MotionArtist.TV Terms of Service

YOUR ACCEPTANCE: 

PLEASE READ THESE TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY.  YOUR USE OF THE SERVICE (DEFINED BELOW) PROVIDED TO YOU ON, FROM, OR THROUGH THE SITE (DEFINED BELOW) CONSTITUTES YOUR AGREEMENT TO BE BOUND BY: (1) THIS AGREEMENT, (2) SMSI’S PRIVACY POLICY, FOUND AT http://www.smithmicro.com/privacy.aspx AND INCORPORATED HEREIN BY REFERENCE, AND (3) SMSI’S TERMS AND CONDITIONS IN CONNECTION WITH YOUR USE OF THE SITE, FOUND AT http://www.smithmicro.com/legal.aspx AND INCORPORATED HEREIN BY REFERENCE.  IF YOU DO NOT AGREE TO THIS AGREEMENT, THE SMSI TERMS AND CONDITIONS, OR THE SMSI PRIVACY POLICY, PLEASE DO NOT USE THE SERVICE SUBJECT TO THIS AGREEMENT.  USING ANY PART OF THE SERVICE INDICATES THAT YOU ACCEPT THIS AGREEMENT.

This Agreement is between you (“you”) and Smith Micro Software, Inc. (“Smith Micro,” “SMSI,” “we,” “our” and “us”) concerning your use of the Service on the website located at http://motionartist.tv (together with any successor site(s) for the Service (as defined below) described herein, “Site”). 

Although SMSI may attempt to notify you when major changes are made to this Agreement, you should periodically review the most up-to-date version (at the following URL:  http://www.motionartist.tv/portal/default/terms of this Agreement.  SMSI, may, in its sole discretion, modify or revise this Agreement and other additional SMSI terms, conditions and policies at any time, and you agree to be bound by such modifications or revisions.  Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.  Any changes to our Agreement will become effective upon our posting of the revised Agreement on the Service.  Use of the Service following such changes constitutes your acceptance of the revised Agreement then in effect. PLEASE BE SURE TO PERIODICALLY VISIT THE SITE AND REVIEW THE MOST-UP-TO-DATE AGREEMENT BECAUSE YOUR CONTINUED USE OF THE SERVICE AFTER SUCH CHANGES WILL INDICATE YOUR ACCEPTANCE OF SUCH CHANGES.  

The Service subject to this Agreement is made available by Smith Micro.  By using the Service, you agree to the terms and conditions of this Agreement.   When using any Service and Content (as defined below), you acknowledge and agree that you are subject to this Agreement and any additional posted SMSI guidelines, rules, terms and conditions applicable to the Site, Service, and Content, which are incorporated by this reference into this Agreement. 

We are constantly changing and improving the Service.  SMSI reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to:  modify or discontinue the Service, with or without notice; charge fees in connection with the use of the Service; modify and/or waive any fees charged in connection with the Service; and/or offer opportunities to some or all users of the Service.  You agree that neither we nor any of our affiliates (collectively, “Affiliated Entities”) shall be liable to you or to any third party for any modifications, suspensions or discontinuance of the Service, in whole or in part, or of any content, feature, product and/or other service offered or made available through the Service. 

ABILITY TO ACCEPT THIS AGREEMENT

You represent and affirm that you are either more than 18 years of age, or you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with the terms and conditions of this Agreement.   If you are between the ages of 13 and 18 (and not a legally emancipated minor), you affirm and represent that your legal parent or guardian has reviewed and agrees to this Agreement.    In any case, you represent and affirm that you are over the age of 13, as the Service is not intended for children under the age of 13.  There are lots of other great web sites for you if you are under 13 years of age.  Talk to your parents about what sites are appropriate for you.

