Software License and Service Agreement

Software License and Service Agreement

Ver.: June 2018

Before accepting this Agreement, please read this Agreement fully and carefully (in particularly those clauses marked in bold and/or with underline). If you have any question on the clauses herein, please raise your question through relevant business units and we will explain the contents of the clauses to you. If you disagree with any content hereof or cannot accurately understand our explanation on the clauses, please do not conduct any subsequent operation.

This Software License and Service Agreement (this “Agreement”) is made by and between you and Shenzhen Yaokan Technology Co., Ltd. (“Yaokan”).

This Agreement includes the main body, schedules and all business regulations, activity rules, notices, announcements that have been or will be published by Yaokan (collectively “Rules”), including but not limited to Service Agreement, Legal Statement and Privacy Policy. All the Rules are an integral part of this Agreement and shall have the same legal effect as the main body hereof.

Yaokan has the right to formulate and amend this Agreement and/or the Rules from time to time if necessary. In case of any amendment, Yaokan will announce the same by website announcement without any separate notification. This Agreement and the Rules as amended above shall automatically take effect upon announcement and become a part hereof. If you disagree with relevant amendment, you shall immediately stop using the service provided by Yaokan. Your continued use of such service shall be regarded as you having no objection against this Agreement and the Rules as amended and agreeing to observe the same.

1. Definition

2. Licensed Software means a software system developed by Yaokan, which is available for your downloading from any download platform and allowed only to be installed and used in mobile terminals with corresponding operating systems including but not limited to Android and iOS. Service means the service provided by Shenzhen Yaokan Technology Co., Ltd. to you. You may use the Service in mobile terminals through the Licensed Software.

3. Scope of Service

4. Yaokan offers you smart living device control service. With Yaokan, you can control more intelligent terminal devices such as infrared appliances, radio frequency appliances, etc. through the cloud platform, and realize the interaction between intelligent devices. The scope of the service includes smart device management, scenario interaction, analysis and reporting, and other functions that can be changed according to user requirements, optimized or modified as the service upgrades, or decided by the service provider itself, or paused. Due to periodic or irregular maintenance.

5. Scope of Authorization

6. Yaokan grants you a non-assignable, non-sublicensable and non-exclusive license to install and use the Licensed Software.
   • Owing to the restrictions on compatible platforms and terminals, you understand that you may only use the Licensed Software in licensed system platforms and terminals. If you install the Licensed Software in other terminal devices (including desktop computers, laptop computers, or other hand-held mobile terminals, televisions and set-top boxes except the licensed terminals), the functions of your hardware or software may be damaged.
   • You shall understand that the Licensed Software may only be used for non-commercial purposes. You shall not install, use and run the Licensed Software for the purposes of business operations. If you intend to conduct commercial duplication, communication and distribution, such as pre-installation and bundling, you must obtain Yaokan's prior written authorization and license.
   • Yaokan will change, upgrade, alter or transfer the Licensed Software and its relevant functions from time to time and will develop new functions or other services in the system of the Licensed Software. If there is no separate agreement in connection with the aforesaid new functions or software services, you will still be licensed to use corresponding functions or services and this Agreement will apply.

7. Third-Party Software or Service

8. The Licensed Software may use or include any software or service provided by a third party (“the Services”). The Services are included for your convenience with due authorization of such third party.
   • In the case that Yaokan uses the Services provided by a third party, as such third party is the provider of the Services, you shall separately enter into a service agreement with such third party, pay relevant fees and undertake potential risks before and during using the Services. You shall understand that Yaokan has no right to grant you any right to use the Services hereunder or make any warranty for the Services in any form. Yaokan is not able to provide customer support for the Services. If you need support, you may directly contact such third party. In case of any dispute arising from your use of the Services, you may directly consult with such third party for settlement.
   • You understand that the Licensed Software only uses or includes the Services for the time being. Yaokan does not undertake that the Licensed Software will permanently use or include the Services, or the Licensed Software will not use or include any software or service of the same or different type of such third party or any other third party in the future. Once Yaokan uses or includes the aforesaid software or service in the Licensed Software, this Article 4 shall also apply.

