Zemin Xu is our Chief Executive Officer. He served as our co-Chief Executive Officer from December 2014 to April 2015, and our President from December 2010 to December 2014.
He is responsible for our overall strategic leadership and product planning in China and other developing countries.
Dr. Vincent Wenyong Shi is a co-founder of our company. He has served as our Chariman of the Board of Directors since December 2014, and as our chief operating officer since our inception in October 2005.
He is responsible for the operations of our company, including management of business operations, channel development, and online business development.
Mr. Roland Wu, a Chartered Financial Analyst charterholder, is the Chief Financial Officer of our company. Mr. Wu has served as our Director since December 2014, with extensive experience and in-depth capital markets knowledge, having served in key management roles at several Hong Kong-listed companies since 2013. Additionally, Mr. Wu has served as a portfolio manager at an asset management company from 2009 to 2013. Mr. Wu holds an MBA degree from Nankai University and a Bachelor of Computer Science degree from Beijing Jiaotong University.
He is responsible for the Company’s financial management and investor relations.
NQ Mobile US Inc. (“we”, “us”, “our”) is committed to maintaining customer privacy through an ethical performance culture that is based on trust, simplicity and confidence. It is one of NQ Mobile’s core principles to secure customer information while using our Web sites family.nq.com, i.nq.com, www.nq.com and our Mobile applications (“products”), and provide privacy protection that is critical in maintaining trust and providing better services. NQ Mobile’s individual privacy protection policy ensures the confidentiality of customer information under the defined terms and conditions below.
PLEASE READ AND MAKE SURE YOU UNDERSTAND ALL THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING OR AGREEING TO THIS AGREEMENT OR ACCESSING OR USING THE SOFTWARE OR ANY ASSOCIATED SERVICES.
This End User License Agreement (hereinafter referred to as this "Agreement") is made by and between NQ Mobile Inc. (hereinafter referred to as "NQ Mobile") and the person purchasing or obtaining the license to the Software (hereinafter referred to as "you" and "your") on a voluntary basis for the downloading, installation, access, and use of the NQ Mobile software for which this Agreement is provided for acceptance by you (together with all associated information, documentation and software, the "Software") and the receipt and use of any services that NQ Mobile agrees to make available or provide in connection with the access or use of the Software (the "Associated Services," and together with the Software, the "NQ Services") by you, or by a child or minor of whom you are the legal guardian and who downloads and installs and/or accesses and uses the Software with your permission, approval, or consent ("Your Child"), if any, on a single mobile device that you own or control or that Your Child owns or controls (such mobile device, the "Device").
YOUR AGREEMENT TO AND ACCEPTANCE OF THIS AGREEMENT IS A CONDITION PRECEDENT FOR EXERCISING ANY OF THE RIGHT TO TAKE A LICENSE TO THE SOFTWARE TO ACCESS AND USE THE SOFTWARE BY YOU OR YOUR CHILD ON THE DEVICE AND THE RIGHT TO RECEIVE THE ASSOCIATED SERVICES (COLLECTIVELY, SUCH RIGHTS THE "ACCESS RIGHT") THAT YOU RECEIVED FROM NQ MOBILE OR FROM A DISTRIBUTOR OR SELLER (SUCH AS A STORE OFFERING SUCH RIGHTS UNDER AGREEMENT WITH NQ MOBILE) AUTHORIZED BY NQ MOBILE TO SELL YOU THE RIGHT ("AUTHORIZED RESELLER"), YOU WILL BE IRREVOCABLY, IRREFUTABLY, AND CONCLUSIVELY DEEMED TO HAVE READ, UNDERSTOOD, AND HAVE ACCEPTED AND AGREED TO THIS AGREEMENT IF YOU CLICK OR ACTIVATE THE “I ACCEPT” OR “I AGREE” OR OTHER BUTTON OR SPACE SIGNIFYING OR CONFIRMING YOUR AGREEMENT TO THIS AGREEMENT AND ALL OF THE TERMS OF THIS AGREEMENT, OR IF YOU FIRST DOWNLOAD, INSTALL, ACCESS, OR USE THE SOFTWARE, WHICHEVER OCCURS EARLIER (“YOUR ACCEPTANCE”). YOUR ACCEPTANCE IS A CONDITION PRECEDENT FOR THE EFFECTIVENESS OF THE LICENSE. IF YOU DO NOT OR CANNOT AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS, LOAD, OR USE THE SOFTWARE OR ANY ASSOCIATED SERVICES AND MUST EXIT IMMEDIATELY, DO NOT LOAD, ACCESS, OR USE, AND CEASE LOADING, ACCESSING, OR USING, THE SOFTWARE IN ANY MANNER AND COMPLETELY REMOVE THE SOFTWARE FROM YOUR DEVICE. EACH ACCESS TO OR USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES BY YOU OR YOUR CHILD IS AND SHALL BE DEEMED TO BE YOUR RATIFICATION OF AND AGREEMENT TO THIS AGREEMENT.
