Software, Hardware and Service Agreement
Last Updated: 24 April 2020
This Software, Hardware and Service Agreement (the “Agreement”) is between Anhui Huami Information Technology Co., Ltd. ("HUAMI”, “we”, “us” or “our”) and you as our user (“User”, “you” or “your”). HUAMI hereby reminds you to carefully read and fully understand this Agreement, before you use the “Zepp App” , other mobile fitness applications developed or distributed by HUAMI, other software, firmware and applications running on Huami Devices including related services (collectively, the “Software”) and Huami Devices (collectively with the Software, the “Huami Service”), in particular the terms relating to the exemption or limitation of HUAMI's liability, dispute resolution and governing laws, and those sections that are underlined and/or in bold, which might exclude or limit a party’s liabilities and/or impose obligations on a party. “Huami Device” means a device that is manufactured, distributed, or sold by HUAMI itself or through its authorized resellers or agents.
Huami Service is not directed to children under 16 (and in certain jurisdictions under the age of 13) years of age. If you are under the age of 16 (and in certain jurisdictions under the age of 13), you must have your parent’s permission to access the products and services. HUAMI urges parents to instruct their children never to give out their real names, addresses, or phone numbers, without parental permission, when online.
HUAMI does not seek or intend to seek to receive any personal information from minors. Should a parent or guardian have reasons to believe that a minor has provided HUAMI with personal information without their prior consent, please contact us to ensure that the personal information is removed and the minor unsubscribes from any of the applicable Huami Service. If we learn that we have collected any personal information from children under 16 (and in certain jurisdictions under the age of 13) and we do not obtain permission from a parent, we will promptly take steps to delete such information and terminate the minor’s account.
1. Agreement to the Terms; Amendments
1.1 By downloading, installing and using the Software or otherwise connecting or using the Huami Service, you agree to accept this Agreement and to be fully bound by its terms. If you do not agree with the terms of this Agreement in whole or in part, then you are not permitted to, and you agree not to, access to or use the Huami Service.
1.2 HUAMI reserves the right to amend this Agreement from time to time at its sole discretion. Any amendments will be published on our website or to the Software, and become effective from the date of publication. After HUAMI has amended the terms of this Agreement, if you do not accept the amended terms, you are not permitted to use the Huami Service anymore and you agree to immediately discontinue using of the Huami Service. HUAMI will use commercially reasonable efforts to notify you before HUAMI makes material changes to this Agreement, by email or otherwise. Your continued use of the Huami Service will be deemed acceptance of the amended terms of this Agreement.
2. Scope of Software Licensing
2.1 HUAMI grants the User a personal, revocable, non-transferable, non-sublicensable, and non-exclusive license to use the Software in accordance with the terms of this Agreement.
2.2 The User can install, use, display and run Software on a single device for non-commercial purposes. The User agrees not to install, use or run the Software for commercial purposes. The User also agrees not to copy, alter, adapt, translate, lease, assign, publicly display, publicly perform, modify or otherwise exploit (i) the Software, (ii) any data released to the memory of any device during the operation of the Huami Service, or (iii) the interactive data generated between the client and the server during the operation of the Huami Service. In addition, the User agrees not to run the Software with unauthorized plug-ins, or create any derivative work in any form, including plug-ins, and the User agrees not to access the Software and related systems through unauthorized third-party tools/services. If you need to sell, copy or distribute the Software commercially, e.g. software pre-installation and bundling, you must obtain the prior written authorization and license from HUAMI.
2.3 Without the permission of HUAMI, the User agrees not to install the Software on other types of devices that are not expressly permitted by HUAMI, including set-top boxes, game consoles, televisions, and DVD players.
2.4 The User may make a copy of the Software for backup purposes only. The backup copy must incorporate all the proprietary rights notices incorporated in the original Software.
2.5 Except as expressly authorized by this Agreement or otherwise agreed to by HUAMI in writing, HUAMI does not grant other rights to the User with respect to the Software.
3. Software Installation and Upgrading
3.1 The User shall download and install the Software from the website designated by HUAMI, from an official app store or distribution platform (like the Apple App Store or Google Play Store) where the Software may now or in the future be made available, or in another manner designated by HUAMI. The User shall not download the Software from any unauthorized websites or distribution platforms. You acknowledge that downloading the Software from an unauthorized website or distribution platform may affect the operations of the Software or infect your mobile devices with malicious programs that can destroy your data and compromise your sensitive personal information. HUAMI accepts no liability for any loss thereby caused to you in connection with downloading the Software from any unauthorized websites or distribution platform.
