Skifta Terms and Conditions
1. Introduction. These terms and conditions ("Terms") apply to your use of our web site www.skifta.com (the "Site") and your use of the Skifta service (the "Service"). Using the Service requires that you install our software on your computer ormobile device, as applicable (the "Software"). By accessing our Site and in order to use to the Service or install or use Software, you must agree to these Terms. You may terminate these Terms at any time by uninstalling the Software, cancelling your account with the Service, and no longer accessing our Site. Likewise, we may modify or discontinue your right to access or use the Site, Service or the Software at any time and for any reason. The Site, Service and Software are offered by Qualcomm Services Labs, Inc. (hereinafter "We", "Us" or "Our").
2. Description. Among other things, the Service enables you to access your digital media from multiple physical locations or media players. We call each physical location where you install the Software a "Skifta Place." You are responsible for any hardware, systems and/or software program(s) you use to create and maintain your Skifta Place(s) or your home computer network(s), mobile device(s) and any associated fees and expenses to connect to or use the Internet.
You may use the Service to temporarily shift the access to digital media for which you own the copyright within your Skifta Places. If, however, you allow other Skifta users to access your digital media, you must either be the copyright owner of that digital media (e.g., pictures you took or music you created) or have authorization from the copyright owner by contract or otherwise. There are no restrictions on your use of public domain material or other content otherwise permitted by law such as fair use. You are solely responsible for compliance with copyright laws and you agree not to use the Software or Service to violate anyone's copyright or moral rights. You agree to indemnify and hold harmless Us, and Our partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from your use of such media files and/or from your violation of any copyright laws by such use.
3. Ownership and Authority to Bind All Users. The Service and the Software is intended for people at least 13 years of age. We do not intentionally or knowingly provide the Service to children under the age of 13 and if you are under the age of 13 you may not register for the Service and you are prohibited from installing the Software. In addition, you must either own the computer and/or mobile device on which the Software will be installed, or you must be authorized by the owner of the computer or mobile device to install it.
4. Registration. To use the Service, you must register by providing certain information, including your first name, last name, email address, and you will also be required to create a username and a password ("Registration Info"). It is your responsibility to provide accurate Registration Info and to update your Registration Info as necessary to keep it accurate. We will use your Registration Info as set forth in our Privacy Policy.
Your user name and password provides access to the digital media which you have chosen to make available from your computer and/or mobile device, as well as your personal account information on our Site. Therefore if you share your username and password, or your username and password otherwise becomes known to a third party (either with or without your permission), such third party could access, view, or play your Digital Media and allow others to access, view, or play your Digital Media. It is solely your responsibility to maintain the secrecy of your username and password and you agree that you will not allow others to use your user name and password. You agree to notify Us immediately if your user name or password has been disclosed to any third party or if there has been any unauthorized use of your account. We shall not be responsible for any losses arising out of the unauthorized use of your username, password, or account and you agree to indemnify and hold harmless Us, Our partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of your username, password, or account.
5. Scope of License and License Restrictions. If you register to use the Service, We grant you a personal, limited, non-transferable, non-sublicenseable, non-exclusive copyright license, solely for your own personal, non-commercial purposes, to install the Software on one computer and/or mobile device, as applicable, and use the Software as it is delivered to you for the sole purpose of receiving the Service. These are your only rights with regard to the Software. You may not decode, reverse-translate, modify, reverse-engineer, decompile, disassemble, or otherwise reduce the Software into source code form. All communications between Us and the Software and the content stored on Our computer servers and in the Software includes Our confidential information and you may not access, publish, transmit, display, create derivative works of, store, or otherwise exploit any such confidential information except as such functions are performed by the Software in the ordinary course of operation. You do not have the right to create derivative works of the Software. Nothing in this End User License Agreement shall be deemed to grant any right or license to You (expressly or by implication, estoppel, or otherwise), and no other license, authority to infringe, or immunity from infringement liability shall be deemed to arise or exist as a matter of law, under any patents. The foregoing limitations shall in no way be deemed a derogation of the express rights granted under these Terms.
6. Patent Policy Statement. We are a subsidiary of Qualcomm Incorporated ("Qualcomm") and We may own patent rights for the inventions embodied in the Software. We will respect applicable conditions of the open source licenses for software included in Our products regarding such patent rights. We, however, have no rights to license Qualcomm's patents including but not limited to those related to (a) system on chip devices or chipsets, including without limitation virtual models thereof, or (b) any proprietary software that may be used or distributed by Qualcomm, its affiliates or their respective customers, on system on chip devices.
7. Third Party Software included with this Software. Included with the aggregation of software provided to you, that is, the Software, there is software that is licensed and available to you which is subject to third party license agreements. To the extent that these Terms may conflict with licenses or agreements governing your rights to that software, the agreement or license applicable to such third party software is covered by the terms of its applicable license or agreement. You will find these agreements and licenses in a folder called "about_files" in the Software you have received. Also, each bundle contains a top level about.html file with information and links to these licenses as appropriate.
