TERMS OF SERVICE
Last updated: 31 Aug 2023
Welcome to Kokomonster!
We are delighted to have you onboard! These Terms of Service (“Terms”) governs your use of Kokomonster and the software, content and services (collectively, “Services”) offered through: our website https://kokomonster.com and its subdomains (the “Website”), our mobile apps Kokomonster for iOS and Kokomonster for Android (the “Apps”).
Please read these terms carefully before you start using the Services.
The terms “Kokomonster”, “us” or “we” refers to Kokomonster Limited, a software company who designed and built Kokomonster, incorporated in Hong Kong, and operating worldwide.
The term “device” refers to the device which is used to access the Services including but not limited to computers, smartphones and tablets.
The term “you” refers to the user of the Services.
When you sign up for any of the Services or otherwise use or access them, you agree to be bound by these Terms and all applicable laws, rules, and regulations. By using the Services, you indicate that you accept these Terms, Privacy Policy and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the Services. Our Privacy Policy explains how we collect and use personal information.
Our contact email address is cs@kokomonster.com (“Contact Email”). All correspondence to Kokomonster including any queries you may have regarding your use of the Services or these Terms should be sent to this Contact Email address.
1. Registration and Access
You must be at least 18 years old to use the Services. If you are under 18 you must have your parent or legal guardian’s permission to use the Services. If you use the Services on behalf of another person or entity,
you must have the authority to accept the Terms on their behalf. You must provide accurate and complete information to register for an account. You may not make your access credentials or account available to others outside your organisation, and you are responsible for all activities that occur using your credentials.
2. Usage Requirements
(a) Use of Services. You may access, and we grant you a non-exclusive right to use, the Services in accordance with these Terms. You will comply with these Terms and all applicable laws when using the Services. We and our affiliates own all rights, title, and interest in and to the Services.
(b) Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements. If you provide any of these things, we may use it without restriction or compensation to you.
(c) Restrictions. You may not (i) use the Services in a way that infringes, misappropriates or violates any person’s rights; (ii) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Services (except to the extent such restrictions are contrary to applicable law); or (iii), send us any personal information of children under 13 or the applicable age of digital consent.
(d) Third Party Services. Any third party software, services, or other products you use in connection with the Services are subject to their own terms, and we are not responsible for third party products.
3. Content and Intellectual Property Rights
(a) Ownership and Use of Input and Output. You may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). As between the parties and to the extent permitted by applicable law, you own all Input, and you have granted us irrevocable and free-of-charge licence to use the Input that you provide to or receive to develop or improve our Services. As between the parties and to the extent permitted by applicable law, we own all Output, and subject to your compliance with these Terms, Kokomonster hereby assigns to you all its right to use the Output for academic and non-commercial purposes. Kokomonster may use Input and Output to provide and maintain the Services, comply with applicable law, and enforce our policies. You are responsible for the provision or Input and usage of Output, including for ensuring that it does not violate any applicable law or these Terms.
(b) Accuracy. We use proprietary and/or third-party tools to provide Services. You acknowledge and agree that the Services is for educational purposes and entertainment only, the use of our Services may in some situations result in incorrect Output that does not accurately reflect real people, places, or facts, and Output may not be appropriate in different contexts. You should evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the Output. Users shall not hold us liable for any inaccuracies, inappropriate responses, or other content-related issues arising from the use of Services.
c) Ownership of Software and Trademarks. You acknowledge and agree that the Services may contain content or features (“Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorised by Kokomonster, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Content, in whole or in part. In connection with your use of the Services, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Kokomonster from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Content other than as specifically authorised herein is strictly prohibited. The technology, Website, Apps and software underlying the Services or distributed in connection therewith are the property of Kokomonster, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Kokomonster.
The Kokomonster name and logos are trademarks and service marks of Kokomonster (collectively the “Kokomonster Trademarks''). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Kokomonster. Nothing in these Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any of Kokomonster Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Kokomonster Trademarks will inure to our exclusive benefit.
d) Copyright complaints. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Kokomonster of your infringement claim in accordance with the procedure set forth below.
We will process and investigate notices of alleged infringement and will take appropriate actions under applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to our Contact Email.
Written claims concerning copyright infringement must include the following information:
-
an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright or other intellectual property interest;
-
a description of the copyrighted work or other intellectual property that you claim has been infringed;
-
a description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it on the Services;
-
your address, telephone number, and email address;
-
a statement by you that you have a good faith belief that the disputed use is not authorised by the copyright or intellectual property owner, its agent, or the law;
-
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorised to act on the copyright or intellectual property owner’s behalf.
