Terms of Services
1. General - MmoGah is a Venue
MmoGah Marketplace, or “Marketplace”, acts as a venue that allows users to offer, sell and buy products. As a marketplace, MmoGah does not own or sell the items listed on this site. MmoGah only allows suppliers and users who comply with MmoGah's policies to offer, sell and buy certain goods. Preferred supplier pricing will appear on MmoGah's site as default, however a user can request a different supplier if required. The actual contract for sale is directly between Buyers and Sellers. While MmoGah may help to facilitate the resolution of disputes between Buyers and Sellers, MmoGah has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of Users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
Consequently, MmoGah does not transfer legal ownership of items from the seller to the buyer. MmoGah cannot guarantee the true identity, age, and nationality of a user. MmoGah encourages you to communicate directly with potential transaction partners through the tools available on the site.
You agree that MmoGah is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on MmoGah. You use the MmoGah service at your own risk.
1.1 This agreement, and all schedules and appendices attached or referred hereto, if any, (“Agreement”) is an agreement between you and MmoGah (“MmoGah”, “we”, “us”, or “our”).
1.2 This Agreement shall govern, among others,
(a) the provision of the MmoGah Services (as hereinafter defined); and
(b) your use of the Platform (as hereinafter defined).
1.3 The Services are intended for, and may only be used by:
(a) individuals who are 18 years and older who can form legally binding contracts under applicable law, and
(b) individuals who are under the age of 18 with the consent and direct supervision of his/her parent or legal guardian. All transactions carried out by any individual under the age of 18 pursuant to this Agreement shall be deemed to have been approved by his/her legal guardian or parent and such legal guardian or parent shall be responsible for any and all activities conducted by such individual under the age of 18.
2. Definitions and interpretations
2.1 In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Account means the account created and used by you to access or use the Platform;
Business Day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday;
Buyer means the purchaser of any Goods and/or Services;
Goods and/or Services means the digital items, goods and/or services displayed, listed and/or offered by the Seller for sale through or on the Platform.
MmoGah Services mean the services and features provided or made available by MmoGah through or on the Platform from time to time, including without limitation the services provided by MmoGah to facilitate the Seller and the Buyer to enter into a Sale Contract with each other;
Information means any information, details, content, dimensions, data, maps, locations, photographs, text, descriptions, specifications, audio or video clips, graphics, and/or other materials;
Intellectual Property Rights mean all rights, titles and/or interests in, to and/or under patents, registered designs, designs, copyrights, names, marks, trade names, trademarks, service marks and logos and all other intellectual, industrial and/or proprietary rights;
Sale Contract means the agreement entered into between the relevant Seller and the relevant Buyer through the Platform for the sale of any of the Goods and/or Services;
Seller means a seller registered with MmoGah who displays, lists or offers any Goods and/or Services for sale through or on the Platform;
Platform means the online platform (website, mobile site or mobile application) developed and/or operated by MmoGah;
Registration Process means the registration process set out by MmoGah for you to register and open the Account with MmoGah;
Representatives means the servants, employees, officers, agents, contractors, workmen, personnel and/or representatives of the relevant party; and
You/your means all users of the Platform, including without limitation the Sellers and the Buyers.
2.2 In this Agreement, unless the context otherwise requires:
(a) denoting the singular include the plural and vice-versa;
(b) words denoting natural persons include bodies corporate and unincorporated;
(c) references to any law, legislation or to any provision of any law or legislation shall include all relevant regulations, statutory requirements and instruments issued under such law, legislation or provision and any variation, modification or re-enactment of any of the foregoing;
(d) headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
(e) references to any party to this Agreement or any other agreement or instrument shall include that party's successors and permitted assigns;
(f) no rule of construction or interpretation applies to the disadvantage or detriment of the party having control or being responsible for the preparation of this Agreement; and
(g) any words following the terms including, include or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
3. Access to the platform
3.1 If you wish to have access to the Platform and MmoGah Services, you shall create an Account with MmoGah in accordance with the Registration Process. Upon successful registration, you may be given access to the Platform and MmoGah Services by logging in to your Account. MmoGah shall be entitled to perform a background check on you and shall have the right, in its sole and absolute discretion, to refuse to grant you access to the Platform and MmoGah Services or any part thereof. You may be asked to provide additional verification or information during the registration process.
