OEM APP Service and Software License Agreement
This OEM APP Service and Software License Agreement (hereinafter referred to as this "Agreement") is signed by and between you and Hangzhou Tuya Information Technology Co., Ltd. (hereinafter referred to as "Tuya"). Once you or your authorized representative checks the "I Have Read and Agree to the Terms and Conditions" checkbox or otherwise starts using Tuya services, it signifies that you have read and agree to be bound by this Agreement. You shall not proceed to the next step if you do not agree to this Agreement or any clause hereof. Please read all content (especially that in bold and/or underlined) of this Agreement carefully before you accept this Agreement. If you have any questions about the terms and conditions of this Agreement, please contact Tuya's relevant business department for the construction of the terms and conditions from Tuya. If you do not agree to any content of this Agreement, or cannot understand the construction of the terms and conditions from Tuya accurately, please do not proceed with the subsequent operations.
Tuya has the right to formulate or revise this Agreement and/or various rules from time to time when necessary. If there is any new or changed content, Tuya will announce it on Tuya's official website without further notice. The changed agreement and rules shall automatically take effect upon being published, and constitute part of this Agreement. If you have any objection to the changed agreement, or you disagree on a change, you shall promptly make an inquiry with Tuya's relevant department, or immediately cease using Tuya's software or relevant service. If you continue using such service, you shall be deemed to have no objection to and agree to abide by the revised agreement and rules.
1. Definitions
1.1. “Service” refers to a free or paid item provided by Tuya, including but not limited to OEM App, App Launch, and OEM App update, which you choose or purchase on Tuya Value-added Service Market (https://www.tuya.com/vas/).
1.2. “OEM App” refers to your own brand app with lightweight and personalized configuration of factors, including but not limited to custom features, logo, tone, and brand, that you generate based on Tuya's Own Standard App and relying on the development tool kit and operational processes provided by Tuya.
1.3. “Software” refers to exemplary application programs developed by Tuya, of which the intellectual property rights are owned by Tuya, including but not limited to Tuya's Own Standard App and OEM App, and the software development kit(“SDK”), computer language instructions, text code, technical documents, and APIs that provided by Tuya on its website.
1.4. “Confidential Information” refers to Tuya's non-public information, such as software, codes, interfaces, and all trade secrets, technical secrets, and documentations, that Tuya discloses to you for the purpose of providing Service, or that you are aware of or have access to, regardless of whether such information is designated as Confidential Information when being disclosed, whether it is related to this Agreement, whether it is in oral or in written form, or whether it is provided online via an Internet platform or through offline means.
2. Software License
2.1. License object. The License Object shall include Tuya's Software (such as SDK, technical documents, and text code) that you are approved to use when accepting the Service provided by Tuya, or the software derivative works (such as application programs and OEM App) that is customized by you based on such Software, regardless of whether you are permitted to use such Software upon payment or you are approved to use such Software on a free basis. You understand and agree that, regardless of whether a payment has been made or not by you, your usage of any Software is all due to a conditional and restricted license that Tuya grants to you, rather than due to your acquisition of any intellectual property rights with respect to such Software and related rights, and that you will under no circumstances be assigned with any intellectual property rights with respect to such Software and related rights, unless Tuya otherwise specifies the grant in writing.
2.2. License scope. After you pay Tuya specific fees (if necessary) as required by Tuya, Tuya grants you a license within the term of this Agreement to 1) read or reproduce the Software for researching and developing a customized application program or software; and 2) upload the application program customized based on the Software to a third-party app store and legally distribute it via the information network. Furthermore, you understand and agree that the foregoing license is not a sole license and it is revocable, non-exclusive, non-transferable, and non-sublicensable.
2.3. License restriction. You understand and agree that 1) except as expressly permitted herein by Tuya, you shall not reproduce, modify, translate, decompile, disassemble, reverse engineer, dismantle, sell, transfer, partially transfer, sublease, sublicense, or relicense the Software and/or any part thereof, or otherwise attempt to obtain the source code of the Software; 2) you shall not modify the Software or research and develop the derivative products of the Software beyond the scope permitted by Tuya; 3) you shall not research and develop or imitate Tuya's Software, design ideas, interfaces, features, and charts; and 4) you shall not conduct any acts that may damage or disrupt the Software, including but not limited to disseminating a SDKderived from the Software, encouraging others to disseminate SDK or providing others with facilities for disseminating such SDK, researching and developing or disseminating the identical or similar software, or encouraging others to disseminate the identical or similar software or providing others with facilities for disseminating such software.
2.4. License termination. When the license term of this Agreement expires, or Tuya terminates such license of you unilaterally due to other circumstances, you shall immediately 1) cease the licensing under this Agreement, including but not limited to cease reading, reproducing, modifying, and disseminating the Software and related documents, and remove the customized derivative products from the third-party application market; and 2) return to Tuya or destroy the Software and the original copies of related documents and all the reproduced copies thereof.
2.5. Version update. Tuya may release Software updates from time to time within the term of this Agreement. Tuya has the right(not obligation) to notify you and provide the updates according to the actual situation . If Tuya releases a Software update and requests your cooperation, you have the obligation to provide support.
