PLEASE READ AND MAKE SURE YOU UNDERSTAND ALL THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING OR AGREEING TO THIS AGREEMENT OR ACCESSING OR USING THE SOFTWARE OR ANY ASSOCIATED SERVICES.
This End User License Agreement (hereinafter referred to as this "Agreement") is made by and between Beijing Lexing Yingda Technology Co., Ltd. (hereinafter referred to as "Lexing Yingda") and the person purchasing or obtaining the license to the Software (hereinafter referred to as "you" and "your") on a voluntary basis for the downloading, installation, access, and use of the Lexing Yingda software for which this Agreement is provided for acceptance by you (together with all associated information, documentation and software, the "Software") and the receipt and use of any services that Lexing Yingda agrees to make available or provide in connection with the access or use of the Software (the "Associated Services," and together with the Software, the "CX Services") by you, or by a child or minor of whom you are the legal guardian and who downloads and installs and/or accesses and uses the Software with your permission, approval, or consent ("Your Child"), if any, on a single mobile device that you own or control or that Your Child owns or controls (such mobile device, the "Device").
ACCESS RIGHT; ACCEPTANCE
YOUR AGREEMENT TO AND ACCEPTANCE OF THIS AGREEMENT IS A CONDITION PRECEDENT FOR EXERCISING ANY OF THE RIGHT TO TAKE A LICENSE TO THE SOFTWARE TO ACCESS AND USE THE SOFTWARE BY YOU OR YOUR CHILD ON THE DEVICE AND THE RIGHT TO RECEIVE THE ASSOCIATED SERVICES (COLLECTIVELY, SUCH RIGHTS THE "ACCESS RIGHT") THAT YOU RECEIVED FROM LEXING YINGDA OR FROM A DISTRIBUTOR OR SELLER (SUCH AS A STORE OFFERING SUCH RIGHTS UNDER AGREEMENT WITH LEXING YINGDA) AUTHORIZED BY LEXING YINGDA TO SELL YOU THE RIGHT ("AUTHORIZED RESELLER"), YOU WILL BE IRREVOCABLY, IRREFUTABLY, AND CONCLUSIVELY DEEMED TO HAVE READ, UNDERSTOOD, AND HAVE ACCEPTED AND AGREED TO THIS AGREEMENT IF YOU CLICK OR ACTIVATE THE “I ACCEPT” OR “I AGREE” OR OTHER BUTTON OR SPACE SIGNIFYING OR CONFIRMING YOUR AGREEMENT TO THIS AGREEMENT AND ALL OF THE TERMS OF THIS AGREEMENT, OR IF YOU FIRST DOWNLOAD, INSTALL, ACCESS, OR USE THE SOFTWARE, WHICHEVER OCCURS EARLIER (“YOUR ACCEPTANCE”). YOUR ACCEPTANCE IS A CONDITION PRECEDENT FOR THE EFFECTIVENESS OF THE LICENSE. IF YOU DO NOT OR CANNOT AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS, LOAD, OR USE THE SOFTWARE OR ANY ASSOCIATED SERVICES AND MUST EXIT IMMEDIATELY, DO NOT LOAD, ACCESS, OR USE, AND CEASE LOADING, ACCESSING, OR USING, THE SOFTWARE IN ANY MANNER AND COMPLETELY REMOVE THE SOFTWARE FROM YOUR DEVICE. EACH ACCESS TO OR USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES BY YOU OR YOUR CHILD IS AND SHALL BE DEEMED TO BE YOUR RATIFICATION OF AND AGREEMENT TO THIS AGREEMENT.
MODIFICATION OF THIS AGREEMENT
LEXING YINGDA MAY MODIFY, AMEND, CHANGE, AND ALTER THIS AGREEMENT OR ANY OF THE TERMS OF THIS AGREEMENT AT ANY TIME AND NOTIFY YOU OF SUCH MODIFICATION, AMENDMENT, CHANGE, AND ALTERATION AND REQUIRE YOUR CONSENT OR CONFIRMATION AS A CONDITION PRECEDENT TO THE CONTINUED ACCESS TO AND USE OF THE SOFTWARE. YOUR CONFIRMATION AND CONSENT, AND ANY ACCESS TO AND USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES THEREAFTER, SHALL BE DEEMED TO BE YOUR AGREEMENT TO SUCH MODIFICATION, AMENDMENT, CHANGE, OR ALTERATION AND YOUR RATIFICATION OF THIS AGREEMENT SO MODIFIED, AMENDED, CHANGED, OR ALTERED. EACH ACCESS TO OR USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES THEREAFTER BY YOU OR YOUR CHILD IS AND SHALL BE DEEMED TO BE YOUR RATIFICATION OF AND AGREEMENT TO THIS AGREEMENT AS SO MODIFIED, AMENDED, CHANGED, OR ALTERED..
