1. DEFINITIONS
For purposes of this Agreement, the following terms will have the following meanings:
1.1 “DU Recorder” means the proprietary DU Apps Studio software products (in object code format only) delivered to you hereunder (including but not limited to the Du Show), together with any updates or upgrades thereto, when and if made available to you by DU Apps Studio. The DU Recorder does not include Third-Party Software.
1.2 “Services” means the various services to which DU Apps Studio provides you with access, including without limitation the DU Recorder, DU Apps Studio websites, search services, personalized content and branded offerings through its network of services that may be accessed through any various medium or device now known or hereafter developed.
1.3 “Third-Party Software” means the software of certain third parties that DU Apps Studio may deliver with the DU Recorder, including but not limited to widgets of certain third parties and independent developers.
1.4 “Use” means to cause a mobile device to execute any machine-executable portion of the DU Recorder in accordance with the terms and conditions of this Agreement.
1.5 “User” means the legal entity or person who orders or downloads the DU Recorder and/or activates the Services.
2. PERSONAL NON-COMMERCIAL USE ONLY
2.1 The DU Recorder is licensed, not sold, to you by DU Apps Studio. Subject to the terms and conditions of this Agreement, DU Apps Studio hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to use one copy of the DU Recorder for personal non-commercial purposes only and provides this non-commercial-use DU Recorder. DU Apps Studio also provides installation, un-installation, and related data services for Users, meaning that subject to the terms and conditions of this Agreement you can independently choose to install, un-install, and use DU Recorder as well as any and all related data services provided by DU Apps Studio. DU Apps Studio may occasionally provide updates and upgrades to Users for the DU Recorder as such updates or upgrades become available. You may copy and distribute DU Recorder solely in a non-commercial manner. You agree to use your best efforts to prevent and protect the contents of the DU Recorder and Services from unauthorized disclosure or use. DU Apps Studio and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you. DU Apps Studio’s licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses granted by DU Apps Studio under this Agreement. Except as specified above, you shall have no rights to the Software.
2.2 Any commercial use, sale, copying, distribution or any other conduct related to commercial activities, including but not limited to the pre-installation or binding of the DU Recorder software, is prohibited unless such individual has obtained prior written approval from DU Apps Studio.
2.3 The DU Recorder product is a part of the services provided by DU Apps Studio. Prior to using the DU Recorder software, you must carefully read and abide by the terms and conditions of this Agreement and all related DU Apps Studio policies, including but not limited to the DU Apps Studio Privacy Policy.
2.4 Limitations on Use. You shall ensure that you do not and will not (and may not cause or permit any third party to) commit any act or fail to commit any act that results in damaging or interfering with any of DU Apps Studio's services in any way, and shall not conduct, authorize aid or abet any third-party to conduct any of the following activities: (i) use the DU Recorder or Services except as expressly permitted under the terms and conditions of this agreement; (ii) separate the component programs of the DU Recorder for use on different devices; (iii) adapt, alter, publicly display, publicly perform, translate, embed into any other product, or otherwise create derivative works of, or otherwise modify the DU Recorder or Services; (iv) sublicense, lease, rent, loan, or distribute the DU Recorder or Services to any third party; (v) transfer the DU Recorder or Services to any third party; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the DU Recorder, (a) except as permitted by applicable law, or (b) solely to the extent required to debug changes to any third party LGPL-libraries linked to by the DU Recorder; (vi) remove, alter or obscure any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Du Show or Services, or the applicable documentation therefore; (vii) allow third parties to access or use the DU Recorder or Services, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements; (viii) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the DU Recorder or Services; or (ix) modify, adapt or translate the DU Recorder or create any derivative work of the DU Recorder. You may not release the results of any performance or functional evaluation of any of the DU Recorder or Services to any third party without prior written approval of DU Apps Studio for each such release. Whenever or wherever you commit any of these violations, you shall be held legally liable for any and all damages, fines, costs and expenses to DU Apps Studio for such action(s) under the furthest extent of the law, and DU Apps Studio shall have the right to seek legal, equitable and administrative redress against you by exercise of its legal rights and to implement legal remedies against you to the fullest extent of the law.
2.5 You acknowledge that Third-Party Software is subject to separate terms and conditions included with, or contained in the setup installation segments of such Third-Party Software. The license restrictions contained in this Agreement do not apply to Third-Party Software to the extent they are inconsistent with such Third-Party Software terms. DU Apps Studio shall not be responsible for any Third Party Software.
2.6 DU Apps Studio reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree and acknowledge that DU Apps Studio shall not be liable to you, or to any third-party, for any modification, suspension or discontinuance of the Services.
