YouCloud (the “Product” or “Service”) owed by YOUCLOUD TECHNOLOGY LIMITED (“Party B”) provides user (“Party A”) Service only ON THE CONDITION THAT Party A agrees to BE BOUND BY the terms and conditions in this Service Agreement (“Agreement”). By using and accessing the website of services, Party A acknowledges that it has read, understands and agrees to be bound by this Agreement.
This Agreement shall govern the relationship between Party A and Party B for purchase of Party B’s products or services ( the “Product” or the “Service”). All Insertion Orders accepted by Party B are subject to the Terms and Conditions. The Insertion Order and the Terms and Conditions contain all of the terms that Party A and Party B have agreed upon. The accompanying Insertion Order and this Terms and Conditions (collectively, this “Agreement”) comprise the entire agreement between Party A and Party B, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event that any terms outlined in the Insertion Order conflict with those under the Terms and Conditions, the terms upon the Insertion Order shall prevail.
The Terms and Conditions prevail over any of Party A’s general terms and conditions regardless whether or when Party A has submitted its request for proposal, order, or such terms. This Terms and Conditions to Party A does not constitute acceptance of any Party A’s terms and conditions and does not serve to modify or amend provisions hereunder.
ARTICLE 1: SCOPE OF COLLABORATION
1.1 Subject to this Agreement, Party B offers to provide the Service to Party A and Party A hereby agrees to purchase the Service from Party B. Party A shall pay the the corresponding service fees in full before execution of Service. Account Service refers to that Party B provides Party A with YouCloud product account according to the YouCloud product service standard package selected by Party A, and Party A can access to the corresponding service by using the corresponding account.
1.2 Where the Parties agree to enter into additional Insertion Orders in future, each such order shall be signed by Party A and Party B and shall form a part of this Agreement. Party B may, in its reasonable discretion, accept or reject any new Insertion Order. Party B is entitled to accept any Insertion Order by confirming the order in writing to Party A (whether by delivering written confirmation of acceptance, a countersigned Insertion Order, invoice or otherwise).
1.3 Subject to the Terms and Conditions of this Agreement, Party A acknowledges that Party B may from time to time print, copy, distribute, publicly display,or modify the Service submitted to Party A by Party B in its discretion, as it is reasonably necessary to perform its obligations under this Agreement. Party A agrees that the function, description and instruction of service provided by Party B will be subject to the function description and usage rules published by Party B’s website(appgrowing.cn、appgrowing.net、kuaixp.con、ccsight.cn、adguanjia.cn).The Service purchased by Party A and the corresponding service fee shall be subject to the Insertion Order.
ARTICLE 2: PAYMENT
2.1 In consideration of Party B providing the services as contemplated by this Agreement, Party A will pay the service fees (the “Payment”) in USD as stipulated in the relevant Insert Order or in the case of any alteration or upgrade to the scope of service pursuant to a payment demand delivered by Party B on the following basis:
a)Party A shall pay the Payment within 5 business days after signing this Agreement. Party B shall provide the corresponding services upon receiving the aforesaid payments.
b)During this Agreement, if Party A desires to upgrade the selected Account Service, Party A shall send such written notice via email to the corresponding contact stated in the Insertion Order to Party B. Should Party B agree to Party A’s request, Party B shall send a new Insertion Order or confirmation email to Party A. Party A shall pay the amounts within 5 business days after receiving the payment demand note delivered by Party B. Such payment demand note will clearly list the Service provided by Party B and the corresponding fees and charges for such Service. The amounts of fee can be deducted from that of the prepayment corresponding to the unused Services upon agreed by the parties. The Service period shall will restart from the date of opening the upgraded service.
c)The Service period of the account shall will start from the date when Party B opens the service account for Party A. The specific service period shall be subject to the Insertion Order.
d)Party B shall issue an invoice within 10 business days to Party A after receiving the aforesaid payment.
e)If Party A confirms and authorizes any third party to make payment to Party B, it shall be deemed that Party A has fulfilled the payment obligation under this Agreement.
2.2 All Payments are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Party A under this Agreement according to applicable law of the Party B. Each party shall be responsible for all charges, costs and taxes, except for any taxes imposed on, or with respect to, income, revenues, gross receipts, personnel or real or personal property or other assets respectively under applicable law.
