IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 9.
Thinklean Limited is the legal entity that oversees the development and operation of PokerBROS®.
For purposes of these Terms of Service, Thinklean shall mean Thinklean, Ltd., its partners, parent companies, subsidiaries, licensees, licensors and affiliates (collectively also referred to herein as “Company”, “we”, “our” or “us”).
THESE TERMS OF SERVICE (“TERMS” OR “AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND THINKLEAN LIMITED (AS DEFINED ABOVE). BY DOWNLOADING AND USING/INSTALLING ANY OF OUR SOFTWARE AND/OR APPLICATIONS (“SOFTWARE” OR “APPLICATIONS”) IN CONNECTION WITH SERVICES PROVIDED BY US (THE SERVICES, THE SOFTWARE AND THE APPLICATIONS, COLLECTIVELY, THE “SERVICE”), YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE.
In addition to the terms and conditions of this Agreement, please review our Privacy Policy [Privacy Policy]. By using the Service, you are accepting the terms and conditions of our Privacy Policy. If you do not agree to your information being used in any of the ways described in the Privacy Policy, do not access or otherwise use the Service.
**IMPORTANT NOTE: ** Thinklean reserves the right, in its sole discretion, to modify or change the terms of this Agreement at any time by posting the changes on or within the Software or other parts of the Service. Your continued use of the Service following the posting of such changes constitutes your acceptance of the revised Agreement. Thinklean, Ltd. may use reasonable commercial efforts to provide notice of material changes to you. If the modified Agreement is not acceptable to you, your sole recourse is to discontinue your use of the Service. You agree that Thinklean may change any part of the Service, including its content, at any time or discontinue the Service or any part thereof, for any reason, without notice to you and without liability.
1.1 You Must Be At Least 18 Years of Age
To use the Service, you must be a natural person, at least 18 years old and over the age of majority in the state in which you live, and who meets other eligibility criteria set forth in these Terms. If you are under 18 years of age you must immediately discontinue use and make no further use of the Service, and delete the Software or Application. You agree to monitor the account to restrict any use by minors. You accept full responsibility for any unauthorized use of our Service by minors.
1.2 You Must Reside in a Jurisdiction That Does Not Prohibit Use of the Service
The Service is intended only for users who are not prohibited by the laws of any applicable jurisdiction from using such Service. The Company does not intend to enable you to contravene applicable law. You represent, warrant, and agree to ensure that your use of the Software and the Service will comply with all applicable laws, statutes and regulations. The Company shall not be responsible for any illegal or unauthorized use of the Software and/or the Service by you.
1.3 Failure to Comply
At our sole discretion, we may require proof that you meet the conditions and eligibility criteria set out in these Terms. Failure to comply will result in the closing of your Account and the loss of all Virtual Items (each as defined below) accumulated through your use of the Service.
2.1 Grant of Access
Subject to these Terms, the Service allows you, where permitted by applicable law to:
(1) register to play free-to-play games;
(2) access other content and services provided by Thinklean, Ltd.
2.2 Registration
We require that you register in order to participate in the Service, including the free-to-play games. You must also provide a valid email account and complete the verification for that email account that we send you. You hereby consent to receiving an email verification to your email account by providing Thinklean, Ltd. with your email for the purposes of registering on our Service and participating in our features. Through this process, you will establish your user account (“Account”). In the event that the activation or confirmation process is not completed, Thinklean, Ltd. reserves the right to suspend all activities on the Account until the account details are verified.
2.3 Confidentiality of Account Information
If you choose to create an Account with us, you must treat your user name, password or any other piece of information related to your Account as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Service, including the App, or portions thereof using your user name, password or other security information. You are responsible for all activity performed and transactions entered into on or through your Account, and you agree that we may treat any activity performed or transaction entered into on or through your Account as authorized by you. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session.
2.4 No Transfer
Your account is not transferable. You may not authorize others to use your account, and you may not assign or otherwise transfer your user account to any other person or entity. Under no circumstances shall you allow or permit any other person or third-party, including, without limitation, any person under the age of 18, to use or re-use your account.
2.5 Right to Disable Account and Account Details
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
2.6 Right to Suspend, Modify, Remove or Add to the Service:
We reserve the right to suspend, modify, remove or add to the Service in its sole discretion with immediate effect and without notice. The Company shall not be liable for any loss suffered by you resulting from any changes made and you shall have no claims against the Company in such regard.