9. Service Regulations

10. You shall use the Licensed Software according to the rules and regulations. You shall not:

11. do any act that violates laws, regulations and policies, damages public order and good custom and harms public interest.

12. lease, lend, reproduce, change, link, repost, compile, issue, publish, set up a mirror site of the Licensed Software and relevant information therein, or utilize the Licensed Software to develop derivative products, works, services, plug-ins, compatibles and interconnections in relation thereto without our approval.

13. log in or use the Licensed Software through any third-party compatible software and system that are not developed, authorized or approved by Yaokan and its affiliates, or use plug-ins in connection with the Licensed Software that are not developed, authorized or approved by Yaokan and its affiliates.

14. delete any information and content relating to copyright on the Licensed Software and the copies thereof, or alter, delete or evade any technical measures Yaokan has taken in the application products for the purpose of intellectual property protection.

15. lease, lend or sub-license the Licensed Software to a third party without Yaokan’s written consent, or use multiple versions of the Licensed Software or separately transfer them after being licensed to use the upgraded version of the Licensed Software.

16. reproduce, disassemble or alter the Licensed Software or any portion thereof or produce derivative works thereof; reproduce, alter, hook, or create any derivative works with, any data released in terminals by the Licensed Software or in the process of operation of the Licensed Software, as well as any data exchanged between terminals and servers in the process of operation of the Licensed Software, including by using plug-ins or unauthorized third-party tools/services to access the Licensed Software and relevant systems.

17. do any act that endangers the information network security, including damaging or destroying the Licensed Software, making it unable to run, or disrupting a third party’s use of the Licensed Software in any manner in the use of the Licensed Software; logging in any other person's computer system and deleting, modifying or adding storage information without permission; spreading on purpose malicious program or virus, and any other acts that undermine or disrupt the normal network information service.

18. utilize the Licensed Software to publish, transmit, communicate, save any content that infringes any other person's intellectual property rights, trade secrets or other legitimate rights, or commit fraud, unauthorized use of any other person's account or funds, or other crimes.

19. add, delete, or alter any functions or operation effects of the Licensed Software by modifying or fabricating directives, data or data package in its running process, and/or spread any software that is able to realize the foregoing purposes to the public through the information network or operate such software.

20. use the Licensed Software in any other illegal manner, for any illegal purpose, or in any way inconsistent with this Agreement.

21. You understand and agree that:

22. Yaokan will decide whether you have violated the above rules and regulations, and suspend or terminate your license or take other restrictive measures as provided therein accordingly.

23. Yaokan will directly delete any information published by you in using the Licensed Software if such information is suspected of violation of laws or breach of this Agreement or infringement on the lawful rights of any other person.

24. if your violation of the aforesaid rules and regulations causes damages to any third party, you shall solely assume the legal liability in your own name and ensure that Yaokan is held harmless from any loss or additional expense arising therefrom.

25. if you violate relevant laws or provisions herein, which causes Yaokan to suffer any loss or claim from any third party or penalty by any administrative authority, you shall compensate Yaokan for the loss suffered thereby and/or the expenses incurred thereby, including reasonable attorney's fee and investigation and evidence collection fee.

26. Regulations on Information Content

27. You undertake not to use the Service for any illegal or improper actions, including but not limited to:

    * Uploading, transmitting or sharing information containing any content which:
    

28. opposes the fundamental principles established by the Constitution;

29. jeopardizes national security, divulges national secrets, subverts state power, or sabotages national unity;

30. damages the national honor and interest;

31. incites ethnic hatred or discrimination, or undermines ethnic solidarity;

32. violates the national religious policies, or propagates evil cults or superstition;

33. spreads rumors, disturbs public order, or sabotages social stability;

34. propagates obscenity, eroticism, gambling, violence, murder, terror or instigates crimes;

35. insults or defames others, or infringes upon the lawful rights and interests of others;