NQ MOBILE MAY MODIFY, AMEND, CHANGE, AND ALTER THIS AGREEMENT OR ANY OF THE TERMS OF THIS AGREEMENT AT ANY TIME AND NOTIFY YOU OF SUCH MODIFICATION, AMENDMENT, CHANGE, AND ALTERATION AND REQUIRE YOUR CONSENT OR CONFIRMATION AS A CONDITION PRECEDENT TO THE CONTINUED ACCESS TO AND USE OF THE SOFTWARE. YOUR CONFIRMATION AND CONSENT, AND ANY ACCESS TO AND USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES THEREAFTER, SHALL BE DEEMED TO BE YOUR AGREEMENT TO SUCH MODIFICATION, AMENDMENT, CHANGE, OR ALTERATION AND YOUR RATIFICATION OF THIS AGREEMENT SO MODIFIED, AMENDED, CHANGED, OR ALTERED. EACH ACCESS TO OR USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES THEREAFTER BY YOU OR YOUR CHILD IS AND SHALL BE DEEMED TO BE YOUR RATIFICATION OF AND AGREEMENT TO THIS AGREEMENT AS SO MODIFIED, AMENDED, CHANGED, OR ALTERED..
If you have any questions about this Agreement, please contact NQ Mobile at firstname.lastname@example.org.
NQ Mobile hereby grants to you a limited, non-exclusive, terminable, revocable, non- sublicensable, non-assignable, and non-transferable license to download and install, or permit Your Child to download and install, the Software solely on the Device and to access and use, and to permit Your Child to access and use, the Software solely on and from the Device as downloaded and installed thereon, and to use the Associated Services related to such access and use, only for your or Your Child’s personal non-commercial use (except solely if and to the extent otherwise expressly approved in advance in writing by NQ Mobile or required under applicable law) in accordance with the terms and conditions of this Agreement, including, without limitation, the provisions of this Section III (the "License"). You and Your Child must, download, install, access, and use the Software in compliance with all applicable law and the provisions, policies, and terms in this Agreement.
The Software and Associated Services include such elements, features, and/or services as NQ Mobile makes available to you as part of the Software and the Associated Services under this Agreement, subject to any Modification. The License, the Software, the Associated Services, and terms under this Agreement will or may also depend on whether the License is an Activation Code License, a Paid Open Market License, a Trial Period License, or a No- Charge Open Market License:
NQ Mobile may (if, as, and when it decides to do so in its sole discretion – without any obligation – without need for any approval, agreement, or consent by, or notice to, you, Your Child, or any third party) install or make available to you or Your Child any update to the Software and/or the Associated Services, including, without limitation, modification, error correction, update, upgrade, alteration, enhancement, or change of or to the software application defined in this Agreement as the "Software" ("Modification"). Upon installation or making available any Modification, the Software shall be deemed licensed solely with such Modification and shall become unlicensed if used without such Modification, and the term "Software" shall be deemed to include such Modification.