3.2 You shall be solely responsible for keeping the username and password of your Account confidential and secured at all times and shall immediately notify MmoGah of any unauthorised access to your Account. Any instruction, notification or confirmation received by MmoGah from your Account shall be deemed to have been issued by you notwithstanding that such notification or confirmation may have been issued by a third party, whether authorized or otherwise, and you shall be bound by such instruction, notification or confirmation. MmoGah shall not be liable for acting on the instruction, notification or confirmation sent through your Account. MmoGah shall not be obliged to investigate the authenticity or authority of the person sending/effecting the instruction, notification or confirmation or verify the completeness of such instruction, notification or confirmation
3.3 You shall closely monitor all activities and transactions carried out through your Account and you shall take all steps and measures to check and verify the transaction history of your Account. You shall immediately notify MmoGah:
(a) of any unusual activities or transactions in connection with your Account or in the event that any of the activities or transactions are not accurately recorded in your Account;
(b) upon receipt of any incomplete, garbled or inaccurate data or information from MmoGah; and
(c) upon receipt of any data or information which is not intended for you and you shall not use or disclose any such data or information without MmoGah's written consent.
3.4 Unless expressly agreed by MmoGah each person is limited to one Account. No Account may be created on behalf of or in order to impersonate another person. Should MmoGah discover that such a fraudulent account has been created, MmoGah shall be entitled to immediately suspend the account and reserves the right to take any further remedial action, including without limitation informing the relevant authorities, without any liability on the part of MmoGah.
4. Sale contract
4.1 All Sale Contracts are strictly made between the relevant Seller and the relevant Buyer to the full and absolute exclusion of MmoGah. MmoGah makes no representation and/or warranty of any kind as to the Goods and/or Services and MmoGah shall not be made liable or responsible to you in any manner whatsoever for any costs, loss, damages, claims, fines, penalties, liabilities and/or expenses howsoever arising from the Sale Contract, including without limitation for any negligence, delay, failure, fault and/or breach on the part of the relevant Seller or Buyer. The Buyer acknowledges that there is a risk that the relevant game developer may modify the Buyer's game account and its content from purchases made by the Buyer via the Platform and MmoGah shall not be held liable in any manner whatsoever in such circumstances. For the avoidance of doubt, all Goods and/or Services are offered by the relevant third party Seller and MmoGah is merely the facilitator of such Goods and/or Services. As such, MmoGah has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings. MmoGah is not obliged to conduct pre-screening on users. MmoGah cannot guarantee that a Buyer or Seller will actually complete a transaction.
4.2 Notwithstanding the foregoing, the Sale Contract shall be subject to and you shall observe and comply with the following terms and conditions:
(a) You shall not modify or cancel any Sale Contract formed via the Platform except with the agreement in writing of MmoGah and on the condition that you shall indemnify MmoGah in full against all loss, costs, damages, charges and expenses (including loss of profit) incurred by MmoGah as a result of such modification or cancellation;
(b) You shall carry out all your obligations in connection with the Sale Contract diligently in a timely manner and with due care and skill;
(c) The payment for the Sale Contract shall be made in accordance with Appendix A (PAYMENT) ; and
(d) You shall comply with any instructions, guidelines and/or policies as may be published or provided by MmoGah in connection with the Sale Contract from time to time.
4.3 In the event that any conflict, dispute and/or issue between you and another user or a third party in respect of the Sale Contract arises,
(a) we encourage you to contact the user or third party and use your best endeavour to resolve such conflict, dispute or issue fairly and amicably, which MmoGah shall use reasonable commercial efforts to facilitate.
(b) MmoGah may, but not obliged to, intervene or take part in the resolution of such conflict, dispute or issue for the benefit of users. MmoGah does so in good faith and at its sole and absolute discretion, in accordance with the dispute resolution process based upon MmoGah policies. MmoGah has no obligation to resolve disputes between users or between users and outside parties. You shall comply with all reasonable instructions as may be made by MmoGah in connection thereof.
(c) Users may approach the claims tribunal of their local jurisdiction to resolve any dispute arising from a transaction.
(d) MmoGah shall have the right to retain any sums paid by the Buyer for the relevant Goods and/or Services until a mutually amicable binding resolution has been reached; and
(e) You release MmoGah (and MmoGah's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all demands, damages and claims (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or a third party to the maximum extent permitted by applicable law.
4.4 You may list and sell your Goods and/or Services on the Platform in accordance with the procedures set out on the Platform subject to all conditions and requirements as may be imposed by MmoGah from time to time.
4.5 MmoGah may at its absolute discretion:
(a) categorise the Seller into the relevant group of Sellers based on MmoGah' criteria; and
(b) determine the range of prices for the Goods and/or Services.
