Terms and Conditions for ByTheWay
Last updated date: 16 October 2015
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE APPLICATION AND/OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR VIA THE APPLICATION, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPLICATION AND/OR SERVICES.
ByTheWay reserves the right, at its sole discretion, to modify the Application (as defined below) or to modify these terms and conditions (the Terms), at any time and without prior notice. If ByTheWay modify these Terms, it will post the modification via the Application or otherwise provide you with notice of the modification. We will also update the “Last updated date” at the top of these Terms. By continuing to access or use the Application and/or Services after we have posted a modification via the Application or have provided you with notice of modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Application and the Services.
1. TERMS OF SERVICES
1.1 Your contracting partner in relation to the use of the Application and the Services is WonMa Technology Limited (hereinafter referred to as ByTheWay), a private limited liability company incorporated in Hong Kong, having its registered office at 903 Dannies House, 20 Luard Road, Wan Chai, Hong Kong.
1.3 THE APPLICATION COMPRISES AN ONLINE PLATFORM THROUGH WHICH MEMBERS MAY JOIN WITH OTHER MEMBERS TO SHARE RIDES TOGETHER. YOU UNDERSTAND AND AGREE THAT BYTHEWAY IS NOT A PARTY TO ANY AGREEMENT ENTERED INTO BETWEEN YOU AND OTHER MEMBER(S). BYTHEWAY DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
2. DEFINED TERMS
2.1 “Application” is as defined under clause 1.2 of the Terms;
2.2 “ByTheWay” is as defined under clause 1.1 of the Terms;
2.3 “ByTheWay Account” is as defined under clause 5.1 of the Terms;
2.4 “ByTheWay Content” means all Content that ByTheWay makes available through the Application, including any Content licensed from a third party, but excluding Member Content;
2.5 “Chat Room” is as defined under clause 4.4 of the Terms;
2.6 “Collective Content” means, collectively, Member Content and ByTheWay Content;
2.7 “Content” means text, graphics, images, music, software (excluding the Application), audio, video, information and other materials;
2.8 “Criteria” is as defined under clause 3.1 of the Terms;
2.9 “Facebook Login” means the third party online service provided by Facebook Inc. and utilized by ByTheWay for its users to create and log into their ByTheWay Accounts on any mobile devices operating on different platforms. More information can be viewed at: https://developers.facebook.com/docs/facebook-login/overview/;
2.10 “Guest” means a Member who is not a Host and who participates in a Ride via the Application;
2.11 “Host” means a Member who creates a Ride Itinerary via the Application;
2.12 “Member” means a person who completes the Registration Process of ByTheWay Account registration process, as further detailed in Part 5 of the Terms;
2.13 “Member Content” means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Ride Itinerary or Member profile to be made available through the Application;
2.14 “Motor Vehicle” means any motor vehicle which ByTheWay may at its absolute discretion include or exclude from the Services from time to time, with or without cause, with or without notice to its Members, including but not limited to private cars, private light buses, private buses, goods vehicles and taxis;
2.15 “Registration Process” is as defined under clause 5.1 of the Terms;
2.16 “Ride” means a journey by means of a Motor Vehicle communicated, negotiated, or completed via the Application and the Services;
2.17 “Ride Itinerary” refers to a ride itinerary posted by the Host to invite other Member(s) to join as Guest(s) for sharing a Ride via the Application;
2.18 “Services” is as defined under clause 1.2 of the Terms;
2.19 “SMS” means the Short Message Service, a communication protocol, which allows the exchange of text messages between mobile devices;
2.20 “Terms” means these terms and conditions, as updated by ByTheWay from time to time;
2.21 “Validated Member” means a Member who has validated his/her ByTheWay Account, as further detailed in clause 5.3 of the Terms; and
2.22 “Validation Methods” means SMS verification, Facebook Login, or any other validation method(s) that ByTheWay may at its absolute discretion include or exclude from time to time.
3.1 The Application and the Services are intended solely for persons:
(i) who are 16 years old or older;
(ii) (where the relevant Motor Vehicle is not a public bus, public light bus or taxi) who does not for hire or reward travel in any such Motor Vehicle unless such Motor Vehicle is permitted by applicable laws and regulations to be driven or used for the carriage of passengers for hire or reward; and
(iii) (where the relevant Motor Vehicle is a public bus, public light bus or taxi) who use the Application and the Services solely in the capacity of a passenger of such Motor Vehicle. (collectively, the Criteria)
3.2 Any access to or use of the Application and/or the Services by anyone who does not meet the Criteria is expressly prohibited. By accessing and using the Application and/or the Services, you represent and warrant that you have met the Criteria. FOR AVOIDANCE OF DOUBT, BYTHEWAY SHALL NOT HAVE ANY OBLIGATION TO FIND OUT WHETHER OR NOT YOU HAVE MET THE ABOVE CRITERIA.