3. INTELLECTUAL PROPERTY PROTECTION
3.1 The DU Recorder is protected by international Copyright Conventions, the Copyright Law of Hong Kong and all other applicable intellectual property laws and regulations. All Intellectual Property Rights (defined below) associated with the Du Show are owned by and are the exclusive property of DU Apps Studio, at all times and regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. You acknowledge that the Services and the DU Recorder, including without limitation the DU Recorder’s sequence, structure, organization, source code and applicable documentation contains valuable trade secrets and other intellectual property of DU Apps Studio and its suppliers and is considered DU Apps Studio’s confidential information, and acknowledge that the DU Recorder and the Services and all intellectual property rights therein are the exclusive property of DU Apps Studio, including but not limited to all related Intellectual Property Rights. "Intellectual Property Rights" includes any and all rights protected by all applicable patent laws, copyright laws, trademark laws, anti-unfair competition laws and other laws and any and all other property rights, as well as any and all applications, updates, extensions and recovery of them. All content accessed through the DU Recorder or Services is the property of the applicable content owner and may be protected by applicable copyright law. No title or ownership to the DU Recorder or the Services or the Intellectual Property Rights embodied therein passes to you as a result of this Agreement or any act pursuant to this Agreement. All trademarks used in connection with the DU Recorder, Services, or any associated documentation are owned by DU Apps Studio, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to DU Apps Studio with respect to the Du Show or Services shall be DU Apps Studio’s property and deemed Confidential Information (defined below) of DU Apps Studio.
3.2 You shall not maliciously or intentionally modify, copy, or transmit materials related to the DU Recorder. If damages are caused to others or to DU Apps Studio's image by your copying, modifying or transmitting of the DU Recorder or any related DU Apps Studio service, then you shall be liable for all corresponding damages, costs, fines and expenses DU Apps Studio incurs. You shall not delete, hide or change DU Apps Studio's copyright statement, registered trademarks, or any other statements. DU Apps Studio owns all copies of the DU Recorder, however made. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of DU Apps Studio, except to the extent necessary for you to use the DU Recorder or Services as expressly permitted under this Agreement.
4. TERM AND TERMINATION
4.1 The term of this Agreement will commence upon your download of the DU Recorder and/or your commencement of the Services and, unless earlier terminated as provided in this Section 4, will continue in perpetuity. This Agreement will immediately terminate upon your breach of this Agreement, unless such breach is curable and is actually and immediately cured by you after DU Apps Studio provides notice of breach to you. Upon the termination of this Agreement, you shall discontinue all use of the DU Recorder and/or Services, promptly destroy or have destroyed the DU Recorder and any copies thereof, and, upon request by DU Apps Studio, certify in writing to DU Apps Studio that such destruction has taken place. These remedies are cumulative and in addition to any other remedies available to DU Apps Studio. Sections 1, 2, 3, 5, 6, 7, and 8 shall survive such termination.
5. DISCLAIMER OF WARRANTIES AND SPECIAL ANNOUNCEMENT
5.1 To the best of DU Apps Studio’s knowledge, DU Apps Studio represents that Du Show does not contain any viruses or other malicious codes. Despite thorough testing of the DU Recorder, complete compatibility with all software, hardware and operating systems cannot be entirely guaranteed. In the event of non-compatibility, you may report such issue to DU Apps Studio by email requesting technical support. If the incompatibility issue cannot be resolved, you may uninstall the DU Recorder directly from the "Apps" within Settings. The DU Recorder is believed to be compatible only with mobile devices with Android system version 2.1 and up.
5.2 Because the DU Recorder may be downloaded and transmitted through the Internet, DU Apps Studio is unable to guarantee whether or not the DU Recorder version downloaded from third party websites or other media not issued directly by DU Apps Studio may or may not be infected with computer viruses or malicious code installed by Trojan programs or other hacker software. DU Apps Studio assumes no responsibility for any direct or indirect damages subsequent to the downloading of DU Recorder in such manner or from such a source.
5.3 NO WARRANTY. You understand and agree that you have the right, but not the obligation, to download and use the DU Recorder. YOU AGREE THAT THE DU Recorder AND SERVICES ARE PROVIDED “AS IS” AND THAT DU APPS STUDIO AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE DU Recorder OR SERVICES, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. DU APPS STUDIO AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE (EVEN IF DU APPS STUDIO KNOWS OR SHOULD HAVE KNOWN OF SUCH PURPOSE OR USE), ACCURACY OR COMPLETENESS, SATISFACTORY QUALITY OR QUIET ENJOYMENT, OR OTHER WARRANTIES OR CONDITIONS ARISING BY STATUTE, LAW, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE; AND RELATED TO THE DU Recorder OR SERVICES, THEIR USE OR ANY INABILITY TO USE THEM, THE RESULTS OF THEIR USE AND THIS AGREEMENT. ALL SUCH IMPLIED WARRANTIES ARE HEREBY DISCLAIMED, AND SUCH DISCLAIMER IS EFFECTIVE TO THE MAXIMUM EXTENT ALLOWED BY LAW. DU APPS STUDIO DOES NOT GUARANTEE THAT: (i) THE DU Recorder WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (ii) THAT ACCESS TO THE DU Recorder WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR THAT THEE DU Recorder OR SERVICES DO NOT CONTAIN ANY VIRUSES. THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THIS BARGAIN BETWEEN YOU AND DU APPS STUDIO. DU APPS STUDIO WOULD NOT PROVIDE THE DU Recorder OR SERVICES ABSENT SUCH DISCLAIMER. DU APPS STUDIO AND ITS LICENSORS ALSO DO NOT WARRANT THAT THE DU Recorder OR SERVICES OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
5.4 Within the limit of common practices and guidelines shared across the information technology industry, your information and behavior may be recorded and used by DU Apps Studio. By downloading, installing and/or using the DU Recorder, you agree and understand that DU Apps Studio may collect and use certain of your non-personal information in order to provide you with more accurate and well-targeted services. Unless required by laws or the requirements of a government department, DU Apps Studio will not provide any information concerning you to any third party.