ANY ACCESS, EXECUTION, OR USE OF THE SOFTWARE, THE ASSOCIATED SERVICES, OR ANY PART THEREOF OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS AGREEMENT, OR FOR ANY PURPOSE OR REASON NOT IN ACCORDANCE WITH A PURPOSE OR REASON PERMITTED UNDER THIS AGREEMENT OR BY NQ MOBILE, SHALL BE DEEMED TO BE AN INFRINGEMENT OF NQ MOBILE’S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE OR THE ASSOCIATED SERVICES AND SUBJECT TO ALL RIGHTS AND REMEDIES OF NQ MOBILE ARISING FROM OR IN CONNECTION WITH SUCH AN INFRINGEMENT.
You shall not, and shall not permit any third parties to, in any manner:
If you violate any of the foregoing, NQ Mobile shall have the right to terminate your license to the Software and use of the Associated Services and to investigate legal liabilities of all individuals and entities involved and hold such individuals and entities liable.
You agree to, and you agree to ensure that Your Child does, download, install, access, and use the Software and use the Associated Services in accordance with any and all applicable law, statutes, regulations, rules, ordinances, directives, and court and governmental orders, including, without limitation, all law, statutes, regulations, rules, ordinances, directives, and court and governmental orders related to data privacy, data security, and confidentiality of data and information regarding any data collected, received, shared, or accessed by you or Your Child in connection with the use of the Software and/or the Associated Services ("Legal Requirements"). You shall ensure at all times that you and Your Child have all rights and/or licenses to any technology, software, hardware, work, material, data, and/or information that you and Your Child use in connection with the Software and/or the Associated Services and lawfully procuring any and all such rights and/or licenses at your sole cost.
You should NEVER attempt to monitor a mobile device you do not own or control, monitor your spouse, significant other or adult children with any mobile device monitoring product without the consent and knowledge of such persons. Doing so may be illegal, and violate local, state, and federal laws in your country and you could be subject to civil or criminal penalties. We will cooperate with authorities in investigations of any allegations of misuse.
You are solely responsible, throughout the duration of this Agreement and you or Your Child’s access to and use of the Software and/or access to or use of the Associated Services, for obtaining, providing, establishing and maintaining, at your sole cost, all services, software, hardware, and other prerequisites that are or may be necessary for downloading, installing, accessing, and/or use of the Software and/or access to or use of the Associated Services, including, without limitation, any wireless services and wireless data services (collectively, "Prerequisites"), and NQ Mobile is not, and shall not be, liable for any Prerequisite, or the provision thereof, or any costs, charges, fees, taxes, rates, or other payments incurred or made in connection therewith. You agree to comply with all terms and agreement of any provider of any Prerequisites used by you or Your Child (e.g., a wireless data service agreement).
NQ Mobile has and shall have no obligation whatsoever to furnish any maintenance and support services of any kind with respect to the Software and/or the Associated Services. If NQ Mobile, in its sole discretion, directly or indirectly makes available any maintenance or support, NQ Mobile is not obligated at any time to continue or provide again any maintenance or support and NQ Mobile may at any time discontinue, reduce and limit access to, or charge any fee for any maintenance or support if and as it decides in its sole discretion, with or without notice to you or Your Child. NQ Mobile does not offer, and does not agree to, any service level agreement, service levels, credit, uptime, minimum uptime, or other similar features to you or Your Child.