THE SERVICE:

General.  This is a Software-to-Site SMSI Service, but this Agreement applies to all users of the Service, including users who view, access and are contributors of Content on the Service.  We provide users of the Service ability to upload, post, share, view and perform other features and functionalities then-currently available on the Service in connection with the Content (collectively, the “Service”).  The software is SMSI’s MotionArtist v. 1.2 (or higher) software product, including any and all updates and upgrades thereto (collectively, “Software”).   HTML5 formatted content that you create using the Software, and such other content you view on, access through, submit, and/or contribute to, the Service, including without limitation, any audio and video clips, photographs, graphics (both 2D and 3D), images, scripts, music, text, data, user comments, opinions, postings, messages, and other similar content (collectively, "Content").

Please be aware when you leave the Site and Service.  The Site for the Service may contain links to third party websites that are not owned or controlled by SMSI.  Please be sure to read the terms and conditions and privacy policy of each third party website that you visit.  SMSI has no control over, and assumes no responsibility for, the terms of use, content, privacy policies, or practices of any third party websites.  In addition, SMSI will not and cannot censor or edit the content of any third-party websites.  By using the Service, you expressly relieve SMSI from any and all liability arising from your use of any such third-parties websites.  For avoidance of doubt, this Agreement does not apply to any third party websites, services and/or products.  You acknowledge and agree that nothing in this Agreement guarantees availability or continued availability of any third party websites, services and/or products.  Any terms, conditions, warranties, or representations associated with any third party are solely between you and such third party.  Smith Micro shall have the right, at any time and in its sole discretion, to block links to the Service through technological or other means without prior notice.   

For avoidance of doubt, uploading original Content to the Service or presenting/displaying to others your original Content on the Service for educational or promotional (e.g., for your business enterprise) purposes are not prohibited commercial uses of the Service.

SMSI does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, comment, recommendation, or advice expressed therein, and SMSI expressly disclaims any and all liability in connection with any such submitted Content.  SMSI does not permit unlawful use of the Services, including without limitation, copyright infringing activities and infringement of intellectual property rights on the Service, and SMSI will remove all Content if properly notified that such Content infringes on another's intellectual property or other rights.  SMSI reserves the right to remove any Content without prior notice.

Restrictions.  You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.

You agree not to distribute in any medium any part of the Service or the Content without SMSI's prior written authorization, unless SMSI makes available the means for such distribution through functionality offered by the Service.  You agree not to alter or modify any part of the Service or the Site hosting the Service.  You agree not to access Content through any technology or means other than through the functionalities available on the Service itself or otherwise explicitly authorized means SMSI may designate.

You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the SMSI servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.  Notwithstanding the foregoing, SMSI grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. SMSI reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information Content, including without limitation, account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, forums, email) for any commercial solicitation purposes.  You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.

You agree not to use the Service for any of the following commercial uses unless you obtain SMSI's prior written approval:

·       the sale of access to the Service;

·       the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or

·       the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from SMSI appears on the same page and is of sufficient value to be the basis for such sales.

Additionally, you acknowledge and agree that you (and not Smith Micro) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Service, and paying all charges related thereto.

Additional Restrictions.  This Service is only for users that will use it lawfully.  In your use of the Service, you will comply with all applicable laws and regulations.  You represent and warrant that you will not use the Service or any Content for any unlawful purposes.  Without limiting the generality of the foregoing, the following are prohibited uses (without exhaustion):

i. Uploading, posting, emailing, transmitting or otherwise making available any Content that is illegal, that is, without limitation, libelous, that infringes a third-party’s copyright, trademark, trade secret or other intellectual property or proprietary rights that intentionally or unintentionally violates any applicable local, state, provincial, national or international laws and/or regulations;

ii. Without limiting the foregoing, uploading, posting, emailing, transmitting or otherwise making available any Content that is harmful, indecent, incites violence, graphic or gratuitous violence, threatening, abusive, harassing, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

iii. Uploading, posting, emailing, transmitting or otherwise making available any Content intended to or that actually does harm minors in any way;

iv. Impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity;

v. Forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through use of the Service;

vi. Uploading, posting, emailing, transmitting or otherwise making available any Content that you do not have a right to make available under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

vii. Uploading, posting, emailing, transmitting or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

viii. Interfering with or disrupting the Service, servers or networks connected to the Site or Service, or disobeying any requirements, procedures, policies or regulations of networks connected to the Service, including using any device, software or routine to bypass robot exclusion headers; and/or

ix. “Stalking” or otherwise harass another.