If you have any questions about this Agreement, please contact Lexing Yingda at help.lexing.ltd@outlook.com.
LICENSE; USE OF THE SOFTWARE.
Lexing Yingda hereby grants to you a limited, non-exclusive, terminable, revocable, non-sublicensable, non-assignable, and non-transferable license to download and install, or permit Your Child to download and install, the Software solely on the Device and to access and use, and to permit Your Child to access and use, the Software solely on and from the Device as downloaded and installed thereon, and to use the Associated Services related to such access and use, only for your or Your Child’s personal non-commercial use (except solely if and to the extent otherwise expressly approved in advance in writing by Lexing Yingda or required under applicable law) in accordance with the terms and conditions of this Agreement, including, without limitation, the provisions of this Section III (the "License"). You and Your Child must, download, install, access, and use the Software in compliance with all applicable law and the provisions, policies, and terms in this Agreement.
The Software and Associated Services include such elements, features, and/or services as Lexing Yingda makes available to you as part of the Software and the Associated Services under this Agreement, subject to any Modification. The License, the Software, the Associated Services, and terms under this Agreement will or may also depend on whether the License is an Activation Code License, a Paid Open Market License, a Trial Period License, or a No-Charge Open Market License:
The License is an "Activation Code License" if you received the Access Right by purchasing a sequence of letters, numbers, and/or other characters for activating the Software on the Device (the "Activation Code") from Lexing Yingda or an Authorized Reseller,
The License is a "Paid Open Market License" if you received the Access Right by purchasing it directly from Lexing Yingda or a mobile or online Authorized Reseller without use of an Activation Code.
The License is a "Trial Period License" if you received the Access Right expressly from Lexing Yingda or an Authorized Reseller for a limited time period on a trial basis without requirement to pay any License Fee for such time period (such time period being the "Trial Period").
The License is a "No-Charge Open Market License" if you received the Access Right without charge of any License Fee on the internet from Lexing Yingda or from an third party provider authorized by Lexing Yingda to provide such Access Right without charge of a License Fee. In the event that the License is a No-Charge Open Market License, the Software will or may include fewer elements or features or less access or use abilities than under the Activation Code License, the Paid Open Market License, or the Trial Period License.
Lexing Yingda may (if, as, and when it decides to do so in its sole discretion – without any obligation – without need for any approval, agreement, or consent by, or notice to, you, Your Child, or any third party) install or make available to you or Your Child any update to the Software and/or the Associated Services, including, without limitation, modification, error correction, update, upgrade, alteration, enhancement, or change of or to the software application defined in this Agreement as the "Software" ("Modification"). Upon installation or making available any Modification, the Software shall be deemed licensed solely with such Modification and shall become unlicensed if used without such Modification, and the term "Software" shall be deemed to include such Modification.
ANY ACCESS, EXECUTION, OR USE OF THE SOFTWARE, THE ASSOCIATED SERVICES, OR ANY PART THEREOF OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS AGREEMENT, OR FOR ANY PURPOSE OR REASON NOT IN ACCORDANCE WITH A PURPOSE OR REASON PERMITTED UNDER THIS AGREEMENT OR BY LEXING YINGDA, SHALL BE DEEMED TO BE AN INFRINGEMENT OF LEXING YINGDA’S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE OR THE ASSOCIATED SERVICES AND SUBJECT TO ALL RIGHTS AND REMEDIES OF LEXING YINGDA ARISING FROM OR IN CONNECTION WITH SUCH AN INFRINGEMENT.
You shall not, and shall not permit any third parties to, in any manner: modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Software and/or the Associated Services; reverse engineer, disassemble, decompile, decode or adapt the Software and/or the Associated Services, or otherwise attempt to derive or gain access to the source code of the Software and/or the Associated Services, in whole or in part, except as and only to the extent this restriction is prohibited by law; remove, disable, or otherwise create or implement any workaround to any security features contained in the Software and/or the Associated Services; remove, delete or alter any trademark or copyright notices or other Intellectual Property Rights (as defined in Section VI of this Agreement) notices of Lexing Yingda or its licensors, if any, from the Software and/or the Associated Services; copy the Software and/or the Associated Services, in whole or in part (other than solely as necessary to install or use the Software as expressly permitted in this Agreement); rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software and/or the Associated Services or its related documents available to, or permit access thereto or use thereof by, any third party for any reason, commercial or otherwise; use the Software and/or the Associated Services for purposes of competitive analysis, the development of a competing software product or any other purpose that is to Lexing Yingda's commercial disadvantage; use the Software and/or the Associated Services in any manner that could impair any Lexing Yingda site or products or services in any way or interfere with any party’s use or enjoyment of any Lexing Yingda site or products or services; charge any fees in any way if you recommend the Software to other people; use the Software and/or the Associated Services in violation of any applicable local or national law (including, without limitation, in connection with or for any defamation, harassment, crime or other unlawful act or omission, spamming, data phishing, obscene or pornographic uses, or other use that may cause Lexing Yingda to be liable to any third party or under any law for or as a result of your use of the Software and/or the Associated Services or that would cause Lexing Yingda to be brought into disrepute); use the Software and/or the Associated Services to monitor a mobile device you do not own or control, monitor your spouse, significant other or adult children; or use the Software to circumvent any professional or other confidentiality privilege. If you violate any of the foregoing, Lexing Yingda shall have the right to terminate your license to the Software and use of the Associated Services and to investigate legal liabilities of all individuals and entities involved and hold such individuals and entities liable.