This Agreement is effective upon Your Acceptance and continues, including, without limitation, the License, until the end of the expiration of the License Term (as defined below in this Section IV) or the termination or cancellation of this Agreement, whichever occurs earlier (the "Term"). The "License Term" means the applicable one of the periods of time identified in the following paragraphs a – c of this Section IV, depending on how you received the Access Right:
Unless you received from NQ Mobile the Access Right without the obligation to pay any License Fee, i.e., the License under this Agreement is granted for, and the License Term is, a Trial Period, the License is granted to you in consideration for your payment of the fee, price, or charge that you agreed to pay NQ Mobile or an Authorized Reseller for the Access Right (such fee, price, or charge, the "License Fee"). You agree to pay any License Fee or part thereof not yet paid, and any other amount due to NQ Mobile, and you represent and warrant that any License Fee by you before Your Acceptance has been paid, in immediately available indefeasible unconditional funds without any set-off or deduction. Any amount of any License Fee or amount due to NQ Mobile that is unpaid when it is due shall accrue interest from the date it is due until NQ Mobile’s receipt of the payment of such amount at the rate of the lower of (i) one and one-half percent (1.5%) per full or partial calendar month or (ii) the highest enforceable rate of interest under applicable law. All such interest shall be paid simultaneously with the payment of the unpaid amount on which such interest accrued.
NQ Mobile is not responsible, and you are solely responsible, for any access, data, transmission, and other fees and any expenses you may incur or may be charged by any third party, including, without limitation, your wireless service provider, may charge in connection with your access or use of the Software and/or the Associated Services, including, without limitation, data traffic costs.
The Software and the Access Services are proprietary to NQ Mobile. You acknowledge and agree that the Software is being licensed, not sold, to you by NQ Mobile. No rights are granted or extended, implicitly, expressly, or otherwise, to any third party, and your access and use of the Software and/or the Associated Services does not, and shall not be deemed, to exhaust any Intellectual Property Right in or to or related to the Software and/ or the Associated Services with regard to you outside the express license in this Agreement or to any third party. All Intellectual Property Rights to the Software, the Access Services, all Modifications, and all content and code are owned by NQ Mobile and are protected by law. You further acknowledge and agree that you do, and shall not be deemed to, acquire any ownership, co-ownership, right, title, interest, license (except solely the express license to access and use the Software and the right to access and use the Associated Services expressly granted to you as set forth in this Agreement during the term of this Agreement), or encumbrance in or to, and that NQ Mobile shall retain its entire sole ownership, right, title, interest in and to, the Software, the Associated Services, all Modifications, all derivations and derivative works therefrom and all improvements, modifications, upgrades, updates, error corrections, patches, enhancements, versions, and alterations thereto, all content, works, inventions, technology, data, information, and code therein or thereof, and all other proprietary products and services of NQ Mobile (including without limitation products and services released solely or jointly with its partners), and all Intellectual Property Rights (as defined herein) in or to or arising out of or relating to any of the foregoing (collectively, "NQ Mobile Property").
The term "Intellectual Property Rights" means, individually and collectively, any and all of the following, anywhere in the world and under any law: (a) patents, patent applications, patent disclosures, invention disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, and all goodwill in or arising from any of the foregoing, (c) copyrights and rights in and to or arising from or related to copyrightable works (including computer programs), mask works and rights in data and databases, (d) rights in and to or arising from or related to trade secrets, know-how, show-how, and other confidential or proprietary information, and (e) all other intellectual and industrial property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world. You shall promptly notify NQ Mobile if you become aware of any possible third-party infringement of NQ Mobile's Intellectual Property Rights arising out of or relating to the Software and/or the Associated Services and fully cooperate with NQ Mobile in any legal action taken by NQ Mobile against third parties to enforce its Intellectual Property Rights. You shall safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
Without NQ Mobile's written permission, no entity or individual shall use, duplicate, change, copy, distribute or use or sell with other products any part of the Software and/or the Associated Services, any other product, information or materials owned by NQ Mobile, or any other NQ Mobile Property in any manner for any reason whatsoever. Without NQ Mobile's written permission, no entity or individual shall use, duplicate, change, distribute, copy or infringe in other ways NQ Mobile's trademarks in part or as a whole in any manner for any reason whatsoever, including without limitation the following trademarks: A-Yong Image, NetQin Mobile Security, NetQin Mobile Anti-virus, NetQin Mobile Manager, NQ Contacts, NQ Private Space, NQ Secret Space, NQ Secret Box, NQ Calendar, NQ Space, NetQin Mobile Guard, NetQin Mobile Assistant, Private Calls, Easy Message and any marks used in connection with NQ Mobile’s special virus removal tools.
