Last updated Aug 8, 2016
These terms govern your use of our website or services such as the Toolwiz Software (collectively, “Services”) that we include as part of the Services, including any applications, SDKs and any related documentation (collectively “Software”). By using the Services or Software, you agree to these terms. If you have entered into another agreement with us concerning specific Services or Software, then the terms of that agreement controls where it conflicts with these terms. As discussed more in Section 3 below, you retain all rights and ownership you have in your content that you make available through the Services.
1. How this Agreement Works.
1.1 Your relationship is with Btows Network Technology Co.Ltd. You may have additional rights under the law. We do not seek to limit those rights where it is prohibited by law.
1.2 Eligibility. You may only use the Services if you are (a) over 13 years old and (b) allowed by law to enter into a binding contract.
1.4 Availability Pages describing the Services are accessible worldwide but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. We may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal where you use them. Services are not available in all languages.
1.5 Additional Terms. Some Services or Software are also subject to the additional terms below (the “Additional Terms”). Content that we provide to you (such as Software, SDK, samples, etc.) may be subject to Additional Terms. New Additional Terms may be added from time to time.
1.6 Order of Precedence. If there is any conflict between the terms in this Agreement and the Additional Terms, then the Additional Terms govern in relation to that Service or Software.
1.7 Modification. We may modify, update, or discontinue the Services, Software (including any of their portions or features) at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your content. If we discontinue a Service in its entirety, then we will provide you with a pro rata refund for any unused fees for that Service that you may have prepaid.
2. Use of Service.
2.1 SDK. Subject to your compliance with these terms and the law, you may access and use the Services.
2.2 Toolwiz Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Services and Software. We reserve all rights not granted under these terms.
2.3 User-Generated Content. We may host user-generated content from our users. If you access our Services, you may come across content that you find offensive or upsetting. Your sole remedy is to simply stop viewing the content. If available, you may also report the content to us through email James@toolwiz.com.
2.4 Content Files. “Content Files” means Toolwiz-provided sample files such as stock images or sounds. Unless the documentation or specific license associated with the Content Files state otherwise, you may use, display, modify, reproduce, and distribute any of the Content Files. However, you may not distribute the Content Files on a stand-alone basis (i.e., in circumstances in which the Content Files constitute the primary value of the product being distributed), and you must not claim any trademark rights in the Content Files or derivative works of the Content Files.
2.5 Other Service Types.
(a) NFR Version. We may designate the Software or Services as “trial”, “evaluation”, “not for resale”, or other similar designation (“NFR Version”). You may install and use the NFR Version only during the period and only for the purposes that we have stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for anything other than non-commercial purposes.
(b) Pre-release Version. We may designate the Software or Services as a pre-release or beta version (“Pre-release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this section.
3. Your Content.
3.1 Ownership. You retain all rights and ownership of your content. We do not claim any ownership rights to your content.
3.2 Licenses to Your Content in Order to Operate the Services We require certain licenses from you to your content to operate and enable the Services. When you upload content to the Services, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), publicly perform, and translate the content as needed in response to user driven actions (such as when you choose to store privately or share your content with others). This license is only for the purpose of operating or improving the Services.
3.3 Our Access. We will not access, view, or listen to any of your content, except as reasonably necessary to perform the Services. Actions reasonably necessary to perform the Services may include (but are not limited to) (a) responding to support requests; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (c) enforcing these terms.
3.4 Sharing Your Content.
(a) Sharing. Some Services may provide features that allow you to Share your content with other users or to make it public. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Services. Other users may use, copy, modify, or re-share your content in many ways. Please consider carefully what you choose to Share or make public as you are entirely responsible for the content that you Share.
(b) Level of Access. We do not monitor or control what others do with your content. It’s your responsibility to let other users know how your content may be shared.
(c) Comments The Services may allow you to comment on content. Comments are not anonymous, and may be viewed by other users. Your comments may be deleted by you, other users, or us.
3.5 Termination of License. You may revoke this license to your content and terminate our rights at any time by removing your content from the Service. However, some copies of your content may be retained as part of our routine backups.
3.6 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
3.7 Selling Your Content. We may allow you to license your content to other users through our Services. If available, you may choose to license your content through us under a separate agreement or directly to other users under an agreement between you and the buyer.