You agree to, and you agree to ensure that Your Child does, download, install, access, and use the Software and use the Associated Services in accordance with any and all applicable law, statutes, regulations, rules, ordinances, directives, and court and governmental orders, including, without limitation, all law, statutes, regulations, rules, ordinances, directives, and court and governmental orders related to data privacy, data security, and confidentiality of data and information regarding any data collected, received, shared, or accessed by you or Your Child in connection with the use of the Software and/or the Associated Services ("Legal Requirements"). You shall ensure at all times that you and Your Child have all rights and/or licenses to any technology, software, hardware, work, material, data, and/or information that you and Your Child use in connection with the Software and/or the Associated Services and lawfully procuring any and all such rights and/or licenses at your sole cost.
You should NEVER attempt to monitor a mobile device you do not own or control, monitor your spouse, significant other or adult children with any mobile device monitoring product without the consent and knowledge of such persons. Doing so may be illegal, and violate local, state, and federal laws in your country and you could be subject to civil or criminal penalties. We will cooperate with authorities in investigations of any allegations of misuse.
You are solely responsible, throughout the duration of this Agreement and you or Your Child’s access to and use of the Software and/or access to or use of the Associated Services, for obtaining, providing, establishing and maintaining, at your sole cost, all services, software, hardware, and other prerequisites that are or may be necessary for downloading, installing, accessing, and/or use of the Software and/or access to or use of the Associated Services, including, without limitation, any wireless services and wireless data services (collectively, "Prerequisites"), and Lexing Yingda is not, and shall not be, liable for any Prerequisite, or the provision thereof, or any costs, charges, fees, taxes, rates, or other payments incurred or made in connection therewith. You agree to comply with all terms and agreement of any provider of any Prerequisites used by you or Your Child (e.g., a wireless data service agreement).
Lexing Yingda has and shall have no obligation whatsoever to furnish any maintenance and support services of any kind with respect to the Software and/or the Associated Services. If Lexing Yingda, in its sole discretion, directly or indirectly makes available any maintenance or support, Lexing Yingda is not obligated at any time to continue or provide again any maintenance or support and Lexing Yingda may at any time discontinue, reduce and limit access to, or charge any fee for any maintenance or support if and as it decides in its sole discretion, with or without notice to you or Your Child. Lexing Yingda does not offer, and does not agree to, any service level agreement, service levels, credit, uptime, minimum uptime, or other similar features to you or Your Child.
TERM.
This Agreement is effective upon Your Acceptance and continues, including, without limitation, the License, until the end of the expiration of the License Term (as defined below in this Section IV) or the termination or cancellation of this Agreement, whichever occurs earlier (the "Term"). The "License Term" means the applicable one of the periods of time identified in the following paragraphs a – c of this Section IV, depending on how you received the Access Right:
Activation Code License: If the License is an Activation Code License, the "License Term" means the period of time that begins with the Activation (as defined below in this Section IV.a) and continues for such period of time that corresponds to the duration for which you purchased the Access Right. For example, if you purchased the Access Right for thirty days, the License Term is thirty days from such Activation, and to access and use the Software and/or the Associated Services after the end of such thirty days, you have to purchase another Access Right. Solely in the event that this Section IV.a applies, the term "Activation" means the earliest date and time when you received the Activation Code from Lexing Yingda or an Authorized Reseller, regardless of the time of Your Acceptance or activation of the License. Thus, in the event that you purchased the Access Right and the Activation Code in an Authorized Reseller’s store, the Activation will have occurred at the time that you received the Activation Code in such store regardless of when Your Acceptance occurs or whether or not, or when, you actually insert the Activation Code or take any steps to activating the License. An Activation Code License or receipt of the Access Right for an Activation Code License does not entitle you or Your Child automatically (without additional purchase) to any additional Activation Code License or an extension thereof. Upon the end of the License Term, if you or Your Child wish to further access or use the Software and/or the Associated Services, you must purchase a new Activation Code License or a Paid Open Market License. Otherwise, this Agreement, the Access Right, and the license and all rights of you or Your Child, including, without limitation, the right to access and use the Services and receive Associated Services, terminates and ends. The Activation Code License does not convert into or continue as a No-Charge Open Market License or any other License. Paid Open Market License: If the License is a Paid Open Market License, the "License Term" means the period of time that begins with the Activation (as defined below in this Section IV.b) and continues for such period of time that