5.5 Any communications sent to DU Apps Studio are the property of DU Apps Studio or its affiliates. Unless stated otherwise herein, submissions are not considered confidential, and DU Apps Studio is not liable for any use or disclosure of a submission. Except as noted herein, DU Apps Studio is entitled to unrestricted use of any submissions for any purpose whatsoever without compensation to the provider of the submission.
5.6 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, DU APPS STUDIO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF DU APPS STUDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE DU Recorder OR SERVICES. IN ANY CASE, DU APPS STUDIO’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE DU Recorder OR SERVICES FOUND TO BE DEFECTIVE THE AMOUNT PAID TO DU APPS STUDIO IN RESPECT OF THE DU Recorder GIVING RISE TO THE CLAIM, OR IF NO FEES WERE PAID THEN ONE HUNDRED US DOLLARS, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF DU APPS STUDIO ONLY TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. IN NO EVENT WILL ANY SUPPLIER TO DU APPS STUDIO HAVE ANY LIABILITY TO YOU UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DU APPS STUDIO. DU APPS STUDIO WOULD NOT PROVIDE THE DU Recorder TO YOU ABSENT SUCH LIMITATION.
5.7. INJUNCTIVE RELIEF. You acknowledge and agree that your breach or threatened breach of this Agreement shall cause DU Apps Studio irreparable damage for which recovery of money damages would be inadequate and that DU Apps Studio therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
6. CONFIDENTIALITY.
"Confidential Information" shall mean the DU Recorder and Services and all other information disclosed to you that DU Apps Studio characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of DU Apps Studio. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify DU Apps Studio in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with DU Apps Studio in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify DU Apps Studio prior to such disclosure to allow DU Apps Studio an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with DU Apps Studio in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
7. NOTICE
7.1 If you have any suggestions for adjustments that you believe DU App Studio should make to the DU Recorder, or to request technical support related to the DU Recorder, you may contact DU Apps Studio via email address at feedback@duapps.com. Such technical support obligations shall not go beyond the reasonable ability of DU Apps Studio’s technical support personnel.
7.2 DU Apps Studio reserves the right to modify this Agreement at any time without notifying you. If you have any objection to the modified agreement, you may choose to uninstall DU Recorder and DU Apps Studio will not be responsible for any loss caused to you. Your continued use of the DU Recorder after any modification to this Agreement will be deemed as your agreement to abide by the terms and conditions of the newly modified agreement.
7.3 You acknowledge that the DU Recorder is subject to the operation and telecommunications infrastructures of the Internet and the operation of your Internet connection services, all of which are beyond DU Apps Studio’s control.
7.4 You acknowledge and agree that the DU Recorder and Services contain valuable trade secrets, confidential information and proprietary information of DU Apps Studio. You further acknowledge that any actual or threatened breach or violation of this Agreement will constitute immediate, irreparable harm to DU Apps Studio for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for any such breach or violation.
7.5 Arbitration. This Agreement and any claim or dispute of whatever nature arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region ("Hong Kong"), without giving effect to any choice of law principles that would require the application of another country or region's laws. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts located in Hong Kong. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM DU APPS STUDIO. For any dispute with DU Apps Studio, you agree to first contact DU Apps Studio according to the notice procedures above and attempt to resolve the dispute with DU Apps Studio informally. In the unlikely event that DU Apps Studio has not been able to resolve a dispute it has with you after sixty (60) days, the Parties each hereby agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by Hong Kong International Arbitration Centre ("HKIAC"). The arbitration will be conducted in Hong Kong, unless the Parties mutually agree in writing otherwise. Each Party will be responsible for paying any HKIAC filing, administrative and arbitrator fees in accordance with HKIAC rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing DU Apps Studio from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of DU Apps Studio’s data security, intellectual property rights or other proprietary rights.
7.6 This version of the DU Recorder is owned by DU Apps Studio and all rights of final interpretation and modification of this Agreement are reserved by DU Apps Studio.
8. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of DU Apps Studio. (b) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or DU Apps Studio may at its option terminate this Agreement. (c) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (d) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (e) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. DU Apps Studio may assign this Agreement to any entity at its sole discretion. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.