SAMSUNG CLOUD TERMS OF SERVICE

IMPORTANT – READ CAREFULLY. THESE TERMS OF SERVICE (“TOS”) ARE A LEGAL AGREEMENT BETWEEN YOU AND SAMSUNG ELECTRONICS CO., LTD. (“SAMSUNG”) FOR THE SAMSUNG CLOUD AND ANY RELEVANT SOFTWARE OR DOCUMENTATION THEREOF PROVIDED BY SAMSUNG, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS OR LICENSORS (COLLECTIVELY, THE “SERVICE”). BY AGREEING TO THESE TOS OR BY INSTALLING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS. IF YOU DO NOT AGREE TO THE TOS, THEN DO NOT INSTALL OR USE THE SERVICE. IF THESE TOS CHANGE AND YOU DO NOT AGREE TO THE CHANGE, YOU MUST STOP USING THE SERVICE.

SERVICE DESCRIPTION

Samsung Cloud is an internet-based cloud service that enables you to manually or automatically store your personal content (including contacts, calendars, photos) (collectively, “Content”) and access such Content on other Samsung Cloud enabled devices or the Samsung Cloud website with your Samsung Account.

1. Grant of License

Subject to the terms of these TOS, you are granted a limited, non-exclusive, and revocable license to access and use the SERVICE. The services and features provided by the SERVICE or any Update (defined below) thereto may vary or be limited depending on certain factors, including, without limitation, your country, device, operating system, or network operator. Unless you are 18 or older, you are not permitted to enter into these TOS or use the SERVICE unless your parent or legal guardian understands and consents to the terms and conditions of these TOS. If you are a parent or guardian permitting a person under the age of 18 ("Minor") to use the SERVICE, you agree to: (i) supervise the Minor's use of the SERVICE; (ii) assume all risks associated with the Minor’s use of the SERVICE, (iii) assume any liability resulting from the Minor’s use of the SERVICE; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and are bound by these TOS for the Minor’s access and use of the SERVICE.

2. Reservation of Rights and Ownership

This SERVICE includes software and data provided by third parties. You acknowledge that the SERVICE is proprietary to Samsung and its licensors, and protected under applicable copyright and other intellectual property laws and treaties. These TOS and your use of the SERVICE do not grant you any ownership interest in or to the SERVICE, and you are granted only a limited, personal, non-exclusive, non-transferable license to use that is revocable in accordance with the terms of these TOS. You may not use the SERVICE to reproduce copyrighted materials, or materials you do not have the right or legal approval for reproduction. You further acknowledge and agree that, as between you and SAMSUNG, SAMSUNG owns and shall continue to own all right, title and interest in and to the SERVICE, including associated intellectual property rights under any applicable laws. Notwithstanding anything to the contrary herein, if the SERVICE provides you with the ability to post or submit content, we do not claim ownership of any content that you post or submit on the SERVICE. You represent and warrant that you have secured (and are able to produce proof in writing) of any and all rights necessary and appropriate to submit the content on the SERVICE, including all necessary releases. You do however grant us a perpetual, worldwide, unrestricted, non-exclusive, royalty-free, transferable license to use the content that you post or submit on the SERVICE.

3. Restrictions

Except to the extent that mandatory local law requires that you be able to do so, you may not (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of the SERVICE; (ii) modify or disable any features of the SERVICE in whole or in part; (iii) create derivative works based on the SERVICE; (iv) rent, lease, lend, sublicense or provide commercial hosting services with the SERVICE; (v) infringe our intellectual property rights or those of any third party in relation to your use of the SERVICE (to the extent that such use is not licensed by these TOS); (vi) use the SERVICE in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these TOS, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the SERVICE or any operating system; (vii) use the SERVICE in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (viii) collect or harvest any information or data from the SERVICE or our systems or attempt to decipher any transmissions to or from the servers running the SERVICE; (ix) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the SERVICE; (x) disobey any technology control or export laws and regulations that apply to the technology used or supported by the SERVICE; and (xi) harass, threaten or harm any other person. If you are a covered entity, business associate or representative of a covered entity or business associate (as those terms are defined at 45 C.F.R § 160.103), You agree that you will not use the SERVICE to create, receive, maintain or transmit any “protected health information” (as such term is defined at 45 C.F.R § 160.103)

4. Update, Change or Suspension of the SERVICE

Samsung may, at any time, provide or make available updates or upgrades to the SERVICE (“Updates”), including without limitation bug fixes, service enhancements, new features, deletion of existing functions, or modification of the SERVICE. Updates will be governed by these TOS unless separate terms and conditions are provided with such Updates, in which case that separate terms and conditions shall govern the Updates. Updates for security software or critical bug fixes or other important Updates may be automatically downloaded and installed given the importance of receiving such Updates in a timely manner to help protect you and other users.

Samsung expressly reserves the right to change, suspend, remove, limit the use of or disable the access to the SERVICE or any portion thereof at any time without notice or liability.