3.2 You may only connect to the Software using a Huami Device.
3.3 The User must select the Software version that matches the Huami Device on which the Software is installed. Any software problems, device problems or damages resulting from a mismatch between the Software version and the device model shall be solely assumed by the User.
3.4 HUAMI reserves the right from time to time and at its sole discretion to provide a replacement, modified and upgraded version of the Software available to Users. HUAMI reserves the right to charge for such replacement, modification or upgrade however Users must (i) consent to such changes and (ii) install the replacement, modified or upgraded version of the Software. HUAMI reserves the right to charge a fee for access to and use of certain features of the Software and Users will be notified of such fees in advance if such fees becoming effective and will be given an opportunity to agree to payment of such fees. In providing the Software, HUAMI may charge Users now or in the future. If the User refuses to pay such fees, the User will not be able to continue using relevant features of the Software.
3.5 Software will enable "upgrade prompt" feature by default for the User.
3.6 After a new version of the Software is released, all earlier versions of the Software will be unsupported and may eventually stop to operate. HUAMI does not guarantee the security, continuous operation or customer services for any unsupported versions.
4. Creating an Account
4.1 Full use of the Huami Service requires that you create an account (the “Account”) by logging in through your “Mi Account” from Xiaomi Inc., or through certain third-party services providers such as Facebook or Google (each, a “Third Party Account”). We’ll create your Account by extracting from your Third Party Account certain personal information such as your name and email address and other personal information that your privacy settings on the Third Party Account permit us to access. You are responsible for all activities that occur in association with your Account. We are not liable for any loss or damages caused by your failure to maintain the confidentiality of the credentials of your Third Party Accounts. Please notify the relevant third party services provider immediately if you discover or suspect any security breach related to your Third Party Accounts.
5. Usage Specifications
5.1 The User may only use the Huami Service in accordance with this Agreement and applicable laws. The User is not permitted to and agrees not to commit the following acts:
5.1.1 Delete any copyright information displayed or otherwise included in the Software, or modify, delete or circumvent the technical measures set by the Software for the protection of intellectual property rights;
5.1.2 Reverse engineer, decompile, disassemble, modify, or otherwise attempt to obtain the source code of the Software;
5.1.3 Use our name, any trademark or logo, proprietary information or any Huami Content, without our express written consent;
5.1.4 Access non-public areas of the Software or our computer systems;
5.1.5 Modify the Software by modifying or forging the instructions and data during the operation of the Software, or otherwise operate or disseminate the Software to the public, whether or not for commercial purposes;
5.1.6 Use the Software to commit any acts detrimental to network security, including using unauthorized data or access to unauthorized servers/accounts; unauthorized access to public networks or the operating system of others and delete, modify or add any information stored; unauthorized attempts to detect, scan or test the Software system or network weaknesses or do other things that harm network security; interfering or attempting to interfere with the normal operation of the Software system or website; deliberately spreading malicious programs or viruses; carrying out other acts that destruct or interfere with normal network information services; or forging the name or partial names of TCP/IP data packet;
5.1.7 Log in or use the Software through third party software or systems not developed, authorized or approved by HUAMI, or make, publish or disseminate such third party software or systems;
5.1.8 Copy, modify or create derivative works based on the Software (including Huami Content);
5.1.9 Distribute, transfer, sublicense, lease, lend or rent the Huami Service to any third party;
5.1.10 Use the Huami Service to produce, reproduce, publish, transmit, disseminate or store any content that violates local laws and regulations;
5.1.11 Use the Huami Service to produce, reproduce, publish, transmit, disseminate or store any content that infringes the legitimate rights such as intellectual property rights and trade secrets of others;
5.1.12 Use the Huami Service to produce, reproduce, publish, transmit or disseminate any content that incorporates advertising information, promotional material, junk mail, spam or a contest or sweepstakes;
5.1.13 Use the Huami Service and other services provided by HUAMI, in a manner that violates any local laws and regulations, for any unlawful purpose or in any manner inconsistent with the licensed usage under this Agreement;
5.1.14 Provide false information to the Software;
5.1.15 Spread false or disparaging statements to mislead or deceive others, or to harm the goodwill of the Huami Service, HUAMI or its affiliates;
5.1.16 Commit any activities which harm or attempt to harm Huami Service;
5.1.17 Impersonate or misrepresent your affiliation with HUAMI or our affiliates;
5.1.18 Conduct any activities or produce, reproduce, publish, transmit or disseminate any content which HUAMI has reason to believe are inappropriate; and