NQ Mobile's core technology is protected by the patent and other Intellectual Property Rights laws of various countries. Without NQ Mobile's written permission, no entity or individual shall carry out, duplicate, modify, distribute, copy or infringe in other ways NQ Mobile’s patented products and patented technology in any manner for any reason whatsoever.
If and to the extent you acquire or obtain any ownership, co-ownership, right, title, interest, license (except solely the express license to access and use the Software and the right to access and use the Associated Services expressly granted to you as set forth in this Agreement during the term of this Agreement), or encumbrance, you agree to assign, transfer, and convey, and you hereby assign, transfer, and convey, to NQ Mobile – free of any royalty, fee, or other payment obligation of NQ Mobile or any of its affiliates – all such ownership, co-ownership, right, title, interest, license, and encumbrance. You agree to execute any document and take any other action or forego to take any other action as requested by NQ Mobile to you to give effect to the provisions of this Article V.
As a legal person, NQ Mobile's rights of reputation are protected by the law. Where the company's goodwill is slandered or the rights of reputation are infringed by illegal means of forging and disseminating false information and materials, or similar actions, NQ Mobile has the right to pursue legal responsibilities according to law. Where the above Intellectual Property Rights of NQ Mobile are infringed or the exercise of the Intellectual Property Rights are hindered, legal responsibilities will be investigated according to law and you may be held liable for such infringement and/or hindering.
This Agreement expires, terminates, and ends immediately and automatically, without need for any notice or other act: (i) upon the end of the License Term, or (ii) any fee or price due for the License, or any other payment due under this Agreement, is not paid to or received by NQ Mobile, whether or not resulting from any fault by you.
This Agreement also terminates immediately and automatically, without need for any notice or other act, if and when you (i) breach or violate or default under any provision of this Agreement or obligation of you or Your Child, or (ii) you or Your Child engages in any act or omission that constitutes or results in any breach or violation of, or default under, any provision of this Agreement, or (iii) engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful, illegal, or dishonest act or omission in connection with the Software and/or the Associated Services or relating to this Agreement or the Software and/or the Associated Services; or (iv) you fail to agree to any change, modification, amendment, or alteration of this Agreement or any provision of this Agreement; or (v) you or Your Child fails to permit any installation or inclusion of any Modification provided by NQ Mobile to you or Your Child, or to the Software installed on the Device.
NQ Mobile may also terminate this Agreement with immediate effect: (i) as set forth in Section XVI.(d) of this Agreement, or (ii) if or to the extent NQ Mobile ceases to make the Software, or removes the Software from being, available for licensing, and/or ceases to make the Associated Services available for access or use, by members of the public in anywhere or in your country, region, or area, or (iii) if NQ Mobile fails to conduct business operations or takes steps to dissolve or cease to exist; or (iv) if NQ Mobile or you files or is or becomes subject to a petition in bankruptcy; or (v) if NQ Mobile admits the inability to pay the debts as they become due, makes a general assignment for the benefit of its creditors, or becomes subject to the appointment of a receiver; or (vi) upon your death or legal incapacity.
NQ Mobile may terminate this Agreement by disconnecting your or Your Child’s access to and use of the Software and/or the Associated Services, without need or requirement for any notice. NQ Mobile may give you notice of any termination, expiration, or cancellation if NQ Mobile decides to do so in its sole discretion, provided, however, that, giving any notice of termination shall not obligate or require NQ Mobile to give such notice in any other instance of a termination.
You may terminate this Agreement at any time by giving NQ Mobile written notice of termination addressed to NQ Mobile at the address of its headquarters and to the attention of the "Legal Department" at such address.