5. Third party SERVICEs and Content

Third party services and/or content may also be available to you through the SERVICE. To the extent permitted by law, Samsung disclaims any warranty, condition or representation in respect of any third party services or content in any aspects including, but not limited to, quality, accuracy, effectiveness, lack of viruses, non-infringement of third party rights and compliance of any applicable laws or regulations. The use of third party services and content may be governed by such third party provider’s terms of use, license agreement, privacy policy, or other such agreement. Certain portions of the SERVICE may be subject to open source licenses, in which the terms of such open source licenses may precede the terms of these TOS with respect to that portion of the SERVICE.

6. Data Access

Some features of the SERVICE may require your mobile device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. The SERVICE may require access through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the SERVICE may be affected by the suitability and performance of your device hardware or data access.

7. Compliance with Law

You acknowledge and agree to comply with any and all applicable laws and regulations in using the SERVICE including without limitation, all applicable export restriction laws and regulations.

It is our policy to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. If you are a copyright owner or an agent thereof and believe that any posting or other content on the SERVICE infringes upon your copyrights, you may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed;
• Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
• Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and email address;
• A statement that you have 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
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Copyright Agent for notice of claims of copyright infringement can be reached at:
Steve Merlis, Senior Counsel - Federal Affairs
Samsung Telecommunications America, LLC
1200 New Hampshire Ave., N.W.
Suite 500
Washington, DC, 20036
Telephone: 202-552-7595
Email: copyrightagent@sta.samsung.com

8. Subscription for Additional Storage

8.1 Payment. Additional storage is available for purchase on a subscription basis. For the avoidance of doubt, the basic tier of the SERVICE("Basic Plan") is available without any additional payment to Samsung. By subscribing to upgrade your storage on the SERVICE, a recurring monthly fee (including any taxes, as applicable) will be automatically charged on you until you terminate your subscription and billed to the credit card or debit card account that you designate on your Samsung Account. You can pay either by credit card or debit card. Payment methods may be varied depending on mobile operators and/or the country you reside in. You are responsible for the timely payment of all fees and for providing Samsung with a valid payment method and billing address. If you want to designate a different payment method or if there is a change in your billing address or card status, you must change your payment account information designated on your Samsung Account. There may be a temporary disruption of your access to the SERVICE until Samsung can verify the validity of new payment account information. Your total price will include the price of the subscription plus any applicable sales, use, goods and services (GST), value added (VAT), or other similar tax, under applicable law.

8.2 Cancellation of Subscription & Refund. If you choose to cancel your subscription following its purchase, you may do so by informing Samsung at the Premium plan info – Request refund menu of the SERVICE within seven (7) days of your purchase. After seven (7) days of purchase, your subscription is not subject to any refund. It is your responsibility to meet the cancellation deadline if you wish to cancel your subscription and receive a refund of fee. If you have used more than Basic Plan of storage, you are required to reduce the volume of your Content less than Basic Plan to cancel your subscription and receive a refund. If you cancel your subscription, your storage will be reduced back to Basic Plan.

8.3 Termination of Subscription. You can terminate your subscription and downgrade your storage on the SERVICE at any time during your subscription at the Change storage plan menu of the SERVICE. Termination will take effect on the next monthly billing date and the fee already billed or paid will not be refunded. If you have used more than Basic Plan of storage upon the effective date of termination, your use of the SERVICE will be restricted (e.g., you may not store any additional Content) and you are required to reduce the volume of your Content less than Basic Plan within two (2) months to continue to use the SERVICE. If you fail to reduce the volume of your Content less than Basic Plan within such two (2) month period, Samsung may delete the entirety of your stored Content and/or suspend or terminate your use of the SERVICE, and any amounts paid to Samsung for the use of the SERVICE during the foregoing time period shall in any event be nonrefundable.

8.4 Removal of Your Content & Your Responsibility to Back-up. If you downgrade your storage and fail to reduce your storage within two (2) months, Samsung is unable to successfully charge your payment account for fees due, or you do not comply with any terms of these TOS, Samsung may suspend or restrict your access to your stored Content or delete the entirety or a part of your stored Content, and/or terminate your use of the SERVICE. It is your sole responsibility to back up your Content in other storage device and Samsung does not take any responsibility for any loss or inaccessibility of your Content.

9. Termination

These TOS are effective until terminated. You can terminate these TOS by ceasing your use of the SERVICE, and uninstalling, deleting and returning all related software, documentations and other materials provided by Samsung, including backup copies thereof. Should you not comply with these TOS, your rights based on these TOS will be automatically terminated without notice from Samsung. Upon termination of these TOS (or where Samsung has terminated the TOS, immediately on becoming aware of such termination), you must immediately cease all use of the SERVICE. For the purpose of clarity, Samsung may terminate these TOS and the SERVICE with notice to you (e.g., service website, pop-up through application, email or etc.).