4.6 Each Seller warrants, represents, acknowledges and/or confirms that:
(a) it has procured all necessary permission, right, licence, consent and/or approval from the relevant third parties to publish, display and offer the Goods and/or Services for sale through the Platform (including without limitation the publishing of all Information in connection with the Goods and/or Services on the Platform) and such publishing, displaying and offering will not infringe any third party rights;
(b) it shall honour and perform all the Sale Contracts and shall not engage in any conduct or carry out any action which may affect the Buyer's entitlement to the purchased Goods and/or Services;
(c) it is able to provide, transfer or deliver the Goods and/or Services to the Buyer in a timely manner (i.e. when the Buyer has confirmed the order with MmoGah or when the Buyer has made the payment for the relevant Goods and/or Services whichever earlier);
(d) the Goods and/or Services are accurately described and the Goods and/or Services delivered or provided to the Buyer will conform with its description; and
(e) it shall not directly or indirectly recruit and/or poach any Buyers or enter into any independent transaction with the Buyer other than through the Platform.
4.7 The Seller shall be solely liable for all claims in relation to and in connection with the Sale Contract, including, without limitation, non-delivery, defective quality and/or misdescription of the Goods and/or Services.
4.8 MmoGah shall not in any manner whatsoever be construed, at law or otherwise, to owe a fiduciary duty to the Seller in respect of the obligations on the part of the Buyer to pay the price of the purchased Goods and/or Services.
5. Payment, security deposit and rolling reserve Payment, security deposit and rolling reserve
5.1 Payment shall be made by you in accordance with Appendix A (PAYMENT).
5.2 If requested or notified by MmoGah, the Seller shall deposit the sum stipulated in the relevant Policy as Security Deposit (as described in the relevant Policy) prior to listing or displaying any of its Goods and/or Services on the Platform.
5.3 MmoGah shall be entitled to withhold the sum stipulated in the relevant Policy (if any) as Rolling Reserve (as described in the relevant Policy) in respect of each Sale Contract.
6. General obligations
6.1 You shall, at your own cost and expense:
(a) comply with all applicable law, statutes, bye-law, regulations, orders, delegated or subordinate legislation, regulatory policies, notices, determinations, guidelines, directives and/or any other requirements of any governmental, statutory and/or regulatory bodies and/or departments from time to time;
(b) obtain and maintain throughout the duration of this Agreement, all necessary approvals, consents, licences and permissions (statutory, regulatory, contractual or otherwise) in relation to your obligations and activities under this Agreement and the Sale Contract; and
(c) comply with all guidelines, rules, regulations, policies, instructions and procedures in connection with the Platform and MmoGah Services as imposed or may be imposed by MmoGah from time to time.
7. Use of the platform/MmoGah services
7.1 In consideration of you agreeing to the terms and conditions contained in this Agreement, MmoGah grants you a non-exclusive, non-transferable right to access and use the Platform and MmoGah Services solely and to the extent necessary for the purpose of this Agreement. The Platform and/or the MmoGah Services shall not be commercialised in any manner whatsoever.
7.2 The Platform, MmoGah Services, and/or all Information contained on, in or made available through the Platform and/or MmoGah Services shall be collectively referred to as “MmoGah Platform/Services” and reference to MmoGah Platform/Services shall include any part thereof. Save and except as otherwise stated in this Agreement or with MmoGah's prior written consent, you shall not and shall not attempt to, whether by yourself or by allowing any third party:
(a) copy, distribute, recreate, and/or disseminate MmoGah Platform/Services except where such act is incidental to the normal use of MmoGah Platform/Services, or where it is necessary for the purpose of this Agreement or other back-up and/or operational security reasons;
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify MmoGah Platform/Services;
(c) make alterations or modifications to the whole or any part of MmoGah Platform/Services, or permit MmoGah Platform/Services to be combined with, or become incorporated in, any other programs;
(d) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of MmoGah Platform/Services;
(e) provide or otherwise make available the underlying software of the Platform in whole or in part (including object and source code), in any form to any person;
(f) use MmoGah Platform/Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with or not authorised by this Agreement, or act fraudulently or maliciously;
(g) collect or harvest any Information from MmoGah Platform/Services or MmoGah's systems or attempt to decipher any transmissions to or from the servers running any of the MmoGah Services;
(h) access any data or Information not intended for you, including without limitation logging into a server or an account which you are not authorized to access;
(i) use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform and/or transmit or distribute any malicious code, viruses, or harmful data into or through the Platform or any operating system;
(j) misuse, abuse or hack into any aspect of MmoGah Platform/Services in any manner whatsoever or otherwise compromise the integrity of MmoGah's software or systems;
(k) send, advertise or publish any unsolicited advertising or promotional content through or on MmoGah Platform/Services; and
(l) use MmoGah Platform/Services in a way that could: (i) damage, disable, overburden, impair or compromise MmoGah's systems, software and/or security; or (ii) interfere with other users' use and enjoyment of MmoGah Platform/Services.
