Terms of Use
SMEDIO INC TERMS OF USE
I. Welcome to sMedio
sMedio ("sMedio") provides digital content synchronization services sMedio TrueSync that allow you ("you") to synchronize your digital content across your computing devices and to access your digital content through the Internet (the "Services").
These Terms of Use (the "Terms") set forth the terms and conditions of your use of the Services and your use of the sMedio website at go.syncables.com and related websites (collectively, "sMedio Sites") as a visitor. Any information you provide to sMedio is subject to our Privacy Policy, the most current terms of which are incorporated by reference.
By browsing the sMedio Site or using the Services, all visitors and licensors agree to the terms of this Section Ⅰ and the "Visitor Terms" set forth in Section III below. By creating an account with sMedio, you also agree to the provisions of Section II below.
II. Accounts
1. Free Use. You may use the basic Services without any limitations after you set up your account (the "Free Use Period"). At any time during the Free Use Period you may elect to purchase the premium Services.
2. Paid Accounts. If you establish a paid account with sMedio, you must select a type of account. Each type of account has different features. You can upgrade your account whenever you like by going to our product purchase descriptions and following the listed instructions. To the extent that you synchronize, upload, import or authorize the importation of any digital files and/or data from a third party for use with the Services, you represent and warrant that you have the right to provide such materials to sMedio and that sMedio's use of such materials in providing the Services does not violate any third party rights or agreements and that importation of such data is at your authorization. When you first register for your paid account with sMedio, sMedio will charge your credit card the current fee for the type of account you've chosen, plus applicable taxes. All payments are non-refundable. To the extent that payment mechanisms are provided through third parties, you acknowledge and agree that sMedio shall have no liability to you arising out of the acts or omissions of such third parties. YOUR CREATION OF A PAID ACCOUNT WITH SMEDIO CONSTITUTES YOUR CONSENT FOR SMEDIO TO CHARGE TO THE CREDIT CARD PROVIDED BY YOU THE CHARGES APPLICABLE TO YOUR PAID ACCOUNT FOR YOUR PURCHASE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE THE CREDIT CARD USED TO SET UP YOUR PAID ACCOUNT AND/OR TO PURCHASE ANY PRODUCTS THROUGH SMEDIO.
3. Requirements to Use the Services.
(a) To use the services, you must set up a sMedio account online. Your account and any specific URL associated with your account is for your individual use only and may not be used by or shared with others. Software made available to you from sMedio may be downloaded from the sMedio Site and includes client software for your desktop and software for your mobile phone (collectively, the "Software"). The Software can be used on devices that meet the requirements indicated by sMedio when you download the applicable software. You'll need to have a computer with Internet access and, to use mobile phone features; a mobile phone and wireless plan with necessary wireless data features. Your use of mobile phone features may result in increased charges from your wireless carrier. All wireless charges, equipment and third party services and related costs and expenses necessary to use the Services are your sole responsibility.
(b) By setting up an account you represent that you: (i) are an individual of legal age to form a binding contract; the account is for your personal use only and will not be used for any corporation, partnership, limited liability company, trust or any group, entity or organization; that you will comply with all applicable laws and regulations, and that there is no law or restriction barring you from using the Services or Software; (ii) will provide and maintain true, accurate, current, and complete information about yourself when setting up an account and update such information as necessary to keep it current; and (iii) will not use the Service for any commercial purpose, including but not limited to dissemination or any advertising, promotional materials, or spam. To the extent that you synchronize, upload, import or authorize the importation of any digital content and/or data from a third party for use with the Services, you represent and warrant that: (i) you have the right to provide such materials to sMedio; (ii) sMedio's copying and use of such materials in providing the Services does not violate any third party rights or agreements; and (iii) importation of digital content and/or data is at your authorization.
(c) You also understand and agree that the Services may include certain communications from sMedio, such as service announcements and administrative messages and that these communications are considered part of your membership and you will not be able to opt out of receiving them. sMedio also may send you special offers, promotional offers and news about sMedio, but you can opt out from receiving those communications at any time.