CONTENT AND SUBMISSIONS

General.  Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as expressly permitted by this Agreement.  You shall not download any Content unless you see a “download” or similar link displayed on the Service for that Content.   You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of SMSI or the respective licensors of the Content.   SMSI and its licensors reserve all rights not expressly granted in and to the Service and the Content.

You shall be solely responsible for your Submissions and the consequences of submitting, posting and publishing your Content on the Service.

You understand that when using the Service, you will be exposed to Content from a variety of sources, and that SMSI is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content.  You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against SMSI with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless SMSI, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.

Content Ownership and License.  You (and your applicable licensors) retain ownership of any Content you submit (each, a “Submission”).  For avoidance of doubt, Submissions may be through, including without limitation, a Profile, a Forum or otherwise through the Service.  However, please note that we need certain rights to your Submissions to be able to make them available on the Service.  As such, by submitting Content to SMSI, you hereby grant SMSI (and the Affiliated Entities), a worldwide, non-exclusive, transferable, sublicenseable (including the right to authorize sublicenses), royalty-free right and license to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display and publicly perform the Submission in connection with the Service and SMSI’s (and the Affiliated  Entities) business purposes, including without limitation, promoting and redistributing part or all of the Service (and any successor of the Service) in any media formats and through any media channels known now or developed in the future.  You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and in accordance with this Agreement.  Your foregoing licenses to SMSI includes all patents, trademarks, trade secrets, copyright and other proprietary rights and intellectual property rights in and to such Submissions for publication on the Service (and as otherwise expressly set forth herein) pursuant to this Agreement. 

You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following without notice, at our discretion: (i) monitor Submissions; (ii) alter, remove, or refuse to post or allow to be posted any Submission; and/or (iii) disclose any Submissions, and (a) the circumstances surrounding its/their transmission to any third party in order to operate the Service; (b) to protect Smith Micro, the Affiliated Entities, third party service providers of SMSI, and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, and the Service's users and visitors; (c) to comply with legal obligations or governmental requests; (d) to enforce this Agreement; and/or (e) for any other lawful reason or purpose.

For each Submission, you represent and warrant that you own and/or have all rights, licenses, consents and/or permissions necessary to publish your Submission, including without limitation, granting the licenses for such Submission herein, and that such Submission, and your provision thereof to and through the Service, comply with all applicable laws, rules and regulations.  You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.  We request this waiver to help ensure that we have all the rights we may need to provide the Services available through the Site.  Further, Content you submit to the Service will not contain third party copyrighted Content, or Content that is subject to other third party proprietary or intellectual property rights, unless you have the necessary licenses, consent(s) and/or permission(s) from the rightful owner(s) of the Content or you are otherwise legally entitled to post the Content and to grant SMSI all of the license rights granted herein.

The above licenses granted by you regarding any Software Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your Software Content from the Service.  You understand and agree, however, that SMSI may retain, but not display, distribute, or perform, server copies of your Software Content that have been removed or deleted.  The above licenses granted by you in user comments and feedback you submit are perpetual and irrevocable.  We may amend and vary the above license terms regarding Submissions from time to time as may be reasonable and subject to giving you notice of the changes.

PERSONALLY IDENTIFIABLE INFORMATION

Your submissions of your personally identifiable information (e.g., email, name, address, credit card information, etc.) through the Service are governed by Smith Micro's Privacy Policy, which is located at www.smithmicro.com/privacy (the “Privacy Policy”).  You represent and warrant that any information you provide in connection with your use of the Service is and shall remain true, accurate, and complete, and that you will maintain and update such information regularly.  You agree that if any information you provide is false, inaccurate, obsolete or incomplete, we may terminate your use of the Service without notice. 

