Before anyone can become a member or seller of the Content Paradise Website, defined below, you must agree to the terms and conditions in this Content Paradise End User and Seller Agreement (the "Agreement"). By clicking on the "Start Account" button on the Content Paradise sign up page, you are unconditionally consenting to be bound by the terms and conditions of the Agreement and are becoming a party to this Agreement between you and Smith Micro Software, Inc. as of the date you click on the "Start Account" button. It is important that you carefully review this Agreement prior to agreeing to it. Your use of any part of the Content Paradise Service shall also constitute assent to the terms of this Agreement. If you do not unconditionally agree to the terms of this Agreement, then do not click the "Start Account" button. Before anyone can become a member or seller of the Content Paradise Website, defined below, you must agree to the terms and conditions in this Content Paradise Publishing Agreement (the "Agreement"). By clicking on the "Start Account" button on the Content Paradise Seller page on the Content Paradise My Account page, you are unconditionally consenting to be bound by the terms and conditions of the Agreement and are becoming a party to this Agreement between you and Smith Micro Software, Inc. as of the date you click on the "Sign Up" button. It is important that you carefully review this Agreement prior to agreeing to it. Your use of any part of the Content Paradise Service shall also constitute assent to the terms of this Agreement. If you do not unconditionally agree to the terms of this Agreement, then do not click the "Sign Up" button.

 

 

 

End User and Seller Agreement

 

 

Smith Micro Software, Inc. and its affiliates and related companies (collectively "SMSI"), operate its online search application and e-commerce website available at http://www.contentparadise.com (referred to as "Content Paradise"). The terms and conditions set forth herein (the "Terms") constitute a legally binding agreement between SMSI and the Member and/or Seller  ("You" or "Your") regarding the terms on which SMSI offers You access to  Content Paradise and the ServiceÕs offered by SMSI. Your use of Content Paradise or SMSIÕs ServiceÕs constitutes acceptance of these Terms.

 

I. DEFINITIONS

 

 

1. "Content" refers to any material published at Content Paradise including but not limited to wire files, models, textures, plug-ins, video games, video game modifications, motion files, collections, packages, materials, scripts, shapes, custom UI skins, tutorials, frequently asked questions, words, music, films, images, and software.

 

2. "For Sale" includes all Content that requires a purchase of license rights from the Seller, as distinguished from Content available for free download.

 

 

3. "Member" refers to any person who creates a user account at Content Paradise.

 

4. "Service" refers to transmission, license, or purchase of Content to and from SMSI via the Content Paradise Website, or any approved web portal either currently in existence or in the future.

 

5. "Valid Sale" refers to a sale of license rights in Content or other property via Content Paradise, where the appropriate share of proceeds is received by a Seller who published the Content. Content For Sale via Content Paradise which is returned is not an example of a Valid Sale.

 

6. "Seller" refers to the submitting individual or business who publishes Content at Content Paradise.

 

II. LICENSE AGREEMENT BETWEEN SELLER AND MEMBER

 

A. License Grant for transmission of Content from Seller to Member

 

For any transmission of Content from a Seller to a Member, whether the transmission was the result of a license or free download, the following terms apply unless more restrictive terms are specified in the text description of the Content in compliance with the requirements for providing more restrictive terms set-forth below:

 

1. Ownership.

 

Unless explicitly provided for by a separate agreement, which separate agreement must be available to the Member and which must be subject to acceptance by Member before or at the point of sale, the Seller retains, subject to any license agreement between the Seller and SMSI, copyright in Content purchased or downloaded by any Member via Content Paradise. In using the Content Paradise systems, You agree that any additional EULA, license or Seller requirements inserted into Seller products that fail to inform clients of restrictions prior to purchase are invalid, void ab initio, and without effect as they relate to those purchases.

 

2. Valid License.

 

Any license rights relating to Content For Sale via Content Paradise are contingent upon the transfer of money from the Member to the Seller. All license rights terminate immediately and without notice if a sale is reversed for any reason.