36. is false, fraudulent, harmful, coercive, encroaching on privacy of others, harassing, infringing, slandering, vulgar, obscene, or otherwise morally disturbing;

37. is otherwise restricted or prohibited by PRC laws, regulations, rules, ordinances and any codes with legal effect;

38. • Pretending to be any other person or organization, or falsely representing or fraudulently claiming to be related to any other person or organization;
    • Fabricating titles or otherwise manipulating the identification materials to mislead others to believe that such content is transmitted by Yaokan or its affiliates;
    • Uploading, transmitting or sharing any content known by you under any law or agreement or statutory relation (e.g., internal materials and proprietary and confidential data obtained or disclosed due to any employment relation or under any confidentiality agreement) which you are not authorized to upload, transmit or share;
    • Uploading, transmitting or sharing any content suspected of infringing any other person's rights (including but not limited to copyright, patent right, trademark right, trade secret and other intellectual property rights);
    • Stalking or otherwise harassing others, or sending a large amount of information to your friends or other users through the Service;
    • Uploading, transmitting or sharing any advertisement, marketing information, promotional materials, “spam”, “chain letters”, “direct sale” or solicitation materials in any other form, except to the community or by the function exclusively for the foregoing purposes;
    • Using the Service in critical sectors for which the Service is not designed, including but not limited to nuclear facilities, military, medical facilities, transportation and telecommunication. Yaokan will not be legally liable for any personal injury or death, property loss or environmental disruption caused by failure of the foregoing operations due to the application or Services;
    • Any act beyond the ordinary communications, whether internal or external, between friends or users;
    • Adding other users as friends, inducing other users to add you as their friend or otherwise befriending other users (including but not limited to forming unilateral and bilateral friend relations, the same below) for the purposes beyond the ordinary communications, whether internal or external, between friends or users (including but not limited to sending advertisements, spam, harassing information or information violating laws and regulations);
    • Sending a large amount of information to your friends or other users through the Service;
    • Any act violating the “seven base lines” (i.e., the laws and regulations, the socialist system, the national interests, the citizens' lawful rights and interests, the public order, the social morality and the information authenticity);
    • Any act violating PRC laws, regulations, rules, policies or normative documents.

39. Privacy Policy and Data

40. It is important for Yaokan to protect your personal information. Yaokan has formulated the Legal Statement and Privacy Right Policy to make important disclosure on ownership and protection of intellectual property rights, collection, use, sharing, storage and protection of your information and other aspects involving your vital interests. Yaokan recommends that you read the whole text of the Legal Statement and Privacy Right Policy so that you may better protect your personal information.

41. No Guarantee and Limitation of Liability

42. Unless expressly specified in laws and regulations, Yaokan will use its best efforts to ensure that the Licensed Software and any technology and information involved in it are safe, effective, accurate and reliable. Nevertheless, subject to current technology strength, you understand that Yaokan is not able to make guarantee in respect thereof.
    • You understand that Yaokan shall not be liable for your direct or indirect losses caused by force majeure and any third party.
    • You shall be fully liable for any personal injury or any incidental, indirect damages arising out of or in connection with any of the following circumstances, including without limitation damages owing to loss of profit, loss of materials, interruption of business, or other commercial damages or losses:

43. use of, or failure to use the Licensed Software;

44. use of the Licensed Software or modification of your data by a third party without permission;

45. costs and losses incurred due to use of the Licensed Software;

46. your misunderstanding of the Licensed Software;

47. any other loss in connection with the Licensed Software not owing to any reason attributable to Yaokan.

48. Any other software derived from the Licensed Software that is not developed and officially released by Yaokan or others with Yaokan’s authorization is illegal, and downloading, installation and use of such software may cause unforeseeable risks. Yaokan will not assume any legal liability or solve any dispute arising therefrom, and Yaokan has the right to suspend or terminate your license and/or all other services.
    • Yaokan may recommend ingredients, food, fitness goals and other information to you according to relevant information of nutrition of ingredients, balanced diet and exercises; provided, however, that you understand and agree that such information is for reference only instead of as professional or occupational opinions and conclusions, and you must evaluate if it is reasonable and be careful in exercises.

