Terms and Conditions
1. Introduction. These Terms
and Conditions ("Terms") are a contract between Qualcomm Atheros,
Inc., a Delaware corporation ("we", "us" or
"our"), and the user ("you", or "your") of our
web site www.skifta.com (the "Site"), of our Skifta service (the
"Service") and/or of our software that must be installed on your
computer or mobile device, as applicable (the "Software"). Your use
of our Site and our Service, as well as your rights to install or use Software,
is subject to these Terms. We may modify or discontinue your right to access or
use the Site, Service and/or the Software at any time and for any reason.
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, as well as for any content that you maintain in your Skifta Places. You may use the Service to temporarily shift the access to digital media for which you have the legal rights to do so 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 valid 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 and other laws in connection with your use of the Site, the Service and/or the Software and you agree not to use the Software or Service to violate anyone's copyright or moral rights or any other proprietary or intellectual property rights. You agree to indemnify and hold harmless Us, and Our stockholders, subsidiaries, affiliates and licensors, as applicable, as well as our and their employees, officers, directors and agents (collectively, "Skifta Indemnified Parties"), for all claims resulting from your use of such media files and/or from your violation of any copyright or other laws or rights 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 use 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 may 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 . 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 each of the Skifta Indemnified Parties for any improper, unauthorized or illegal uses of your username, password, or account.
5. Scope of License and License Restrictions. If you 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 owned or leased 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 these Terms 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, a Delaware corporation ("Qualcomm"), and We may own patent rights for the inventions embodied in the Software. We 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 use the
Forums or otherwise post at or on the Forums, you agree to the following:
Restrictions. You agree not to use the Forums for any reason other than the Purpose. The material on the Forums is protected by international copyright and trademark laws. Except to the extent as may be expressly permitted through a "Share" function which we may provide on the Forums (or with our express written permission), you may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way any material from the Forums including any code or software we may provide.
Postings Not Necessarily the Opinion of Us. Some of the individuals posting to Forums work for us; however, opinions expressed here and in any corresponding comments are the personal opinions of the original authors, and do not necessarily reflect our views.
Postings. Although we may attempt to keep objectionable messages off the Site and Service, it is not practicable for us to review all messages. All messages express the views of the author, and we will not be held responsible for any message or associated content.
Your Responsibilities. You take full responsibility for any and all messages and associated content you post to the Forums or exchange through the Forums. In addition, if you post any messages, uploading files, inputting data, or engage in any other form of communication through the Forums (a "Posting"), you represent and warrant and covenant the following: (a) you own all right, title, and interest in and to the Posting, or you have been granted sufficient rights in and to the Posting allowing you to post such Posting, (b) you will not post any messages or other materials that are obscene, vulgar, sexually-orientated, hateful, threatening, or otherwise violate any laws, (c) you must not breach obligations of confidentiality that you owe to another party either in posting or using a Posting, (d) any Postings you make to the Site do not infringe or violate any third party copyright, trade marks, any other intellectual property rights or any applicable law, including without limitation the rights of privacy or publicity, and are not defamatory, and (e) you will indemnify and hold harmless the Skifta Indemnified Parties against all claims, losses, liabilities, costs, damages and expenses incurred by us or them due to any breach by you of these Terms or your use of the Forums. For the purposes of this section, references to "your use" of the Forums shall be deemed to include any use by a third party where such third party accesses the Forums using your computer.
Be Forewarned. When using the Forums and viewing Postings, you need to be aware of the following issues:
The Forums may include contributions from various sources over which we have no control (including any content submitted by third party users).
We are not obligated to pre-screen or exercise editorial control over Postings, and take no responsibility for such Postings.
We reserve the right to edit or remove Postings at any time and in our sole discretion, including those that are in breach of these Terms or in breach of any obligation of confidentiality you owe us, infringe or are alleged to infringe the intellectual property rights of any third party, or are defamatory, or otherwise are not relevant to the Forums and we will not be liable in relation to the removal of, or failure to remove, any Postings.
Messages to Registered Users. Our Forums may allow you to send messages directly to other Forum users who have made their contact information available for receiving such messages. You agree to only send messages to other Forum users for the purpose of exchanging information about the Purpose and any other use of the ability to send messages to other Forum users is strictly prohibited. Moreover and without limitation of the foregoing, you shall not use the contact information made available through the Forum for any of the following: (1) to send unsolicited commercial email (i.e., spam) or any other type of unsolicited commercial message, or (2) to send any message that is vulgar, sexually-orientated, hateful, threatening, defamatory, violative of the rights of privacy or publicity, or otherwise violates any laws.
License. By adding a Posting to the Forum, you are granting us a royalty-free, perpetual, irrevocably, non-exclusive, unrestricted, worldwide license to: (a) post, use, copy, sublicense, adapt, transmit, publicly perform or display any such Posting, (b) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play, host, communicate, make available and publish your Posting without restriction and (c) sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the Posting. The foregoing grants shall include the right to exploit any ideas, concepts, intellectual property, or proprietary rights in such Posting, including but not limited to rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction without us owing any monies to you whatsoever.
Posting Guidelines. Our Forums may contain additional rules or posting guidelines. In such case, you agree to conform your Postings to any such additional rules or posting guidelines.