 

3. Seller Responsibilities and Rights Granted.

For any Sellers who provide SMSI with any type of Content for free distribution or sale, the following terms apply:

 

Seller hereby grants to SMSI, and by the act of delivering Content to SMSI, grants a non-exclusive, worldwide, transferable, sublicenseable  license in any medium now known or hereinafter invented to: (a) reproduce, set prices for, sell, and distribute net proceeds from any sale, in whole or in part on Seller's behalf; and to publicly perform, publicly display, digitally perform, or transmit for promotional and commercial purposes; (b) create and use samples of the Content for the purpose of demonstrating or promoting Seller products or services or those of  SMSI; (c) use any trademarks, service marks or trade names incorporated in the Content in connection with Seller material; and (d) use the name and likeness of any individuals represented in the Content only in connection with Your material.

 

Seller shall provide all such logos, banners, vendor icons and other marketing materials as reasonable requested by SMSI to be used throughout Content Paradise and any advertisements related to Content Paradise.

 

The Seller grants to the Member who either purchases license rights to Content via a Valid Sale, or downloads freely available Content submitted by the Seller, a non-exclusive, worldwide, license in any medium now known or hereinafter invented to: (a) reproduce, post, promote, publicly perform, publicly display, digitally perform; (b) use any trademarks, service marks or trade names incorporated in the Content in connection with Seller material; and (c) use the name and likeness of any individuals represented in the Content only in connection with Your material.

 

 

4. Resale.

 

The resale or redistribution by the Member of any Content obtained from Content Paradise, whether For Sale or freely available for download, whether part of a Valid Sale or not, is expressly prohibited.

 

5. Returned Content.

 

In the event a Member returns any Content, whether acquired by Valid Sale or freely available for download, all license rights granted herein terminate and the Member must immediately destroy any and all copies contained on any type of media under the control or possession of the Member.

 

If Member returns any Content acquired by Valid Sale within thirty (30) days of purchase, SMSI will refund Member the purchase price.  However, if the refund is less than twenty five US Dollars ($25), the refund will be issued in the form of store credit. 

 

B. GENERAL TERMS

 

In addition to the above terms that apply to certain contexts, the following terms apply to all types of Content.

 

1. Ownership.

 

Seller retains ownership of the copyrights and all other rights in Seller Content, subject to the non-exclusive rights granted to SMSI and/or Member under this agreement. Seller is free to grant similar rights to others during and after the term of this agreement.  Seller will manage and control quality control of all of its content, will approve all new content prior to uploading to Content Paradise, and assure that it has or maintains proper title to and copyright protection for all content it uploads to Content Paradise.

 

2. Termination.

 

The license grant contained in this agreement can be terminated using the guidelines below. SMSI reserves the right, notwithstanding the guidelines below, to terminate this agreement at any time and without notice if any Content submitted violates the representations and warranties of paragraph three (3) below. This agreement may be terminated at any time by either party upon thirty (30) days written notice via email or regular mail.

 

(i)             Termination of Seller Agreement: Within fifteen (15) days of termination, SMSI shall remove all of SellerÕs marketing materials provided and SMSI shall remove all of SellerÕs content from Content Paradise sales and search areas.  However, access to such content shall remain available indefinitely to Members to enable download of content for transactions completed prior to termination.

(ii)           Termination of Member Agreement: SMSI can terminate MemberÕs agreement at anytime with or without notice for any reason.

 

 

Nothing in this agreement shall be construed to mean that a Seller may not submit or delete Content from the material submitted by such Seller as part of general maintenance of such Seller's account.

 

SMSI reserves the right at its sole discretion to remove any content from Content Paradise.

 

The provisions of Sections II, III, and IV shall survive expiration or termination.

 

 

3. Representations and Warranties.

 

Seller represents and warrants that: (a) the Content is Your original work, and contains no copyrighted material of any kind that Seller is not the exclusive owner of, including but not limited to: music and/or synchronization rights, images (moving or still) of any kind, writings of any kind, and model clearances/releases; (b) Seller has full right and power to enter into and perform this agreement, and has secured all third party consents necessary to enter into this agreement; (c) the Content does not and will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy; (d) the Content does not and will not violate any law, statute, ordinance or regulation; (e) the Content is not and will not be defamatory, libelous, pornographic, obscene or evocative of racial hatred of any kind; (f) the Content does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) the Content does not contain any material that, as a condition of use, requires additional license restrictions such as requiring the publication of source code; and (h) all factual assertions that Seller has made and will make to SMSI are true and complete. Seller agrees to execute and deliver documents to SMSI, upon SMSIÕs reasonable request, that evidence or effectuate SMSIÕs rights under this agreement.