4. License to Use the Services and Software.
(a) Subject to these Terms, sMedio grants you a non-exclusive, non-transferable license when you set up a sMedio account, to: (i) download and install the Software on up to five devices (unless otherwise specified); and (ii) use the Software to access and use the Services for your personal use. You may not use, copy, modify, or transfer the Software, in whole or in part, or use the Services, except as expressly provided in these Terms. Except for the foregoing license grant, these Terms do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other rights in respect to the Software or Services. Any additional Software, including updates, made available to you shall be licensed to you under these Terms unless such Software is licensed to you under a separate agreement.
(b) You may not reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing (collectively, "Software Limitations"). The Software is licensed, not sold, to you for use only under the terms of these Terms, and sMedio reserves all rights not expressly granted to you.
(c) You are responsible for complying with any local laws in its jurisdiction which might impact your right to import, export or use the Software and/or Services, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
(d) All right, title, and interest, including all intellectual property rights, in and to the Software and Services are owned by sMedio or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with sMedio's or its suppliers' ownership of or rights with respect to the Software or provision of the Services. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted under these Terms gives you no rights in or to such content other than as expressly set forth in these Terms.
(e) The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
(f) Following the requirements of 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors. For more information on how to obtain such protections see GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). sMedio does not endorse any particular provider or service that enables parental controls.
(g) As required under California Civil Code Section 1789.3, sMedio provides you with the following specific consumer rights notice regarding: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
5. Submissions. You acknowledge and agree that: (a) sMedio has no control over any digital content ("Submission") sent through or used with the Service or stored by sMedio; (b) sMedio is not responsible for, and does not review or comment on Submissions, and sMedio will not be liable for such content; (c) you will not use the Software or Service to create, copy, store, share or distribute any images, sounds, messages or other material which are obscene (as determined in sMedio's sole discretion), harassing, racist, malicious, fraudulent or libelous, or violate or infringe the rights of third parties; and (d) you will not use the Service for any activity that may be considered or are unethical, immoral, or give rise to any actual or potential civil or criminal liability. sMedio reserves the right in its sole discretion to (a) delete, move, or edit Submissions that it, in its sole discretion, deems to violate these Terms, or (b) take any other action that it deems necessary relating to use or misuse of the Service. In order to make the Services available to you, we need to get a license from you for your Submissions; accordingly, you hereby grant to sMedio a non-exclusive, royalty-free license to use, copy, modify, display and distribute your Submissions for the sole purpose of operating the Service and delivering the Service to you. You warrant that you have all necessary rights to grant this license to sMedio.
6. Transmissions. You are solely liable for any transmissions sent to or from your account. Accordingly, you agree that: (a) you are, and shall be, fully responsible for, and shall take all reasonable steps necessary in order to, limit the control and/or access to your account, the Software, any related data or communications transmitted, stored or received by you through the Services, as well as any related computer systems with which you use to connect to the Services (including, without limitation, the selection of passwords and the like); (b) any data, content, information, text or other communication, etc., which you receive or transmit using the Services may be accessed or intercepted, albeit without authorization from you or sMedio, by another person or entity in transit or by reason of an unauthorized intrusion into any of the computer systems and software that are used as part or associated with the Services and/or Software; and (c) sMedio shall have no liability to you or any third party for any unauthorized interception, access, receipt, or use of any messages or other communications or other data sent using the Services or Software (including any claims regarding intrusions of privacy or confidentiality with respect to any communications sent using the Service or Software). You acknowledge and agree that sMedio reserves the right to establish limits on the number of messages and size of messages transmitted through the Services.
7. Service Limitations. sMedio uses reasonable efforts to make the Service available 7 days a week 24 hours a day. However, sMedio does not guarantee availability of the Services and is under no obligation to provide you with maintenance, technical support or updates for the Software or Services. sMedio reserves the right, from time to time, to make changes in the configuration of sMedio's proprietary facilities, type and location of equipment, programming languages, user identification procedures, accessibility periods, allocation and quantity of resources utilized, rules of operation, and its administrative and operational algorithms. You agree that you will not resell any part of the Service. We reserve the right to suspend access to your account if your use of the Services negatively impacts the operation of our Services or use of our Services by other customers. You may not collect, store, copy or use any personal information or Submissions of other sMedio users for any purpose except as expressly authorized by such users and subject to the limitations in these Terms. Further, you shall not use the Services in any manner that interferes with, disrupts, impedes, or interrupts the Service or is designed or intended to do so.