You may be required to register with Smith Micro in order to access certain Content and/or use certain features and/or functionalities of the Service.  With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.

Your user name and password are for your personal use only, and not for use by any other person.  You are responsible for securing and maintaining the confidentiality of any password you may use to access the Service, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Service, to any third party.  You are fully responsible for all interaction with the Service that occurs in connection with your password or user name (including, without limitation, all Transactions).  You agree to immediately notify Smith Micro of any unauthorized use of your password, user name or any other breach of security/unauthorized use related to your account (e.g., Profile) or the Service, and to ensure that you “log off”/exit from your account with the Service (if applicable) at the end of each session.  SMSI is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.  Although SMSI will not be liable for your losses and/or damages caused by any unauthorized use of your account (e.g., Profile) with the Service, you may be liable for the losses and/or damages of SMSI or others due to such unauthorized use. 

PROFILE AND FORUM SUBMISSIONS 

You may upload, search, sort, track activities, post and perform other functionalities, made available through the Service, in connection with your Submissions on your “personal profile page” (your “Profile”).  Further, we and/or our third party service providers may make available through the Service (for example, message boards, forums, chat rooms, instant messaging and comment and review functionality on the Site, among other Services) to which you are able to access and post information and materials Content (each, a "Forum").  Information Content contained in the Profiles and Forums may be provided by employees of Smith Micro and the Affiliated Entities, and other third party users of the Service. 

Please note that users of the Service may post messages or make statements in the Profiles and Forums that are inaccurate, misleading or deceptive.  Smith Micro (the Affiliated Entities), third party service providers of SMSI and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties.  Without limitation, Smith Micro (and the Affiliated Entities), the third party service providers of SMSI and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers are not responsible for any information or materials made available through the Profiles and Forums (including without limitation errors or omissions in Profiles and Forum postings or links or images embedded in a Profile or in Forum messages) or results obtained by using any such information or materials.  Under no circumstances will Smith Micro (and the Affiliated Entities), the third party service providers of SMSI or their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers or service providers, be liable for any loss or damage caused by your reliance on such information or materials.  Any opinions expressed in the Profiles and Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect the opinions of Smith Micro (and the Affiliated Entities).  If you submit feedback or suggestions about our Service, we may use your feedback or suggestions without obligation to you.

In addition, Smith Micro, the Affiliated Entities, the third party Content providers and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of Content voluntarily made public through a Profile or a Forum or any other part of the Site or Service.  If you choose to make any of your personally identifiable or other information publicly available in A PROFILE OR A FORUM or otherwise THROUGH THE SERVICE, you do so at your own risk.  Any information provided by you using these Services is considered public information.  We strongly recommend that you exercise forethought and caution prior to disclosing any personal information while using these Services.

FEES FOR THE SERVICES 

Through the Service, we may make available certain features and functionalities of the Service, and we may use third-party service providers (each, a “Payment Service Provider”) to enable e-commerce functionality on our Site.  If you wish to purchase any features and/or functionalities made available by us through the Service (each such purchase, a "Transaction"), you may be directed to a webpage that is hosted by a Payment Service Provider (or the Payment Service Provider’s service providers) and not by Smith Micro (such page, the “Payment Service Page”).  You will be asked to supply certain personally identifiable and other information relevant to your Transaction through either the Service or a Payment Service Page, including without limitation your name, credit card number or other payment account number, the expiration date of your credit card, and your billing address. 

If you are using and/or providing any personally identifiable information through a Payment Service Page, you will be subject to the terms of service and privacy policy of the Payment Service Provider, rather than this Agreement and Smith Micro’s Privacy Policy.  Smith Micro has no control over, and shall not be responsible for, any Payment Service Provider’s use of your personally identifiable and other information collected through the Payment Service Page.  YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE THE CREDIT CARD(S) UTILIZED BY YOU IN CONNECTION WITH ANY TRANSACTION.  By submitting such information, you grant Smith Micro and any Payment Service Provider the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf.  Verification of your information provided may be required prior to the acknowledgment or completion of any Transaction.