8. Links. The Site, Service or Software may provide links to third party web sites that We do not own or operate. Such links may include, but are not limited to, advertising, sponsorships, promotions, recommendations, or links to other third party content ("Third Party Sites"). We are not responsible for the content of, or activities conducted by, Third Party Sites and Our provision of links to Third Party Sites is not an endorsement by us of the Third Party Sites or any products or services they may offer. Your access and use of Third Party Sites, and your purchase of any products or services from Third Party Sites, is governed by the terms and conditions required by the Third Party Sites - not Us or these Terms. You agree that We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any Third Party Sites or the products or services available through any Third Party Sites.
9. Additional Terms for Forums, Blogs & Other Interactive Media Features. Our Site may provide one or more forums, blogs, or other interactive or social media features (“Forums”) for users of our Site to exchange information with each other and with us about the Site (the “Purpose”). If you use the Forums, in addition to any other terms we may require when you register to use the Forums or otherwise posted at or on the Forums, you agree to the following:
10. Notices of Copyright Infringement. Notifications of claimed copyright infringement should be sent to Qualcomm Services Labs, Inc.'s Designated Agent in writing at the following address:
Qualcomm Services Labs, Inc.
Attn. Corporate Legal, Copyright Agent
5775 Morehouse Drive
San Diego, CA 92121-1714
Telephone Number of Designated Agent: (858) 845-1054
Facsimile Number of Designated Agent: (858) 845-1249
Email Address of Designated Agent: copyrightagent@qualcomm.com
To be effective, the Notification must include the following:
Within a commercially reasonable time after receipt of the written Notification containing the information as outlined in 1 through 6 above we will remove or disable access to the material that is alleged to be infringing and forward the written notification to the alleged infringer and take reasonable steps to promptly notify the alleged infringer that we have removed or disabled access to the allegedly infringing material.
Counter Notification: To be effective, a Counter Notification must be a written communication provided to our Designated Agent at the above provided address that includes substantially the following:
After receipt of a Counter Notification containing the information as outlined in 1 through 4 above, we will provide the Complaining Party with a copy of the Counter Notification within a commercially reasonable time and inform the copyright owner or designated agent that we will replace the removed material or cease disabling access to it within ten (10) business days. If our designated agent has not received notice from the copyright owner or his/her designated agent within ten (10) business days that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity in relation to the allegedly infringing material, we will restore the allegedly infringing material.
11. Privacy. We encourage you to review our privacy policy which can be found at http://www.Skifta.com/privacy-policy ("Privacy Policy"). By agreeing to these Terms you are also agreeing to our Privacy Policy. Our Privacy Policy governs the collection, use and disclosure of information We collect from you. The information We collect is stored and processed by Us on servers in the United States as well as in various other locations, including, without limitation, Asia and the European Economic Area. By installing the Software or using the Service you consent to any such transfer of your information outside your country and/or outside the country where you have installed the Software.
12. Site and Service Changes and Software Updates and Upgrades. We are continually trying to improve our Site, Service and Software. We reserve the right to modify, temporarily or permanently, the Site or Service (or any part thereof) with or without notice to you and without any liability to you or to any third party. There also may be instances where We need to discontinue all or any part of the Site or Service, with or without notice to you and without any liability to you or to any third party and we reserve the right to do so. The Software may communicate with Skifta servers from time to time to check for available updates to the Software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing the Software, you agree that the Software may automatically check for updates, but We will seek your permission prior to installing any Updates. If you do not grant your permission, however, the Software may not function correctly and We undertake no obligation to maintain the Service to function with prior versions of the Software or without the acceptance of one or more Updates. Notwithstanding the foregoing, We have no obligation to make available to you any subsequent versions of the Service or Software.
13. Indemnity. You agree to indemnity, defend, and hold harmless Qualcomm Services Labs, Inc. and its subsidiaries, affiliates, licensors, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your use of or access to the Site, Service, or Software or your violation of these Terms, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, We will provide you with written notice of such claim, suit or action.
14. DISCLAIMER OF WARRANTY. ACCESS TO AND USE OF THE SITE, SOFTWARE, AND SERVICE IS AT YOUR OWN RISK. WE PROVIDE THE SITE, SOFTWARE, AND SERVICE ON AN "AS IS," "WHERE IS," BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. WE AND OUR LICENSORS ALSO DISCLAIM ALL LIABILITY WITH REGARD TO: (I) YOUR ABILITY TO ACCESS THE SITE OR THE SERVICES AVAILABLE THROUGH THE SITE, (II) YOUR VIEWING OF ANY WEB PAGES THAT MAY BE AVAILABLE BY LINK OR OTHERWISE, (III) ANY PRODUCTS OR SERVICES YOU MAY PURCHASE OR OBTAIN FROM ANY THIRD PARTY THAT MAY BE LINKED BY THE SITE, SOFTWARE, OR SERVICE, OR OTHER INFORMATION YOU RECEIVE WHEN USING THE SITE, SOFTWARE, OR SERVICE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. WE AND OUR LICENSORS MAKE NO WARRANTY THAT ACCESS TO THE SITE OR INFORMATION PROVIDED BY THE SITE, SOFTWARE, OR SERVICE IS OR WILL BE ACCURATE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OTHERWISE WILL MEET YOUR EXPECTATIONS. THE ABOVE EXCLUSIONS MAY NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES.