corresponds to the duration for which you purchased the Access Right. For example, if you purchased the Access Right for thirty days, the License Term is thirty days from such Activation, and to access and use the Software and/or the Associated Services after the end of such thirty days, you have to purchase another Access Right. Solely in the event that this Section IV.b applies, the term "Activation" means the date and time of Your Acceptance or of your payment of all or part of the License Fee for the Access Right, whichever occurs earlier. Thus, in the event that you purchased the Access Right online from Lexing Yingda or an Authorized Reseller, the Activation will have occurred at the time that you paid all or part of the License Fee or Your Acceptance regardless of whether or not, or when, you actually download, install or activate the License. A Paid Open Market License or receipt of the Access Right for a Paid Open Market License does not entitle you or Your Child automatically (without additional purchase) to any additional Paid Open Market License or an extension thereof. Upon the end of the License Term of the Paid Open Market License, if the Paid Open Market License ends solely as a result of the expiration of the License Term (and not as a result of any other termination, expiration, or cancellation, in which case the License and this Agreement terminates and ends without any conversion), the Paid Open Market License may automatically, without need for any notice or action of any kind, terminate and end and convert to a No-Charge Open Market License. No such conversion is or shall be required. In the event of such conversion, as of such conversion, the License will be a No-Charge Open Market License under this Agreement and be governed by the terms of this Agreement applying to a No-Charge Open Market License in effect at that time subject to any modification of this Agreement in accordance with this Agreement. Trial Period License: If the License is a Trial Period License, the "License Term" means the Trial Period. The Trial Period begins with the Activation (as defined below in this Section IV.c). Solely in the event that this Section IV.c applies, the term "Activation" means the date and time of Your Acceptance. Depending on the Software, upon the end of the License Term of the Trial Period License, if the Trial Period License ends solely as a result of the expiration of the License Term (and not as a result of any other termination, expiration, or cancellation, in which case the License and this Agreement terminates and ends without any conversion), the Trial Period License may automatically, without need for any notice or action of any kind, terminate and end and convert to a No-Charge Open Market License. No such conversion is or shall be required. In the event of any such conversion, as of such conversion, the License will be a No-Charge Open Market License under this Agreement and be governed by the terms of this Agreement applying to a No-Charge Open Market License in effect at that time subject to any modification of this Agreement in accordance with this Agreement. A Trial Period License or receipt of the Access Right for a Trial Period License does not entitle you or Your Child to any additional Trial Period License or an extension thereof. To be able and have the right to access and use the Software and/or the Associated Services other than under a No-Charge Market License after the Trial Period, you must purchase a new Access Right from Lexing Yingda or an Authorized Reseller. Except as otherwise authorized by Lexing Yingda in advance in writing to you, you and Your Child are limited to receiving one Access Right for a Trial Period for the same type of Software.
No-Charge Open Market License: If the License is a No-Charge Open Market License, the "License Term" begins with Your Acceptance and continues for such period of time that corresponds to the duration for which you received such Access Right, or if there is no such period of time, indefinitely until Lexing Yingda terminate this Agreement, which Lexing Yingda may do so at any time with or without cause.
LICENSE FEES.
Unless you received from Lexing Yingda the Access Right without the obligation to pay any License Fee, i.e., the License under this Agreement is granted for, and the License Term is, a Trial Period, the License is granted to you in consideration for your payment of the fee, price, or charge that you agreed to pay Lexing Yingda or an Authorized Reseller for the Access Right (such fee, price, or charge, the "License Fee"). You agree to pay any License Fee or part thereof not yet paid, and any other amount due to Lexing Yingda, and you represent and warrant that any License Fee by you before Your Acceptance has been paid, in immediately available indefeasible unconditional funds without any set-off or deduction. Any amount of any License Fee or amount due to Lexing Yingda that is unpaid when it is due shall accrue interest from the date it is due until Lexing Yingda’s receipt of the payment of such amount at the rate of the lower of (i) one and one-half percent (1.5%) per full or partial calendar month or (ii) the highest enforceable rate of interest under applicable law. All such interest shall be paid simultaneously with the payment of the unpaid amount on which such interest accrued.
Lexing Yingda is not responsible, and you are solely responsible, for any access, data, transmission, and other fees and any expenses you may incur or may be charged by any third party, including, without limitation, your wireless service provider, may charge in connection with your access or use of the Software and/or the Associated Services, including, without limitation, data traffic costs.
INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP, AND RESERVATION OF RIGHTS.