10. Notices of
Copyright Infringement. Notifications of claimed copyright
infringement should be sent to Qualcomm Atheros, Inc.'s Designated Agent in
writing at the following address:
Qualcomm Atheros, Inc.
Attn. Legal Department, Copyright Agent
1700 Technology Drive
San Jose, CA 95110
Telephone Number of Designated Agent:
Facsimile Number of
Designated Agent: (858) 651-0286
Email Address of
To be effective, the Notification must include the following:
1. A physical or electronic signature of the owner whose exclusive right is allegedly infringed or a person authorized to act on his or her behalf;
2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material on the Site;
4. Information reasonably sufficient to permit us to contact the copyright owner or his/her authorized agent including an address, telephone number, and if available, an electronic mail address;
5. A statement that the copyright owner or authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and if submitted by the owner's authorized agent a statement under penalty of perjury, that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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:
7. A physical or electronic signature of the alleged infringer;
8. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
9. A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
10. The alleged infringer's name, address, and telephone number, and a statement that the alleged infringer consents to the jurisdiction of Federal District Court for San Diego County, California, or if the Subscriber's address is outside of the United States, for any judicial district in which we may be found, and that the alleged infringer will accept service of process from the person who provided notification or an agent of such person. 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.
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 if we do so we shall not have any liability to you or to any third party, and we reserve the right to so discontinue. 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 the Skifta Indemnified Parties 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.
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. Disputes and Mandatory Arbitration Clause. IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. You may opt out of Mandatory Arbitration within the first sixty (60) days of creating an account with us. Please contact us if you would like to opt out of Mandatory Arbitration. If you do not opt out within sixty (60) days of creating your account, you accept Mandatory Arbitration. If you opt out, you will not be required to arbitrate any claims. There is no penalty or other negative consequence if you do opt out. a. The Federal Arbitration Act applies to these Terms. Any dispute, controversy or claim between us, regardless of whether the legal theory is based on these Terms, another common law theory, a statute or another ground, will be settled by neutral arbitrators before the American Arbitration Association ("AAA"). You can also bring any issues you may have to the attention of federal, state, or local government agencies and they can, if the law allows, seek relief against us on your behalf. This arbitration provision is not mandatory in the event of claims below the applicable small claims limit in your jurisdiction. You or we may bring any such small claims matters outside of the arbitration setting, provided they are not brought in a court of general jurisdiction. b. Forum Selection and Applicable Procedure. Unless you and us agree otherwise, the arbitration will take place in the county of your billing address so long as it is in the United States. For claims over $10,000 the AAA's Wireless Industry Arbitration ("WIA") rules will apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and a party may have the award reviewed by a panel of three new arbitrators. For claims of $10,000 or less, the complaining party can choose either the AAA's Supplementary Procedures for Consumer-Related Disputes or individual action in small claims court. You can obtain procedures, rules and fee information from the AAA (www.ADR.org) or from us. Each of us may be required to exchange relevant evidence in advance. For claims of $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephonic hearing, or by an in-person hearing. To initiate arbitration under these Terms, contact the AAA, which will provide the necessary forms for you to submit. In the case of a conflict between any arbitration rules and these Terms, these Terms govern. c. NO CLASS ARBITRATION. THESE TERMS DO NOT PERMIT CLASS ARBITRATIONS EVEN IF AAA OR WIA 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. d. Claim Notices. If you or we have a claim that arises from or relates to the Site, the services, your account, any prior account you had with us, your application, or the enforceability of these Terms, before initiating, joining, or participating in any lawsuit, arbitration, or other legal proceeding, the complaining party shall give the other party: (1) a written notice of the claim (referred to below as a "Claim Notice"), at least 30 days before initiating any such proceeding, explaining in reasonable detail the nature of the claim and any supporting facts; and (2) a reasonable good faith opportunity to resolve the claim without the necessity of a lawsuit, arbitration, or other legal proceeding. Any Claim Notice directed to us shall be sent to Qualcomm Atheros, Inc., Attn: Legal Department, 1700 Technology Drive, San Jose, California 95134. Any Claim Notice directed to you shall be sent to your address appearing in our records or, if you are represented by counsel, to your attorney at your attorney's office. d. Use of Arbitration Award or Judgments in Subsequent Cases. An arbitration award and any judgment confirming it only applies to the arbitration in which it was awarded and can't be used in any other case except to enforce the award itself. e. Applicable Law. Except to the extent we've agreed otherwise in the provisions on arbitration, or as required by Federal law, these Terms and all disputes between us (whether or not based on these Terms) are governed by the laws of the state of your residence (provided that it is in the United States), without regard to that state's conflict of laws principles. If you are located outside of the United States, then the laws of the State of California, without reference to its conflicts of laws principles, shall be the governing law.
19. 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 (except as may be expressly
otherwise provided for herein). 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 and shall become effective five (5) business days thereafter,
whether or not you actually received notice of any such changes. Sections 6 -
10, and 12 – 19, as well as any other terms which by their nature should
survive termination or expiration of these Terms, shall survive any termination
or expiration of these Terms.
Skifta is a service mark of Qualcomm Atheros, Inc. Effective: [April 3, 2013]