Welcome to Youku. This Youku User Service Agreement (“Agreement”) governs your use of our international mobile-based, web-based or TV-based Youku application (“Youku app”), whether or not as a registered user and whether or not as a VIP subscription user (our “Services”). If you are subscribed to or intend to subscribe to our VIP subscription services, in addition to this Agreement, please also refer to the terms under our VIP Service Agreement.
Our Services are provided by Jet Brilliant Limited, a company incorporated under the laws of Hong Kong (referred to as “Youku”, “we” or “us”, including its subsidiaries and affiliates).
Please read this Agreement carefully before considering whether to proceed and accept the use of our Services. In particular, please carefully read and ensure that you fully understand all clauses herein, especially those concerning limitation of liability, governing law, and dispute resolution. By clicking “Accept”, you are accepting and consenting to the terms as described in this Agreement. If you do not agree to any of the terms under this Agreement, please do not click “Accept” and you should immediately cease your use of our Services (as applicable).
General Terms and Conditions
1.1 Contracting parties
This Agreement is entered into by and between you and us.
Where there is a change of control or sale of our business or assets (whether in part or in full), the operator of our Services may change. Unless otherwise notified, the new operator of our Services will continue to perform this Agreement in substantially the same manner in providing our Services offered to you, and your rights and interests under this Agreement shall not be affected.
1.2. Supplemental agreement
As technology advancement continues to take place rapidly, we may require further terms to be incorporated by way of supplemental agreements (in whatever form, expressed to be applicable and binding) to set out further rights and obligations amongst us.
2. Account Registration and Use
2.1 User age requirements
We attach great importance to the protection of minors. You must be at least 18 years or above to use our Services (whether as a registered or unregistered user). The age definition of minors may be different in different countries/regions. Therefore, if you have reached the age of 18 but are still a minor according to local laws, you must read this Agreement under the guidance of your parent or legal guardian and proceed to use our Services only after obtaining the explicit consent of your parent or legal guardian. We are entitled to ask your parent or legal guardian to provide evidence of his/her consent, if necessary.
· Account Log-in. You can log-in to your account for our Services through the available third-party account log-in means (such as Facebook, Google or Apple account).
· Account Use. By using our Services, you agree to the following:
o all information (including personal data) that you provide to us is true, accurate and complete at the time provided, and you shall promptly notify us in the event of any change to such information;
o you must not use or assume other people’s identities, or in any other way falsify or provide false information about your identity in your use of our Services;
o you shall be responsible for properly keeping, using and maintaining your Youku account and password, and shall not transfer, rent, lend, sell, or share it or allow others to use it in any other way;
o you must at all times when accessing and using our Services, comply with all applicable laws, rules, regulations, policies and other requirements prescribed by any applicable regulatory authority or law enforcement body; and
o you shall be responsible for all acts performed under and/or through your Youku account to which you have the right of use.
· Account Suspension and Termination. We reserve the right to suspend or permanently terminate your use of account, and suspend, interrupt or permanently terminate our Services to you, without assuming any liabilities, if:
o you have breached or violated any term under this Agreement;
o we are required by applicable laws, regulations and regulatory policies to do so;
o your account has not been used for 60 consecutive days;
o we have any reason to believe that your use of our Services has caused (or may cause) infringement on the legitimate rights and interests of Youku and/or others; or
o you so request.
· Account Cancellation.
Subject to the requirements below having been fulfilled, you may cancel your Youku account at any time and for any reason by sending an email to us at email@example.com, unless otherwise restricted by applicable laws and regulations or otherwise agreed in this Agreement. Please note that once your account is successfully cancelled:
o you will not be able to continue using your Youku account;
o you will automatically forfeit and waive any unconsumed rights and interests (whether existing or future) arising from the use of our Services, and you are not entitled to require us to help you locate, retrieve or in any other way produce any content, information, data or record relating to your cancelled account, unless as otherwise required by applicable laws and regulations and/or regulatory authorities; and
o once your account is cancelled, it cannot be restored.
You may cancel your account upon satisfaction of the following conditions:
o the Youku account to be cancelled (“Cancelled Account”) is your own account;
o the Cancelled Account does not relate to any unprocessed transactions;
o you have cancelled the "Automatic Renewal" function relating to the Cancelled Account (if such function has been switched on); and
o the Cancelled Account does not relate to any unresolved disputes or proceedings (including but not limited to complaints, reports, lawsuits, arbitration and regulatory investigations).
You acknowledge and agree that the cancellation of your account with us does not exempt you from any liability arising from your use of our Services.