2.3 In case that Party A fails to make the payment subject to this Agreement, Party B shall have the right to terminate the Service and this Agreement any time. Party B will not take any liabilities of damages to Party A resulting from such termination of Service or Agreement. Party A shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 0.1% per day. Party A shall also reimburse Party B for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees,travel fees, investigation fees.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
3.1 Each Party hereby represents and warrants that:
a)It is a corporation, validly existing and duly authorized under the laws of the jurisdiction in which it is established;
b)The execution, delivery and performance of this Agreement have been duly authorized by all necessary actions on the part of it and shall not violate any applicable law;
c)The execution of this Agreement by its Representative whose signature is set forth at the end of the Terms and Conditions or Insertion Order, and the delivery of this Agreement by both parties have been duly authorized by all necessary corporate actions of Party A and Party B;
d)This Agreement has been executed and delivered by Party A and Party B, which constitutes legal, valid and binding obligations of Party A and Party B, enforceable against Party A and Party B in accordance with the Terms and Conditions;
e)There are no pending or, to its knowledge, threatened actions, suits, proceedings, material claims or investigations (whether or not purportedly on behalf of any Party) against or affecting any Party or any of its property before or by any court, arbitral court or any governmental body, agency or official, which, if adversely determined, would adversely affect the ability of to satisfy its obligations hereunder.
3.2 Each party confirms that it has complied and will continue to comply with its obligations relating to Personal Data under applicable Data Protection Laws.
ARTICLE 4: RIGHTS AND OBLIGATIONS
4.1 Party A shall pay the full amount of the corresponding services upon execution of this Agreement and use the Service within the purpose of this Agreement. The payment demand and usage information of Party A shall be issued by Party B.
4.2 Party B shall provide the function, description and instruction of service and the corresponding service account to Party A. Party B warrants and agrees that the Data Product and Services shall be fit for the purpose specified in this Agreement and conform to the requirements of all laws, regulations, governmental rules and orders.
4.3 Party A shall take on liability for the security of all passwords and other information issued to or created by Party A as well as Party A’s employees or agents in connection with the Service. Party A shall not transfer or lend its accounts or passwords of service to any third party. Party A should be responsible for all activities arising from or in connection with its account and Party B would not bear any risk or liability arising from or related to that.
4.4 In order to realize the Service selected by Party A, Party B will provide Party A with the Service agreed in this Agreement after Party A makes payment. All payments paid to Party B are the exclusive and non-refundable property of Party B upon the service opening. If the Account Service is involved, Party B shall open the Account Service, and enable the Service for Party A. The period of the service opening shall be subject to the Party B’s calculation. If the Account Service is unavailable for 0.5 day or more due to Party B and Service product, Party B shall compensate Party A through extending the term of service by 3 times of the unavailable time, and such compensation shall be calculated in days.
4.5 The scope of compensation prescribed in Article 4.4 of this Agreement does not include the unavailability of services caused by the following reasons:
a) any failure of network and equipment or configuration adjustment other than equipment owned by Youcloud service;
b) hacker attack towards applications of Party A;
c) loss and disclosure of the relevant data, word of command and password due to improper maintenance or confidentiality of Party A;
d) negligence of Party A or operation authorized by Party A;
e) nonobservance of regulations of Youcloud service conducted by Party A;
f) service stop or termination caused by violation of Article 4.7 of this Agreement conducted by Party A;
g) short interruption of services caused by maintenance, improvement or upgrading of product made by Party B as stipulated in this Agreement;
h) account access is stopped or restricted due to the media delivery platform and other third-party systems;
i）event of force majeure.
4.6 Party B shall use best efforts to ensure the system of Service product be operated normally and stably. In order to ensure the smooth operation of services, Party B may periodically or irregularly make the maintenance, improvement or upgrading of the product server. If Party A is affected, Party B would not bear any risk or liability arising therefrom or related thereto. Party B will send written notice to Party A in advance and use best efforts to avoid any interruption of services, and to limit the time of interruption (if any) to the shortest. Otherwise, Party B shall compensate Party A for the interruption of services by extending the term of the Service prescribed in Article 4.4 of this Agreement.