8. Information submitted by you
8.1 You shall ensure that all Information provided to MmoGah or published on the Platform by you is true, complete, accurate and up-to-date and that you have all the necessary authority and right to publish or provide such Information. You warrant that MmoGah's use of any such Information will not infringe the right (including without limitation the Intellectual Property Rights) of any third party.
8.2 You shall not transmit or post (or cause to be transmitted or posted) through or on the Platform and/or MmoGah Services any Information which is or may be unlawful, technologically harmful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, which encourages or may encourage conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law or which violates or infringes or may violate or infringe the rights of others.
8.3 By submitting or uploading any Information on or through the Platform and/or MmoGah Services, you automatically grant, or warrant that the owner of such Information has expressly granted, MmoGah the royalty-free, perpetual, irrevocable, non-exclusive right and license to reproduce, share, publish and distribute such Information (in whole or in part) on or through the Platform save and except for the Personal Data which is to be processed by MmoGah in accordance with the Privacy Notice published on the Platform.
9.1 You shall comply with and observe all the relevant terms, conditions and requirements contained in the policies published by MmoGah on the Platform (“ Policies” ).
9.2 For the avoidance of doubt, the Policies shall form part of this Agreement and you shall be bound by the same.
10.1 The Platform may contain links to third party sites or to resources provided by third parties (“ Third Party Sites/Content ”). The Third Party Sites/Content are linked solely for your convenience. MmoGah has no control over and MmoGah assumes no responsibility for the Information contained in such Third Party Sites/Content. MmoGah accepts no responsibility for any loss and/or damage that may arise from your use of the Third Party Sites/Content. If you decide to access any of the Third Party Sites/Content, you hereby agree to do so entirely at your own risk.
11. Personal dat
12.1 “ Confidential Information ” means all Information of any kind, whether in machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”, that are made available by or on behalf of the disclosing party to the receiving party, whether before or after the commencement of the term of this Agreement, for the purposes relating to or in connection with this Agreement. The Confidential Information shall include without limitation technical information, data, know-how, information relating to the disclosing party's or their respective affiliates' business, trade secrets, revenue or income information, marketing strategies, financial condition and operations, and any other information that is by its nature confidential and proprietary to the disclosing Party or its suppliers/affiliates.
12.2 “Confidential Information” shall not include information that: (i) was, at the time of its disclosure, already in the possession of the receiving party free of any obligation to keep it confidential and such party can establish, through reasonably sufficient and credible competent evidence, such prior possession; (ii) is independently developed by the receiving party, (iii) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives; or (iv) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its Representatives; provided, however, that such source is not to the knowledge of the receiving party bound by a confidentiality agreement or other legal or fiduciary obligation of secrecy to the disclosing party.
12.3 Unless otherwise stated herein, the receiving party of any of the Confidential Information agrees not to disclose such Confidential Information to any person except (i) where such disclosure is required by law or the regulations of any securities exchange or court of competent jurisdiction; (ii) where such disclosure is permitted under this Agreement; (iii) to their respective Representatives and/or legal, financial and/or accounting advisors who have a definite need to know such Confidential Information; and/or (iv) with prior written approval of the disclosing party.
12.4 In the event that any of MmoGah's Confidential Information is required to be disclosed in any manner due to the requirements of any applicable law or the regulations of any securities exchange or securities trading system, or court of competent jurisdiction, you shall give prompt written notice to MmoGah prior to any disclosure sufficient under the circumstances to allow MmoGah to seek a protective order or other appropriate remedy. You shall: (i) only disclose such minimum information as is legally required and shall, at the request of MmoGah, use commercially reasonable efforts to obtain confidential treatment for MmoGah's Confidential Information that is to be disclosed and allow MmoGah, if it wishes, to also take such measures as it deems necessary or desirable to challenge any such disclosure or to otherwise redact or minimize such disclosure; and (ii) fully cooperate with MmoGah.
12.5 All Confidential Information shall solely be used for the purpose of this Agreement.
12.6 Notwithstanding anything contained herein, MmoGah shall be entitled to disclose your Information to the relevant Seller, Buyer or MmoGah's service providers for the purpose of providing the MmoGah Services. You hereby irrevocably and unconditionally authorises MmoGah to forward your contact Information to the relevant Seller or Buyer for the purpose of the Sale Contract.