3. Use of our Services
You shall only use our Services in accordance with the terms as set out under this Agreement and applicable laws and regulations. You shall only use our Services for personal, private and non-commercial purposes, unless any prior written consent is obtained from us. You agree that you will not carry out or use our Services to carry out the following activities (nor assist, facilitate or provide support for others to carry out the following activities):
· endanger minors and/or others in any way;
· engage in activities that infringe upon the legitimate rights and interests of us or others, or any other illegal and criminal activities;
· obtain any content or data from Youku app (including but not limited to business data and personal information of users) in any way (including but not limited to any automatic programs, scripts and software such as robot software, spider software and crawler software), unless any prior written consent is obtained from us;
· copy, modify, reverse, engineer, disassemble, decompile, dismantle, attempt to export the source code, decode or do any other acts that analyse or replicate the source code, structure and concept of our Services of its component parts;
· circumvent, remove, alter, obstruct, undermine or otherwise disturb the security measures we use to protect our Services;
· display, in whole or in part, our Services in any public places, whether for a fee or free of charge, unless any prior written consent is obtained from us or otherwise permitted under laws;
· use our Services by improper means or in any way that violates the principle of good faith (including but not limited to exploiting any loopholes in the rules or systems, abusing your membership or supporting illegal businesses and/or markets);
· do any acts to cause others to be misled or mistaken to believe that certain content is transmitted by us;
· upload, publish, transmit (by email or otherwise) any software viruses, political propaganda, commercial content (such as advertisements and promotional materials), bulk letters, bulk mail or other forms of "spam", content that infringes any intellectual property rights and/or content that you are not authorised to transmitted (such as internal information and confidential information);
· collect or harvest any information that might identify a person (e.g. usernames, faces);
· use our Services to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations;
· cause or encourage any inaccurate measurements of genuine user engagement with the Services or otherwise manipulate metrics in any manner; or
· misuse any reporting, flagging, complaint, dispute or appeal process, including by making groundless, vexatious or frivolous submissions.
5. Third-party Links and Advertisements
· Third-party links. Our Services may contain links to other websites and/or resources operated by third parties (“Third-party Content”). Please note that we do not have control over Third-party Content. We do not review or modify the Third-party Content or any related activities therein. Please note that the use of third-party links and access to Third-party Content are subject to the relevant terms of such third-party and their privacy practices are governed by their privacy policies. You acknowledge that there are inherent risks in accessing Third-party Content (including data privacy and security risks) and you understand and agree that we expressly waive and disclaim any and all liability or responsibility for any direct, indirect, collateral, consequential, derivative, punitive or special damages and all other losses or liabilities arising thereof, to the extent permitted under laws.
· Advertisements. We reserve the right to place commercial advertisements (including advertising links) or any other types of commercial information, in whatever form (including but not limited to posting advertisements in any location on our Services and placing advertisements in the contents that you upload and distribute), in the course of providing our Services to you in accordance with all relevant laws and regulations.
6. Intellectual Property Rights
6.2 Unless otherwise agreed or stated in clause 6.1, all intellectual property rights (including but not limited to copyrights, trademarks, patents, trade secrets, domain names, design rights, database rights and all other intellectual property rights of any kind whether or not registered and in anywhere in the world) and related rights in all content (“Intellectual Property Rights”), technologies, software, programs, data and other information (including but not limited to text, images, pictures, photographs, audio, video, graphics, colour, layout design, and electronic documents) relating to our Services shall vest in and be owned by us or our affiliates. You shall not use (including but not limited to reproduce, disseminate, display, mirror, upload, download, modify, and rent) any such content unless otherwise permitted by us.
6.3 Our logo, "Youku" and other text, graphics or any combination thereof, as well as other logos, emblems, product and service names are trademarks of us or our affiliates in Hong Kong or other countries, and may not be displayed, used or otherwise processed in any way by anyone without our prior written authorisation. You must not indicate to others that you have the right to display, use or otherwise process the aforementioned.
6.4 We own the sole Intellectual Property Rights in our proprietary contents, original contents and other exclusive contents obtained through authorisation. You may not reproduce, disseminate or provide viewing services or commit other acts that infringe our Intellectual Property Rights, unless any prior written consent is obtained from us.
6.5 If you believe your Intellectual Property Rights have been infringed by content available via the Services, please notify us in accordance with the Intellectual Property Policy.
7. Breach, Penalties, Limitation of Liability and Disclaimers
7.1 Determination of breach of contract
You are deemed to have breached this Agreement if you breach any provisions under this Agreement (or any supplemental agreement under clause 1.2 above), including but not limited to your violation of relevant laws and regulations relating to your use of our Services.
7.2. Penalties for breach of contract
Without prejudice to other clauses under this Agreement, if any content or information you publish on Youku app during your use of our Services constitutes a breach of contract, we have the right to immediately delete, block, or otherwise handle such content or information as we see fit, or suspend, seize, cancel, or otherwise prohibit you from the use of your account or our Services.
