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License Agreement
License Agreement Please read the following license agreement carefully. Please closely read the following license agreement. Do you accept all the terms of the following license agreement? READ THE TERMS OF THIS AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE DEVELOPMENT KIT. BY USING THE SOFTWARE DEVELOPMENT KIT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU AGREE TO ALL OF THESE TERMS, INDICATE YOUR ACCEPTANCE BY SELECTING THE "I accept the terms of the license agreement" BUTTION DISPLAYED BENEATH THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS, SELECT THE "I do NOT accept the terms of the license agreement" BUTTON DISPLAYED BENEATH THIS AGREEMENT. 1.LICENSE TO USE. Subject to the terms and conditions of this Agreement, Incesoft grants you a non-exclusive, non-transferable, royalty-free, personal, limited license solely to use internally the binary form of the iBot Platform SDK (the "SDK") complete and unmodified for the sole purpose of designing, developing, testing and demonstrating interactive Bots that reside on the Incesoft proprietary platform and may be accessed by users of interactive text-based messaging systems (the "Developer Produced BOT"). The Developer Produced BOT must be intended and permitted to run, and must be technologically capable of running, solely on the Incesoft proprietary platform, which proprietary platform is not licensed to you hereby. 2.EXCLUSION OF ALL OTHER RIGHTS. Except as expressly provided herein, you are granted no rights or licenses whatsoever in or to the SDK, or any other Incesoft products, services or other Incesoft intellectual, proprietary or personal rights. All rights and licenses not expressly granted in this Agreement are hereby expressly reserved by Incesoft. 3.RESTRICTIONS. The SDK and any related documentation supplied by Incesoft is confidential and copyrighted. Title to the SDK, the related documentation and all associated intellectual property rights is retained by Incesoft and/or its licensors. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer the SDK. You hereby agree, that to the extent that any applicable mandatory laws give you the right to perform any of the aforementioned activities without Incesoft's consent in order to gain certain information about the SDK for purposes specified in the respective statutes, before you exercise any such rights, you shall first request such information from Incesoft in writing detailing the purpose for which you need the information. Only if and after Incesoft, at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights. For this free version of SDK, each Bot developer is permitted to bind two (2) MSN accounts at most, and connect with two (2) Clients at most. 4.OWNERSHIP. You acknowledge and agree that Incesoft and its licensors are, and at all times shall remain, the sole and exclusive owners of all right, title and interest, throughout the world (including all intellectual property and other proprietary rights), in and to the SDK and any copies or the SDK. You further agree and acknowledge that you receive or otherwise obtain no right, title or interest of any kind in the SDK under this Agreement, other than the limited license rights expressly set forth herein. You are and will be the sole and exclusive owner of all right, title, and interest throughout the world (including without limitation all intellectual property and other proprietary rights), in and to the Developer Produced BOT, and all parts thereof, other than: (i) any technology developed by Incesoft including, without limitation, any software, algorithms, or solutions for developing, deploying, or running interactive Bots; (ii) the digital audio, video, data, text, animation, graphics, photographs, artwork, links, other multimedia materials, and combinations of any or all of the foregoing presented in the Developer Produced BOT(the "Developer Produced BOT Content"), that are owned by or licensed by or for Incesoft; and (iii) the trademarks, trade names, service marks, logos, trade dress and other distinctive brand features of Incesoft. You further agree that you will not host the Developer Produced BOT on any platform that is not owned or licensed by Incesoft. You will not take any action or permit any action to be taken with respect to the foregoing acknowledgements inconsistent with such acknowledgements. 5. TRADEMARKS AND LOGOS. You acknowledge and agree as between you and Incesoft that Incesoft owns the INCESOFT, the robot logo (variations in different positions with "ab" or red dot on robot's torso) and all related trademarks, service marks, logos and other brand designations ("Incesoft Marks"). You may not copy or otherwise reproduce the Incesoft Marks without Incesoft's prior written consent. No right, title or interest in or to any Incesoft Marks is granted under this Agreement. Any use you make of the Incesoft Marks inures to Incesoft's benefit. 6.CONFIDENTIALITY. (a) Definition. "Confidential Information" shall mean the terms and conditions of this Agreement, the SDK, related documentation, information regarding Incesoft's information technology systems' characteristics and capabilities, research and development operations, databases, computer programs, servers, technology platforms, designs, models, operating procedures, knowledge of the organization, products (including prices, costs, sales or content), processes, techniques, contracts, financial information or measures, business methods, future business plans, customers (including identities of customers and prospective customers, identities of individual contacts at business entities which are customers or prospective customers, preferences, businesses or habits) and business relationships, as well as all non-public material which you knew or should have known was confidential or proprietary to Incesoft. (b) Permitted Disclosure. You shall not disclose any of the Confidential Information to any third party without Incesoft's express prior written consent; provided, however, that notwithstanding the foregoing, you may disclose Confidential Information to your employees on a "need to know" basis and who have executed non-disclosure agreements containing terms no less strict than those set forth herein. You shall advise your employees of the terms of this Agreement regarding Confidential Information and your responsibilities with respect thereto. You shall use the Confidential Information only for purposes of creating the Developer Produced BOT. You agree to maintain the confidential status of such Confidential Information and not to use any such Confidential Information