12.7 This Clause shall survive the termination or expiry of this Agreement for any reason whatsoever.
13. Intellectual property rights
13.1 All existing Intellectual Property Rights of MmoGah, its contractors, partners, services providers, suppliers, or licensors (if any) shall belong and remain with its respective owner. Nothing in this Agreement shall transfer or assign such Intellectual Property Rights to you.
13.2 All Intellectual Property Rights created and/or developed pursuant to this Agreement by MmoGah (its suppliers, contractors, partners and/or licensors (if any)) shall belong absolutely to MmoGah.
13.3 You shall not, whether by yourself or through any other person, engage in any conduct which will infringe the Intellectual Property Rights of MmoGah or those of any third party in relation to your use of the Platform and/or the MmoGah Services.
13.4 You shall use any Information and/or properties made available to you by MmoGah under this Agreement in which any of MmoGah's Intellectual Property Rights subsist solely for the purpose of and only to the extent permitted by this Agreement. This Clause shall survive the termination of this Agreement.
14. Consumer protection
14.1 Notwithstanding anything contained herein, if the Consumer Protection Act 1999 (“Act”) applies and if you are dealing as a consumer under the Act (consumer shall have the meaning prescribed to it by the Act, “Consumer”), (a) this Agreement is only intended to exclude or limit the remedies and rights you may have to the maximum extent permitted by the Act; and (b) nothing in this Agreement is intended to exclude or limit MmoGah's liability to you for any loss or damage arising from (i) MmoGah's negligence; or (ii) MmoGah's breach of any express or implied terms of this Agreement without adequate justification.
15. Warranty, unavailability, and disclaime
15.1 MmoGah warrants that the MmoGah Services will be provided with reasonable care and skill.
15.2 Information made available to you through the Platform or MmoGah Services may be furnished to MmoGah by third party, including without limitation the Seller and other users of the Platform. While MmoGah will use reasonable endeavours to ensure that such Information is communicated to you in its original form as supplied by the third party, MmoGah does not warrant that the said Information is accurate, complete, reliable, original, current, or error-free.
15.3 In relation to the use of the Platform and/or MmoGah Services, MmoGah does not warrant that:
(a) the functions contained in the Platform and/or MmoGah Services will meet your requirements;
(b) the operation of the Platform and/or MmoGah Services will be uninterrupted or error-free;
(c) any defects in the Platform and/or MmoGah Services will be corrected; and
(d) the Platform is free of viruses, bugs, online interruption or other harmful threats. You shall be responsible for implementing all necessary security and virus protection measures on or in your computer or mobile device before accessing the Platform.
15.4 You understand, acknowledge and agree that:
(a) advice or recommendations are a matter of opinion and may not represent the true application, quality or feature of a particular service, as such you accept that any advice or recommendation given by MmoGah, its employees or agents is followed or acted upon entirely at your own risk, and accordingly MmoGah shall not be liable for any such advice or recommendation;
(b) all transactions conducted on the Platform are through telecommunication and data network. As such, your receipt of the notification from MmoGah and vice versa may be delayed or prevented by factors affecting the relevant service providers and other relevant parties. You accept that MmoGah cannot guarantee the prompt delivery of such notification or confirmation; and
(c) there may be certain times that the Platform or MmoGah Services may not be available due to maintenance, updating or upgrading works, or such other reasons beyond the control of MmoGah. MmoGah makes no warranty that the Platform and/or MmoGah Services will be available at all times and MmoGah shall not be held responsible or liable in any manner whatsoever for such unavailability.
16. Limitation of liability
IN NO EVENT SHALL MMOGAH, AND (AS APPLICABLE) MMOGAH'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR MMOGAH'S LICENSORS AND SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
16.1 To the maximum extent permitted by law and the Act,
(a) the Platform, MmoGah Services and all Information made available to you by MmoGah via the Platform and/or MmoGah Services are provided on an as is and “as available” basis, without warranty of any kind, and MmoGah hereby disclaims all warranties and conditions with respect to the Platform, the MmoGah Services and Information made available to you by MmoGah unless otherwise stated in this Agreement;
(b) MmoGah shall not be liable to you for any costs, loss, damages, claims, fines, penalties, liabilities and/or expenses howsoever arising from the provision of any Information made available to you by MmoGah through the Platform;
(c) in no event shall MmoGah be liable for any indirect, incidental, punitive and/or consequential damages and/or losses, loss of profit, goodwill, production and/or revenue and/or any other type of special losses and/or damages howsoever arising whether or not such losses and/or damages were reasonably foreseeable or MmoGah had been advised of the possibility of same incurring; and
(d) MmoGah's maximum and cumulative total liability (including any liability for acts and omissions of its Representatives) in respect of any and all costs, loss, damages, claims, fines, penalties, liabilities and/or expenses howsoever arising under this Agreement shall not exceed HKD30 or the relevant fees paid by you for the MmoGah Services in dispute whichever is higher.
