StuffIt Connect

TERMS AND CONDITIONS OF SERVICE

IN ORDER TO USE THE SMITH MICRO SOFTWARE, INC. (“SMSI”) SERVICE, YOU MUST ACCEPT THESE TERMS AND CONDTIONS OF SERVICE. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT OR UPON PAYMENT AND/OR USE OF THE SERVICE BY YOU, WHICHEVER OCCURS EARLIER (“EFFECTIVE DATE”).

BY PAYING AND/OR USING THE SMSI SERVICE, YOU ARE AGREEING TO BE BOUND BY: (I) THESE TERMS AND CONDITIONS OF SERVICE, (II) SMSI PRIVACY POLICY AND (III) SMSI TERMS AND CONDITIONS OF THE SITE (COLLECTIVELY REFERRED TO HEREINAFTER AS, “AGREEMENT”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE. USING ANY PART OF THE SERVICE INDICATES THAT YOU ACCEPT THIS AGREEMENT.

IF YOU ARE AN EMPLOYEE OF A COMPANY AND ACCEPTING THE AGREEMENT ON BEHALF OF SUCH COMPANY, BY YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (I) YOU HAVE BEEN AND ARE ON THE EFFECTIVE DATE OF THIS AGREEMENT DULY AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) YOU DO SO ON BEHALF OF THE COMPANY WITH EXPRESS AUTHORIZATION OF THE COMPANY THAT YOU AND THE COMPANY SHALL BE BOUND BY THIS AGREEMENT WITH RESPECT TO YOUR AND THE COMPANY’S USE OF THE SERVICE, AND (III) YOU OBTAINED PROPER CONSENT, PERMISSION AND AUTHORITY TO USE THE SERVICE ON BEHALF OF THE COMPANY. IF THIS PARAGRAPH APPLIES TO YOU AND YOU DO NOT HAVE THE FOREGOING AUTHORITY, DO NOT USE THE SERVICE. FOR PURPOSES OF THIS PARAGRAPH, “COMPANY” MEANS ANY BUSINESS OR CORPORATE ENTITY.

1.0 DEFINITIONS
“Fee” means the applicable periodic amount payable by You in advance in connection with your use of the Service. You will find more information regarding the Fees at: http://www.stuffit.com/connect/fees.html.

“Service” means any of the SMSI proprietary file storage and transmission services as selected by You in the Site. To view a more detailed description of the Service, and the features associated with different account types, please go to the following URL: http://www.stuffit.com/connect“Term” means the period from the Effective Date until terminated as set forth in this Agreement.

“Site” means the following SMSI URL: http://www.stuffitconnect.com

“You” or “Your” means an end user (whether individual or entity) using the Service.

References to the singular include the plural and vice versa, and reference to one gender include the other gender.

2.0 SERVICE LICENSE GRANT
2.1 Subject to the terms and conditions of this Agreement, SMSI grants to You a personal, non-exclusive, non-transferable, terminable license (without right to sublicense) to use the SMSI Service during the Term solely for the purposes of storing files and sending files to others.

2.2 The only software needed to access the Service is a standard Web Browser. However, SMSI may make certain software applications available to You and users that offer additional ways to access the Service. Such software will be made available by SMSI under the terms of an end user license agreement, which You should read prior to installing that software.

2.3 You acknowledge and agree that You are responsible for independently and regularly reviewing the Site for the posting of any modified or changed version of these Terms and Conditions of Service, the SMSI Privacy Policy, and Terms and Conditions of the Site. Updates or changes made to this Agreement will be in accordance with the Terms and Conditions of the Site. If You do not agree to the modified or changed terms then You must cease use of the Service.

2.4 You acknowledge and agree that SMSI may, from time to time, at its sole discretion, establish revised practices and policies concerning use of the Service, including without limitation, the maximum number of days that a file will be stored by the Service, the maximum number of times a user may access the Service in a given period of time, and the maximum number of recipients to which a user may send a file. Notwithstanding the foregoing, the features and limitations in effect when You began your then-current account type Term will remain in effect for the remainder of such account type Term.

2.5 Your use of the Service as licensed hereunder may be subject to a Fee by SMSI. Fees are to be paid in United States Dollars. Other Service account types require periodic payments, depending upon the account type. You may request to upgrade or downgrade the Services provided to You through the Site, and the Fees payable will be amended accordingly for the next payment period.

3.0 RESTRICTIONS/OWNERSHIP
3.1 Except as permitted by applicable law and this Agreement, You may not decompile, reverse engineer, disassemble, translate, copy, alter, modify, license, rent, sell, lease, loan, distribute, create derivative works based upon the Service, or use the Service to develop any service or product. The Service is licensed to You, not sold, to You. You will comply with all applicable federal, state, local laws and ordinances now or hereafter enacted in connection with Your use of the Service.

3.2 SMSI and/or its licensor(s) retain ownership of all right, title and interest to the Service and all intellectual property rights therein and thereto (including without limitation, all patent rights, design rights, copyrights, trademarks, proprietary rights, and trade secret rights). All rights in and to the Service not expressly granted to You are reserved by SMSI.