The Software and the Access Services are proprietary to Lexing Yingda. You acknowledge and agree that the Software is being licensed, not sold, to you by Lexing Yingda. No rights are granted or extended, implicitly, expressly, or otherwise, to any third party, and your access and use of the Software and/or the Associated Services does not, and shall not be deemed, to exhaust any Intellectual Property Right in or to or related to the Software and/ or the Associated Services with regard to you outside the express license in this Agreement or to any third party. All Intellectual Property Rights to the Software, the Access Services, all Modifications, and all content and code are owned by Lexing Yingda and are protected by law. You further acknowledge and agree that you do, and shall not be deemed to, acquire any ownership, co-ownership, right, title, interest, license (except solely the express license to access and use the Software and the right to access and use the Associated Services expressly granted to you as set forth in this Agreement during the term of this Agreement), or encumbrance in or to, and that Lexing Yingda shall retain its entire sole ownership, right, title, interest in and to, the Software, the Associated Services, all Modifications, all derivations and derivative works therefrom and all improvements, modifications, upgrades, updates, error corrections, patches, enhancements, versions, and alterations thereto, all content, works, inventions, technology, data, information, and code therein or thereof, and all other proprietary products and services of Lexing Yingda (including without limitation products and services released solely or jointly with its partners), and all Intellectual Property Rights (as defined herein) in or to or arising out of or relating to any of the foregoing (collectively, "Lexing Yingda Property").
The term "Intellectual Property Rights" means, individually and collectively, any and all of the following, anywhere in the world and under any law: (a) patents, patent applications, patent disclosures, invention disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, and all goodwill in or arising from any of the foregoing, (c) copyrights and rights in and to or arising from or related to copyrightable works (including computer programs), mask works and rights in data and databases, (d) rights in and to or arising from or related to trade secrets, know-how, show-how, and other confidential or proprietary information, and (e) all other intellectual and industrial property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world. You shall promptly notify Lexing Yingda if you become aware of any possible third-party infringement of Lexing Yingda's Intellectual Property Rights arising out of or relating to the Software and/or the Associated Services and fully cooperate with Lexing Yingda in any legal action taken by Lexing Yingda against third parties to enforce its Intellectual Property Rights. You shall safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
Without Lexing Yingda's written permission, no entity or individual shall use, duplicate, change, copy, distribute or use or sell with other products any part of the Software and/or the Associated Services, any other product, information or materials owned by Lexing Yingda, or any other Lexing Yingda Property in any manner for any reason whatsoever. Without Lexing Yingda's written permission, no entity or individual shall use, duplicate, change, distribute, copy or infringe in other ways Lexing Yingda's trademarks in part or as a whole in any manner for any reason whatsoever.
Lexing Yingda's core technology is protected by the patent and other Intellectual Property Rights laws of various countries. Without Lexing Yingda's written permission, no entity or individual shall carry out, duplicate, modify, distribute, copy or infringe in other ways Lexing Yingda’s patented products and patented technology in any manner for any reason whatsoever.
If and to the extent you acquire or obtain any ownership, co-ownership, right, title, interest, license (except solely the express license to access and use the Software and the right to access and use the Associated Services expressly granted to you as set forth in this Agreement during the term of this Agreement), or encumbrance, you agree to assign, transfer, and convey, and you hereby assign, transfer, and convey, to Lexing Yingda – free of any royalty, fee, or other payment obligation of Lexing Yingda or any of its affiliates – all such ownership, co-ownership, right, title, interest, license, and encumbrance. You agree to execute any document and take any other action or forego to take any other action as requested by Lexing Yingda to you to give effect to the provisions of this Article V.
RIGHT OF REPUTATION.
As a legal person, Lexing Yingda's rights of reputation are protected by the law. Where the company's goodwill is slandered or the rights of reputation are infringed by illegal means of forging and disseminating false information and materials, or similar actions, Lexing Yingda has the right to pursue legal responsibilities according to law. Where the above Intellectual Property Rights of Lexing Yingda are infringed or the exercise of the Intellectual Property Rights are hindered, legal responsibilities will be investigated according to law and you may be held liable for such infringement and/or hindering.
TERMINATION.
This Agreement expires, terminates, and ends immediately and automatically, without need for any notice or other act: (i) upon the end of the License Term, or (ii) any fee or price due for the License, or any other payment due under this Agreement, is not paid to or received by Lexing Yingda, whether or not resulting from any fault by you.
This Agreement also terminates immediately and automatically, without need for any notice or other act, if and when you (i) breach or violate or default under any provision of this Agreement or obligation of you or Your Child, or (ii) you or Your Child engages in any act or omission that constitutes or results in any breach or violation of, or default under, any provision of this Agreement, or (iii) engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful, illegal, or dishonest act or omission in connection with the Software and/or the Associated Services or relating to this Agreement or the Software and/or the Associated Services; or (iv) you fail to agree to any change, modification, amendment, or alteration of this Agreement or any provision of this Agreement; or (v) you or Your Child fails to permit any installation or inclusion of any Modification provided by Lexing Yingda to you or Your Child, or to the Software installed on the Device.
