1. Your Agreement with Gesprek
1.1 Your use of the Gesprek service is governed by this agreement (the 'Terms'). 'Gesprek' means Oursky Limited, located at 10B, Great Wall Industry Building, Cheung Shun St, Cheung Sha Wan, Hong Kong, and its subsidiaries or affiliates involved in providing the Gesprek Service. The 'Gesprek Services' means the services Gesprek makes available through this website, including this website, the Gesprek API, the Gesprek Plugins, and any other software or services offered by Gesprek in connection to any of those.
1.2 In order to use the Gesprek Services, you must first agree to the Terms. You can agree to the Terms by actually using the Gesprek Services. You understand and agree that Gesprek will treat your use of the Gesprek Services as acceptance of the Terms from that point onwards.
1.3 You may not use the Gesprek Services if you are a person barred from receiving the Gesprek Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Gesprek Services. You affirm that you are over the age of 13, as the Gesprek Services are not intended for children under 13.
1.4 You agree your purchases of Gesprek Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Gesprek or any of its affiliates regarding future functionality or features.
2. Your Account and Use of the Gesprek Services
2.1 You must provide accurate and complete registration information any time you register to use the Gesprek Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Gesprek immediately.
2.2 Your use of the Gesprek Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Gesprek Services by any means other than through the interface that is provided by Gesprek in connection with the Gesprek Services, unless you have been specifically allowed to do so in a separate agreement with Gesprek, or (b) engage in any activity that interferes with or disrupts the Gesprek Services (or the servers and networks which are connected to the Service).
2.4 Your account has “hard” and “soft” usage limits, as further explained here (or such URL as Gesprek may provide). The Gesprek Services does not permit you to exceed the hard usage limits. Gesprek reserves the right to enforce soft usage limits in its sole discretion, which may result in Gesprek serving a “quota exceeded“ page or "services temporarily not available" page to you or users to whom you serve web pages via the Gesprek Services (“End Users”). Repeated exceeding of the hard or soft usage limits may lead to termination of your account.
2.5 You may use the Gesprek Services only to develop and run applications on the Gesprek infrastructure. You may not access the Gesprek Services for the purpose of bringing an intellectual property infringement claim against Gesprek or for the purpose of creating a product or service competitive with the Gesprek Services.
3. Service Policies and Privacy
3.1 You agree to comply with the Gesprek Acceptable Use Policy available at acceptable use policy (the 'Acceptable Use Policy') which is incorporated herein by this reference and which may be updated from time to time.
3.3 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Gesprek.
4. Fees for Use of the Gesprek Services
4.1 Subject to the Terms, the Gesprek Services is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found at Pricing
(or such URL as Gesprek may provide).
4.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Gesprek fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorney's fees Gesprek incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Gesprek's measurements of your use of the Gesprek Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Gesprek and only in the form of credit for the Gesprek Services. Nothing in these Terms obligates Gesprek to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Gesprek may be shared by Gesprek with companies who work on Gesprek's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Gesprek and servicing your account. Gesprek may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Gesprek shall not be liable for any use or disclosure of such information by such third parties. Gesprek reserves the right to discontinue the provision of the Gesprek Services to you for any late payments.
4.3 Gesprek may change its fees and payment policies for the Gesprek Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Gesprek may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
4.4 You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Gesprek Services in a manner intended to avoid incurring fees.
5. Content on the Gesprek Services and Take-Down Obligations
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Gesprek Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the 'Content.' The term Content shall specifically exclude the web application that you create using the Gesprek Services and any source code written by you to be used with the Gesprek Services (collectively, 'Applications').
5.2 Gesprek reserves the right (but shall have no obligation) to remove any or all Content from the Gesprek Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from Gesprek. In the event that you elect not to comply with a request from Gesprek to take down certain Content, Gesprek reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Gesprek reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that Gesprek has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Gesprek Services and for the consequences of your actions (including any loss or damage which Gesprek may suffer) by doing so.
5.5 You agree that Gesprek has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6. Proprietary Rights
6.1 You acknowledge and agree that Gesprek (or Gesprek's licensors) owns all legal right, title and interest in and to the Gesprek Services, including any intellectual property rights which subsist in the Gesprek Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2 Except as provided in Section 8, Gesprek acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Gesprek Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Gesprek, you agree that you are responsible for protecting and enforcing those rights and that Gesprek has no obligation to do so on your behalf.
7. License from Gesprek and Restrictions
7.1 Gesprek gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Gesprek as part of the Gesprek Services as provided to you by Gesprek. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Gesprek Services as provided by Gesprek, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Gesprek Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Gesprek, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Gesprek Services or any applications running on the Gesprek Services.
7.3 Open source software licenses for components of the Gesprek Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Gesprek for the use of the components of the Gesprek Services released under an open source license.