4. Term, Fees and Payments
a) Subscription of Services. You can choose one of the Services tiers offered in Kokomonster.
Free tier (“Free tier”) is a free-of-charge program, which gives you limited access to the Services.
Subscription tier (“Subscription”) is one or more subscription-fee based programs, which gives you different levels of access to Services under various Subscription tiers. The Subscription entitlements or level of access will be changed from time to time at our sole discretion, it can increase or decrease in level of access to Services, period of Services usage, and any other types of entitlement. Any of our paid Subscriptions shall be paid monthly, quarterly, semi-annually, annually and/or other application Subscription period, with payment instalments in advance processed by the App marketplace partner through which you originally acquired the Subscription.
Please note that if you purchase a Subscription through any of our channels, including but not limited to Apple iTunes, Google Play Store and/or our Website, the sale is final and no refunds will be provided. Your purchase will also be subjected to Apple, Google and other relevant payment policies.
Please note that the 14-days-after-purchase refund policy for EU residents does not apply for the provided access to the digital product.
b) Usage of Services in good faith. You agree to use the Service under the Free tier or Subscription tier in good faith, and we reserve the right to charge you additional Subscription fees if we believe there are acts from you that is not considered usage in good faith, or stop providing access to the Services if we believe the usage is not in accordance with our Terms.
c) Renewal and Cancellation of Subscription. The renewal Subscription fees will continue to be billed to the Payment Method you provided through the marketplace, automatically until cancelled. You must cancel your Subscription before it renews each billing period in order to avoid billing of the next Subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month Subscription period. You can modify or cancel your paid Subscription only through the App marketplace or applicable payment channels where you originally acquired the Subscription. To view, modify or cancel your Subscription, you may be required to be authenticated under the same user ID by the marketplace partner.
d) Cancellation of Subscription of Services. If you believe the Subscription is no longer suitable for you, you may opt out of the Subscription before the end of the Subscription period. It is important to note that it is your responsibility to cancel your Subscription on the applicable marketplace, including Apple iTunes Store, Google Play Store and/or any other payment channels that you have subscribed to any of our Subscriptions. If you are on a auto-renewal Subscription and would like to cancel your Subscription other than processing through applicable marketplace, you may also submit a written request to our Contact Email 30 days prior to the renewal date of your Subscription to process a cancellation, detailing your account information, Subscription tier to cancel, and reason for cancellation in the written request for processing.
You may delete your account in the app, this action is irreversible. As soon as you delete your account, all the data associated with your use of the Services will be removed permanently. It is important to note that the deletion of the account does NOT construe cancellation of your then effective paid Subscription. You should follow the cancellation procedures defined in the application section of the clause 4d) in this Terms to effect your cancellation.
e) Effect of Cancellation. You will only have access to the Services under the Subscription while your payment of the corresponding Subscription is successfully processed. Should you fail to pay your Subscription fees at the renewal date, your access to the Services will be automatically changed to Free tier without notice.
5. Warranty, Indemnity and Liability
a) Indemnity and release. You agree to release, indemnify and hold Kokomonster and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, any Content, Software or Subscription, your connection to the Services, your violation of these Terms of Service, your violation of any rights of another or violation of applicable law.
b) Disclaimer of warranties. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
KOKOMONSTER MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
c) Limitation of liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT KOKOMONSTER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORISED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL KOKOMONSTER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
6. Dispute Resolution
YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS:
(a) MANDATORY ARBITRATION. You and Kokomonster agree to resolve any past or present claims relating to these Terms or our Services through final and binding arbitration, except that you have the right to opt out of these arbitration terms, and future changes to these arbitration terms, by filling out this form within 30 days of agreeing to these arbitration terms or the relevant changes.
(b) Informal Dispute Resolution. We would like to understand and try to address your concerns prior to formal legal action. Before filing a claim against Kokomonster, you agree to try to resolve the dispute informally by sending us notice at dispute-resolution@kokomonster.com of your name, a description of the dispute, and the relief you seek. If we are unable to resolve a dispute within 60 days, you may bring a formal proceeding. Any statute of limitations will be tolled during the 60-day resolution process. If you reside in the EU, the European Commission provides for an online dispute resolution platform, which you can access at https://ec.europa.eu/consumers/odr.