15. LIMITATION OF LIABILITY. IN NO EVENT WILL WE, DISTRIBUTORS OF THE SITE, SOFTWARE, OR SERVICE, SUPPLIERS, ADVERTISERS, LICENSORS, OR THIRD-PARTY DEVELOPERS, OR ANY OF THE FOREGOING ENTITIES' OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF THE DOWNLOAD, USE, OR INABILITY TO ACCESS OR USE THE SITE, SOFTWARE, SERVICE, OR INFORMATION YOU RECEIVE WHEN USING THE SITE, SOFTWARE OR SERVICE. IN NO EVENT WILL THE MAXIMUM CUMULATIVE LIABILITY UNDER THESE TERMS, OR THE PRIVACY POLICY, EXCEED THE LESSER OF $100 OR THE REVENUE ACTUALLY RECEIVED BY US DIRECTLY ATTRIBUTABLE TO YOUR USE OF THE SITE, SOFTWARE, AND SERVICE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the Protected Parties' liability shall be limited to the extent permitted by law.
16. Export Compliance. By downloading the Software, you agree that you are solely responsible for complying with all United States export control regulations, including the Export Administration Regulations ("EAR"), and sanctions programs, including those administered by the United States Treasury Department's Office of Foreign Assets Controls ("OFAC"), and all other applicable international trade regulations. You agree that you will not download or use the Software without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, for any proscribed end use, or in any other manner contrary to these export regulations and sanctions programs. By downloading or using the Software, you represent, warrant and certify that you are not a proscribed end-user or utilizing this software for a proscribed end use under these regulations. This assurance shall survive the expiration or termination of this Agreement.
17. U.S. Government Restricted Rights. The Software and Service are provided with Restricted Rights. Federal, state and local governments agree to the terms and conditions of this commercial license.
18. Applicable Law. The laws of the State of California will govern these Terms, without reference to conflicts of law principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to these Terms.
19. Arbitration. Any claim or controversy arising out of or related to these Terms, or the Site, Software, or Service shall be settled by binding arbitration in San Diego County, California, in accordance with the rules of the American Arbitration Association. A judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Where the total amount of the award sought is less than $7,500, such claim or controversy may be brought in small claims court in San Diego County or, at the option of the plaintiff, it may be resolved through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. We reserve the right to timely reject the arbitrator proposed by the you and will pay the reasonable costs necessary to change to another arbitrator you select. Except for reasonable cause, we will not reject any arbitrator who is a member of the National Arbitration Forum, JAMS, or the American Arbitration Association's National Roster of Arbitrators and Mediators. The foregoing shall not preclude Us from seeking any injunctive relief in state or federal courts for protection of its intellectual property rights. Prior to the appointment of the arbitrator(s), and within 10 days from the date of commencement of the arbitration, either party may submit the dispute to National Arbitration and Mediation, Inc. ("NAM") for mediation. If either party elects to submit the dispute to mediation, the parties will cooperate with NAM and with one another in selecting a mediator from the panel of neutrals, and in promptly scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith. If We submit the dispute for mediation, We shall pay all of NAM's costs, and if you submit the dispute for mediation the parties will share equally in NAM's costs. Nothing said in the mediation can be used in a later arbitration or lawsuit. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case.
20. NO CLASS ARBITRATION. Notwithstanding Section 19, Arbitration, THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATIONS EVEN IF AAA PROCEDURES OR RULES WOULD. The arbitrator may award monetary or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. IF THIS PROHIBITION ON CLASS ARBITRATIONS IS DEEMED UNENFORCEABLE UNDER APPLICABLE STATE LAW, THEN THE ENTIRE ARBITRATION CLAUSE SHALL BE DEEMED UNENFORCEABLE AND ANY CLASS CLAIMS SHALL BE BROUGHT AND ADJUDICATED IN A COURT OF COMPETENT JURISDICTION. IN NO CIRCUMSTANCE SHALL CLASS CLAIMS BE BROUGHT OR ADJUDICATED IN ARBITRATION.
21. General. These Terms set forth the entire understanding and agreement between you and Us with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected thereby. We reserve the right to assign any and all of our rights and obligations under these Terms in connection with a merger, acquisition, sale of assets, or otherwise. Except as described herein, you may not assign these Terms without our explicit consent. These Terms may change in the future. In such case, and when appropriate, We will obtain your consent prior to the new Terms. Sections 6 - 10, and 12 - 21 shall survive any termination or expiration of these Terms.
Skifta is a service mark of Qualcomm Services Labs, Inc.
Effective: December 3, 2010