Si-Mi Terms and Conditions

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The following Terms and Conditions set out the way in which the Si-Mi content hosting service operates and Your rights and obligations in relation to the uploading and downloading of digital content on the "Si-Mi service" as well as being a mere member of the "Si-Mi service". The "Si-Mi service" is (a) the Si-Mi hosting service (b) the Si-Mi website and (c) the service of social networking including the facilitation of blogging, tagging, commenting and voting and (d) any and all aspects of facilitating the exchange of uploading, downloading and viewing of digital content.

You should therefore read the following Terms and Conditions carefully.

If You agree with the Terms and Conditions, then You have the right to use the Si-Mi service either as (a) an uploader of digital content (with such content then being available for sale on the Si-Mi service); (b) a downloader of digital content (with such content being available for purchase on the Si-Mi service) or (c) a member the Si-Mi service by visiting the Si-Mi service and browsing, commenting or voting on the Si-Mi service (without being an uploader or downloader of digital content).

You must be at least 12 years old to use the Si-Mi service.

If You do not agree with the Terms and Conditions, then You do not have the right use the Si-Mi service in any way or capacity.

By clicking on the "I accept" button at the end of these Terms and Conditions, You thereby (a) accept these Terms and Conditions on behalf of Yourself or on behalf of any third party entity (and you warrant that that third party entity has given You legal authority to accept these Terms and Conditions on their behalf), including that you are at least 12 years old (b) agree to be legally bound by the Terms and Conditions and (c) have entered into a binding agreement between You and Si-Mi ("Agreement").

1. Definitions

"You" or "Your" means you, or if you are entering this Agreement on behalf of a third party entity, then "You" means that third party entity.

"We" or "Us" or "Si-Mi" means Si-Mi.Com Pty Ltd and its employees or contractors.

2. Uploading Your Digital Content

a. Subject to other clauses in these Terms and Conditions, You may upload any content that is capable of being digitally uploaded onto the Si-Mi service ("Uploaded Content"), and by so doing, Si-Mi agrees to display such content to end users. The way in which You upload such content onto the Si-Mi service is by posting copies of such content to Si-Mi at the following address www.si-mi.com and posting certain information concerning such content by completing the on-line form located at that address. You agree that you own the copyright in the Uploaded Content or have permission from the copyright owner of the Uploaded Content to upload that content onto the Si-Mi service.

b. By uploading Your Uploaded Content, you thereby grant Si-Mi a non-exclusive licence to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat excerpt, facilitate the sale or rental of copies of, analyse, and create algorithms based on the Uploaded Content in order to (i) host the Uploaded Content on Si-Mi server, (ii) index the Uploaded Content (iii) display, perform and distribute the Uploaded Content, in whole or in part, in any territory(ies) throughout the world.

c. You warrant and represent that the Uploaded Content (i) does not breach the copyright of any third party, (ii) is not defamatory, (iii) is not obscene, pornographic or violent (iv) does not constitute contempt of court, and (v) is of a size not more than 1000MB.

d. Si-Mi reserves the right to remove any Uploaded Content from the Si-Mi hosting service or to suspend such content from that service at any time for any reason, whether due to a breach or suspected breach of one or more of the warranties set out in clause 2 c. or d., or otherwise. In the event that such content is removed or suspended from the Si-Mi hosting service, You acknowledge and agree that Si-Mi will not be accountable to you for any loss of profit you may suffer as a result of such content being removed or suspended.

e. You acknowledge and agree that Si-Mi is not responsible for any loss, theft, intellectual property infringement (including copyright infringement) or damage of a粑y kind to the Uploaded Content.

f. You acknowledge that Si-Mi does not protect your digital content on the site once uploaded with any form of DRM technology.

3. Proprietary Rights

Nothing contained in this Agreement conveys any ownership right to Us in any of the Uploaded Content, or other materials provided by You. You acknowledge that as between You and Si-Mi, You own (or have a licence to deal with) all right, title and interest in and to the content that You upload onto the Si-Mi host server that relate to distributing such content over a digital platform (i.e. all online digital distribution rights) including, without limitation, all intellectual property rights (including copyright).

4. Downloading Digital Content

a. In consideration of paying a Fee in accordance with clause 5, You are authorised to download any digital content that has been uploaded onto the Si-Mi host server ("Downloaded Content") but only for personal, non-commercial use. You shall be entitled to burn a single copy of the Downloaded Content onto a CD-ROM or DVD or any other electronic storage device but solely for personal, non-commercial use.

b. The Fee for the content is set and determined by the Uploader. The Uploader has the choice to change the price (fee) of their content at any time. This Fee must be above the minimum fee as determined by Si-Mi and below the maximum fee on the site of US$500.00.

c. You warrant that You will not copy, distribute, transfer, sublicence, publicly perform, create derivative works of, sell or offer to sell any Downloaded Content or any part thereof and You acknowledge and agree that You do not have the right to copy, distribute, transfer, sublicence, publicly perform, create derivative works of, sell or offer to sell any Downloaded Content or any part thereof.

d. If you have purchased credits to use on the Si-Mi.com site, these credits are not refundable or transferable.

5. Payment of Your Net Proceeds

a. You may designate a purchase price in the Metadata Form that end users must pay in order to download Your Uploaded Content. Except as otherwise set forth herein, in the event of any download of Your Uploaded Content by end users, We will pay to You seventy percent (70%) of the net profits ("Your Net Proceeds"), if any, recognized by Si-Mi and attributable to such content playback of Your Uploaded Content based upon the price you designate.

b. Provided You have registered with Paypal and have provided all necessary information to Si-Mi in order for Us to make payments to You through Paypal, payments to You shall be sent by Si-Mi within approximately fourteen (14) days to twenty (20) days via Paypal. All references herein to dollars shall be to United States dollars.

c. Si-Mi reserves the right to retain all other revenues derived from Si-Mi services. The number of purchases of Your Uploaded Content, as reported by Si-Mi, shall be the number used in calculating payments hereunder, if any. The number of purchases and/or recorded by Si-Mi shall be the conclusive and definitive amount for the purpose of calculation of any payments due and owing to You. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your rights and obligations under this Agreement. You further agree to indemnify Si-Mi for any taxes, interest, penalties, etc. imposed on it by any taxing authority in the event that You fail to make any payment for which you are responsible, as provided herein.