 

 

4. Royalty Payments & Commission.

 

Except as otherwise agreed to by the parties, Seller will be entitled to a royalty of 70% (Regular - default) or 50% (Premium) based on the listing package the Seller has assigned to each of his/her products at the time of sale.   The royalty will be calculated at the end of each calendar month on all proceeds from the Valid Sale of Seller's Content and will be paid either by check or to a PayPal account.  All such royalties are net of returns and shall be due and payable within fifteen (15) days following the end of the calendar month in which the Valid Sales were made.  All payments shall be made in US Dollars.  If the monthly royalty due to Seller is less than one hundred US Dollars ($100), such royalty shall not be paid but shall continue to accrue until such time as the total accrued monthly royaltiesÕ payable to Seller exceeds one hundred US Dollars ($100).  If there are returns of a Valid Sale that result in a negative royalty, SMSI will apply the resulting credit against SellerÕs next monthly royalty. The remaining 30% or 50% respectively, of all proceeds from Valid Sales is deducted by SMSI as a commission. Seller hereby authorizes SMSI to collect and distribute such royalties and commissions.

 

Total sales of content shall not include any taxes or duties that may be imposed by any taxing authority in connection with a sale of content on Content Paradise.  The U.S. Federal tax law requires SMSI to withhold U.S. income tax on royalty payments made to non-U.S. residents.    SMSI must receive a fully executed U.S. withholding exemption form from Seller before payment of any royalties in order to apply the applicable reduced withholding rate on such payment.   Seller will complete and return tax forms as requested by SMSI.

 

 

III. GENERAL TERMS APPLICABLE TO ALL MEMBERS, SELLERS, AND OTHER PARTIES USING CONTENT PARADISE IN ANY WAY

 

1. INDEMNITY.

 

You agree to indemnify and hold SMSI and its subsidiaries, affiliates, shareholders, officers, directors, agents, contractors, consultants, licensors, licensee, suppliers, alliance members, other partners, employees and representatives ("SMSI Parties") harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of Your Content (including but not limited to infringement of a patent, copyright, trade secret or other intellectual property right), Your use of or connection to Content Paradise (including any use by You on behalf of Your employer), Your violation of the Terms, or Your violation of any rights of another.

 

2. MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS.

 

SMSI reserves the right at any time to modify, suspend or terminate the Services (or any part thereof), and/or Your use of or access to them, with or without notice. SMSI may also delete, or bar access to or use of, all related information and files. SMSI will not be liable to You or any third-party for any modification, suspension, or termination of the Services, or loss of related information. SMSI may amend these Terms at any time without notice, as all terms and conditions will be posted on this URL and should be consulted by You prior to use.

 

3. DISCLAIMER OF WARRANTIES.

 

YOUR USE OF CONTENT PARADISE IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED.  CONTENT PARADISE, INCLUDING THE INFORMATION, SERVICES AND CONTENT (AS DEFINED ABOVE), ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. SMSI DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SMSI MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF CONTENT PARADISE.

 

SMSI MAKES NO WARRANTY OR REPRESENTATION THAT: (a) CONTENT PARADISE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF CONTENT PARADISE WILL BE ACCURATE OR RELIABLE; (c) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM CONTENT PARADISE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN CONTENT PARADISE WILL BE CORRECTED.

 

SMSI MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED IN CONJUNCTION WITH ANY CONTENT PUBLISHED ON CONTENT PARADISE.

 

 

YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF CONTENT PARADISE OR BY OBTAINING ANY CONTENT FROM CONTENT PARADISE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.

 

4. LIMITATION OF LIABILITY.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SMSI PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH CONTENT PARADISE, EVEN IF THE SMSI PARTIES HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE CONTENT PARADISE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM CONTENT PARADISE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON CONTENT PARADISE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (d) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.

 

TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.