17.1 You agree to defend, indemnify and hold MmoGah, its affiliates and each of their respective directors, officers, employees and agents harmless from and against all costs, loss, damages, claims, fines, penalties, liabilities and/or expenses, including attorneys' fees, arising howsoever under this Agreement including without limitation arising from or in connection with negligence, omission, and/or breach of this Agreement on your part. This indemnity shall be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination. For the avoidance of doubt, nothing in this clause shall prevent or restrict MmoGah enforcing any other rights and obligations owed to it under this Agreement.
18. Force majeure
18.1 MmoGah shall not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the MmoGah's obligations under this Agreement, if the delay or failure was due to any cause beyond MmoGah's reasonable control, including but not limited to:
(a) fire, act of God, storm, explosion, earthquake, flood, tempest, accident or other natural disaster;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) strikes, lock outs or other industrial actions or trade disputes;
(e) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
(f) telecommunication, transportation, power supply, or system disturbances or failures, or breakdown in machinery affecting the Platform, MmoGah Services or any part thereof.
19. MmoGah Rights and suspension
19.1 Without prejudice to any other rights MmoGah may have under this Agreement or at law, MmoGah shall have the right to immediately (without notice):
(a) suspend or cease your access to the Platform and/or MmoGah Services;
(b) remove any Information submitted, uploaded or transmitted by you to or through the Platform;
(c) suspend or limit any or all of the activities and/or transactions in connection with your Account; and/
(d) withhold, retain or forfeit any payment due, owing to you;
in any of the following events:
(a) MmoGah is of the opinion that your performance of any of the Sale Contracts is not satisfactory in MmoGah's sole discretion;
(b) MmoGah is of reasonable opinion that your use of the Platform and/or MmoGah Services will interfere or cause disturbances to other user's use or enjoyment of the Platform or MmoGah Services; or
(c) you are found to be in breach of any of the terms and conditions contained in this Agreement or MmoGah suspects, on reasonable grounds, that you may have committed any such breach.
20.1 Without prejudice to any other rights that MmoGah may have under this Agreement or at law, MmoGah may immediately terminate this Agreement by notice in writing if:
(a) you are in breach of any of the terms and conditions of this Agreement and such breach is not remedied by you within thirty (30) days' of MmoGah's written notice; or
(b) you shall pass a resolution for winding up or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration, including without limitation bankruptcy proceedings, or if a receiving order is made against you or you make any arrangement or composition with your creditors.
20.2 Without prejudice to any other rights and remedies MmoGah may have under this Agreement or at law, upon termination:
(a) all rights granted to you under this Agreement shall cease;
(b) you shall immediately cease all activities authorised by this Agreement; and
(c) you shall immediately destroy or, at MmoGah's request, promptly return all MmoGah's Confidential Information which is in your possession and to certify to MmoGah that you have done so
21.1 MmoGah shall have the right at any time to add, delete, amend, or modify this Agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for access and use. Such addition, deletion, amendment, or modification shall be effective immediately upon notice thereof, which may be given by means of, including, but not limited to, posting on the Platform, or by electronic or conventional mail, or by any other means by which you obtain notice thereof. Any use of the Platform and/or MmoGah Services by you after the issuance of such notice shall be deemed to constitute acceptance of this Agreement with such addition, deletion, amendment, or modification.
21.2 You shall immediately notify MmoGah in the event that you are not agreeable to any such addition, deletion, amendment, or modification and this Agreement shall be deemed terminated upon your notification to MmoGah of your disagreement unless otherwise agreed by MmoGah.
21.3 MmoGah shall have the right at any time to change or discontinue any aspect or feature of the Platform and/or MmoGah Services, including, but not limited to, content, hours of availability, and equipment needed for access and use.
21.4 No amendment or variation of this Agreement by you shall be valid and binding unless approved in writing by both parties.