Refunds for any fees in connection with the Service will be subject to Smith Micro’s then-current refund policies and guidelines then in effect.  You agree to pay all charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred.  In addition, you remain responsible for any taxes that may be applicable to your Transactions.

TERM; TERMINATION OF THE SERVICE

This Agreement is effective as of the date you accept this Agreement and continues until terminated.  Smith Micro, in its sole discretion, may terminate your access to or use of the Service, at any time and for any reason, including if Smith Micro believes that you have violated or acted inconsistently with the letter or spirit of this Agreement.   Upon any such termination, your right to use the Service will immediately cease and that Smith Micro may immediately deactivate and delete your password and user name, and all related information and files associated with them, and/or bar any further access to such information or files.  You agree that any termination of your access to or use of the Service may be effected without prior notice.  You agree that Smith Micro and the Affiliated Entities shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination.  Sections shall survive any expiration or termination of this Agreement.

YOU AND SMSI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

DISCLAIMER OF WARRANTIES

YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK.  YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS, VALIDITY, RELIABILITY OR USEFULNESS OF ANY MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE AND THE SITE.  THE SERVICE (INCLUDING THE SITE AND CONTENT) IS PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.  TO THE FULLEST EXTENT PERMITTED BY LAW, SMSI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE (AND THE SITE AND CONTENT) AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.  SMSI, THE AFFILIATED ENTITIES, PAYMENT SERVICE PROVIDERS, AND THIRD PARTY SERVICE PROVIDERS OF SMSI, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE OR SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SMSI SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.  FURTHER, SMSI DOES NOT, IN ANY WAY, WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ON THE SITE, AND SMSI WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY USE, ACTIVITIES AND/OR TRANSACTIONS BETWEEN YOU AND ANY SUCH THIRD-PARTIES.  AS WITH THE PURCHASE OF ANY PRODUCTS AND/OR SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE GOOD COMMON SENSE, YOUR BEST REASONABLE JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

 LIMITATION OF LIABILITY

WHEN PERMITTED BY LAW, IN NO EVENT WILL SMITH MICRO AND THE AFFILIATED ENTITIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES.    WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SMITH MICRO AND THE AFFILIATED ENTITIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY OF THE FOREGOING DAMAGES OF ANY KIND RESULTING FROM (1) YOUR USE OF OR INABILITY TO USE THE SERVICE, (2) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE, (4) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (5) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (6) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, (7) THE SERVICE OR FROM ANY CONTENT POSTED ON THE SERVICE BY SMITH MICRO OR ANY THIRD PARTY, AND/OR (8) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE. 

YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SITE AND THE SERVICE.  TO THE EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE TOTAL LIABILITY OF SMITH MICRO FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, FOR ANY CLAIMS UNDER THIS AGREEMENT SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO SMITH MICRO TO USE THE SERVICE.  IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF.  SOME PROVINCES IN CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

YOU SPECIFICALLY ACKNOWLEDGE THAT SMSI SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. 

SMSI AND ITS SUPPLIERS, LICENSORS AND SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

While we try to maintain the integrity and security of the Service and the servers from which the Service is operated, we do not guarantee that the Service will be or remain secure, complete or correct, or that access to the Service will be uninterrupted.  The Service may include inaccuracies, errors and materials that violate or conflict with this Agreement. 

INDEMNITY

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Smith Micro and the Affiliated Entities and their respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including without limitation, attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Service (including all Transactions); or (b) any violation of this Agreement by you; or (c) your violation of any third party rights, including without limitation, any copyright, property, or privacy rights; or (d) any claim that your Content caused damage to a third party.  This defense and indemnification obligation will survive this Agreement and your use of the Service.