Lexing Yingda may also terminate this Agreement with immediate effect: (i) as set forth in Section XVI.(d) of this Agreement, or (ii) if or to the extent Lexing Yingda ceases to make the Software, or removes the Software from being, available for licensing, and/or ceases to make the Associated Services available for access or use, by members of the public in anywhere or in your country, region, or area, or (iii) if Lexing Yingda fails to conduct business operations or takes steps to dissolve or cease to exist; or (iv) if Lexing Yingda or you files or is or becomes subject to a petition in bankruptcy; or (v) if Lexing Yingda admits the inability to pay the debts as they become due, makes a general assignment for the benefit of its creditors, or becomes subject to the appointment of a receiver; or (vi) upon your death or legal incapacity.
Lexing Yingda may terminate this Agreement by disconnecting your or Your Child’s access to and use of the Software and/or the Associated Services, without need or requirement for any notice. Lexing Yingda may give you notice of any termination, expiration, or cancellation if Lexing Yingda decides to do so in its sole discretion, provided, however, that, giving any notice of termination shall not obligate or require Lexing Yingda to give such notice in any other instance of a termination.
You may terminate this Agreement at any time by giving Lexing Yingda written notice of termination addressed to Lexing Yingda at the address of its headquarters and to the attention of the "Legal Department" at such address.
Any access to or use of the Software and/or the Associated Services following any event of termination of this Agreement (e.g., if Lexing Yingda and/or you are unaware of such termination) shall not negate such termination or the fact that such termination occurred.
EFFECT OF TERMINATION.
Upon the termination, expiration, or cancellation of this Agreement for any reason: (i) the License and your and Your Child’s right to access and use the Software or the Associated Services, and to have possession of the downloaded and installed copy of the Software, terminates and ends, (ii) Lexing Yingda may immediately disconnect you and Your Child’s access to and use of the Software or the Associated Services, with or without any notice to you, (iii) you agree to immediately cease, and to cause Your Child to immediately cease, all access to and use of the Software and the Associated Services and irretrievably erase and destroy all copies, full or partial, of the Software or the Associated Services and any information pertaining to the Software or any Associated Services, without retaining any copy or manifestation of the Software and/or the Associated Services, any of its content, or any part thereof. The provisions of Section V (regarding any License Fee and other amount due to Lexing Yingda and unpaid), VI, VII, and X through XXIV of this Agreement, and this Section IX shall survive any termination, expiration, or cancellation of this Agreement.
Any termination, expiration, or cancellation of this Agreement does not waive, terminate, cancel, or avoid any duty or obligation to pay any License Fee or other fee, price, or other charge due by you to Lexing Yingda or its Authorized Resellers for the License Term during which such termination occurs, if and to the extent not yet paid, which shall be due immediately upon termination if not yet due, and does not entitle or give you any right or expectation to a refund, reimbursement, repayment, compensation for, or other receipt of the amount of any License Fee or any other fee, price, or other charge paid in connection with the Software and/or the Associated Services or this Agreement. Any and all payments made to Lexing Yingda in connection with the License or under this Agreement are non-refundable.
PRODUCT CLAIMS.
Lexing Yingda is not responsible for addressing and you hereby waive any claims by you or any third party relating to the Software and/or the Associated Services or your possession and/or use of the Software and/or the Associated Services, including but not limited to: (a) product liability claims; (b) any claim the Software and/or any of the Associated Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You accept full responsibility and agree to be fully liable for all results, consequences, injuries, death, damages, emotional distress, and harm of any kind caused by your or Your Child’s use, application, or implementation of the Software, the Associated Services, or the Device, or any violation of the provisions of this Agreement by you.
DISCLAIMER OF WARRANTIES.
LEXING YINGDA MAKES NO WARRANTIES OR REPRESENTATIONS HEREUNDER OR REGARDING THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. LEXING YINGDA DISCLAIMS RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. THE SOFTWARE AND THE ASSOCIATED SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". LEXING YINGDA EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, WORKMANSHIP, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. YOU DOWNLOAD AND USE THE SOFTWARE AND/OR THE ASSOCIATED SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES.