Without prejudice to other clauses under this Agreement, where there has been a breach of contract on your part, we may, according to the corresponding rules, suspend or terminate your use of the account, and suspend, interrupt or permanently terminate our Services to you (whether in part of in full), and deduct from any liquidated damages amount.
7.3 Limitation of liability
EXCEPT IN THE CASE OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS, FRAUD OR FRAUDULENT MISREPRESENTATION OR DAMAGES CAUSED BY WILFUL MISCONDUCT OR GROSS NEGLIGENCE, WE, OUR AGENTS OR SUBCONTRACTORS, OUR AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS HEREBY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIABILITY FOR ANY LOSS OR DAMAGE WHICH MAY BE SUFFERED BY ANY PERSON, WHETHER SUFFERED DIRECTLY, INDIRECTLY, IMMEDIATELY OR CONSEQUENTIALLY, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE WHICH ARISES OUT OF, OR IN CONNECTION WITH: (I) USE (OR INABILITY OF USE) OF OUR SERVICES; (II) USE OF INFORMATION OR CONTENT ON OUR SERVICES; (III) ANY SERVICES PROVIDED ON OR THROUGH OUR SERVICES; AND (IV) INTERCEPTION OR UNAUTHORIZED ACCESS TO PERSONAL INFORMATION SUBMITTED TO US, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING CATEGORIES OF LOSS OR DAMAGE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) LOSS OR CORRUPTION OF DATA; (B) LOSS OF PROFITS; (C) LOSS OF ANTICIPATED SAVINGS; (D) LOSS OF BUSINESS OPPORTUNITY; (E) LOSS OF GOODWILL; (F) LOSS OF REPUTATION; AND (G) SPECIAL OR PUNITIVE DAMAGE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE ABOVE, IN THE EVENT THAT WE INCUR ANY LIABILITY IN CONNECTION WITH THE TERMS IN THIS AGREEMENT, THE OPERATION OF OUR SERVICES AND SUCH LIABILITY IS NOT OTHERWISE LIMITED OR EXCLUDED BY THESE TERMS, OUR LIABILITY WILL BE LIMITED TO REASONABLY FORESEEABLE DAMAGES.
OUR OVERALL AND AGGREGATE LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF OUR SERVICES WILL BE LIMITED TO (WHERE RELEVANT) USD10 (OR THE EQUIVALENT AMOUNT IN LOCAL CURRENCY) OR THE PURCHASE VALUE OF OUR SERVICES (WHICHEVER IS HIGHER), OR AN EQUIVALENT SUM IN THE CURRENCY OF THE COUNTRY IN WHICH YOU ARE BASED.
IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A REASONABLY FORESEEABLE RESULT OF OUR BREACH OF THESE TERMS OR OUR FAILURE TO USE REASONABLE CARE AND SKILL, BUT WE WILL NOT BE LIABLE FOR ANY LOSSES THAT ARE NOT REASONABLY FORESEEABLE OR INDIRECT LOSSES. LOSS OR DAMAGE IS REASONABLY FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME YOU ACCEPTED THESE TERMS, BOTH OF US KNEW IT MIGHT HAPPEN.
You will indemnify and keep indemnified us, our officers, employees, agents, licensors or other third-party providers from and against all losses and liabilities for which any of us or them may become liable and against all actions, suits, proceedings, claims or demands of any nature whatsoever which may be asserted, taken or made against us or any of them, or which we or any of them may incur or which may arise directly or indirectly in connection with your breach of law, your breach of these terms or any acts or omissions you commit in using our services that are not permitted by these terms. this means that you will be liable to reimburse us on a dollar-for-dollar basis for losses and liabilities that we suffer because of your use or misuse of our services (even if you did not authorise that use or misuse). this includes any direct economic losses, goodwill losses, and indirect losses such as indemnities, settlement payments, attorney fees, and court costs.
YOU ACKNOWLEDGE AND AGREE THAT OUR SERVICES WILL BE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE UNDERTAKE OUR OBLIGATIONS TO PROVIDE OUR SERVICES TO YOU IN ACCORDANCE TO THE TERMS OF THIS AGREEMENT AND IN ACCORDANCE WITH RELEVANT LAWS AND REGULATIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE INFORMATION AND CONTENT ON OUR SERVICES, WHETHER EXPRESS OR IMPLIED, CREATED BY LAW, CONTRACT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT THAT OUR SERVICES ARE SECURE, ERROR OR DEFECT-FREE (INCLUDING BUT NOT LIMITED TO THE COMPLETENESS, ACCURACY OR RELIABILITY OF ANY DATA OR INFORMATION DISPLAYED), OR THAT OUR SERVICES ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. THERE MAY BE INTERRUPTION, DELAY OR MALFUNCTION OF OR INABILITY TO OPERATE OR USE OUR SERVICES DUE TO INTERNET CONNECTIVITY ISSUES.