Any access to or use of the Software and/or the Associated Services following any event of termination of this Agreement (e.g., if NQ and/or you are unaware of such termination) shall not negate such termination or the fact that such termination occurred.
Upon the termination, expiration, or cancellation of this Agreement for any reason: (i) the License and your and Your Child’s right to access and use the Software or the Associated Services, and to have possession of the downloaded and installed copy of the Software, terminates and ends, (ii) NQ Mobile may immediately disconnect you and Your Child’s access to and use of the Software or the Associated Services, with or without any notice to you, (iii) you agree to immediately cease, and to cause Your Child to immediately cease, all access to and use of the Software and the Associated Services and irretrievably erase and destroy all copies, full or partial, of the Software or the Associated Services and any information pertaining to the Software or any Associated Services, without retaining any copy or manifestation of the Software and/or the Associated Services, any of its content, or any part thereof. The provisions of Section V (regarding any License Fee and other amount due to NQ Mobile and unpaid), VI, VII, and X through XXIV of this Agreement, and this Section IX shall survive any termination, expiration, or cancellation of this Agreement.
Any termination, expiration, or cancellation of this Agreement does not waive, terminate, cancel, or avoid any duty or obligation to pay any License Fee or other fee, price, or other charge due by you to NQ Mobile or its Authorized Resellers for the License Term during which such termination occurs, if and to the extent not yet paid, which shall be due immediately upon termination if not yet due, and does not entitle or give you any right or expectation to a refund, reimbursement, repayment, compensation for, or other receipt of the amount of any License Fee or any other fee, price, or other charge paid in connection with the Software and/or the Associated Services or this Agreement. Any and all payments made to NQ Mobile in connection with the License or under this Agreement are non-refundable.
NQ Mobile is not responsible for addressing and you hereby waive any claims by you or any third party relating to the Software and/or the Associated Services or your possession and/or use of the Software and/or the Associated Services, including but not limited to: (a) product liability claims; (b) any claim the Software and/or any of the Associated Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You accept full responsibility and agree to be fully liable for all results, consequences, injuries, death, damages, emotional distress, and harm of any kind caused by your or Your Child’s use, application, or implementation of the Software, the Associated Services, or the Device, or any violation of the provisions of this Agreement by you.
NQ MOBILE MAKES NO WARRANTIES OR REPRESENTATIONS HEREUNDER OR REGARDING THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. NQ MOBILE DISCLAIMS RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. THE SOFTWARE AND THE ASSOCIATED SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". NQ MOBILE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, WORKMANSHIP, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. YOU DOWNLOAD AND USE THE SOFTWARE AND/OR THE ASSOCIATED SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES.
IN THE EVENT OF ANY BREACH OF ANY WARRANTY, OR ANY FAILURE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES TO CONFORM TO ANY WARRANTY, THAT APPLIES AND IS NOT OR CANNOT BE EFFECTIVELY DISCLAIMED HEREUNDER UNDER APPLICABLE LAW: (I) YOU MAY NOTIFY NQ MOBILE DURING THE LICENSE TERM THEREOF AND NQ MOBILE MAY CORRECT SUCH FAILURE OR BREACH, AND (II) IF YOU PAID TO NQ MOBILE A LICENSE FEE FOR THE LICENSE DURING SUCH LICENSE TERM AND SUCH CORRECTION DOES NOT OCCUR OR NQ MOBILE DECIDES TO REPAY SUCH LICENSE FEE, NQ MOBILE WILL REFUND SUCH LICENSE FEE FOR SUCH LICENSE TERM, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NQ MOBILE WILL HAVE NO OTHER WARRANTY OBLIGATION OR OTHER LIABILITY WHATSOEVER WITH RESPECT TO THE SOFTWARE, THE ASSOCIATED SERVICES, OR THIS AGREEMENT, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY. THE FOREGOING REFUND OF THE LICENSE FEE, IF ANY, CONSTITUTES THE MAXIMUM LIABILITY THAT NQ MOBILE SHALL HAVE UNDER AND RELATING TO THIS AGREEMENT OR THE SOFTWARE OR THE ASSOCIATED SERVICES. IF NO LICENSE FEE HAS BEEN PAID TO NQ MOBILE, SUCH AS IF THE LICENSE IS FOR A TRIAL PERIOD, YOU ARE NOT ENTITLED TO ANY PAYMENT BY NQ MOBILE.