IN THE EVENT OF ANY BREACH OF ANY WARRANTY, OR ANY FAILURE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES TO CONFORM TO ANY WARRANTY, THAT APPLIES AND IS NOT OR CANNOT BE EFFECTIVELY DISCLAIMED HEREUNDER UNDER APPLICABLE LAW: (I) YOU MAY NOTIFY LEXING YINGDA DURING THE LICENSE TERM THEREOF AND LEXING YINGDA MAY CORRECT SUCH FAILURE OR BREACH, AND (II) IF YOU PAID TO LEXING YINGDA A LICENSE FEE FOR THE LICENSE DURING SUCH LICENSE TERM AND SUCH CORRECTION DOES NOT OCCUR OR LEXING YINGDA DECIDES TO REPAY SUCH LICENSE FEE, LEXING YINGDA WILL REFUND SUCH LICENSE FEE FOR SUCH LICENSE TERM, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEXING YINGDA WILL HAVE NO OTHER WARRANTY OBLIGATION OR OTHER LIABILITY WHATSOEVER WITH RESPECT TO THE SOFTWARE, THE ASSOCIATED SERVICES, OR THIS AGREEMENT, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE YOUR SOLE RESPONSIBILITY. THE FOREGOING REFUND OF THE LICENSE FEE, IF ANY, CONSTITUTES THE MAXIMUM LIABILITY THAT LEXING YINGDA SHALL HAVE UNDER AND RELATING TO THIS AGREEMENT OR THE SOFTWARE OR THE ASSOCIATED SERVICES. IF NO LICENSE FEE HAS BEEN PAID TO LEXING YINGDA, SUCH AS IF THE LICENSE IS FOR A TRIAL PERIOD, YOU ARE NOT ENTITLED TO ANY PAYMENT BY LEXING YINGDA.
LIMITATION OF LIABILITY.
NEITHER LEXING YINGDA NOR ITS SERVICE PROVIDERS OR AFFILIATES WILL BE LIABLE TO YOU OR ANY USER FOR ANY USE OR MISUSE OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES. SUCH EXCLUSION INCLUDES, BUT IS NOT LIMITED TO: (A) DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE (EVEN IF LEXING YINGDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (B) APPLIES WHETHER DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE AND/OR THE ASSOCIATED SERVICES, FROM INABILITY TO USE THE SOFTWARE AND/OR THE ASSOCIATED SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE AND/OR THE ASSOCIATED SERVICES (INCLUDING ANY DAMAGES INCURRED BY THIRD PARTIES); AND (C) APPLIES NOTWITHSTANDING A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IF AND TO THE EXTENT THAT LEXING YINGDA OR ANY OF ITS SERVICE PROVIDERS OR AFFILIATES IS LIABLE TO YOU FOR ANY DAMAGES NOTWITHSTANDING THE FOREGOING PROVISIONS, YOU AGREE THAT THEIR AGGREGATE AND COMPLETE LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE, IF APPLICABLE, FOR THE LICENSE TO ACCESS, INSTALL, AND USE THE SOFTWARE, AND THE RIGHT TO ACCESS AND USE ANY ASSOCIATED SERVICES, UNDER THIS AGREEMENT.
INDEMNIFICATION.
You will indemnify and hold harmless Lexing Yingda and its parents, subsidiaries, officers, directors, shareholders, agents and employees, from any and all losses to the extent resulting from any action, suit, proceeding, claim, demand, investigation or assessment due to or arising directly or indirectly out of (i) your or Your Child’s access and/or use of the Software and/or the Associated Services, (ii) any violation of any applicable law arising from you or Your Child's conduct or in connection with your or Your Child's use or misuse of the Software and/or the Associated Services, (iii) any alleged violation of this Agreement or other applicable agreements between you and Lexing Yingda, (iv) any negligence (whether sole, contributory, or comparative) and willful misconduct of you or Your Child, and (v) any alleged violation of any applicable law or regulation (EXPRESSLY INCLUDING, IN EACH CASE, ANY SUCH LOSSES ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OR STRICT LIABILITY OF LEXING YINGDA). Lexing Yingda reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
LEGAL RESTRICTIONS.
Some countries and jurisdictions do not allow the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions, so some of the disclaimers, exclusions, limitations, and/or obligations in Sections X, XI, XII, and/or XIII of this Agreement may not apply to you. In such case: (i) the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law, and (ii) if any implied warranties or conditions would then otherwise arise, such implied warranties and conditions will be limited in duration to ninety (90) days, or if applicable law requires a longer time period, the shortest legally required time period, from the date of the delivery of the Software and/or the Associated Services.
BASIS OF BARGAIN.
You agrees and acknowledges that Lexing Yingda has set its fees and the parties have entered into this Agreement in reliance on the limited warranties, warranty disclaimers, limitations and exclusions of liability, and indemnity set forth herein, that the same reflect an agreed-to allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose and cause consequential loss), and that the same forms an essential basis of the bargain between the parties. You agree and acknowledge that Lexing Yingda would not have been able to license the Software and/or make available any Associated Service at the amount charged on an economic basis without such limitations.
INFRINGEMENT.