4.7 Party A is obligated to use Party B’s services in accordance with any applicable laws, regulations, orders and requirements of governmental authorities or rights of any third party. Party A agrees that it will neither do, nor enable or authorize any third party, directly or indirectly, to the following cases,
a) engage in illegal conducts or be defamatory, libelous, slanderous or otherwise unlawful by using Party B’s Service;
b) copy, modify or create derivative works of Party B’s Service or any related technology (including the Service system);
c) violate the use rules stipulated in this agreement and its annex, supplementary agreement, and Party B’s published use rules and policies;
d) conduct abnormal access behavior, suspected of data crawling and endangering Party B’s data security, after Party B issues a written warning, Party B still has similar behavior;
e) use Party B’s Service to create any other product, service or dataset except with service data;
f) make or publish any representations or warranties on behalf of Party B concerning the Services without Party B’s prior written approval;
g) provide false materials or information to Party B.
h）fail to pay the corresponding service fees in time；
In event of any aforesaid case arising, Party B is entitled to suspend or terminate the Service(including any paid or free Service) or Agreement, and all the prepayment would not be refunded. Party A shall bear all consequences arising out of or related to Service and shall indemnify all damages or losses incurred to Party B who would not bear any risk or liability arising from or related to that.
4.8 Party A shall not provide or undertake to provide any and all data, graphics or insight derived from the paid version of App Growing to any third party. In case Party A needs to use the aforesaid data, graphics, or insight to make public industry report or sharing, Party A is obligated to obtain Party B’s prior written consent and apply for confirmation by Party B through sending e-mail to service@appgrowing. In the course of public industry report or sharing, Party A shall indicate that the aforesaid data, graphics, or insight is derived from the paid version of App Growing and Party B reserves and retains the right of final interpretation.
4.9 Party B shall provide Party A with Service according to this Agreement. In case of customized data report service, Party B shall submit to Party A an analysis report on the advertising data of App Growing within 5 working days before each month (the content of the report is based on the data demand in Insertion Order, and the report format is excel). If Party A has any questions, Party A shall raise the questions within 5 working days after such analysis report is submitted to Party A, and Party B will answers the questions related to the report to Party A. If Party A fails to raise any objection to the content of the report within 5 working days after Party B submits the report, it shall be deemed that Party A has no objection to Party B’s service and has accepted the service.
ARTICLE 5: INTELLECTUAL PROPERTY
5.1 Party B has full ownership and intellectual property of Service and relevant service. The conclusion and performance of the Agreement do no constitute any transfer or waive of the rights enjoyed by Party B. Party A can only use Party B’s products within the scope of this Agreement.
5.2 Party B owns and reserves all rights, titles and interests of Service and relevant service(including but not limited to patents, trademarks, copyrights, trade secrets and other intellectual property rights). Party A shall not engage in any form of copying, copying, distributing, licensing and other acts that infringe the copyright of Party B’s relevant data products and software, nor disclose or transfer part or all of Party B’s products and services obtained based on this contract to any individual, enterprise or other third party, otherwise it will be deemed as breach of this Agreement.
5.3 During the collaboration, any party shall promptly inform the other Party of the claims raised by a third party about the intellectual property involved in this Agreement.
5.4 Party B hereby represents and warrants that the data statistics provided by YouCloud service are legally collected and processed by Party B or authorized by a third party to provide the said service through YouCloud service. Party A shall be aware that the intellectual property rights of advertising ideas and materials in the research service is not owned by Party B. Provided that any third party is entitled to any intellectual property rights, Party A shall respect the rights and interests of the third party while using the related intellectual property rights and shall be solely responsible for his own use behaviour and the legal consequences arising therefrom.
5.5 Party A agrees that Party B has rights to use Party A’s company name, trademarks, logos or other words or graphics relating to Party A in the promotion, propaganda materials of products (including websites, printed materials, etc.) to indicate that Party A is or has used Party B’s Service. For the purpose of providing more accurate and objective data analysis services to Party A by Party B, Party A agrees that Party B may, within the scope of statistical analysis of mobile advertising data, collect advertising materials (including advertising copy, advertising pictures, advertising videos, etc.) publicly released by Party A.