WE ARE NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED TO YOU (OR ANY OTHER PERSONS) AS A RESULT OF MAINTENANCE AND CONNECTION FAILURES OF INFORMATION NETWORK EQUIPMENT, COMPUTER, COMMUNICATION OR OTHER SYSTEM FAILURES, HACKING ACTIVITIES, COMPUTER VIRUSES, POWER FAILURES, STRIKES, RIOTS, FIRES, FLOODS, STORMS, EXPLOSIONS, WARS, PANDEMICS, GOVERNMENTAL ACTIONS, ORDERS OF JUDICIAL AND ADMINISTRATIVE AUTHORITIES OR ANY THIRD-PARTY REASON, EXCEPT AS OTHERWISE PROVIDED UNDER LAW.
8. Updates to this Agreement
Without prejudice to your rights under applicable law, we reserve the right to amend (or otherwise supplement) the terms of this Agreement (including but not limited to reflect technological or function advancements, legal and regulatory changes or good business practices). In case of any updates, we will update the “Effective Date” at the beginning of this Agreement, and this Agreement as amended shall become effective immediately on such specified date.
If any of these updates result in substantial alteration to your rights, we will notify you of the changes by pop-up notice. If you do not agree to the changes, please do not continue using our Services. If you continue using our Services after the effective date of such changes, you shall be deemed to have fully read, acknowledged and agreed to be bound by the revised terms under this Agreement.
If you are a user in US, we will provide you with notice on updates of this Agreement in accordance with Section 9.
If you are a user in Indonesia, we will notify you if the updates result in substantial alteration to your rights by pop-up notice, which you may click “Accept” to continue using our Services. If you do not agree to the changes, please do not continue using our Services.
You acknowledge and agree that we may deliver to you different notices, including by way documents and correspondence made available in our Services, private or system messages, pop-up messages and push notifications. Please ensure that you check these regularly.
10. Contact Information
If you have any questions about this Agreement or matters relating to the use of our Services (including any complaints), we hope to provide you with a feedback channel and work with you to address your concerns. Please reach out to us at YoukuGlobalService@alibaba-inc.com . We will reply to you as soon as possible.
This Agreement is effective upon your acceptance of this Agreement by clicking “Accept”, your continued use of our Services, or as otherwise provided in this Agreement, and shall continue unless it is terminated. You may delete or close Youku app at any time subject to the terms of this Agreement.
This Agreement will terminate immediately and without additional notice in the event that you breach, and/or fail to comply with, any term or condition of this Agreement. We may also terminate or suspend this Agreement at any time and without prior notice, for any or no reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. We reserve the right to ask you to immediately stop or rectify the unlawful use, or, should the unlawful use and/or violation continue, we are entitled to respond and to take any lawful measures that we consider necessary (including terminating your access to our Services).
12. Governing Law and Dispute Resolution
This Agreement is governed by the laws of the Hong Kong Special Administrative Region, without regard to its conflict of law provisions.
Where a dispute arises out of or in connection with your use of our Services, the parties agree to attempt to settle, at first instance, by negotiation in good faith.
The parties may also submit the dispute for arbitration at the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the HKIAC Administered Arbitration Rules. For the avoidance of doubt, amicable negotiation is not a prerequisite for arbitration as described above. Any arbitration award granted shall be final and binding on the parties. The place of arbitration shall be Hong Kong. The arbitration procedure shall be conducted in Chinese.
Where any term of this Agreement is deemed to be annulled, invalid, or unenforceable, such term shall be deemed severable and shall not affect the validity and enforceability of the remaining terms hereof.
You acknowledge and agree that we are entitled to assign our rights under this Agreement, in part or in whole, to our affiliates. We have the right to assign the right to claim according to this Agreement to our affiliates. Therefore, our affiliates are entitled to claim compensation in accordance with the relevant rights clauses in this Agreement (to the extent such claims are in accordance with applicable law or regulation). Other than that, no other party shall be a third party beneficiary of this Agreement. You acknowledge and agree that we are not required to send you any written notice in case of any assignment. We warrant that our affiliates will continue to perform the obligations under this Agreement and your rights and interests in this Agreement will not be impaired by such assignment. If you fail to comply with this Agreement and we do not take immediate action, this does not mean that we are giving up on any rights that we may have (such as the right to take action in the future).
Any titles contained in this Agreement are for convenience of reading only and does not affect the meaning or interpretation of any provision of this Agreement.