3.3 SMSI may modify, suspend, or discontinue, temporarily or permanently, the service and may remove or delete any files at any time, in its sole discretion. This Agreement does not provide to You any right to any enhancements, updates, or upgrades. SMSI may revise, modify or cease to provide the Service or its feature or functionality, or any part thereof, at any time without notice. Nothing in this Agreement obligates SMSI to make any version of the Service commercially available. Resale of the Services without SMSI’s prior written consent is expressly prohibited. It is strictly prohibited for You to use the Service in a manner other than as expressly set out in this Agreement.

3.4 You will not use the Service to transmit, route, provide connection to or store any material that infringes any copyrights or otherwise violates or promotes the violation of the intellectual property rights of any third party. SMSI has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see Section 26 of the Terms and Conditions of the Site at the following URL: http://www.smithmicro.com/legal.aspx for further information. SMSI reserves the right, in its sole discretion, at any time, to remove Your files that SMSI believes to be in violation of this Agreement.

3.5 SMSI does not claim any ownership rights in any files that You store or make available to others through use of the Service. However, by making such files available through use of the Service, You grant SMSI a non-exclusive, worldwide, transferable, royalty-free right to use, copy, distribute and process Your files on the Site and through the Service on Your behalf and on behalf of Your recipients solely for the purposes of ensuring secure transfer and delivery of such files, with the right to sublicense this right to third parties assisting SMSI in providing the Service.

3.6 You have sole responsibility for all Your files You store on SMSI’s servers through use of the Service. You acknowledge and agree that SMSI will not be responsible for any failure of the Service to store a file, for the deletion of a file stored on the Service, or for the corruption or loss of any data, information or content contained in a file.

4.0 RULES OF CONDUCT
In addition to Your compliance with the Rules of Conduct set forth in the Terms and Conditions of the Site as they apply to the Services described in these Terms and Conditions of Service, Your use of the Service is conditioned on Your compliance with the following rules of conduct set forth in this section. You agree that You will not:

• Upload or transmit any file that is unlawful or misleading;
  
• Upload or transmit any file that You do not have the consent or permission of each identifiable person in the file to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the file);
  
• Access, tamper with, or use any non-public areas of the Service;
  
• Attempt to probe, scan, or test the vulnerability of the Service or any related system or network or breach of any security or authentication measures used in connection with the Service and such systems and networks.

In the event You are in breach of this Section or in SMSI’s opinion, reasonably likely to become in breach, SMSI may suspend the Services immediately without notice and You hereby indemnify SMSI in full for any loss or damage suffered by SMSI as a result of Your breach.

SMSI reserves the right to investigate and prosecute violations of any of the foregoing (including, this Section and Rules of Conduct set forth in the Terms and Conditions of the Site) to the fullest extent of the law. SMSI may involve and cooperate with law enforcement authorities in prosecuting those that violate this Agreement.

You acknowledge and agree that, although SMSI has no obligation to monitor Your access to or use of the Service, SMSI has the right to do so for the purpose of operating the Service, to ensure Your compliance with this Agreement, or to comply with applicable law or order or requirement of a court of competent jurisdiction, administrative agency, or other governmental body.

5.0 ACCOUNT/PAYMENT
5.1 In order to use the Service, You must first register and create a SMSI account in connection with the Service. In creating an account, You agree to provide and maintain accurate, current and complete information, SMSI will have no liability for failure to deliver notices that result from inaccurate, not current and/or incomplete information. Your password and log-on information are confidential to You and You hereby agree that You shall not share such information with any third parties. You are responsible for safeguarding such information. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You shall promptly notify SMSI if You are aware of any third party having access to such information.

5.2 In addition to Your primary email address, You will have the ability to enter alternate email addresses to which Your primary email address will be linked. This will enable You to receive files at your alternate email address, but the files will still be displayed in the inbox associated with Your primary email address. You agree not to add any alternate email addresses that are registered to persons other than You.

5.3 The SMSI Service account is subject to a Fee and is a subscription service with recurring charges on a yearly basis. You agree to pay all account charges, and to pay any applicable taxes and other fees that accrue in relation to Your use of the Service. For more information about the Fees and available payment methods, please see the following: http://www.stuffit.com/connect/fees.html.

6.0 SCHEDULED MAINTENANCE
SMSI shall use reasonable efforts to ensure that access and use of the Service is available at all times subject to planned and emergency downtime. SMSI performs regular maintenance to ensure that the Service is available to You. SMSI uses reasonable efforts to ensure that the Service is available during such maintenance times. SMSI shall not be liable for any Service unavailability which arises as a result of an emergency downtime and Service unavailability.