7.4 Gesprek hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Gesprek trademarks and/or logos as provided here (“Marks”) for the sole purpose of promoting or advertising that you use the Gesprek Services. You agree that all goodwill generated through your use of the Gesprek Marks shall inure to the benefit of Gesprek.
8. License from You
8.1 Gesprek claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Gesprek Services you give Gesprek a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Gesprek to provide you with the Gesprek Services. Furthermore, by creating an Application through use of the Gesprek Services, you give Gesprek a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Gesprek to provide you with the Gesprek Services.
8.2 By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Gesprek Services functionality or features for the sole purpose of collaborating on development of the Application(s).
8.3 You may choose to or we may invite you to submit comments or ideas about the Gesprek Services, including without limitation about how to improve the Gesprek Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Gesprek under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
8.4 You agree that Gesprek, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Gesprek Services.
9.1 Gesprek may, and you grant us permission to, make recommendations via the Gesprek Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Gesprek Services. We will never make recommendations directly to your End Users.
10. Modification and Termination of the Gesprek Services
10.1 Gesprek is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Gesprek Services which Gesprek provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Gesprek Services will be effective with respect to all versions of the Gesprek Services; examples of changes to the form and nature of the Gesprek Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
10.2 You may terminate these Terms at any time by canceling your account on the Gesprek Services. You will not receive any refunds if you cancel your account.
10.3 You agree that Gesprek, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Gesprek Services may be without prior notice, and you agree that Gesprek will not be liable to you or any third party for such termination.
10.4 You are solely responsible for exporting your Content and Application(s) from the Gesprek Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
10.5 Upon any termination of the Gesprek Services or your account these Terms will also terminate, but Sections 6.1, 10, 11, 12, 13, and 17 shall continue to be effective after these Terms are terminated.
11. Exclusion of warranties
11.1 Nothing in these terms, including sections 11 and 12, shall exclude or limit gesprek's warranty or liability for losses which may not be lawfully excluded or limited by applicable law.
11.2 You expressly understand and agree that your use of the gesprek service is at your sole risk and that the gesprek services are provided 'as is' and 'as available.'
11.3 Gesprek, its subsidiaries and affiliates, and its licensors make no express warranties and disclaim all implied warranties regarding the gesprek services, including implied warranties of merchantability, fitness for a particular purpose and non-infringement. without limiting the generality of the foregoing, gesprek, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that: (a) your use of the gesprek services will meet your requirements, (b) your use of the gesprek services will be uninterrupted, timely, secure or free from error, and (c) usage data provided through the gesprek services will be accurate.
12. Limitation of liability
12.1 Subject to section 11.1 above, you expressly understand and agree that gesprek, its subsidiaries and affiliates, and its licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. this shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
12.2 The limitations on gesprek's liability to you in paragraph 12.1 above shall apply whether or not gesprek has been advised of or should have been aware of the possibility of any such losses arising.
13.1 You agree to hold harmless and indemnify Gesprek, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively 'Gesprek and Partners') from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Gesprek Services, (c) your violation of applicable laws, rules or regulations in connection with the Gesprek Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorney's fees, of every kind and nature. In such a case, Gesprek will provide you with written notice of such claim, suit or action.
14. Copyright Policy
14.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ('DMCA notices'). It is Gesprek's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
15. Other Content
15.1 The Gesprek Services may include hyperlinks to other web sites or content or resources or email content. Gesprek may have no control over any web sites or resources which are provided by companies or persons other than Gesprek.
15.2 You acknowledge and agree that Gesprek is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
15.3 You acknowledge and agree that Gesprek is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
16. Changes to the Terms
16.1 Gesprek may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
16.2 You understand and agree that if you use the Gesprek Services after the date on which the Terms have changed, Gesprek will treat your use as acceptance of the updated Terms.
17. General Legal Terms
17.1 The Terms constitute the whole legal agreement between you and Gesprek and govern your use of the Gesprek Services (but excluding any services which Gesprek may provide to you under a separate written agreement), and completely replace any prior agreements between you and Gesprek in relation to the Gesprek Services.
17.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
17.3 If Gesprek provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
17.4 You agree that Gesprek may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Gesprek Services. By providing Gesprek your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
17.5 You agree that if Gesprek does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Gesprek has the benefit of under any applicable law), this will not be taken to be a formal waiver of Gesprek's rights and that those rights or remedies will still be available to Gesprek.
17.6 Gesprek shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
17.7 The Terms, and your relationship with Gesprek under the Terms, shall be governed by the laws of the Hong Kong Special Administrative Region without regard to its conflict of laws provisions.
17.8 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Gesprek Services upon written notice to the assigning party.