22.1 to the address, email address or facsimile notified by the other party or made available to the other party though the Platform. Such notice shall be deemed to have been served (a) if delivered personally, the next Business Day after it has been delivered; (b) if sent by registered mail or courier, five (5) days after dispatch; (c) if sent by facsimile, upon receiving the confirmation report stating successful transmission of the facsimile if sent before 5p.m. on a Business Day and if sent after 5p.m. on a Business Day or on a non-Business Day, the next Business Day; or (d) if sent by e-mail, upon successful delivery of the email and recorded as a sent email if sent before 5p.m. on a Business Day and if sent after 5p.m. on a Business Day or on a non-Business Day, the next Business Day.
22.2 Except as otherwise agreed or provided in this Agreement, all notices and other communications to be given to any party pursuant to this Agreement shall be in writing and shall be valid and sufficient if dispatched or sent in the following manner:
(a) by posting, publishing or sending a notification on or through the relevant Platform;
(b) by email to your email address provided or notified by you;
(c) by publication in a newspaper; or
(d) by short messaging services (SMS) to your mobile phone number registered with MmoGah.
22.3 Notices shall be deemed to have been served (a) if delivered personally, the next Business Day after it has been delivered; (b) if sent by registered mail or courier, three (3) Business Days after dispatch; (c) if sent by e-mail, upon successful delivery of the email and recorded as a sent email if sent before 5p.m. on a Business Day and if sent after 5p.m. or on a non-Business Day, the next Business Day; (d) if sent by way of posting, publishing or sending a notification on or through the relevant Platform or by SMS, immediately upon successful posting, publishing or sending if posted, published or sent before 5p.m. on a Business Day and if posted, published or sent after 5p.m. or on a non-Business Day, the next Business Day.
22.4 Notwithstanding anything to the contrary in this clause, notification by way of email shall not be applicable to or valid with respect to any legal, notices, claims, demands, suits, actions and/or proceedings.
23. Entire agreement
23.1 This Agreement (together with any documents referred to herein) constitutes the whole agreement between the parties relating to the subject matter hereof and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing relating to the subject matter hereof and no representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as set out in this Agreement.
24. Assignment, novation, delegation and subcontracting
24.1 You shall not transfer, assign, novate and/or sub-contract any of your rights and/or obligations contained in this Agreement to a third party without MmoGah’s prior written consent. MmoGah may transfer, assign, novate, and/or sub-contract any or all of its rights and obligations under this Agreement to any of its affiliates.
25. No waiver
25.1 No failure or delay on the part of a party in exercising any rights or remedies under this Agreement at any time or for any period of time nor any knowledge or acquiescence by a Party of, or in, any breach of any provision of this Agreement shall operate as or be deemed to be a waiver thereof nor shall a waiver by that party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of right or remedy under this Agreement may not be waived except in writing signed by the waiving party.
26. Successors and assigns
26.1 This Agreement shall be binding upon the parties and their permitted legal assigns and successors in title.
27.1 Any term, condition, stipulation, provision, covenant or undertaking (“Provision”, and any reference to Provision shall include any part thereof) contained in this Agreement which is illegal, invalid or unenforceable shall be fully severable and ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining Provisions contained in this Agreement which shall not be affected by the illegal, invalid or unenforceable Provision or by its severance herefrom. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable Provision had never comprised a part hereof. Where any Provision of, or the application of any provision of this Agreement is illegal or unenforceable or deemed to be illegal or unenforceable, the Provision shall continue to apply with the necessary modification in order that the Provision is legal, valid and enforceable provision.
28. No partnership/agency
28.1 Nothing in this Agreement shall create, or be deemed to create, a joint venture or partnership between/among the parties. No party has any authority to act, make representations or bind or contract on behalf of the other party.
29.1 The covenants, conditions and provisions of this Agreement which are capable of having effect and which shall by its nature survive after the termination or expiration of this Agreement shall remain in full force and effect following the termination or expiration of this Agreement.
30. Copyright Policy
30.1 As stated above, your Content and your use of MmoGah shall not infringe upon any third-party's intellectual property rights. MmoGah respects the intellectual property of others and asks that users of our Services do the same. We have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our Services that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
The contact information for the Copyright Agent for MmoGah is as follows:
31. Prohibited, Questionable and Infringing Items and Activities
31.1 You are solely responsible for your conduct and activities on and regarding to MmoGah and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, User Content or “Your Content”) that you submit, post, and display on MmoGah.