5.1.19 Encourage or enable any other individuals to do any of the foregoing.
5.2 Information Publication Specifications
5.2.1 We may permit you to use the Huami Service to publish information such as views, data, text, information, user names, pictures, photos, personal information, audio or video files, links and so on that are created by you or that you have the right to publish (collectively, the “User Content”). Without limiting the generality of the foregoing, User Content also includes information and data generated by the Software directly based on User’s activities such as step count, heart rate, sleep hours and calorie burned and that is directly associated with the User. Subject to the license that you grant to us in accordance with Section 5.2.2, you retain all rights to the User Content. You represent and warrant that you have all rights to grant us the license rights in your User Content under this Agreement. You also represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by HUAMI on or through the Huami Service will: (i) infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy; (ii) result in the violation of any applicable law or regulation; (iii) be obscene, defamatory, pornographic or otherwise offensive; (iv) promote violence, discrimination, racism, bigotry, hatred, harassment or harm against any individual or entity; or (v) promote any illegal or harmful activities or substances. You are solely responsible for all your User Content. HUAMI may, in its sole discretion, modify or delete any of User Content, and may temporarily or permanently refuse to permit you to publish, transmit or disseminate any User Content.
5.2.3 Without the permission of HUAMI, you shall not carry out any commercial conduct through the Huami Service, such as advertising and selling merchandise.
5.2.4 Huami respects copyright law and expects its users to do the same. It is Huami’s policy to terminate in appropriate circumstances users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright Policy for further information.
5.3 YOU AS A USER SHALL INDEMNIFY, DEFEND AND HOLD HUAMI, ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, THIRD-PARTY CLAIMS, ADMINISTRATIVE PENALTIES, DAMAGES AND/OR EXPENSES, INCLUDING REASONABLE ATTORNEY FEES, INVESTIGATION AND EVIDENCE COLLECTION COSTS, ARISING OUT OF OR IN ANY WAY CONNECTED THE USER’S USE OF THE HUAMI SERVICE, USER CONTENT AND THE USER'S VIOLATION OF RELEVANT LAWS OR BREACH OF THIS AGREEMENT.
7. Service Risk and Disclaimer
7.1 The User agrees to bear the communication fees, information fees and related costs incurred in connection with accessing the Internet from the User’s mobile devices including the Huami Devices used to access the Huami Service, including applicable fees and costs charged by third parties (such as telecommunications and mobile communication providers).
7.2 HUAMI is not liable for any loss suffered by the User due to reasons attributable to third parties such as communication line failure, technical problem, network or mobile terminal device failure, system instability and other various force majeure factors.
7.3 The functionality of the Huami Service, may be impacted by factors out of control of HUAMI, including user operations, network service quality, social environment differences, social engineering, and computer viruses. You agree to safe guard your mobile device, Huami Devices, user data and password, and you agree to use best practices to create and manage your password to avoid data loss and harassment.
7.5 We will use commercially reasonable effort to ensure that the Huami Service and the technology and information involved are safe, effective, accurate and reliable; however, you accept and acknowledge that THERE ARE INHERENT RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED SOFTWARE SERVICE AND THAT HUAMI CANNOT GUARANTEE THE SAFETY, EFFECTIVENESS, ACCURACY OR RELIABILITY OF THE SOFTWARE. YOU AGREE TO USE THE SOFTWARE AT YOUR OWN RISK.
7.6 TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, HUAMI AND ITS AFFILIATES DISCLAIM ALL LIABILTY WITH RESPECT TO ANY PERSONAL INJURIES OR INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF DATA, BUSINESS INTERRUPTION OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (1) THIS AGREEMENT; (2) THE USE OR FAILURE TO USE THE HUAMI SERVICE; (3) UNAUTHORIZED USE OF THE HUAMI SERVICE OR MODIFICATION OF THE USER'S DATA BY A THIRD PARTY; (4) COSTS AND LOSSES INCURRED BY THE USER DURING USE OF THE HUAMI SERVICE; (5) MISUNDERSTANDING BY THE USER OF THE HUAMI SERVICE; (6) OTHER LOSSES IN CONNECTION WITH THE HUAMI SERVICE FOR REASONS NOT ATTRIBUTABLE TO HUAMI, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HUAMI OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRATY, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, IN NO EVENT WILL HUAMI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE HUAMI SERVICE, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED FIFTY DOLLARS ($50). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HUAMI AND YOU.