8. Term and Termination.
(a) Your rights to use the Services and Software are effective unless terminated. These Terms will terminate immediately without notice to You upon the earlier of (i) your election to cancel your account, (ii) the posting of a new version of these Terms of Use on the sMedio website with notice to you, in which case the new Terms of Use shall apply to You or (iii) your breach or failure to comply with any term or condition of these Terms, including but not limited to the inability of sMedio to charge the credit card provided by you. Further, sMedio reserves the right to terminate these Terms and your account without prior notice and without liability to you upon requests by government and/or law enforcement agencies;
(b) Further, sMedio may terminate your account for any reason or no reason and without liability to you.
(c) Upon termination, the license granted herein shall cease, you will not be able to access or retrieve any data stored in your account, and you shall promptly destroy the Software or return the Software to sMedio. If you terminate your account, you agree that sMedio may keep your digital content on its servers for reasonable time thereafter to enable you to easily renew if you so desire.
(d) In the event of expiration or termination of your account, the representations made by you in these Terms, your outstanding payment obligations, the provisions of Sections II.9(d), II.10 through II.15 and the Visitor Terms shall survive such expiration or termination.
9. Product Purchases and Returns
(a) Purchases. All items purchased through sMedio are purchased under a shipment contract where risk of loss and title pass to you upon delivery to the carrier for shipment. We'll charge your credit card only after shipment. We reserve the right to ship partial orders and will charge your credit card the applicable amount upon shipment, but partial shipments will not result in increased shipping charges to you. sMedio endeavors to process and ship orders within 2 business days (Monday - Friday, excluding U.S. holidays); however, sMedio does not guarantee shipping times, especially during peak periods such as holidays. Returns are subject to our Returns Policy below, which is incorporated herein by reference. Currently, sMedio only ships prints and other products within the United States.
(b) Return Policy. At sMedio, your satisfaction is our number one concern. If for any reason you are not satisfied with the quality of your order, you may contact us within 30 days for a free reprint of your order or your money back. Please see below for exceptions and instructions on how to get your reprints or refund.
There are situations that are beyond our control that do not entitle you to a reprint of your order. These include the following:
* Errors in spelling, punctuation, or accuracy in the text entered by the customer. Please preview any custom text carefully and correct any mistakes prior to placing your order. sMedio does not and will not proofread for (or correct) any such mistakes.
* Poor quality resulting from the use of low-resolution or poor quality images. A warning will appear if you select a low-resolution image; at that point, you may continue to use the image, but at your own risk.
* Errors in user-customizable features, such as enhancements, choice of finish (where offered), cropping, border selection, size (where available) and formatting.
If you are not satisfied with your order, please contact us so we can investigate. Even if it turns out to be one of the user errors listed above, we will be happy to work with you to correct the error.
10. Rights of Co-Brand Partners. If you have created a sMedio account through a co-branded version of the sMedio Site or of a specific service made available through the sMedio Site, you hereby authorize sMedio to provide your email address to the applicable sMedio co-brand partner subject to the privacy policy of such sMedio partner. You acknowledge and agree that sMedio has no control of, and shall have no liability to you for, the use of your email address by the applicable sMedio co-brand partner.
III. Website Visitors
The provisions of this Section III noted below comprise the "Visitor Terms."
1. Privacy Policy. Please review the sMedio Privacy Policy, the terms of which are incorporated into, and are part of, these Terms.
2. Changes to Visitor Terms. sMedio reserves the right to change the Visitor Terms (including the sMedio Privacy Policy) from time to time. Any changes to the Visitor Terms will be made part of a new Terms of Use posted on the sMedio Site, and if the changes are significant, we may provide additional notice to you (i.e. email notification of Terms changes). The most current version of the Visitor Terms supersedes all previous versions. By continuing to use the sMedio Site and/or the Services, you agree to be bound by the most recent Visitor Terms.