ARTICLE 6: CONFIDENTIALITY
6.1 Confidential Information may include any information, including but not limited to this agreement, any Insertion Order, the Service and the relevant system, technical and business information, business plans, financial reports, financial data, employee data, software or firmware code, product designs and/or specifications, algorithms, computer programs, mask works, inventions, unpublished patent applications, manufacturing or other technical or scientific know-how, specifications, technical drawings, diagrams, schematics, technology, processes, and any other trade secrets, discoveries, ideas, concepts, know-how, techniques, materials, formulae, compositions, information, data, results, plans, surveys and/or reports of a technical nature or concerning research and development and/or engineering activity, proprietary ideas, patentable ideas, copyrights and/or trade secrets, existing and/or contemplated products and services or software whether marked as “Confidential” at the time of its disclosure or not, and provided by one Party (“Discloser”) to another Party (“Recipient”) in the course of ordinary business. Party A and Party B agree that the information provided in this Agreement shall be considered as Confidential Information. Recipient shall not in any way disclose, divulge, disseminate or reproduce any Confidential Information to any third party without the Discloser´s written consent. Recipient shall treat all Confidential Information with the same degree of care as it accords its own confidential information, but in not less than reasonable care. Any materials embodying such Confidential Information shall be promptly returned and/or destroyed upon the expiration or earlier termination of this Agreement, or sooner if so requested by the Discloser. The Recipient shall, if required by the Discloser, certify that any materials embodying such Confidential Information mentioned above is destructed in writing.
6.2 Confidential Information does not include information that: (i) is generally available in the public domain at the time of its disclosure; or (ii) was developed by employees or agents of the Recipient independently of, and without reference to, the Confidential Information; or (iii) is rightfully received by the Recipient from a third party not owing a duty of confidentiality to the Discloser (in which case and if requested by the Discloser, the Recipient will inform the Discloser of the identity of the third party and the exact information received). In the event that one Party is requested or required (whether by laws or regulations) to disclose any Confidential Information or a portion thereof, that Party agrees to give the other non-disclosing Party prompt written notice of such request or requirement so that the non-disclosing Party may seek an appropriate order or other remedy protecting the Confidential Information from disclosure, and cooperate with the non-disclosing Party, at the non-disclosing Party’s expense, to obtain such protective order or other remedy. In the case that a protective order or remedy is not obtained or if the non-disclosing Party waives its right to seek such an order or other remedy, then the disclosing Party may furnish only that portion of the Confidential Information which is legally required to disclose and it shall give the non-disclosing Party written notice of the Confidential Information to be disclosed as far in advance of disclosure as practicable and use commercially reasonable efforts to obtain assurances that confidential treatment shall be accorded to such Confidential Information.
6.3 If any Party violates the intellectual property rights and confidentiality obligations, it shall compensate all the losses caused to the other Party, and bear corresponding legal liabilities.
ARTICLE 7: INDEMNIFICATION
7.1 Each Party will defend, indemnify and hold harmless to the other Party and its directors, officers, employees, agents, stockholders and Affiliates from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, action, suit, demand, judgment or proceeding (a “Claim”), whether or not involving a third party claim which arise directly or indirectly out of, relate to or result from either Party’s breach of its representations, warranties and obligations under this Agreement or any applicable law.
ARTICLE 8: LIMITATION OF LIABILITY
8.1 THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND PARTY B MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO SERVICES(INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, PARTY B MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND PARTY B WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, LOST PROFITS, LOST CLIENTS OR BUSINESS INTERRUPTION) ARISING OUT OF ANY PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, EVEN IF ADVISED OR NOT OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE LIABILITY OF PARTY B UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BASED ON REASONABLE RELIANCE AND SHALL NOT EXCEED THE AMOUNT PARTY A PAID TO PARTY B UNDER THIS AGREEMENT.
ARTICLE 9: TERM AND TERMINATION
9.1 The term of this Agreement commences on the Effective Date and continues to the full end of the Service term , unless it is earlier terminated as provided under this Agreement.