NEITHER NQ MOBILE NOR ITS SERVICE PROVIDERS OR AFFILIATES WILL BE LIABLE TO YOU OR ANY USER FOR ANY USE OR MISUSE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. SUCH EXCLUSION INCLUDES, BUT IS NOT LIMITED TO: (A) DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE (EVEN IF NQ MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (B) APPLIES WHETHER DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE AND/OR THE ASSOCIATED SERVICES, FROM INABILITY TO USE THE SOFTWARE AND/OR THE ASSOCIATED SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES (INCLUDING ANY DAMAGES INCURRED BY THIRD PARTIES); AND (C) APPLIES NOTWITHSTANDING A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IF AND TO THE EXTENT THAT NQ MOBILE OR ANY OF ITS SERVICE PROVIDERS OR AFFILIATES IS LIABLE TO YOU FOR ANY DAMAGES NOTWITHSTANDING THE FOREGOING PROVISIONS, YOU AGREE THAT THEIR AGGREGATE AND COMPLETE LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE, IF APPLICABLE, FOR THE LICENSE TO ACCESS, INSTALL, AND USE THE SOFTWARE, AND THE RIGHT TO ACCESS AND USE ANY ASSOCIATED SERVICES, UNDER THIS AGREEMENT.
You will indemnify and hold harmless NQ Mobile and its parents, subsidiaries, officers, directors, shareholders, agents and employees, from any and all losses to the extent resulting from any action, suit, proceeding, claim, demand, investigation or assessment due to or arising directly or indirectly out of (i) your or Your Child’s access and/or use of the Software and/or the Associated Services, (ii) any violation of any applicable law arising from you or Your Child's conduct or in connection with your or Your Child's use or misuse of the Software and/or the Associated Services, (iii) any alleged violation of this Agreement or other applicable agreements between you and NQ Mobile, (iv) any negligence (whether sole, contributory, or comparative) and willful misconduct of you or Your Child, and (v) any alleged violation of any applicable law or regulation (EXPRESSLY INCLUDING, IN EACH CASE, ANY SUCH LOSSES ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OR STRICT LIABILITY OF NQ MOBILE). NQ Mobile reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
Some countries and jurisdictions do not allow the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions, so some of the disclaimers, exclusions, limitations, and/or obligations in Sections X, XI, XII, and/or XIII of this Agreement may not apply to you. In such case: (i) the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law, and (ii) if any implied warranties or conditions would then otherwise arise, such implied warranties and conditions will be limited in duration to ninety (90) days, or if applicable law requires a longer time period, the shortest legally required time period, from the date of the delivery of the Software and/or the Associated Services.
You agrees and acknowledges that NQ Mobile has set its fees and the parties have entered into this Agreement in reliance on the limited warranties, warranty disclaimers, limitations and exclusions of liability, and indemnity set forth herein, that the same reflect an agreed-to allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose and cause consequential loss), and that the same forms an essential basis of the bargain between the parties. You agree and acknowledge that NQ Mobile would not have been able to license the Software and/or make available any Associated Service at the amount charged on an economic basis without such limitations.