3. Software Security Guarantee
3.1. Safeguard measures. You shall adopt reasonable and necessary security measures to ensure the security of Software code, of which the security level is not lower than the level at which you protect your own similar data, and the reasonable degree of commercial protection. Safeguard measures include but not limited to 1) nonscheduled training and preach available to internal personnel; and 2) establishing management mechanisms for Software code and random documents, such as code classification, account and permission for download, and other management measures.
3.2. Supervision and management. Tuya has the right to supervise your access to the code base. If any abnormal login or download of your account is discovered, Tuya has the right to further investigate and temporarily close your account.
3.3. Security of software derivative works. The following problems on a derivative work of the Software may occur: 1) the derivative software encounters system vulnerability, which possibly causes an unreliable service or information security problem; and 2) a third party destroys the derivative work or attempts to undermine cyber security (through viruses, Trojan, malicious code, etc.). You are responsible for managing the security of derivative works, and you shall, after discovering the foregoing problems, adopt prompt and effective measures (including but not limited to self-inspection, software upgrading, and the judicial process) to tackle the problems.
4. Data Protection
4.1. Your business data shall include the data that you collect, process, store, upload, download, distribute, or otherwise handle via the application programs generated from the software development of Tuya, and the backup data thereof. You shall, as the direct controller of such data, be fully responsible for the security and protection of such data.
4.2. You shall be aware of the importance of information and data security, and shall establish a corresponding compliance system for data and privacy security pursuant to relevant laws and regulations. You shall not illegally collect the personal information or other data of any user, and shall not use the obtained user data to acquire any illegal or improper benefit, without obtaining relevant necessary authorization or permission.
4.3. You agree to be liable for the source and content of data. You shall be solely liable for all consequences and liabilities caused by the violation of laws, regulations, departmental rules or national policies by the data and contents uploaded or stored by you.
5. Warranties
5.1. Tuya warrants that it will abide by applicable laws and regulations and relevant policies and specifications. You understand and agree that, based on the speciality of a software product or service, Tuya's Software or Service are provided as-is, and Tuya does not and will not make any warranty, either expressed or implied, with respect to the accuracy, completeness, security, availability or applicability, usability, commercial value, non-infringement, fitness for a particular purpose, etc. of such Service or Software. If any software security accident, non-availability, infringement, or any other matter of a derivative work formed from your software development within the scope permitted by this Agreement occurs, you shall be independently liable to the third party, and indemnify and hold Tuya harmless from and against any liability and loss arising therefrom. If Tuya inevitably suffers a loss due to the foregoing circumstances, you agree to immediately indemnify Tuya in full as required in a written claim document that Tuya sends to you after such document is sent.
5.2. You warrant that you will abide by applicable laws and regulations and relevant policies and specifications, including but not limited to the telecommunication service approval that you shall legally obtain (if any). You further warrant that you own the legal rights in or have obtained the lawful license of the design and other portions of the products that you customize and develop independently, and such products will not infringe the intellectual property rights of any third party. If a third party files an action or raises any other infringement claim against Tuya with respect to the foregoing matters, Tuya will immediately notify you in writing, and you shall be responsible for handling relevant matters at your own cost and indemnify Tuya against any loss, and Tuya agrees to provide assistance within a reasonable business scope when necessary. However, if Tuya inevitably suffers a loss due to the foregoing circumstances, you agree to immediately indemnify Tuya in full as required in a written claim document that Tuya sends to you after such document is sent.
6. Confidentiality
6.1. Either party hereto agrees to maintain the confidentiality of Confidential Information of the other party of which it is aware, and require its employees who have access to such Confidential Information to strictly fulfill their confidentiality obligation under this Clause. The recipient of Confidential Information shall not disclose such Confidential Information to any third party, unless the government agency compulsorily requires such disclosure in accordance with law or the Confidential Information has entered the public domain.
6.2. The parties hereto expressly acknowledge that Confidential Information refers to all technical and non-technical information (including but not limited to service materials, service plans, prices, financial and marketing plans, business strategies, customer information, customer data, research and development, software and hardware, SDK, Application Programming Interfaces (APIs), technical specifications, design recommendations, schemes, special formulas, specific algorithms, and proportions) that either party discloses to the other party. The parties hereto agree to do their utmost to prevent the foregoing Confidential Information and others from being disclosed. Once a leakage of the foregoing Confidential Information is discovered, the parties shall cooperate to adopt all and any reasonable measures to avoid or mitigate the damage arising therefrom.
6.3. This Clause will remain in force after this Agreement terminates for any reason whatsoever.
7. Intellectual Property Rights
7.1. Neither party shalluse the business names, trademarks, appearance designs, etc. of the other party without the written permission of the other party.