10. Disclaimer of Warranty

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR CONTRACTUAL CONDITIONS OF ANY KIND FROM SAMSUNG, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMSUNG DISCLAIMS ALL WARRANTIES OR OTHER TERMS EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SAMSUNG OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY SAMSUNG OF WARRANTY REGARDING THE SERVICE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM SAMSUNG. WITHOUT LIMITING THE PREVIOUS DISCLAIMER, SAMSUNG DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SERVICE OR THE CONTENT THEREIN WILL (i) OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS (iii) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO YOU OR THE INFORMATION YOU PROVIDED) FROM UNAUTHORIZED ACCESS OR (iv) WILL BE ACCURATE, COMPLETE, OR RELIABLE, THAT THE QUALIFY OF THE SERVICE WILL BE SATISFACTORY TO YOU, OR THAT ERRORS WILL BE CORRECTED. IT IS ESSENTIAL THAT YOU BACK UP YOUR DATA ON YOUR DEVICE BEFORE USING THE SERVICES TO AVOID LOSING ANY DATA. SAMSUNG ANF ITS AFFILIATEA DN PROVIDERS ARE NOT LIABLE FOR ANY DATA LOST IN CONNECTION WITH YOUR USE OF THE SERVICE.

11. Limitation of Liability

11.1 SAMSUNG and You do not limit or exclude liability for any types of loss or damage for which liability cannot, under applicable law, be excluded or limited, to the extent that the applicable law prevents such exclusion or limitation, or to the extent that a court of competent jurisdiction judges that such an exclusion or limitation would be ineffective under applicable law. Since this is different in every legal system, we cannot provide a list here.

11.2 Subject only to 12.1, SAMSUNG and its affiliates and providers shall not be liable for loss, damage or liability under contract (including negligence), laws on third party obligations (including ‘tort’ and negligence claims) or statutory obligations or any other legal basis whatsoever, even if SAMSUNG was specifically put on notice of the risk of such loss (i) where the loss is indirect, incidental, indirect, special, consequential, special or comprises exemplary or punitive damages, or (ii) for any loss of profit, loss of business, loss of opportunity, loss of data or (iii) relates to errors, omissions or interruptions, computer viruses, connection or connectivity problems or for network charges.

11.3 Subject only to 12.1 and 12.2, the total financial liability of SAMSUNG and its affiliates and providers to You arising from or in connection with these TOS, the SERVICE or related matters shall not exceed the amount you paid SAMSUNG or SAMSUNG’s affiliate specifically for this SERVICE.

11.4 You acknowledge that the above provisions of clauses 11 and 12 are reasonable given the benefits of the SERVICEs and you will accept such risk and/or insure accordingly.

12. Indemnification

Unless prohibited by applicable law, You agree to indemnify, defend, and hold harmless SAMSUNG, its contractors, employees, and agents from any claims, losses, damages, liabilities (including legal fees and expenses) arising out of your use of the SERVICE, your violation of the rights of any third party, or any breach of these TOS.

13. Applicable Law

These TOS, including all revisions and amendments thereto, are governed by and construed in accordance with the laws of New York, without regard to its conflict or choice of law principles. These TOS shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

14. Dispute Resolution

By using the SERVICE, you unconditionally consent and agree that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) you may have against any Samsung entity, the officers, directors, agents and employees of any SAMSUNG entity (the “Samsung Entity(ies)”) arising out of, relating to, or connected in any way with the SERVICE or the determination of the scope or applicability of this clause, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (ii) this clause is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (iii) the arbitration shall be held in New York City, New York; (iv) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any other agreements referenced herein that you have agreed to in connection with the SERVICE; (v) the arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (vi) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable Samsung Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and you will not file or participate in a class action against us; (vii) the arbitrator shall not have the power to award punitive damages against you or any Samsung Entity; (viii) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Samsung Entity exceed One Hundred Twenty-Five US Dollars (US$125), and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, SAMSUNG agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, SAMSUNG will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive; and (ix) with the exception of subsection (vi) above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subsection (vi) above is found to be invalid, unenforceable or illegal, the entirety of this arbitration provision shall be null and void, and neither you nor Samsung shall be entitled to arbitrate the dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.

15. Survival

Sections 2, 3, 11, 12 and 13 of these TOS, and any other provision that by its nature should continue to be in effect, shall survive the expiration or earlier termination of these TOS, and shall remain valid and binding.

16. Headings

The headings contained in these TOS are for reference purposes only and shall not affect the meaning or interpretation of these TOS.

17. No Waiver

The failure of SAMSUNG to enforce at any time any of the provisions of these TOS, or the failure by SAMSUNG to require at any time performance by you of any of the provisions of these TOS, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of SAMSUNG to enforce such provision thereafter. The express waiver by SAMSUNG of any provision, condition or requirement of these TOS shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

18. Entire Agreement

These TOS are the entire agreement between you and SAMSUNG relating to the SERVICE and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the SERVICE or any other subject matter covered by these TOS. If any provision of these TOS is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

[11/18/2016]