for any purpose other than the purposes for which it was originally disclosed to you, and not to disclose any of such Confidential Information to any third party. You shall use best efforts to maintain the confidentiality of any Confidential Information you receive, including taking such steps as you take to maintain the confidentiality of your own Confidential Information. (c) Legal Obligation. You may disclose Confidential Information as required pursuant to any statute, regulation, order, subpoena or document discovery request, including, without limitation, in publicly filed disclosure documents of the receiving party under state securities laws if deemed necessary on the reasonable advice of legal counsel; provided, however, that prior written notice of such disclosure is furnished to Incesoft as soon as practicable in order to afford it an opportunity to seek a protective order or other appropriate protection. (d) Notice to Disclosing Party. If at any time you become aware of any unauthorized duplication, access, use, possession or knowledge of any Confidential Information, including use the Confidential Information beyond the scope of the applicable license grant, you shall immediately notify Incesoft. You shall provide any and all reasonable assistances to Incesoft to protect Incesoft's proprietary rights in any Confidential Information that you or your employees or agents may have directly or indirectly disclosed or made available and that may be duplicated, accessed, used, possessed or known in a manner or for a purpose not expressly authorized by this Agreement, including but not limited to enforcement of confidentiality agreements, commencement and prosecution in good faith (alone or with Incesoft) of legal action, and reimbursement for all reasonable attorneys' fees (and all related costs), costs and expenses incurred by Incesoft to protect its proprietary rights in the Confidential Information. (e) Return of Confidential Information. Upon the termination or expiration of this Agreement for any reason, you shall at the direction of Incesoft either return all Confidential Information in your possession or destroy such Confidential Information and certify in writing to Incesoft that you have done so. (f) Injunctions. In view of the difficulties of placing a monetary value on the Confidential Information, Incesoft may be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breach of this Section or further unauthorized use of its Confidential Information. This remedy is separate from and in addition to any other remedy Incesoft may have. (g) Survival. Your obligations hereunder to protect Confidential Information shall survive any termination or expiration of this Agreement or any licenses granted hereunder in perpetuity. 7.INDEMNIFICATION. You shall at all times indemnify and hold harmless Incesoft and its officers, directors, shareholders, successors, and permitted assigns from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to third party claims in connection with the Developer Produced BOT and all use by you of the SDK. 8.DISCLAIMER OF WARRANTY. IN NO EVENT SHALL INCESOFT BE LIABLE TO YOU OR ANY OTHER INDIVIDUAL OR ENTITY CONNECTED WITH YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AVAILABILITY OF THE SDK OR THE DEVELOPER PRODUCED BOT. INCESOFT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SDK AND THE DEVELOPER PRODUCED BOT, WHICH ARE PROVIDED "AS IS", WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO VALIDITY, ENFORCEABILITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 9.LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL INCESOFT OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SDK OR THE DEVELOPER PRODUCED BOT, EVEN IF INCESOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INCESOFT DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THE DEVELOPER PRODUCED BOT CONTENT. YOU ACKNOWLEDGE THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO THE CONTROL OF INCESOFT. YOU ALSO ACKNOWLEDGE THAT INCESOFT'S ABILIY TO PROVIDE THE SERVICES DESCRIBED HEREUNDER TO YOU DEPENDS ON INTERNET SERVICES AND TELECOMMUNICATIONS SERVICES PROVIDED TO INCESOFT. MALFUNCTION OF OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS ("ISPS") OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET OR OF THE TELECOMMUNICATIONS NETWORKS MAY MAKE RESOURCES YOU WISH TO USE TEMPORARILY OR PERMANENTLY UNAVAILABLE. YOU AGREE THAT INCESOFT SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN INTERNET SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF INTERNET SERVICES OR TELECOMMUNICATIONS SERVICES BY NEWWORK (S) OR ISPS NOT SUBJECT TO CONTROL OF INCESOFT, OR DUE TO ANY ACCIDENT OR ABUSE BY YOU. EACH PARTY ACKNOWLEDGES THAT THE MUTUAL PROMISES CONTAINED IN THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. INCESOFT DISCLAIMS ANY AND ALL MONETARY LIABILITY TO YOU WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FALLS OF ITS ESSENTIAL PURPOSE. 10.TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of the SDK, and the Developer Produced BOT and certifying such destruction in writing to Incesoft. This Agreement will terminate immediately upon notice from Incesoft. Upon such termination, you must destroy all copies of the SDK and the Developer Produced BOT and certifying such destruction in writing to Incesoft. 11.EXPORT REGULATLIONS. The SDK, the Developer Produced BOT and technical data delivered under this Agreement are subject to P. R. China export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you. 12.P. R. China GOVERNMENT RESTRICTED RIGHTS. If the SDK is being acquired by or on behalf of the P. R. China Government or by a P. R. China Government prime contractor or subcontractor (at any tier), then the Government's rights in the SDK and accompanying documentation will be only as set forth in this Agreement,; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). 13.GOVERNING LAW. Any action related to this Agreement will be governed by P. R. China law and controlling P. R. China law. No choice of law rules of any jurisdiction will apply. 14.SEVERABILITY. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. 15.ASSIGNMENT. You shall not assign or transfer this Agreement (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of Incesoft. Any assignment in violation of this Section shall be null and void. 16.INTEGRATION. This Agreement is the entire agreement between you and Incesoft relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. 17.SURVIVAL. Those provisions that by their nature or as explicitly stated should survive termination or expiration of this Agreement shall survive.
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