49. Intellectual Property Rights

50. Yaokan owns the software copyright, patent, trademark, trade secret and other relevant intellectual property rights in the Licensed Software, including documents and materials relating to the Licensed Software and intellectual property rights therein.
    • Any mark, logo and name in connection with the Licensed Software are Yaokan and its affiliates’ intellectual property rights, and protected by relevant laws and regulations. Without Yaokan’s express authorization, you shall not copy, imitate, use or publish the above logo, or modify or delete any logo or identity information indicating Yaokan and its affiliates in any application products.
    • Without Yaokan and its affiliates' prior written consent, you shall not, or allow any third party to, implement, use or transfer the above intellectual property rights for profit or for any non-profit purpose.

51. Termination and Liability for Breach

52. You shall understand that the grant of a license by Yaokan is subject to your use of the Licensed Software within the scope of authorization, your respect for the intellectual property rights of the Licensed Software and anything contained therein, your use of the Licensed Software according to the above rules and regulations, and your performance of obligations pursuant to this Agreement. In case of your material breach hereof, Yaokan will terminate such license.
    • Your use of the Licensed Software relies on the associated services to be provided by Yaokan’s affiliates. If you breach any provision of Yaokan or its affiliates' terms, agreements, rules and regulations, and announcements, resulting in termination of services by any of the above websites, it may make you unable to use the Licensed Software normally, and Yaokan shall be entitled to terminate your license.
    • You understand that for the purpose of maintaining the order of the platform and protecting the rights and interests of consumers, if you make commitment of any form to Yaokan and/or its affiliates, and a relevant company has confirmed that you have violated such commitment and notified Yaokan to handle such violation in accordance with the agreement between you and such company, then Yaokan may take restrictive measures against your license and other rights and interests under Yaokan’s control in the manner as agreed in your commitment or the agreement, including suspension or termination of your license.
    • Once you breach this Agreement or other agreements concluded between you and Yaokan, Yaokan may notify its affiliates and require them to take restrictive measures against your rights and interests, including suspension or termination of providing services, in whole or in part, to you, and announcement of your breach in any websites they operate or actually control according to laws.
    • You may download the Licensed Software from any downloading platform, and you shall comply with the provisions of the downloading platform, system platform and terminal manufacturer regarding the manners and restrictions in respect of your use of the Licensed Software. If any of the above third parties confirms that you have breached such provisions and needs Yaokan to deal with such breach, Yaokan may terminate your license due to the request of such third parties.
    • Upon termination of this license, you shall cease to use the Licensed Software and destroy all copies of the Licensed Software.
    • In case of your breach of any of the provisions herein, which causes losses to Yaokan or other users, you must be liable for full compensation. If Yaokan undertakes the above liability, you agree to compensate Yaokan for relevant expenses and losses, including reasonable attorney's fee.

53. Governing Law and Severability

54. The effectiveness, interpretation, amendment, performance of this Agreement and resolution of disputes arising from this Agreement shall be governed by the laws of the People's Republic of China. If there is no relevant provision in such laws, the general international business practices and/or industry practices shall apply.
    • In case of any dispute arising out of or in connection with this Agreement, you may resolve the dispute with Yaokan through friendly negotiations, or submit it to the competent people’s court at the place where the respondent is located.
    • If any provision hereof is held to be invalid by the competent people’s court, it shall not affect the validity of any other part or any other provisions hereof. You and Yaokan shall still perform such other part and provisions in good faith.

55. Miscellaneous

56. Yaokan may change the entity that provides software services to you according to business adjustment, and the new entity will perform this Agreement together with you and provide services to you. Any of the above changes will not affect your rights and interests hereunder. In case of any dispute, you may determine the entity that performs this Agreement with you and the counterparty to such dispute according to the specific services you use and the specific actor who affects your rights and interests.
    • All headings herein are for convenience only, and do not have any actual meanings and shall not be used as the basis for interpretation of this Agreement.