(c) Arbitration Forum. Either party may commence binding arbitration through ADR Services, an alternative dispute resolution provider. The parties will pay equal shares of the arbitration fees. If the arbitrator finds that you cannot afford to pay the arbitration fees and cannot obtain a waiver, Kokomonster will pay them for you. Kokomonster will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(d) Arbitration Procedures. The arbitration will be conducted by telephone, based on written submissions, video conference, or in person at a mutually agreed location. The arbitration will be conducted by a sole arbitrator by ADR Services under its then-prevailing rules. The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.
(e) Exceptions. This arbitration section does not require arbitration of the following claims: (i) individual claims brought in small claims court; and (ii) injunctive or other equitable relief to stop unauthorised use or abuse of the Services or intellectual property infringement.
(f) NO CLASS ACTIONS. Disputes must be brought on an individual basis only, and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either party from participating in a class-wide settlement of claims.
(g) Mass Filings. If, at any time, 30 or more similar demands for arbitration are asserted against Kokomonster or related parties by the same or coordinated counsel or entities (“Mass Filing”), ADR Services will randomly assign sequential numbers to each of the Mass Filings. Claims numbered 1-10 will be the “Initial Test Cases” and will proceed to arbitration first. The arbitrators will render a final award for the Initial Test Cases within 120 days of the initial pre-hearing conference, unless the claims are resolved in advance or the parties agree to extend the deadline. The parties will then have 90 days (the “Mediation Period”) to resolve the remaining cases in mediation based on the awards from the Initial Test Cases. If the parties are unable to resolve the outstanding claims during this time, the parties may choose to opt out of the arbitration process and proceed in court by providing written notice to the other party within 60 days after the Mediation Period. Otherwise, the remaining cases will be arbitrated in their assigned order. Any statute of limitations will be tolled from the time the Initial Test Cases are chosen until your case is chosen as described above.
(h) Severability. If any part of this Section 6 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow Mass Filing or class or representative arbitration, this Section 6 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of such claim from the arbitrator.
7. General Conditions
a) Termination. You agree that Kokomonster, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Kokomonster believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Kokomonster may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Kokomonster may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Kokomonster will not be liable to you or any third party for any termination of your access to the Service.
b) User disputes. You agree that you are solely responsible for your interactions with any other user in connection with the Service and Kokomonster will have no liability or responsibility with respect thereto. Kokomonster reserves the right but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
c) Entire agreement. These Terms of Service constitute the entire agreement between you and Kokomonster and govern your use of the Service, superseding any prior agreements between you and Kokomonster with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software.
d) Choice of law. These Terms of Service will be governed by the laws of Hong Kong without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Kokomonster agree to submit to the personal and exclusive jurisdiction of the courts in Hong Kong. The failure of Kokomonster to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
e) Transferability. You may not assign these Terms of Service without the prior written consent of Kokomonster, but Kokomonster may assign or transfer these Terms of Service, in whole or in part, without restriction.
(f) Modifications. We may amend these Terms from time to time by posting a revised version on the Website, or if an update materially adversely affects your rights or obligations under these Terms we will provide notice to you either by emailing the email associated with your account or providing an in-product notification. Those changes will become effective no sooner than 30 days after we notify you. All other changes will be effective immediately. Your continued use of the Services after any change means you agree to such change.
(g) Waiver and Severability. If you do not comply with these Terms, and Kokomonster does not take action right away, this does not mean Kokomonster is giving up any of our rights. Except as provided in Section 6, if any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that term will be enforced to the maximum extent permissible and it will not affect the enforceability of any other terms.
(h) Export Controls. The Services may not be used in or for the benefit of, exported, or re-exported (a) into any U.S. embargoed countries (collectively, the “Embargoed Countries”) or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted party lists (collectively, “Restricted Party Lists”). You represent and warrant that you are not located in any Embargoed Countries and not on any such restricted party lists. You must comply with all applicable laws related to Embargoed Countries or Restricted Party Lists, including any requirements or obligations to know your end users directly.
(i) Equitable Remedies. You acknowledge that if you violate or breach these Terms, it may cause irreparable harm to Kokomonster and its affiliates, and Kokomonster shall have the right to seek injunctive relief against you in addition to any other legal remedies.
(j) Entire Agreement. These Terms and any policies incorporated in these Terms contain the entire agreement between you and Kokomonster regarding the use of the Services and, other than any Service specific terms of use or any applicable enterprise agreements, supersedes any prior or contemporaneous agreements, communications, or understandings between you and Kokomonster on that subject.
k) Miscellaneous. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.
Please contact us at cs@kokomonster.com to report any violations of these Terms of Service or to ask us any questions regarding these Terms of Service or our Services.