GOVERNING LAW; JURISDICTION

This Agreement is governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its principles of conflicts of law.  You agree to exclusive jurisdiction of the federal and state courts located in Orange County, California, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections to such courts. 

The Service is hosted, controlled and offered by Smith Micro from its facilities within the United States, and is not intended to subject Smith Micro to the laws or jurisdiction of any state, province, country or territory other than that of the United States.  Smith Micro does not represent or warrant that the Service or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States.  Those who choose to access or use the Service from other jurisdictions do so on their own initiative, volition, and at their own risk, and are responsible for complying with all applicable governing laws, rules and regulations of such other jurisdiction(s). 

CONTACT US

If you have any questions regarding the meaning of application of this Agreement, please direct such questions to webmaster@smithmicro.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.

Additionally, third parties may make unauthorized alterations to the Service.  If you become aware of any unauthorized third party alteration to the Service, contact us at webmaster@smithmicro.com with a description of the material(s) at issue and the URL or location on the Service where such material(s) appear.

FILTERING

Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material or content that is harmful to minors.  Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Smith Micro does not endorse any of the products or services listed at such sites.

DMCA - CLAIMS OF COPYRIGHT INFRINGEMENT

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send Smith Micro a notice requesting that Smith Micro remove the material or block access to it. If you have good faith belief that someone has wrongfully/erroneously filed a notice of copyright infringement against you, the DMCA permits you to send Smith Micro a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.  Notices and counter-notices should be sent to:

 Smith Micro Software, Inc.

Attn: DMCA Agent

51 Columbia, Aliso Viejo, CA, 92656

 

By Fax: (949) 362-2300, Attn: DMCA Agent

By Email: copyright@smithmicro.com with the words “DMCA Complaint” in the subject line.

We suggest that you consult your legal advisor before filing a notice or counter-notice.

ASSIGNMENT

You may not assign, transfer, delegate or sublicense, whether by operation of law or otherwise, any or all of your rights and/or obligations under this Agreement without our express prior written consent.  We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction.  Any attempted assignment in violation of this provision shall be deemed null and void.  This Agreement shall inure to the benefit of the parties and their respective successors and permitted assigns.

COPYRIGHT & TRADEMARK NOTICE

Smith Micro Software, MotionArtist, and other SMSI designated logos, marks, names and trade names are trademarks or registered trademarks of Smith Micro Software, Inc.  All other products and services names mentioned in the Service, Site, or related documentation are used for identification purposes only and may be trademarks or registered trademarks of their respective companies.  Registered and unregistered trademarks used herein are the exclusive property of their respective owners.  For purposes of Japan law regarding unregistered trademarks (e.g., a pending trademark application), the right in and to a trademark in Japan may not be exclusive until it is validly registered.  You may not remove, modify, alter, cover or deface any trademark, trade names, product/service names, logo, copyright or other proprietary notices, legends, symbols or labels in the Application and all related documentation and materials (in any form).  This Agreement does not authorize you to use SMSI’s or its licensors’ names or respective trademarks (e.g., logos, name, etc.).  Further, any reference to any third party commercial products, processes or services by trade name, trademark, logo, and company and/or product/service names mentioned or displayed through the Service or on the Site (and in any of its related documentation and materials in any form) does not constitute or imply SMSI’s endorsement, recommendation or favoring by SMSI or any of its suppliers/licensors.

MISCELLANEOUS

This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Smith Micro. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This Agreement, together with the Privacy Policy and other guidelines and agreements referred to herein or published by SMSI on the Service, shall constitute the entire agreement between you and Smith Micro relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Smith Micro relating to such subject matter.  In the event of conflict between this Agreement and any other terms and conditions subject to this Agreement, the terms and conditions of this Agreement shall prevail, control and govern with respect to the Service herein.  Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in Smith Micro's discretion. Notices of changes to this Agreement regarding the Service or other matters may be provided by displaying such notices or by providing links to such notices.  Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Smith Micro will not be responsible for failures to fulfill any obligations due to causes beyond its control.  

 

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