If you do not agree to any of the provisions of the User Agreement you should immediately stop using the Software and remove the Software from your computer and/or any other applicable device.
3.1 Limited License Grant
Subject to the terms and conditions contained herein, Thinklean grants the User the non-exclusive, personal, non-transferable, non-sublicensable, revocable right to install and use the Software on the User’s Device in order to access Thinklean servers.
3.2 License Grant Limitations
The Software is licensed to you by Thinklean for your private personal use. Please note that the Service is not for use by individuals under 18 years of age, or by connecting to the Software or servers from jurisdictions from which it is illegal to do so.
3.3 License Grant Prohibitions
You may not, within the limits prescribed by applicable laws, copy, distribute, publish, reverse engineer, decompile, disassemble, modify, or translate the Software or make any attempt to access the source code to create derivate works of the source code of the Software, or otherwise:
3.4 Use of Names and Images
You warrant that any names or images used by you in connection with your Account in connection with the Service (for example, your username) shall not infringe on the intellectual property, privacy, or other rights of any third party. You hereby grant Thinklean, Ltd. a worldwide, irrevocable, transferable, royalty-free, sublicensable license to use such names and images for any purpose connected with the Service, subject to the terms of this Agreement and the terms of the Privacy Policy.
3.5 Notice and Procedure for Making Claims under the Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If an individual believes that their copyrighted work has been copied without their authorization and is available within the Service in a way that may constitute copyright infringement, he/she may provide notice of their claim to our Company. For notice to be effective, it must include the following information:
Trademarks
We own or are in the process of registering trademarks for our many goods and services, including, without limitation, PokerBROS and the associated graphics, logos and service marks and these may not be used without prior written consent of our Company. All other trademarks, product names, and company names and logos appearing within the Service are the property of their respective owners.
Rights of Publicity
3.6 Publicity
By participating in the Service, you agree to the use by our Company of your username, photograph(s), likeness, statements, biographical information, voice and city and state address for advertising and promotional purposes of the Service, including, without limitation, worldwide, and in perpetuity, in any and all forms of media now known or hereafter devised, without compensation, review or approval rights, notification or permission, except where prohibited by law. Our Company reserves the right to make public statements about entrants and winner(s), on the Internet, in promotional materials or otherwise. You agree that we may announce any winner’s name on the Service at any time in connection with the marketing and promotion of the Service or of our Company.
3.7 Ideas and Inventions
All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to our Company in connection with your use of the Service shall be the exclusive property of our Company. You agree that unless otherwise prohibited by law we may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you.
4.1 While using the Service, you may “buy” or “purchase” virtual items (e.g. “Diamonds” or “Chips” for use in the Service (“Virtual Items"). Any “Virtual Items” balance shown in your Account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license.
4.2 You do not own any Virtual Items that you have obtained through our Service, regardless of whether you “earned” those Virtual Items or “purchased” them. Your Account and any related Virtual Items are owned by The Company.
Thinklean, Ltd. gives you a limited license and right to use your Account and the related Virtual Items while we offer the Service.
4.3 You are not allowed to transfer Virtual Items outside of the Service (e.g., in the “real world”), for example by selling, gifting, or trading them. You are not allowed to sublicense, trade, sell, or attempt to sell Virtual Items for “real” money, or exchange Virtual Items for value of any kind outside of a game. Any such behaviours constitute a breach of this Agreement and Thinklean, Ltd. is entitled to take immediate action if the Company believes you are in violation of this provision, including account closure.
4.4 Any and all references in the Site and/or App to “cashier,” “earnings”, “fees” or the like are solely for instructional or illustrative purposes and do not involve wagering real money.
5.1 Software Modifications/Manipulation of Vulnerabilities
You may not attempt to modify, decompile, reverse-engineer or disassemble the Software in any way. You may not exploit vulnerability or glitches to your advantage in your use of the Service. Further, you may not directly or indirectly disable, circumvent, or otherwise interfere with the operation of software designed to detect or prevent cheating.
5.2 Collusion
Collusion between you and other users of the Service by sharing poker hole cards, sharing game related information while playing at the same table or by any other methods is strictly forbidden. You may not collude with another user who is using unauthorized software, hardware, or modifications to obtain an advantage over other users of the Service. Two or more players may not make any agreement to sit out simultaneously, whether at the same table or different tables. The Company reserves the right to consider any collusion or any attempt at collusion between users as a breach of this Agreement and to terminate the user account(s) and restrict his/her/their further access to the Service and other Company products.