4. HOW THE APPLICATION WORKS
4.1 The Application and the Services are provided by ByTheWay to its Members free of charge. ByTheWay reserves the right to later introduce a fee. If ByTheWay decides to introduce such a fee, ByTheWay shall inform its Members accordingly and allows its Members to either continue or terminate their use of the Application at their option.
4.2 ByTheWay provides, via the Application, an online platform for its Members to meet online and arrange for sharing Ride(s) directly with each other.
4.3 The Application aims to facilitate the sharing of Ride(s) between Members by allowing a Host to post a Ride Itinerary for Guest(s) to respond and join. Ride Itineraries cannot be viewed or accessed by unregistered users of the Application. An unregistered user must first register to become a Member to view, list, respond and/or join a Ride Itinerary.
4.4 A chat room (the Chat Room) may be provided by ByTheWay in order to facilitate communication between and amongst the Host and the Guest(s). Members may communicate for sharing Rides or any other purpose provided any such use is in accordance with the laws and regulations in Hong Kong. ByTheWay has no control over and has no obligation to control the Content circulated in the Chat Room.
4.6 ByTheWay uses Apple Push Notification (APN) API in sending its push notifications to users of the Application (including Members). ByTheWay undertakes that it will first seek each such user’s consent to receive push notifications before sending each such user the same via the Application. By consenting to receive push notifications, each such user acknowledges and agrees that ByTheWay has the right to send push notifications to him/her from time to time via the Application.
5. BYTHEWAY ACCOUNT REGISTRATION, SUSPENSION AND TERMINATION
ByTheWay Account Registration
5.2 A ByTheWay Account will be created for the Member’s use of the Application based upon the personal information provided by such Member. Each Member may not have more than one (1) active ByTheWay Account. Each Member agrees to provide accurate, current and complete information during the Registration Process and to update such information to keep it accurate, current and complete.
5.3 A Member may, at his/her option, further validate his/her ByTheWay Account by way of Validation Methods to become a validated member (the Validated Member). In the event the service of Facebook Login is used, each Member acknowledges and agrees to provide to ByTheWay his/her personal information contained in his/her Facebook account as so requested. Validated Members will be able to enjoy certain benefits as compared to a Member who chose not to have his/her ByTheWay Account validated.
5.4 Each Member is responsible for safeguarding his/her own password. Each Member agrees that he/she will not disclose his/her password to any third party and that he/she will take sole responsibility for any activities under his/her ByTheWay Account, whether or not he/she has authorized such activities or actions. Each Member undertakes to notify ByTheWay immediately of any unauthorized use of his/her ByTheWay Account.
ByTheWay Account Suspension and Termination
5.5 ByTheWay reserves the right to suspend or terminate any ByTheWay Account and its Members’ access to the Application (i) if it were to find any such Members has not met any of the Criteria; (ii) if it were to find any such Member has created more than one (1) ByTheWay Account; (iii) if any information provided by such Member during the Registration Process or thereafter proves to be inaccurate, fraudulent, not current or incomplete; or (iv) if it were to find any such Member has breached any provision of the Terms.
6. LISTING OF RIDE ITINERARY BY HOST
6.1 Any Member can be a Host and create a Ride Itinerary.
6.2 Each Member acknowledges and agrees that he/she alone is responsible for any and all Ride Itinerary and Member Content he/she posts. Accordingly, each Member represents and warrants that any Ride Itinerary and Member Content he/she posts and the acceptance of each Ride Itinerary posted by such Member will be in compliance with all applicable laws and regulations.
6.3 ByTheWay assumes no responsibility for any Member’s compliance and/or non-compliance with any agreements with or duties owed to other Member(s) or third parties, or any applicable laws, rules or regulations. ByTheWay reserves the right, at any time and without prior notice, to remove or disable access to any Ride Itinerary for any reason, including Ride Itineraries and Member Content that ByTheWay, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Application and/or Services.
6.4 Each Member understands and agrees that ByTheWay does not act as an insurer or as a contracting agent. If a Member responds and/or joins a Ride Itinerary, any agreement that he/she enters is made between such Members and ByTheWay is not a party to it.