 

5. OTHER TERMS GENERALLY APPLICABLE TO ALL.

 

A. The Terms of this Agreement constitute the entire agreement between You and SMSI relating to the subject matter, and cancel and supersede any prior agreements. No modification to the Terms by You will be binding, unless in writing and signed by an authorized SMSI representative. You may not assign, delegate, sublicense, pledge, or otherwise transfer the Terms or any right granted hereunder without the prior written consent of SMSI.  You also may be subject to additional terms and conditions that may apply when You use Content Paradise, SMSI products or services, or third-party products or services.

 

B. You agree that any material breach of these Terms will result in irreparable harm to SMSI for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, SMSI will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if SMSI seeks such an injunction.

 

 

C. Services, Content, and product derived or obtained from Content Paradise may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, re-export, or import authorizations required by U.S. or Your local laws; (b) not use Services, Content, or direct product from Content Paradise to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from Content Paradise to prohibited countries and entities identified in the U.S. export regulations.

 

 

D. This agreement will be governed by California law, excluding conflict of law principles. Any action or proceeding arising out of or related to this agreement must be brought in a state or Federal court located in Orange County, California, and both parties irrevocably submit to the exclusive jurisdiction of such courts. All notices, requests and other communications under this agreement must be in writing (e-mail messages shall be deemed writings). All such notices, requests and other communications made via e-mail must be sent to legal@smithmicro.com.

 

E. Any notice required by this Agreement or given in connection with it, shall be in writing and delivered by mail.

 

Smith Micro Software, Inc.

 

c/o  Legal

 

51 Columbia

 

Aliso Viejo, California 92656

 

 

F. SMSI reserves the right to change the terms of this agreement with or without notice at any time.

 

G. Content Paradise Seller and Member accounts may only be used by such Seller or Member.  Seller or Member accounts may not be transferred or accessed by any other party without the explicit written permission of SMSI.

 

H. Independent Contractor.  For all purposes of this Agreement, each party shall be and act as independent contractor and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship.

 

 

IV. CONTENT PARADISE AND END USER LICENSE AGREEMENT

 

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING  CONTENT PARADISE, ALONG WITH ANY ACCOMPANYING DOCUMENTATION, AND THE TERMS AND CONDITIONS OF THE CONTENT PARADISE SERVICES.

 

YOUR USE OF CONTENT PARADISE SERVICES MEANS THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS YOU SHOULD NOT USE CONTENT PARADISE . BY USING CONTENT PARADISE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT USE CONTENT PARADISE.

 

 

1. OWNERSHIP.

 

All SMSI information on Content Paradise is copyrighted proprietary material of SMSI and may not be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any way, without SMSI's prior written permission. Except as expressly provided herein, SMSI and its suppliers do not grant any express or implied right to You under any patents, copyrights, trademarks, or trade secret information of SMSI or its suppliers.

 

2. ACCOUNT INFORMATION.

 

Your submission of information (including credit card information) through the Site is governed by SMSIÕs Privacy Policy, which is located at www.smithmicro.com/privacy (the ÒPrivacy PolicyÓ).  This Agreement incorporates by reference the terms and conditions of the Privacy Policy.  In consideration of Your use of Content Paradise, You agree to: (a) provide accurate, current, and complete Member account information about You as may be prompted by the registration and/or login form on Content Paradise (the "Registration Data"); (b) maintain the security of Your password and identification; (c) maintain and promptly update the Registration Data, and any information You provide to SMSI and/or Content Paradise, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to information and Registration Data. You have sole responsibility for adequate protection and backup of data and/or equipment used in connection with Content Paradise.

 

 

3. IMPROPER USE OF SMSI SYSTEMS.

 

You agree that You will not use Content Paradise to: (a) transmit spam, bulk or unsolicited communications; (b) pretend to be SMSI or someone else, or spoof SMSI's or someone else's identity; (c) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Content transmitted through the Services; (d) misrepresent Your affiliation with a person or entity; (e) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to use Content Paradise; (f) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm; or (g) collect or store personal data about other users unless specifically authorized by such users.

 

4. CONTENT SUBMITTED TO SMSI.

 

SMSI does not claim ownership of the Content You place on Content Paradise and shall have no obligation of any kind with respect to such Content. Any Content You provide in connection with Content Paradise shall be deemed to be provided on a non-confidential basis.

 

5. TERMINATION OF THIS LICENSE.

 

SMSI may terminate this license at any time if You are in breach of these terms and conditions of use.