4. Account Information.
You are responsible for all activity that occurs via your account. Please notify Customer Support immediately if you become aware of any unauthorized use of your account. You may not (a) Share your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services.
5. User Conduct.
5.1 Responsible Use. The Toolwiz communities often consist of users who expect a certain degree of courtesy and professionalism. You must use the Services responsibly.
5.2 Misuse. You must not misuse the Services, Software, or content that we provide to you as part of the Services. For example, you must not:
(a) copy, modify, host, stream, sublicense, or resell the Services, Software, or content;
(b) enable or allow others to use the Service, Software, or content using your account information;
(c) use the content or Software included in the Services to construct any kind of database;
(d) access or attempt to access the Services by any means other than the interface we provided or authorized;
(e) circumvent any access or use restrictions put into place to prevent certain uses of the Services;
(f) share content or engage in behavior that violates anyone’s Intellectual Property Right (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);
(g) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(i) attempt to disable, impair, or destroy the Services, software, or hardware;
(j) disrupt, interfere with, or inhibit any other user from using the Services (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way),
(k) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
(l) place advertisement of any products or services in the Services;
(m) use any data mining or similar data gathering and extraction methods in connection with the Services; or
(n) violate applicable law.
6. Fees and Payment.
6.1 Taxes and Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
6.2 Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
7. Your Warranty and Indemnification Obligations.
7.1 Warranty. By uploading your content to the Services, you agree that you have: (a) all necessary licenses and permissions, to use and Share your content and (b) the rights necessary to grant the licenses in these terms.
7.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your content, your use of the Services or Software, or your violation of these terms.
8. Disclaimers of Warranties.
8.1 Unless stated in the Additional Terms, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or that (d) any errors or defects in the Services or Software will be corrected.
8.2 We specifically disclaim any liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Software.
9. Limitation of Liability.
Unless stated in the Additional Terms, we are not liable to you or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
10.1 Termination by You. You may stop using the Services at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.
10.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. Unless stated in Additional Terms, we may at any time terminate these terms (and your access to Services or Software) with you if:
(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely payment of fees for the Software or the Services, if any;
(c) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful);
(d) we elect to discontinue the Services or Software, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or
(e) there has been an extended period of inactivity in your free account
10.3 Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Software may cease to operate without prior notice.
11.1 Screening. We do not review all content uploaded to the Services, but we may use available technologies or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
11.2 Disclosure. We may access or disclose information about you, or your use of the Services, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
12. Export Control Laws.
The Software, Services, content, and your use of the Software, Services, and content, are subject to Chinese and international laws, restrictions, and regulations that may govern the import, export, and use of the Software, Services, and content. You agree to comply with all the laws, restrictions, and regulations.
13. Dispute Resolution.
13.1 Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or Toolwiz must resolve any claims relating to these terms, the Services, or the Software through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.
13.2 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
13.3 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14. Compliance with Licenses.
If you are a business, company, or organization, then we may, no more than once every 12 months, upon seven 7 days’ prior notice to you, appoint our personnel or an independent third party auditor who is obliged to maintain confidentiality to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of any and all Software or Services is in conformity with its valid licenses from us. Additionally, you will provide us with all records and information requested by us in order to verify that its installation and use of any and all Software and Services is in conformity with your valid licenses from us within 30 days of our request. If the verification discloses a shortfall in licenses for the Software or Services, you will immediately acquire any necessary licenses, subscriptions, and any applicable back maintenance and support. If the underpaid fees exceed 5% of the value of the payable license fees, then you will also pay for our reasonable cost of conducting the verification.
We may modify these terms or any additional terms that apply to a Service or Software to, for example, reflect changes to the law or changes to our Services or Software. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified additional terms in the applicable Service or Software. By continuing to use or access the Services or Software after the revisions come into effect, you agree to be bound by the revised terms.
16.1 English Version. The English version of these terms will be the version used when interpreting or construing these terms.
16.2 Entire Agreement. These terms constitute the entire agreement between you and us regarding your use of the Services and Software and supersede any prior agreements between you and us relating to the Services.
16.3 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be void. We may transfer our rights under these terms to a third party.
16.4 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
16.5 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.