Samsung Smart Switch End User License Agreement

Samsung Smart Switch is a two-part migration tool (with a personal computer portion and a mobile application portion) (“Smart Switch”) that enables you to transfer your data, such as contact information and schedule data, as well as other content, such as music, videos and photos owned, controlled or possessed by you (“Content”), to devices manufactured by or on behalf of Samsung Electronics Co., Ltd. and its affiliates (collectively, "Samsung", “we”, “us” or “our”) including cell phones, MP3 players and other mobile electronic devices. Smart Switch will also match and recommend Android applications to you based on your existing applications.

Please read this Samsung Smart Switch End User License Agreement (the "Agreement") carefully before using Smart Switch as it contains important information and constitutes a binding legal agreement between you and Samsung. Your use of Smart Switch is also subject to Samsung’s United States privacy policy located at http://www.samsung.com/us/common/privacy.html.

By downloading or using Smart Switch, you agree to comply with the Agreement. If you do not agree, you may not download or use Smart Switch. Samsung may modify this Agreement from time to time with or without notice to you. You should periodically review this Agreement. If you continue to access or use Smart Switch after such modification, you will be deemed to have read, understood and unconditionally agreed to the modification.

If you are under the age of 13, you may not use Smart Switch. If you are 13 or older but under the age of majority in your jurisdiction, you must review this Agreement with your parent or legal guardian to be sure you and your parent or guardian understand and consent to this Agreement. If you are a parent or guardian permitting a person under the age of majority in your jurisdiction ("Minor") to use Smart Switch, you agree to: (i) exercise supervision over the Minor's use of Smart Switch; (ii) assume all risks associated with the Minor’s use of the Smart Switch, including the transmission of Content via the Internet; (iii) assume any liability resulting from the Minor’s use of Smart Switch; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and be bound by this Agreement for the Minor’s access and use of Smart Switch.

1. General

1.1 Smart Switch is licensed to you, not sold. All rights not expressly granted to you hereunder shall belong to Samsung. The terms of this Agreement will also govern any Smart Switch software upgrades, modifications, and updates, unless such upgrade, modification or update is accompanied by a separate agreement in which case the terms of that agreement will govern. Samsung shall nevertheless be under no obligation to provide any upgrades, modifications or updates to Smart Switch.

1.2 Smart Switch may be used for the purpose of reproduction. You may only use Smart Switch to reproduce non-copyrighted materials, materials in which you own the copyright, or materials you have the right or legal approval for reproduction. You acknowledge that certain Content may be provided by third parties and subject to the applicable usage rules and agreements between you and the third party Content providers. Samsung shall have no responsibility or liability relating to your use of third party Content.

2. License

Subject to the terms and conditions of this Agreement, you are granted a revocable, limited, non-transferable, non-exclusive license to install and use Smart Switch for your personal and non-commercial use. Subject to the restrictions in Section 3, you may only use Smart Switch on computers and devices which you own, lease, or otherwise control.

3. License Restrictions

You may not reverse engineer, copy, decompile, disassemble, derive the source code of, modify, adapt, capture, reproduce, publicly display, publicly perform, transfer, sell, license, create derivative works from or based upon, republish, upload, edit, post, transmit, distribute, exploit, circumvent or translate (or attempt, encourage or assist any other person to do any of the foregoing), in whole or in part, Smart Switch. You shall not use Smart Switch for nuclear energy equipment, air traffic control, the operation of communication systems, public transportation control, life support devices, or other devices that may cause deaths, injuries or severe physical or environmental losses in the event that this Smart Switch fails to perform in such devices. Any attempt to do so shall be deemed a violation of this Agreement and you assume all risk and liabilities associated with such use.

4. Intellectual Property

4.1 Ownership. You acknowledge that Smart Switch is proprietary to Samsung, and is protected under applicable copyright, trade mark, trade secret, patent and other intellectual property laws (“IP Laws”). 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 Smart Switch, including associated intellectual property rights under applicable IP laws. This Agreement does not grant you any ownership interest in or to Smart Switch, but only a limited right of use that is revocable in accordance with the terms of this Agreement. You will not use such proprietary information or materials in any way whatsoever except as in compliance with the terms of this Agreement.

4.2 Trademarks. All Samsung trademarks, service marks, graphics and logos used in connection with Smart Switch and otherwise are trademarks or registered trademarks of Samsung in the U.S. and/or other countries. This Agreement does not grant you any right, title or interest in such trademarks, service marks, graphics or logos.

4.3 Third Party Software. Smart Switch utilizes or includes third party software or other copyrighted materials. Acknowledgements, licensing terms and disclaimers for such material are contained in the "online" electronic documentation for Smart Switch or may otherwise accompany such third party software or materials.