5.3 Automatic Players (Bots)
The use of artificial intelligence including, without limitation, “robots” or “bots” is strictly forbidden in connection with the Service. All actions taken in relation to the Service by a User must be executed personally by players through the user interface accessible by use of the Software, and without the assistance of any form of artificial intelligence.
5.4 Solvers and Real-Time Assistance Software
It is prohibited to use Game Theory Optimal Solvers (such as PokerSnowie, MonkerSolver, or PIO Solver) while using our software. Poker Calculators (PowerEqulab, Flopzilla, Cardrunners EV, etc.) and real-time assistance software that suggests in-game decisions are also prohibited.
For the avoidance of doubt, what is prohibited encompasses but is not limited to accessing or compiling information on other players beyond that which you have personally observed through your own game play or receiving advice, direction or assistance on how to play, in real time, that goes beyond a basic level.
5.5 Chip-Dumping
Chip-dumping occurs when any user intentionally loses a poker hand in order to deliberately transfer his/her chips to another user. Any user who participates or attempts to participate in chip-dumping with any other user, including being the recipient of chips, while using the Service may be permanently banned from using the Service.
5.6 Fraudulent Behaviour
In the event that The Company deems that you have engaged or attempted to engage in fraudulent, unlawful, dishonest or improper activity while using the Service, including, without limitation, engaging in any of the activities set forth here under “Prohibited Uses” or any other game manipulation, Thinklean, Ltd. reserves the right to take action against you, including to block you from access to the Service, to terminate your Account along with blocking the possibility of future access to Company Services, and to report you to governmental or other authorities.
5.7 Accessing Other Player Accounts
You shall access the Software and use the Service only via your own account(s) and you may never access the Software or use the Service by means of another person’s account. Should you attempt to use the Service by means of any other person’s account, we will be entitled to immediately close any and all of your accounts.
5.8 Prohibition from Creating New Accounts
In case of account closure due to a prohibited use, as outlined in this section, you are prohibited from creating new accounts. Any future attempt to create an account after being banned from the Service will be considered a breach of this Agreement and will result in the closure of such account.
Our Company is not responsible for others' lives. In order to promote a healthy game environment we maintain a Healthy Community page with helpful information including Self-Exclusion options, see Healthy Community Page. Please use the Self-Exclusion option if you feel the need to take a break or stop playing our free to play game. We reserve the right to terminate your account permanently if private or public life and safety of any party is endangered.
7.1 DISCLAIMER OF WARRANTIES
THE SERVICE (INCLUDING THE APPLICATION) AND ALL CONTENT THEREON OR THEREIN ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, THINKLEAN LIMITED, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE “COMPANY PARTIES”) EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY PARTIES MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE COMPANY PARTIES MAKE NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. YOU UNDERSTAND THAT THINKLEAN LIMITED DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SERVICE, NOR DOES THINKLEAN LIMITED MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. THE COMPANY PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE DISCLAIMERS OF THIS SECTION.
7.2 Right to Suspend/Discontinue/Modify the Service
Where we consider it necessary to do so, the Company reserves the right to suspend, discontinue, modify, remove or add to the Service in its absolute discretion with immediate effect and without an obligation to provide you with notice.
7.3 Updates to the Service/Maintenance
You acknowledge and agree that Thinklean may update the Service with or without notifying you. Thinklean may require that you accept updates to the Service and you may also need to update third party software from time to time in order to receive the Service. Thinklean conducts maintenance work on its system from time to time. A portion, or sometimes all, of the features of the Service may not be available during maintenance periods. All problems encountered during the use of the Service, including those with regard to Your Account, can be reported to Thinklean when the problem is encountered by contacting [email protected]
8.1 General Terms
The Service may contain message boards, forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) messages, content or materials (collectively, “User Contributions”) on or through the Service.
Any User Contribution you post to the Service will be considered non-confidential and non-proprietary. By providing any User Contribution on the Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Thinklean, Ltd., have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.
We have the right to: (i) remove or refuse to post any User Contributions for any or no reason in our sole discretion; (ii) take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including but not limited to if we believe that such User Contribution violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service, or the public, or could create liability for the Company; (iii) disclose your identity or other information about you or your account to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (iv) disclose your identity or other information about you or your account to any governmental, law enforcement, or regulatory authority, or in response to legal process such as a subpoena.