3. Site Content. All content that is made available to view and/or download in connection with the sMedio Site is the copyrighted work of and is owned by sMedio and/or its licensors, as applicable, and is protected by copyright and other laws and international treaty provisions. You may not copy, modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any such content without the express written permission of sMedio and the copyright owner.
4. Linked Sites. The sMedio Site may contain links to third party web sites ("Linked Sites"). These Linked Sites are not under the control of sMedio and sMedio is not responsible for the availability, contents, or performance of any Linked Sites. sMedio is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by sMedio of the Linked Site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. You should direct any concerns regarding these third-party sites to those sites' administrators.
5. Trademarks. "sMedio," and the sMedio logo are trademarks of sMedio and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners. You may not copy, display or use any of these marks without prior written permission of the mark owner.
6. Law and Jurisdiction. These Terms shall be governed by and interpreted in accordance with the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. You agree that conflicts of laws principles of such laws and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are excluded in their entirety from application to these Terms. The parties consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in Santa Clara County, California, for all claims arising out of or relating to these Terms or the relationship between the parties.
7. Disclaimer of Warranties. THE SMEDIO SITE, THE SOFTWARE, THE SERVICES, AND PRODUCTS AND MERCHANDISE OBTAINED BY USING THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" BASIS WITH NO WARRANTIES WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMEDIO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SMEDIO DOES NOT WARRANT THAT: (I) THE USE OR QUALITY OF THE SMEDIO SITE, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS; (II) THE RESULTS OBTAINED FROM USE OF THE SMEDIO SITE, SOFTWARE OR SERVICES WILL BE ACCURATE OR RELIABLE; (III) ANY MERCHANDISE OR PRODUCT OBTAINED THROUGH THE SERVICES WILL BE FREE FROM DEFECT OR ERROR; OR (IV) ANY ERRORS IN THE SMEDIO SITE, THE SOFTWARE OR THE SERVICES WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SMEDIO SITE, THE SOFTWARE AND SERVICES REMAINS WITH YOU.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMEDIO OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SMEDIO SITE, THE SOFTWARE OR THE SERVICES OR OTHERWISE, OR WITH RESPECT TO ANY PURCHASES MADE BY YOU THROUGH THE SMEDIO SITE, UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SMEDIO OR ANY SUPPLIER, AND EVEN IF SMEDIO OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. Indemnification. You agree to indemnify, defend and hold sMedio and its officers, directors, employees, agents, licensors, and suppliers harmless from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to reasonable attorneys' fees, resulting from (i) an violation or breach of these Terms by you, (ii) any activity related to access to of use of your account (including but not limited to negligent or wrongful conduct) by you or any other person access or using the services through your account, or (iii) sMedio's authorized use of data provided by you or data obtained by sMedio as authorized by you under these Terms.
10. General. Neither these Terms nor any rights or obligations of you hereunder may be assigned by you in whole or in part without the prior written approval of sMedio. Any assignment in derogation of the foregoing shall be null and void. If any part of these Terms is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable. In lieu of the unenforceable provision, the parties agree that the court should attempt effect as much as possible the economic, legal and business objectives as were intended by the unenforceable provision. sMedio shall not be liable for any delay in the performance hereunder due to causes beyond its control, including but not limited to an act of God, war or natural disaster. These Terms set forth the entire understanding and complete and exclusive statement of the agreement between sMedio and You and they supersede any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of these Terms. You have no third party beneficiaries to these Terms. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
11. Copyright Infringement
sMedio respects the intellectual property of others, and we expect our users to do the same. sMedio may suspend and/or terminate the accounts of users who infringe the rights of others. If you believe that your copyrights or other intellectual property rights have been infringed by postings of others through the Services, you should provide sMedio's copyright agent with the following information:
* an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
* a description of the copyrighted work or other intellectual property that you claim has been infringed;
* a description of where the material that you claim is infringing is located on the site;
* your address, telephone number, and email address;
* a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
* a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
sMedio's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
8F., Central Square, 2-3-1 Shinkawa,
Chuo-ku, Tokyo 104-0033
Japan
By fax: +81-3-6262-1228
By email: contact@smedio.co.jp