If use of the Software and/or any of the Associated Services may be enjoined due to a claim of infringement by a third party then, at its sole discretion and expense, Lexing Yingda may do one of the following: (a) negotiate a license or other agreement so that the Software and/ or the any of the Associated Services is no longer subject to such a potential claim, (b) modify the Software and/or any of the Associated Services so that it becomes non-infringing, provided such modification can be accomplished without materially affecting the performance and functionality of the Software and/or the Associated Services, (c) replace the Software and/or the Associated Services with non-infringing software, or (d) terminate this Agreement by written notice of termination to you, in which case you shall stop using the Software and/or the Associated Services. The foregoing sets out the entire liability of Lexing Yingda and the sole obligations of Lexing Yingda to you and Your Child in respect of any claim that the Software and/ or any of the Associated Services or its use infringes any third party rights.
PRIVACY POLICY.
Lexing Yingda may collect certain personal information about you ("Parental Information") and Your Child or children ("Children’s Information") (collectively, Parental Information and Children’s Information are "Personal Information") in connection with the Software and/or the Associated Services. You consent to the collection, use, disclosure, and other handling of such Personal Information as specified in the Privacy Policy, which is hereby incorporated by reference.
EXPORT RESTRICTIONS.
You acknowledge that the Software, or any part thereof, may be subject to the jurisdiction of the U.S. Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.), U.S. trade embargo regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.), other regulations of the U.S. Departments of Commerce, State, and Treasury (collectively, "Export Control Law"). Accordingly, you agree that you will comply with all Export Control Law and that the Software, or any part or information thereof, or any access or use thereof, will not be: (i) reexported, sold, or otherwise transferred outside the United States of America or to other countries or to any person in violation of Export Control Law or any other U.S. law; or (ii) made available to any person that you know or have reason to suspect will cause the Software, or any part or information thereof, or any access or use thereof, to be made available outside the United States of America or to other countries or to any person in violation of Export Control Law or any other U.S. law. You are solely responsible for determining its obligations under Export Control Law.
INJUNCTIVE RELIEF.
You agree that damages alone may be an insufficient remedy for violations of the terms of Sections III, VI, VII, IX, and XVIII of this Agreement, and that Lexing Yingda may suffer irreparable damage as a result of such a violation. Accordingly, Lexing Yingda shall be entitled, in the event of a breach or threatened breach of Sections III, VI, VII, IX, and XVIII of this Agreement, to seek injunctive relief (or equivalent relief available under the law of the jurisdiction where Lexing Yingda seeks such relief) to enforce the provisions of Sections III, VI, VII, IX, and XVIII of this Agreement without posting a bond. Injunctive (or such equivalent) relief shall be in addition to any and all other rights or remedies available to Lexing Yingda, including, but not limited to, damages or other relief or remedies for such violation. Assertion or the failure to assert injunctive (or such equivalent) relief shall not constitute a waiver of any such other rights or remedies. In the event it is necessary for Lexing Yingda to institute legal proceedings to enforce Sections III, VI, VII, IX, and XVIII of this Agreement, Lexing Yingda will be entitled to recover attorneys’ fees and costs incurred by Lexing Yingda in such proceedings if it prevails in such proceedings.
ASSIGNMENT/CHANGE OF CONTROL.
This Agreement may not be assigned, nor may any of your obligations under this Agreement be delegated, in whole or in part, by you by operation of law, merger, or any other means without Lexing Yingda’s express prior written consent and any attempted assignment without such consent will be null and void. Lexing Yingda may, without notice to you, assign this Agreement. Further, Lexing Yingda may perform all obligations, if any, to be performed by Lexing Yingda under this Agreement directly or may have some or all obligations performed by its affiliates, agents and/or independent contractors.
SEVERABILITY.
If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
GOVERNING LAW AND JURISDICTION.
The internal laws of the State of New York, U.S.A. (without giving effect to any choice or conflict of law provision or rule (whether of the State of New York, U.S.A. or any other jurisdiction) that would cause the application of laws of any other jurisdiction) shall govern all matters arising out of or relating to this Agreement and all of the matters or transactions it contemplates, including its validity, interpretation, construction, performance and enforcement and any disputes or controversies arising therefrom. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or any transaction hereunder. You consent and submit to the exclusive jurisdiction of competent state and federal courts in the State of New York, U.S.A., for any litigation or proceeding and to the venue of such litigation or proceeding in New York, New York, U.S.A.
NO THIRD PARTY BENEFICIARIES.
The parties do not intend any third party to be a third party beneficiary under this Agreement, and nothing in this Agreement shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
ENTIRE AGREEMENT.
All terms, conditions and provisions of this Agreement and any privacy statement or other policies and terms and conditions of use accepted by you, constitute the entire agreement between you and Lexing Yingda and shall supersede all other communications, representations, agreements or understandings, either oral or written, with you with respect to the subject matter hereof.
Thank you for choosing Lexing Yingda services and your comments and suggestions are always appreciated.
Should you have any questions, please contact us by e-mail at help.lexing.ltd@outlook.com.
LEXING YINGDA REFUND POLICY
If you have any questions or concerns regarding product activation, upgrade or refund policy, please email us at help.lexing.ltd@outlook.com.