7.7 EXCEPT FOR ANY PRODUCT WARRANTIES WITH RESPECT TO ANY HUAMI DEVICES THAT HUAMI EXPRESSLY PROVIDES IN WRITING IN SEPARATE AGREEMENTS WITH THE USERS: (I) THE HUAMI SERVICE INCLUDING ANY RELEVANT SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND; AND (II) HUAMI EXPLICITLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
7.8 IF YOU HAVE A MEDICAL CONDITION, CONSULT YOUR DOCTOR BEFORE USING THE HUAMI SERVICE. WE ARE NOT RESPONSIBLE FOR ANY HEALTH OR MEDICAL PROBLEMS THAT MAY RESULT FROM YOUR USE OF THE HUAMI SERVICE.
8. Intellectual Property Rights
8.1 HUAMI owns all right, title and interest in and to the Software (which, for the avoidance of doubt, includes the Huami Content), including copyright, trademark (except for Xiaomi / Mijia / Mitu trademark), patent, trade secret and any other intellectual property rights therein.
8.2 You acknowledge that the Huami Service including any underlying technology are protected by local laws and regulations and corresponding international treaties. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Huami Service. To the extent that any Xiaomi / Mijia / Mitu trademark is included or used in the Huami Service, such trademarks are the properties of Xiaomi or its licensors and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. “Huami Content” means text, graphics, images, software, audio, video, works of authorship of any kind, data, and information or other materials that are, either directly or indirectly, posted, generated or otherwise made available to you through the Huami Service but excluding the User Content.
9.1 We welcome feedback, comments and suggestions for improvements to the Services (the “Feedback”). You can submit Feedback through the Software. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
10.1 Although we are not obligated to review or edit any User Content, we have the right to do so for the purpose of operating the Huami Service, to ensure compliance with this Agreement and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Huami Service (including any Huami Content or User Content), at any time and without notice, including if we, at our sole discretion, consider any User Content to be objectionable or in violation of this Agreement. We have the right to investigate any actual or potential breach of this Agreement.
11. Cancellation, Suspension or Termination of Software
11.1 We may, at its sole discretion, cancel, suspend or terminate your access to and use of all or any part of the Huami Service, at any time and without notice or liability to you. Without limiting the generality of the foregoing, we may terminate your access to the Software and delete all related information and files (including User Content).
11.2 Upon any cancellation, suspension or termination of the Huami Service, the following Sections of this Agreement will survive: 1.1, 2.2, 2.3, 5, 6, 7, 8, 9, 10, 11.2, 12 and 13.
12. Applicable Law and Dispute Resolution
12.1 The validity and interpretation of this Agreement shall be governed by the laws of the People's Republic of China. In the absence of relevant legal provisions, reference may be made to international business practices and/or business practices.
12.2 Both the User and HUAMI agree that any dispute arising from the Software shall first be settled informally through good faith consultations. If no settlement can be reached through such consultations, either the User or HUAMI may submit the dispute to the court of competent jurisdiction in Hefei City, Anhui Province, People’s Republic of China.
13.1 For any specific service of the Huami Service, there may be a separate agreement and related business rules, etc. (hereinafter collectively referred to as the "separate agreement"). Unless a separate agreement provides otherwise, such separate agreement is subject to the terms and conditions of this Agreement. Please read and agree to relevant separate agreement before using such specific service.
13.2 You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of HUAMI. Any attempted assignment by you without such consent will be void. HUAMI may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without any prior notice to you or your prior consent. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
13.3 This Agreement is last updated on the date set out on the first page of this Agreement.
13.4 The headings to all the terms of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement. In this Agreement, unless the context indicates a contrary intention, use of the words “includes” or “including” or the abbreviation “e.g.” means “including, without limitation”, and the term “such as” will mean “such as without limitation”.
13.5 If any provision of this Agreement is or becomes invalid or unenforceable for whatever reasons, the remaining provisions hereof shall remain in full force and effect and binding upon the parties hereto, and the provisions affected will be construed so as to be enforceable to the maximum extent permissible by law.
13.6 Our failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
13.7 This Agreement constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.
Anhui Huami Information Technology Co., Ltd.