If use of the Software and/or any of the Associated Services may be enjoined due to a claim of infringement by a third party then, at its sole discretion and expense, NQ Mobile may do one of the following: (a) negotiate a license or other agreement so that the Software and/ or the any of the Associated Services is no longer subject to such a potential claim, (b) modify the Software and/or any of the Associated Services so that it becomes non-infringing, provided such modification can be accomplished without materially affecting the performance and functionality of the Software and/or the Associated Services, (c) replace the Software and/or the Associated Services with non-infringing software, or (d) terminate this Agreement by written notice of termination to you, in which case you shall stop using the Software and/or the Associated Services. The foregoing sets out the entire liability of NQ Mobile and the sole obligations of NQ Mobile to you and Your Child in respect of any claim that the Software and/ or any of the Associated Services or its use infringes any third party rights.
You acknowledge that the Software, or any part thereof, may be subject to the jurisdiction of the U.S. Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.), U.S. trade embargo regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.), other regulations of the U.S. Departments of Commerce, State, and Treasury (collectively, "Export Control Law"). Accordingly, you agree that you will comply with all Export Control Law and that the Software, or any part or information thereof, or any access or use thereof, will not be: (i) reexported, sold, or otherwise transferred outside the United States of America or to other countries or to any person in violation of Export Control Law or any other U.S. law; or (ii) made available to any person that you know or have reason to suspect will cause the Software, or any part or information thereof, or any access or use thereof, to be made available outside the United States of America or to other countries or to any person in violation of Export Control Law or any other U.S. law. You are solely responsible for determining its obligations under Export Control Law.
You agree that damages alone may be an insufficient remedy for violations of the terms of Sections III, VI, VII, IX, and XVIII of this Agreement, and that NQ Mobile may suffer irreparable damage as a result of such a violation. Accordingly, NQ Mobile shall be entitled, in the event of a breach or threatened breach of Sections III, VI, VII, IX, and XVIII of this Agreement, to seek injunctive relief (or equivalent relief available under the law of the jurisdiction where NQ Mobile seeks such relief) to enforce the provisions of Sections III, VI, VII, IX, and XVIII of this Agreement without posting a bond. Injunctive (or such equivalent) relief shall be in addition to any and all other rights or remedies available to NQ Mobile, including, but not limited to, damages or other relief or remedies for such violation. Assertion or the failure to assert injunctive (or such equivalent) relief shall not constitute a waiver of any such other rights or remedies. In the event it is necessary for NQ Mobile to institute legal proceedings to enforce Sections III, VI, VII, IX, and XVIII of this Agreement, NQ Mobile will be entitled to recover attorneys’ fees and costs incurred by NQ Mobile in such proceedings if it prevails in such proceedings.
This Agreement may not be assigned, nor may any of your obligations under this Agreement be delegated, in whole or in part, by you by operation of law, merger, or any other means without NQ Mobile’s express prior written consent and any attempted assignment without such consent will be null and void. NQ Mobile may, without notice to you, assign this Agreement. Further, NQ Mobile may perform all obligations, if any, to be performed by NQ Mobile under this Agreement directly or may have some or all obligations performed by its affiliates, agents and/or independent contractors.
If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
The internal laws of the State of New York, U.S.A. (without giving effect to any choice or conflict of law provision or rule (whether of the State of New York, U.S.A. or any other jurisdiction) that would cause the application of laws of any other jurisdiction) shall govern all matters arising out of or relating to this Agreement and all of the matters or transactions it contemplates, including its validity, interpretation, construction, performance and enforcement and any disputes or controversies arising therefrom. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or any transaction hereunder. You consent and submit to the exclusive jurisdiction of competent state and federal courts in the State of New York, U.S.A., for any litigation or proceeding and to the venue of such litigation or proceeding in New York, New York, U.S.A.
The parties do not intend any third party to be a third party beneficiary under this Agreement, and nothing in this Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
All terms, conditions and provisions of this Agreement and any privacy statement or other policies and terms and conditions of use accepted by you, constitute the entire agreement between you and NQ Mobile and shall supersede all other communications, representations, agreements or understandings, either oral or written, with you with respect to the subject matter hereof.
Thank you for choosing NQ Mobile services and your comments and suggestions are always appreciated.
Should you have any questions, please contact us by e-mail at email@example.com.