7.2. You understand and agree that the intellectual property rights and all other related rights contained in the semi-finished and finished products of the Software and Service as mentioned herein or referred to by the Tuya platform, as well as the derivative works or any other kinds of products that are generated from your modification, customization, and development based on the aforesaid Software and Service within the extent permitted by this Agreement, and all materials related thereto (except for those independently owned by you) shall vest in and be owned exclusively by Tuya. Except for the limited licensing with which you are granted under this Agreement, you do not obtain from Tuya any other right, title, or benefit as contained in or related to the Tuya platform, Software, Service, and relevant materials, including but not limited to any intellectual property rights. Unless otherwise specified herein, you are not expressly, impliedly, or otherwise granted under this Agreement with any rights and other related rights, including patents and copyrights, under the intellectual property rights of the Software.
8. Exemption of Liability
8.1. You understand and agree that Tuya shall not be held liable for the failure of the Software or Service to be launched or failure to provided as scheduled (including but not limited to the circumstances where the Software or Service is totally unusable or is not user friendly due to some decreased features or lower efficiency) due to the following problems: 1) the problems on software compatibility or adaptability arising from the update or change of the system that is used together with iOS/Android or any other software; 2) the use anomalies of the Software resulting from the service provided by a third-party service provider (such as WeChat, Facebook, AMAP, and Umeng); 3) Software unavailability or Service instability resulting from an unstable user network; 4) unavailability caused by the quality problem or failure of the hardware product of a customer; 5) a problem that is generally unsolvable at present arising from the limited technological or industrial development level; 6) the technology available at the time of delivery is no longer universally applicable because the technological or industrial development and innovation exceeds the industrial or technological level available at the time of delivery of the Software or Service; 7) any problem caused by your wrong settings, or your failure to accurately complete configuration according to relevant documentation guides provided by Tuya; and 8) other problems arising from external reasons, rather than Tuya's Service or technical capability.
8.2. You understand and agree that the timeliness and success or not of an app launch that whether is conducted by yourself or that is purchased from Tuya through the app launch service, shall be subject to the rules and policies of the app store on which your app is to be launched. Tuya is unable to predict any adjustment to the rules and policies of the app store, and Tuya thus is unable to and will not make any warranty or guarantee that the launch of the app will be definitely successful and the app will not be removed after being launched. Where the app is unable to be launched, or is removed after being launched, at any time due to the adjustment to the launch policy of the app store or the release of or adjustment to applicable laws, Tuya shall be held harmless from any liability arising therefrom, nor shall Tuya indemnify you against any loss or return any fee to you if Tuya has paid out necessary action or cost for such service.
9. Term and Termination of this Agreement
9.1. The term of this Agreement shall commence from the day on which you agree to this Agreement to the day on which Tuya terminates this Agreement in writing.
9.2. This Agreement shall be terminated in advance under the following circumstances: 1) if either party breaches this Agreement and fails to correct its breach within thirty (30) days upon receiving a written notice from the other party, the observant party has the right to terminate this Agreement; or 2) if you breach Section 2.3 (License Restriction) or Section 5 (Warranties) hereof, Tuya has the right to immediately terminate this Agreement; or 3) Tuya may terminate this Agreement upon written notice on Tuya's official website thirty (30) days in advance.
9.3. Clauses include but are not limited to: Section 5 (Warranties), Section 6 (Confidentiality), Section 8 (Exemption of Liability), and Section 12 (Dispute Resolution) shall survive the termination or expiration of the Agreement.
10. Force Majeure
10.1. If the fulfillment of the terms and conditions of this Agreement becomes impossible, unnecessary, or insignificant due to a force majeure event or any other accident, the party affected by such force majeure event or accident shall be held harmless from any liability arising therefrom.
10.2. A force majeure event or accident refers to an objective event that is unforeseeable, insurmountable, and unavoidable and has a significant impact on either or both parties, including but not limited to natural disasters such as floods, earthquakes, pandemics, and epidemics, as well as social events such as wars, civil commotions, government action, hacker attacks, and government regulation.
11. Liability for Breach of Contract
11.1. Either party hereto who breaches this Agreement shall be held legally liable for such breach, and indemnify the observant party against all losses arising therefrom.
11.2. "Losses" as mentioned herein shall include the actual loss, the reasonable profits that are expected to be obtained after the performance of this Agreement, and the reasonable investigation fees, lawyers' fees, and other related legal costs that are involved in the legal proceedings.
12. Dispute Resolution
12.1. Any dispute arising out of or in connection with this Agreement shall be settled by the parties through friendly negotiation. If such dispute fails to be settled through negotiation, it shall be submitted to the Xihu District People's Court in Hangzhou for adjudication.
12.2. This Agreement shall be governed by the mainland laws of the People's Republic of China.
13. Supplementary Provisions
13.1. Either party shall be an independent contracting party, and has no right to set any obligation on behalf of the other party. No joint venture relationship, partnership, or employment or agency relation will be established under this Agreement.
13.2. You understand and agree that Tuya has the right to transfer all or part of the rights and obligations under this Agreement to Tuya's affiliates by sending a written notice to you thirty (30) days in advance.
13.3. Any matters not covered herein shall be otherwise agreed upon by the parties according to the principles of reciprocity, mutual benefit, and friendly negotiation, which shall be formed as an appendix, supplementary agreement, etc. The appendix and/or supplementary agreement to this Agreement shall be an integral part of this Agreement and have the same legal effect as this Agreement.
This Agreement is released and enters into force on July 6, 2020.