Your Content and your use of MmoGah shall not:
- Be false, inaccurate or misleading
- Be fraudulent or involve the sale of illegal, counterfeit or stolen items
- Infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy
- Violate this Agreement, any policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
- Violate any legal or contractual obligations to which you may be subject
- Involve any countries, entities, individuals or items prohibited by sanctions, embargoes, regulations or orders administered by the U.S. Department of Treasury's Office of Foreign Assets Control (“OFAC”) or other government agencies
- Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall
- Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including MmoGah staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
- Interfere with a seller's business or shop
- Take any action that may undermine online reviews or feedback
- Be obscene or contain child pornography
- Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
- Host images not part of a listing
- Modify, adapt or hack MmoGah or modify another website so as to falsely imply that it is associated with MmoGah
- Appear to create liability for MmoGah or cause MmoGah to lose (in whole or in part) the services of MmoGah's ISPs or other suppliers
- Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement or other policy documents as posted on MmoGah.
32. Legal Compliance; Taxes
32.1 You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make using the Services (excluding any taxes on MmoGah's net income).
33. Choice of Law
33.1 This Agreement shall in all respects be interpreted and construed with and by the laws of Hong Kong, China, excluding its conflicts of laws rules.
34. Fees and Purchases
34.1 Creating an Account is free. MmoGah may charge fees for services or items sold via the Services. You are solely responsible for any additional costs you incur when making purchases or accessing the Services, including but not limited to payment processing, messaging, communication or data usage fees on an Internet provider's or mobile network.
When you provide payment information to MmoGah or to one of its payment processors, you represent and warrant that you are the authorized user of such information, including, without limitation, the credit card, PIN, key, or associated account, and you authorize MmoGah and the payment processors to charge you for your purchases, subscriptions, or any other fees incurred by you.
MmoGah, in its sole discretion, may inspect and verify (i) details related to the listing sold on Marketplace, (ii) the buyer of the Marketplace listing, and (iii) the seller of the Marketplace listing. As a part of the verification process, MmoGah may require the buyer or seller to provide additional identification information, including, without limitation, a copy of a valid driver's license (or other form of government issued identification) prior to or during the transaction. Users may also be asked to go through additional security procedures and share additional information to confirm their identity. MmoGah reserves the right to reject any item that we believe (in our sole discretion) may: (i) be fraudulent, invalid, inauthentic or stolen, (ii) have come from an unauthorized or illegal source, (iii) be related to any illegal activity or (iv) otherwise pose a financial risk to us or our users.
You agree and acknowledge that payment processing services are provided by third parties (the Payment Processors), including but not limited to Western Union., and are subject to the respective service agreements (collectively, the Payment Services Agreement). By using the Services, you agree to be bound by the terms in this section and the Payment Services Agreement, as the same may be modified by us or by the Payment Processors from time to time. As a condition of selling, you agree to provide MmoGah accurate and complete information about you and your business (if applicable), and you authorize MmoGah to share, in accordance with the Payment Services Agreement, such information and applicable transaction information related to your use of the payment processing services provided by the Payment Processors.
When you list an item on MmoGah Marketplace, you have an opportunity to review and accept the fees that you will be charged. You are responsible for paying all fees and applicable taxes associated with using MmoGah.
If MmoGah terminates a listing or your account, if you close your account, or if the payment of your MmoGah fees cannot be completed for any reason, you remain obligated to pay MmoGah for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel).
1.1 The relevant Buyer shall pay the sum in respect of any Sale Contract (“Sale Contract Sum”) through the payment gateways available on the Platform subject to any terms and conditions as may be imposed by the relevant payment gateway service provider.
1.2 Upon successful delivery of the purchased Goods and/or Services and submission of all necessary supporting documentation as may be required by MmoGah evidencing successful delivery, MmoGah will credit the relevant Sale Contract Sum into the Seller's Account via the payment method selected by the Seller after deducting the fees as may be charged by MmoGah subject to MmoGah's right to retain any sum under this Agreement Provided Always that MmoGah has not received any complaints or notice of dispute from the Buyer and the Buyer has successfully received the relevant Goods and/or Services.
1.3 MmoGah shall be entitled to withhold the Contract Sum for such period as may be determined by MmoGah in accordance with this Agreement, including without limitation the relevant Policies.
1.4 Any payments made by MmoGah to the Seller shall be in accordance with the timeframe and cut-off time determined by MmoGah, subject to such variation or modification as MmoGah shall in its absolute discretion determine from time to time.
1.5 MmoGah shall be entitled to charge MmoGah Services/Administration Fees for MmoGah Services.
1.6 All MmoGah Services/Administration Fees displayed on the Platform shall be exclusive of taxes.
1.6 You shall not be entitled to set off any payment due to MmoGah against any claim made by or payments due to you.
1.7 In the event that MmoGah has reason to suspect that you are engaged in any fraudulent or other similar activity, MmoGah shall have the absolute discretion to cancel any payment request made by you.