7. NO ENDORESEMENT BY BYTHEWAY
7.1 ByTheWay does not endorse any Member. ByTheWay does not represent or warrant whether any and all Ride Itinerary and/or Member Content is trustworthy, safe or suitable. Any information available on the Application (whether relating to the Member’s profile, the Ride Itinerary, the Member Content or otherwise) are intended to be information for Members to evaluate when they make their own decisions about the identity and suitability of other Members whom they contact or interact with via the Application and/or the Services. ByTheWay recommends its Members to exercise care when deciding whether to accepts a Ride Itinerary or otherwise interact with other Members.
7.2 By using the Application and/or the Services, each Member agrees that any legal remedy or liability that he/she seeks to obtain for actions or omissions of other Members or other third parties will be limited to claim against the particular Member(s) or such relevant third parties. Each Member agrees not to attempt to impose liability or to seek any legal remedy from ByTheWay with respect to such actions or omissions.
8. CONDUCT OF MEMBER
8.1 Each Member understands and agrees he/she is solely responsible for compliance with any and all laws, rules and regulations that may apply to his/her use of the Application and/or the Services. In connection with his/her use of the Application and/or Services, he/she agrees that he/she may not and will not:
8.2 ByTheWay reserves the right to immediately terminate its Members’ use of the Application and/or the Services should any Member is found to be acting in contrary to the above and/or the Terms.
9. BYTHEWAY’S RIGHT TO DISCLOSE INFORMATION
9.2 ByTheWay may disclose any of its information (including but not limited to information relating to its Members) if it is required to do so by law, or if it believes in good faith that it is reasonably necessary to do so to (i) comply with the Terms, the applicable laws and regulations, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body; (ii) enforce or administer its agreements with its Member(s), including but not limited to these Terms; (iii) for fraud prevention, risk assessment, customer support; or (iv) protect the rights, property or safety of ByTheWay, its users, its Members or members of the public.
9.3 Each Member acknowledges that ByTheWay has no obligation to monitor his/her access to or use of the Application and/or the Services, or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Application and/or the Services.
9.4 ByTheWay reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that ByTheWay, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Application and/or the Services.
10. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS OF THE APPLICATION
10.1 The Application is protected by copyright, trademark and other laws in Hong Kong. Each Member acknowledges and agrees that the Application, including all associated intellectual property rights, are the exclusive property of ByTheWay and its licensors (as applicable). Each Member agrees that he/she will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application. All trademarks, service marks, logos, trade names and any other proprietary designations of ByTheWay used in the Application and/or the Services are trademarks or registered trademarks of ByTheWay.
10.2 Each Member agrees that he/she will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Application or the Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to each Member by implication or otherwise under any intellectual property rights owned or controlled by ByTheWay or its licensors, except for the licenses and rights expressly granted in these Terms.
10.3 ByTheWay respects copyright law and expects its Members to do the same. ByTheWay reserves the right to terminate in appropriate circumstances the ByTheWay Accounts of Members who infringe or are believed to be repeatedly infringing the rights of copyright holders.
11. LICENCES GRANTED TO BYTHEWAY IN RELATION TO MEMBER CONTENT
11.1 ByTheWay may, in its sole discretion, permit its Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Application and/or the Services. Each Member hereby grants to ByTheWay a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Application and/or the Services. ByTheWay does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that each Member may have to use and exploit any such Member Content.
11.2 Each Member acknowledges and agrees that he/she is solely responsible for all Member Content that he/she makes available through the Application and/or the Services. Accordingly, he/she represents and warrants that: (i) he/she either is the sole and exclusive owner of all Member Content that he/she makes available through the Application or he/she has all rights, licenses, consents and releases that are necessary to grant to ByTheWay the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor his/her posting, uploading, publication, submission or transmittal of the Member Content or ByTheWay's use of the Member Content (or any portion thereof) on, through or by means of the Application and/or the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
12.1 The Application may contain links to third-party websites or resources. Each Member acknowledges and agrees that ByTheWay is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by ByTheWay of such websites or resources or the content, products, or services available from such websites or resources.
12.2 Each Member acknowledges sole responsibility for and assume all risk arising from his/her use of any such websites or resources or the Content, products or services on or available from such websites or resources.
13.1 ByTheWay does not itself provide transportation services, and is not an owner, operator, agent or otherwise provider for, any transportation vehicles or their services. ByTheWay cannot and does not control the Content contained in any Ride Itinerary and the condition, legality or suitability of any such Ride Itinerary. ByTheWay is not responsible for and disclaims any and all liability related to any and all Ride Itineraries accordingly. Accordingly, any acceptance and action taken in relation to a Ride Itinerary by the Members (whether as a Host or as a Guest) will be made or accepted at the Member’s own risk.