7.0 DISCLAIMER OF WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE LICENSED HEREUNDER IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND SMSI, ITS SUPPLIERS, DISTRIBUTORS AND ANY LICENSOR(S) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. SMSI DOES NOT WARRANT THAT THE FEATURES AND FUNCTIONS OF THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. FURTHERMORE, SMSI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SMSI OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

8.0 TERMINATION
8.1 Your rights to use the Service will terminate automatically without notice if You fail to comply with any term(s) of the Agreement, and SMSI will not be required to refund any Fees paid by You. Termination of the Service for Your failure to comply with any term(s) of this Agreement is not an exclusive remedy for SMSI; all other remedies will be available to SMSI whether or not this Agreement is terminated.

8.2 SMSI reserves the right to discontinue the Service or to change the Service at any time and without notice. In the event of such discontinuation by SMSI, SMSI will refund any Fees paid by You, prorated proportionally to the amount of time remaining in the then-current Service Term. For purposes of clarity, for month-to-month Service Term, the amount of time is one month, and, for an annual Service Term, the amount of time is one year.

8.3 If You do not access the Service for a period of thirty (30) days or more, SMSI may at its discretion remove and/or purge Your data, files and account from the system and terminate the Services without notice.

9.0 EFFECT OF EXPIRATION OR TERMINATION
9.1 Upon expiration or termination of this Agreement, Your limited license rights granted hereunder shall terminate and You shall immediately (a) cease use of the Service and (b) SMSI shall at its own discretion remove and/or purge Your data, files and account from the system.

9.3 Regardless of any termination or expiration of this Agreement, Sections 1.0, 3.0, 7.0, 8.0, 9.0, 10.0, 11.0, 12.0, 13.0, 14.0, 15.0, 16.0 and 17.0 shall survive.

10.0 NO LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT SMSI AND ITS LICENSORS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM: (I) YOUR USE OF THE SERVICE AS LICENSED HEREIN, (II) ANY DELAY OR FAILURE TO PROVIDE THE SERVICE THAT IS DUE TO THIRD PARTIES, OR (III) CREDIT CARD FRAUD COMMITTED AGAINST YOU BY ANY THIRD PARTY PROVIDER OR CREDIT CARD SERVICES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL SMSI’S AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING FROM THIS AGREEMENT, THE SERVICE OR OTHERWISE, SHALL BE LIMITED TO THE MONIES PAID TO SMSI BY YOU FOR THE SERVICE SUBJECT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN.

11.0 LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURISDICTION IN WHICH YOU OBTAINED THIS AGREEMENT, SMSI, ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS, INCOME OR BUSINESS (WHETHER DIRECT OR INDIRECT), LOSS OF OR CORRUPTION TO DATA AND BUSINESS INTERRUPTION, AND THE COST TO OBTAIN SUBSTITUTE PRODUCT, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SERVICE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SMSI, ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF SMSI FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF SMSI OR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.

12.0 INDEMNITY
You agree to indemnify, defend and hold SMSI, its officers, directors, affiliates, employees and agents harmless from and against any and all claims, liabilities, damages, losses, and costs, including without limitation, reasonable attorneys’ fees incurred in connection with or arising out of Your use or misuse of the Service, or your violation of the Agreement.

13.0 FORCE MAJEURE
Other than obligations to the Fees due and owing to SMSI by You, neither party will be excused for delays resulting from circumstances beyond the reasonable control of such party so long as such party provides the other party with prompt written notice describing the condition and immediately continues performance whenever and to the extent such causes are removed.

14.0 ASSIGNMENT
You will not assign, in any manner, any right, obligation or interest in or under this Agreement without the prior written consent of SMSI. This Agreement shall bind and inure to the benefit of the permitted successors and assigns of the parties of this Agreement.

15.0 NO WAIVER
The failure by SMSI to enforce any provision of this Agreement will not be deemed a present or future waive of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by SMSI.

16.0 CONTROLLING LAW AND SEVERABILITY
This Agreement shall be governed by the laws of the United States and the State of California, as though performed wholly within California and without giving effect to the principles of conflict of laws. Exclusive jurisdiction over and venue of any suit arising out of or relating to this Agreement will be in the state and federal courts of Orange County, California. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be void or unenforceable, the remainder of this Agreement shall continue in full force and effect. In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party shall be entitled to reimbursement for all reasonable attorneys’ fees and court costs.

17.0 COMPLETE AGREEMENT
The Agreement constitutes the entire agreement between the parties with respect to the license by SMSI to use the Service and supersedes all prior or contemporaneous understandings regarding such subject matter. You and SMSI are independent contractors and neither party shall act or represent itself, directly or by implication, as an agent of the other party. The Agreement may not be modified except by written document executed by a duly authorized representative of SMSI. The section and sub-section headings used in this Agreement are for reference and convenience only and shall not be considered an interpretation of this Agreement. In the event of any conflict between these Terms and Conditions of Service and the Terms and Condition of the Site, the terms and conditions of these Terms and Conditions of Service will control and shall apply only to these Terms and Conditions of Service. You may be subject to additional terms and conditions that may apply when You use or purchase certain other SMSI services or other third-party content software or services.