However, we do not undertake to review all material before it is posted on the Service, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.
8.2 Content Standards
User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
8.3 Reliance on Information Posted
The information presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Service, or by anyone who may be informed of any of its contents.
9.1 Purpose
This Dispute Resolution and Arbitration provision (this “Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and Thinklean Limited. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Provision carefully. It provides that all Disputes between you and Thinklean Limited (as defined below, for this Provision) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in court, before a judge or jury, and/or participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees). For the purpose of this Provision, Thinklean means Thinklean Limited and its parent, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and the Company regarding any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. YOU AND THINKLEAN LIMITED EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
9.2 Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Thinklean Limited an opportunity to resolve the Dispute. You must commence this process by written notification to Thinklean Limited at [email protected]. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Thinklean Limited does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
9.3 Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Thinklean, Ltd. may choose to pursue a Dispute in court and not by arbitration. TO OPT OUT OF THESE ARBITRATION PROCEDURES YOU MUST DO SO WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). Your written notification must include (1) your name, (2) your Player ID, (3) your address, and (4) a clear statement that you do not wish to resolve disputes with Thinklean Limited through arbitration. Your decision to opt out of this Provision will have no adverse effect on your relationship with Thinklean Limited. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
NOTE: To be valid, your opt-out of this agreement to arbitrate must be received by us within thirty (30) days of your initial registration (for a second or other multiple account, the date of the initial registration with our platform governs, not the date of initiation of a second or subsequent account).
9.4 Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”), either you or Thinklean Limited may initiate arbitration proceedings. The International Centre for Dispute Resolution (“ICDR”) will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
Arbitration Award—The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the ICDR, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – Any arbitration whether initiated by you or Thinklean Limited shall be initiated in Hong Kong.
Payment of Arbitration Fees and Costs – Each Party shall pay its own arbitration filing fees and arbitrator’s costs and expenses. You are responsible for all fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
9.5 Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, consolidated action or private attorney general action) unless both you and Thinklean Limited specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Service can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
9.6 Jury Waiver
You understand and agree that by entering into this agreement you and Thinklean Limited are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Thinklean Limited might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
9.7 Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
9.8 Continuation
This Provision shall survive the termination of your Service with Thinklean Limited.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE, INCLUDING ANY SOFTWARE APPLICATION, REMAINS WITH YOU. NEITHER THE COMPANY PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, WHETHER BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, ANY PART THEREOF, OR ANY CONTENT EXCEED FIVE HUNDRED DOLLARS ($500). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THINKLEAN LIMITED AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IF SO, THEN THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to indemnify, save, and hold the Company Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these terms, or any breach of the representations, warranties, and covenants made by you herein. Thinklean Limited reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Thinklean Limited, and you agree to cooperate with Thinklean Limited’s defense of these claims. Thinklean Limited will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this Indemnity section will survive any termination of your Account (if applicable) or of your access to or use of the Service.
12.1 Apple Disclaimers:
The following additional terms and conditions apply with respect to any application that Thinklean Limited (the “COMPANY”) provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
12.2 Google Disclaimers
The following additional terms and conditions apply with respect to any application that COMPANY provides to you designed for use on an Android-powered mobile device (an “Android App”):
The Agreement and any matters relating hereto shall be governed by, and construed in accordance with, the laws of Hong Kong. Except as provided in the “Dispute Resolution and Arbitration” Provision (above), the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement and any claim dispute or difference concerning the Agreement and any matter arising thereunder, under all circumstances, including if you opt out of the Arbitration Provision, will be the courts located in Hong Kong and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision hereof or the validity or enforceability in other jurisdictions of that or any other provision hereof.
Thinklean Limited reserves the right to assign this agreement, in whole or in part, at any time without notice. The User may not assign any of his/her rights or obligations under this Agreement.
The English language version of this Agreement shall be the prevailing version in the event of any discrepancy between any translated versions of this Agreement.
These Terms constitute the entire and exclusive understanding and agreement between Thinklean Limited and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Thinklean Limited and you regarding the Service.
If you have any questions regarding these Terms of Use or any other matter, you can contact Thinklean, Ltd. at: [email protected]
Effective Date June, 2021