13.2 ByTheWay does not in any event act or purport to act on behalf of any driver of a Motor Vehicle. Further and additionally, ByTheWay does not in any event solicit or attempt to solicit any person for hire or reward to travel in any Motor Vehicle which is licensed as: (a) a private car; (b) a private light bus; (c) a private bus; (d) a light goods vehicle; (e) a medium goods vehicle; or (f) a heavy goods vehicle in any Ride. ByTheWay is not responsible for and disclaims any and all liability related to any such Rides accordingly. Accordingly, any acceptance and actions taken in relation to such Ride by the Members (whether as a Host or as a Guest) will be made or accepted at the Member’s own risk and may subject the Member to civil and criminal liabilities.
13.3 Each Member understands and agrees that if he/she choose to use the Application, the Services and/or the Collective Content, he/she does so at his/her sole risk. He/She acknowledges and agrees that ByTheWay does not have an obligation to conduct background checks on any Member. The Application, the Services and/or the Collective Content are provided “as is”, without warranty of any kind, either express or implied. ByTheWay makes no warranty that the Application and/or the Services will meet his/her requirements or be available on an uninterrupted, secure or error-free basis.
13.4 No advice or information, whether oral or written, obtained from ByTheWay or through the Application and/or the Services will create any warranty not expressly made herein.
13.5 Each Member is solely responsible for all his/her communications and interactions with other Member(s), and with other persons with whom he/she communicates or interacts as a result of his/her use of the Application and/or the Services.
13.6 Each Member understands that ByTheWay does not make any attempt to verify the statements of its Members or users of the Application and/or the Services. ByTheWay makes no representations or warranties as to the conduct of its Members or users of the Application and/or the Services or their compatibility with any current or future Members.
13.7 Each Member understands that when using the Chat Room services, he/she will be exposed to Content from a variety of sources, and that ByTheWay is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content, and that such Content are not the responsibility of ByTheWay. Each Member further understands and acknowledges that he/she may be exposed to Content that are inaccurate, offensive, indecent, or objectionable, and each Member agrees to waive, and hereby do waive, any legal or equitable rights or remedies he/she has or may have against ByTheWay with respect thereto, and agrees to indemnify and hold ByTheWay, its officers, directors, employees, agents, affiliates, and/or licensors, harmless to the maximum extent allowed by applicable laws regarding all matters related to his/her use of the Application and the Services.
14. LIMITATION OF LIABILITY
14.1 Each Member acknowledges and agrees that, to the maximum extent permitted by applicable laws and regulations, the entire risk arising out of his/her access to and the use of the Application, the Services and/or the Collective Content or any contact he/she may have with other users of the Application and/or the Services or Members, whether in person or online, remains with him/her.
14.2 Neither ByTheWay nor any other party involved in creating, producing or delivering the Application, the Services and/or the Collective Content will be liable for any incidental, special, exemplary or consequential damages arising out of or in connection with these Terms, from the use or inability to use the Application and/or the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, whether or not ByTheWay has been informed of the possibility of such damage.
15.1 Each Member agrees to release, defend, indemnify, and hold ByTheWay and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) his/her access to or use of the Application, the Services or the Collective Content or his/her violation of these Terms, applicable laws or regulations; (b) his/her Member Content; and (c)(i) his/her interaction with any Member, (ii) his/her creation of a Ride Itinerary, (iii) his/her acceptance or responds to a Ride Itinerary.
16. STANDARD TERMS IMPOSED BY APPLE APP STORE
16.1 Each Member acknowledges and agrees that these Terms are concluded between ByTheWay and each Member only, and not with Apple, and ByTheWay, not Apple, is solely responsible for the Application and the content thereof. The Terms may not provide for usage rules for the Application that are in conflict with, the App Store Terms of Service as of the Effective Date (which ByTheWay acknowledges that it has had the opportunity to review).
16.2 By accessing or using the Application, each Member acknowledges and agrees to be bound by the standard terms imposed by Apple App Store as amended from time to time. It can be viewed at http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/.
17. THIRD PARTY SERVICES AND CONTENT
18.1 These Terms constitute the entire and exclusive understanding and agreement between ByTheWay and each of its Members regarding the Application, the Services and the Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ByTheWay and each of its Members regarding the same.
18.2 Each Member may not assign or transfer these Terms, by operation of law or otherwise, without ByTheWay's prior written consent. ByTheWay may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
18.3 Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by ByTheWay via email transmitted.
18.4 These Terms shall be governed by and construed in accordance with the laws of Hong Kong. Each Member irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction in relation to any claim or dispute concerning or arising from these Terms.
18.5 If any part of these Terms is unenforceable the enforceability of any other part of the Terms will not be affected. All other clauses shall remain in full force and effect.
18.6 The failure of ByTheWay to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ByTheWay. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.