9.2 Either Party may terminate this Agreement upon written notice to the other Party:
a)if the other Party materially breaches any material provision of this Agreement or any accepted Insertion Order and the breach cannot be cured or, if the breach can be cured, it is not cured by the other Party within 10 days after its receipt of written notice of such breach;
b)if the other Party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
c)in the event of a Force Majeure Event affecting the other Party’s performance of this Agreement for more than ten (10) business days.
9.3 Party B may terminate this Agreement upon written notice to Party A:
a)if Party A fails to pay any amount when due under this Agreement (“Payment Failure”) and such failure continues for 10 calendar days after Party A’s receipt of written Notice of non-payment;
b)if within any 3 months’ period, two or more Payment Failures occur;
c)if any third party’s claim against Party B due to the fault of Party A, and Party A shall at its sole name and expense, to participate in the defense of such third party’s claim.
9.4 The expiration or termination of this Agreement, for any reason, shall not release either Party from any obligation or liability to the other Party, including any payment that has already accrued hereunder.
ARTICLE 10: NOTICES
10.1 Unless prior written notice of a change of contact information is given by a Party, all correspondence between the Parties, including the delivery of a duly and properly executed version of this Agreement, shall be delivered either in person, by express or email to the correspondence contact information stated in the Insertion Order.
10.2 All claims, instructions, consents, designations, notices, and other communications in connection with the Agreement will be sent in writing to the address stated in the Insertion Order. Such notifications will be deemed properly given to the other Party (a) when received if delivered personally or by an express service, or (b) upon successfully sending email.
10.3 If any new contact expresses its identity or has the same email suffix with the previous contact, it will be deemed that the new contact’s notice also have effectiveness.
10.4 Party A and Party B confirm that in the process of cooperation, both parties can use the e-mail address agreed in the contract as a communication tool for document transmission and communication, and the document transmission records and communication records generated in this way have legal effect.
ARTICLE 11: FORCE MAJEURE
11.1 Neither Party will be liable for a delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God or labour disputes (“Force Majeure Event”).
ARTICLE 12: FORBIDDENS
12.1 During the term of this Agreement, the Parties will not seek, in any way, directly or indirectly to approach any of the Party’s staff and/or relatives, friends or any other third party into any specific bribery (including but not limited to gifts of cash, goods, or in any other shape of advantage or benefits, etc. ).
12.2 The Party’s employees shall not collude to deduct traffic or payment and damage Party B’s right, otherwise Party A and Party B’s employees shall bear joint liability of Party B’s loses.
12.3 During the term of this Agreement and for a period of one (1) year thereafter, Party A will not solicit or entice or attempt to solicit or entice any of the employees of Party B to enter into employment service with Party A or a competitor of Party B.
ARTICLE 13: SETTLEMENT OF DISPUTES AND GOVERNING LAWS
13.1 The execution, validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the People’s Republic of China.
13.2 Party A and Party B agree that any disputes arising out of or in connection with the Insertion Order or this Agreement shall be submitted to the the local people’s court that the Agreement has been signed.
ARTICLE 14: ASSIGNMENT OF CONTRACT
14.1 Neither Party may assign this Agreement or any rights or obligations hereunder without the express written consent of the other Party, unless such assignment occurs by operation of law or under a sale, merger or acquisition of all or substantially all of the stock or assets of the assigning Party; any attempted assignment in violation of this provision will be null and void. This Agreement is binding on the respective successors and permitted assigns of both Parties.
ARTICLE 15: MISCELLANEOUS
15.1 If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.2 Failure or delay on the Part of either Party to exercise any right hereunder shall not operate or be interpreted as a waiver thereof, nor shall any single or partial exercise of any right preclude any other future exercise thereof.
15.3 Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:(i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (ii)any act, omission or course of dealing between the Parties.
15.4 This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by each Party.
The Parties agree that they may exchange signed copies of Agreement by electronic transmission. Each party agrees that such electronic transmission shall have the same force and effect as delivery of original signatures and that each party may use such electronically-transmitted copies as evidence of the execution and delivery of the Agreement by all parties to the same extent that an original signature could be used. By signing below each party agrees to be bound by the terms of this Agreement.