5. Consent for Data Collection and Use

You agree that Samsung and its authorized third party service provider may, in accordance with applicable laws and Privacy Policy, collect and use data relating to your use of the Smart Switch. This data may include, but is not limited to error information and service management related information (such as usage pattern, frequency of use for a particular function, frequency of installation/uninstallation, etc.). This data may be used in order to create enhancements and updates (if deemed appropriate by Samsung), provide service improvements and upgrades (if deemed appropriate by Samsung), provide customer support services, and other necessary or desirable services relating to the operation of Smart Switch, to confirm that you are using Smart Switch in accordance with the terms and conditions of this Agreement, and otherwise in accordance with our Privacy Policy. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be a violation of this Agreement and may result in immediate termination of this Agreement.

6. Termination

6.1 Duration. This Agreement is effective upon you accessing Smart Switch and has no predetermined termination date and may continue until such time as Samsung decides to terminate Smart Switch or this Agreement is terminated consistent with the terms herein.

6.2 Termination by Samsung. If you fail, or Samsung reasonably suspects that you have failed to comply with any of the provisions of this Agreement, without limiting Samsung's other rights and remedies, all of which are expressly reserved, Samsung, at its sole discretion and without notice to you, may discontinue your access to Smart Switch and terminate this Agreement.

6.3 Right To Modify, Suspend or Discontinue Service. Samsung reserves the right to modify, suspend or discontinue Smart Switch in whole or in part, at any time with or without notice to you, and Samsung will not be liable to you or to any third party if it exercises such rights at its sole discretion.

7. Disclaimers

TO THE EXTENT PERMITTED BY LAW, SMART SWITCH IS PROVIDED “AS IS”, "WHERE IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. SAMSUNG MAKES NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING SMART SWITCH, AND SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING DISCLAIMERS, SAMSUNG DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT:

(A) THE USE OF SMART SWITCH WILL NOT CAUSE ANY DAMAGE, INCLUDING DATA LOSS, TO YOUR COMPUTER OR DEVICES, OR TO ANY SERVICES OR SOFTWARE USED BY YOUR COMPUTER OR DEVICES, OR TO ANY APPLICATIONS AND CONTENT THAT RESIDE ON YOUR COMPUTER OR DEVICES; OR

(B) SMART SWITCH 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, OR (iii) WILL BE IMMUNE (INCLUDING CONTENT YOU TRANSFER) FROM UNAUTHORIZED ACCESS.

Except as stated in the foregoing sentence, you agree you will use Smart Switch at your own risk.

8. Indemnification

You will, at your own expense, indemnify, release and hold Samsung, its licensors, parent, subsidiaries and affiliates, and all officers, directors, and employees thereof, and any party acting on Samsung’s behalf, harmless from and against any and all third party claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses, including reasonable attorneys’ fees arising out of (i) your use of Smart Switch or use by any person that you allow to use Smart Switch that is not in accordance with the terms of this Agreement, (ii) any breach of this Agreement by you or by any person that you allow to use Smart Switch, or (iii) any violation of any laws or regulations or the rights of any third party by you or by any person that you allow to use the Smart Switch.

9. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SAMSUNG OR ITS LICENSORS BE LIABLE TO YOU OR ANY PARTY YOU ALLOW TO USE SMART SWITCH FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF EACH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGILIGENCE, PERSONAL INJURY, PRODUCTS LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT OR ANY OTHER THEORY. THIS MEANS YOU WILL NOT SEEK, AND HEREBY WAIVE, ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE OR PUNITIVE DAMAGES FROM SAMSUNG, ITS LICENSORS OR CONTENT PROVIDERS. SAMSUNG’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF SMART SWITCH SHALL NOT EXCEED $100 DOLLARS USD. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

10. Compliance

Your use of Smart Switch must comply with all applicable laws and regulations. Without limiting the generality of the foregoing, you must comply with all applicable laws, regulations, rulings and executive orders of any governmental authority relating to the exportation or importation of Smart Switch and Content, including but not limited to the export and destination control regulations of the United States.

11. Governing Law

This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, USA without reference to the principle of conflict of laws. By using Smart Switch, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against the officers, directors and employees of Samsung and its parent, subsidiaries, affiliates (all such individuals and entities collectively referred to herein as the “Samsung Entity(ies)”) arising out of, relating to, or connected in any way with Smart Switch or the determination of the scope or applicability of this agreement to arbitrate, 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; (2) this arbitration agreement 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; (3) the arbitration shall be held in San Jose, California; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Services; (5) the arbitrator shall apply California law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) 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; (7) the arbitrator shall not have the power to award punitive damages against you or any Samsung Entity; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Samsung Entity exceed $125 USD, 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 (9) with the exception of subsection (6) 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 (6) 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 their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.

12. Other Terms

12.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Samsung with regards to Smart Switch. If any provision or term of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement shall not be affected. You may be subject to additional terms and conditions that govern you use of third party services, content or software (including Content you transfer).

12.2 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

12.3 No Waiver. Any failure by Samsung to enforce any rights granted or restrictions imposed hereunder or to take action against a user in the event of any breach hereunder shall not be deemed a waiver by Samsung as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

Smart Switch is neither affiliated with nor endorsed by Apple, Inc. Use only in accordance with law. Certain content (such as DRM protected content) may not be compatible. Consult any applicable terms and conditions with your content providers to ensure that you have rights to transfer content off your previous device.