this Section, the Platform Service and any products and third party materials are provided on an “As Is” and “As Available” basis.

Except as expressly provided in this Section, the Company makes no warranties or representations of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of non-infringement, title, merchantability or fitness for a particular purpose, to the fullest extent permitted by applicable law.

We do not warrant that your use of Platform Service will be uninterrupted, secure, timely or error-free, or that the Platform Service is or will remain updated, complete or accurate, or that the Platform Service will meet any of your requirements, or that the systems that make the Platform Service available (including the internet and other transmission networks) will be uninterrupted or virus-free or free from other harmful components. We disclaim all liability and indemnification obligations for any harm or damages incurred by any Third Party Offerings.

You understand that use of the Platform Service necessarily involves transmission of Your Data over networks that we do not own, operate or control, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party providers. 

All disclaimers of any kind (including in this Section and elsewhere in this Agreement) are made on behalf of both the Company and its affiliates and their respective subsidiaries, shareholders, stockholders, directors, officers, employees, affiliates, agents, representatives, contractors, licensors, suppliers and service providers, attorneys and their respective successors and assigns (collectively, the “Company Parties”).

 

10. YOUR INDEMNITY

10.1 You will indemnify and defend both the Company and the Company Parties from and against all third party claims alleged or asserted against any of them, and all related damages, losses, charges, judgments, tax assessments, penalties, interest, awards, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to:

(a) any breach or alleged breach by you or your Affiliate of this Agreement, Listing Form or applicable law;

(b) any access to or use of the Platform Service by you or your Affiliate;

(c) any infringement or alleged infringement by you or your Affiliate of the intellectual property, privacy or other rights or law of a third party;

(d) Your Data or Business Details submitted by you or on your behalf;

(e) any claims or disputes brought by Your End Users arising out of their use of Platform Service; and

(f) any negligence or intentional misconduct by you or your Affiliate.

To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of both the Company and the Company Parties.

 

11. LIMITATION OF LIABILITY

The Company expressly disclaims any and all liability and will not be responsible for any damages resulting from fraud, embezzlement, theft, identity theft, or invasion of privacy.

To the maximum extent permitted by law, in no event will the Company Parties’ aggregate liability, collectively, for all claims arising out of or related to this Agreement, whether in contract, tort or otherwise, exceed the Listing Fees actually paid by you to us under this Agreement in the twelve (12) month period immediately preceding the date of the incident. All limitations of liability of any kind (including in this Section and elsewhere in this Agreement) apply with respect to both the Company and the Company Parties.

In no event will any Company Parties have any liability for any indirect, special, incidental, reliance, consequential or punitive damages, however caused, or for any lost profits, loss of use, data or opportunities, failure of security mechanisms, interruption of business, costs of delay, cost of data reconstruction, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, arising out of, or in any way connected with the Platform Service or Third Party Offerings, including the use or inability to use the Platform Service, any interruption, inaccuracy, error or omission.

The foregoing exclusions or limitations will not apply to the extent prohibited by applicable law.

 

12. DISPUTE RESOLUTION

12.1 Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of Hong Kong.

12.2 Mandatory Informal Resolution. In the unlikely event of any controversy or claim arising out of or relating to this Agreement, you agree to notify the Company with a written description of the dispute. You will give the Company an opportunity to resolve your dispute to your reasonable satisfaction by giving us sixty (60) days from the date of receipt of your dispute description, and you agree to make a good faith effort to negotiate and resolve the dispute directly with us during that time. If the Parties do not reach settlement within the period of sixty (60) days, either Party may pursue dispute resolution in accordance with arbitration as set out below.

12.3 Arbitration. Any dispute, controversy, difference or claim arising out of or related to this Agreement or any aspect of the relationship between you and the Company, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it, that are not resolved pursuant to section 12.2 above, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration section shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The arbitration proceedings shall be conducted in English.

 

13. GENERAL PROVISIONS

13.1 Modification to the Agreement. We may, in our sole discretion, revise the terms of this Agreement at any time. Any changes we make will become effective when we post the most up-to-date version of the Agreement onto our Website. If we, in our sole discretion, deem such changes to the terms of this Agreement to be material, we will notify you within the Platform Service or by emailing you. Other changes will be posted on our website. By continuing to access or use the Platform Service after revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new changes, you should stop using the Platform Service and terminate your Agreement with us.

13.2 Notices. Any notices provided by the Company under this Agreement may be delivered to you within the Platform Service or to the email address(es) under your account. You agree to receive notice from Company through the foregoing means, and such notices will be deemed given and effective upon the first business day after we send it. Except as otherwise specified in this Agreement, any of your notices to the Company must be delivered by registered post or courier with proof of delivery to Mochy Kid Limited, Unit 908-915, L9, Core F, Cyberport 3, No.100 Cyberport Road, Hong Kong. Your notices to us will be deemed given upon receipt.

13.3 Force Majeure. Neither Party will be responsible or liable for any failure or delay in performance of its obligations under this Agreement (except for a failure to pay fees) arising out of or caused by, directly or indirectly, forces beyond that Party’s reasonable control, including strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, acts of government, refusal of a license by a government agency, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Company shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.

13.4 Assignment. You may not assign, delegate or transfer this Agreement (either in whole or in part) without our prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction.

13.5 Entire Agreement and Conflicts. This Agreement, together with any Listing Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede and extinguish all prior and contemporaneous, whether written or oral, discussions, correspondence, negotiations, drafts, proposals, agreements, promises, assurances, warranties, representations and understandings between the Company and you or any Affiliate with respect to the subject matter hereof. In the event of any conflict or inconsistency between this Agreement and a Listing Form, the Listing Form will prevail.

13.6 Waiver. No waiver by the Company of any right or provision of this Agreement will be effective unless in writing and signed by the Company. The failure or delay of either Party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of future enforcement of such right or provision.

13.7 Severability. In the event any provision of this Agreement is found under the law to be void and/or unenforceable, that provision will be interpreted and enforced to the maximum extent permissible under applicable law so as best to give effect to the Parties' intentions as reflected in the original provision, and the other provisions of this Agreement will remain in full force and effect.

13.8. Interpretation. As used herein, the word “including” (and its variants) means “including without limitation” (and its variants). All headings are for convenience only, and shall not be used in interpreting this Agreement.

13.9 Electronic Signatures and Communications. This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if signed by both Parties. Delivery of an executed counterpart of a signature page to this Agreement in electronic format (e.g., ".pdf") shall be effective as delivery of a manually executed counterpart of this Agreement. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

13.9 Relationship of the Parties. The Parties are independent contractors. This Agreement does not and will not create a partnership, franchise, joint venture, fiduciary or employment relationship between you and us.

13.10 Language. The English version of this Agreement and any notice or other document relating to this Agreement shall prevail in the event of a conflict with other language versions.