6. Complaint about Uploaded Content

In the event that Your Uploaded Content is the subject of a complaint from a third party (be they an end user or otherwise) which, if verified, would constitute a breach of one or more of Your warranties set out in clause 2 c. or d., then Si-Mi reserves the right to take the following action:

a. leave the Uploaded Content on the Si-Mi host server but refrain from distributing any of Your N粑t Proceeds to You (i.e. the uploader); then

b. give You (i.e. the uploader) twenty-one (21) days to directly liaise with the complainant in order to resolve the subject of the dispute; then

c. remove or suspend the Uploaded Content and your account in accordance with clause 2 e. in the event that the subject of the dispute is not resolved in favour of You (i.e. the uploader) to the satisfaction of the complainant.

For the avoidance of doubt, Si-Mi retains the right at all times to suspend or remove any Uploaded Content at any time in accordance with clause 2 e., notwithstanding anything in this clause 6.

7. Prohibited Activities

You may not use any portion of the Si-Mi service for any unlawful purpose. You agree not to collect or harvest any personally identifiable information from the the Si-Mi service including account names or email addresses, nor use the communication systems provided by the Si-Mi service for any commercial solicitation purposes. You agree not to:

a. introduce computer viruses into the Site (in particular, you warrant that that Your Uploaded Content shall be uncorrupted and free of viruses, worms, defects, Trojan horses and/or any other cause of disruption to the proper and effective functioning of the Uploaded Content being able to be hosted on the Si-Mi service and/or being able to be downloaded to end users;

b. use any automated system, including without limitation, "robots," hitbots, "spiders," "offline readers," scripting or any other form of automatic access on the Site or querying of the Site in a manner that sends more request messages to the Si-Mi service in a given period of time than a human can reasonably produce in the same period by using a convention web browser;

c. frame, mirror, screen scrape, use hidden frames, or use any other means by which any portion of the Si-Mi service is framed or appears within another frame or site (even if the frame is invisible);

d. attempt to gain unauthorized access to the Si-Mi service or any databases associated with the Si-Mi service;

e. engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Si-Mi service; or

f. engage in any activity that circumvents, disables or otherwise interferes with security related features of the Si-Mi service or features that prevent or restrict use or copying of any content or enforce limitations on use of the Si-Mi service or the content therein.

8. Restricted Areas of the Si-Mi Service

Certain functions of the Si-Mi service are restricted to authorized users or require You to provide personal information, and/or create a password-protected account. When creating Your account, you must provide accurate and complete information. It is Your responsibility to maintain the accuracy of any information provided to Si-Mi. You are solely responsible for maintaining the confidentiality of your password and your account information, and agree to notify Si-Mi if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for all activities that occur under your account, including without limitation, any fees which may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You agree to hold Si-Mi harmless from and against any and all costs, damages, liabilities, and expenses incurred by Si-Mi in relation to, arising from, or for the purpose of avoiding any claim or demand from a third party that your use of the Si-Mi service or the use of the Si-Mi service by any person using your screen name, account or password violates any applicable law or regulation, any third party rights, or incurs any fees or liabilities by virtue of having used your account.

9. Removal of You From Si-Mi Service

Si-Mi further reserves the right to suspe粑d or remove You or any other member from the Si-Mi service in Your capacity as an uploader of content, downloader of content and/or as a member in itself.

10. Privacy

In the event of a complaint against You (i.e. the uploader) from a third party in accordance with clause 6, Si-Mi agrees that it will not reveal any of your personal details to the complainant unless required to do so to meet a legal obligation imposed by a court of law or a law enforcement agency. Si-Mi will provide You with the complainant's contact details and it will be Your responsibility to resolve the dispute with the complainant. Should You choose not to contact the complainant, then Si-Mi will take this factor, amongst other factors, into consideration when exercising its sole discretion to remove or suspend the Uploaded Content from the Si-Mi host server.

11. Payment of Net Proceeds in event that content is Suspended or Removed

In the event that Your Uploaded Content is suspended or removed from the Si-Mi host server, then You will not be entitled to any monies constituting Your Net Proceeds that have not already been distributed to You regarding that suspended or removed Uploaded Content until such time as that Uploaded Content is placed back on the Si-Mi host server (upon which Your Net Proceeds which has not as yet been distributed will then be distributed to You in accordance with clause 4). If Your Uploaded Content is not placed back on the Si-Mi host server within thirty (30) days of it having been suspended or removed, then any Your Net Proceeds that are undistributed will be retained by Si-Mi.

12. Third Party Royalties and/or Payments

You are solely responsible for the payment of all royalties and/or other payments that may become due to artists, producers and/or any third parties entitled to payment with respect to Your Uploaded Content that is uploaded to the Si-Mi site.

13. Term and Termination

a. Si-Mi reserves the right to terminate this Agreement immediately in the event that You breach any of Your warranties or obligations specified in these Terms and Conditions.

b. You have the right to remove (either temporarily or permanently) any of Your Uploaded Content from the Si-Mi Host server at any time, upon which Si-Mi will forward any of Your Net Proceeds that are outstanding to You in accordance with clause 5.

14. Publicity

You agree to grant Si-Mi non-exclusive permission to use a portion of Your Uploaded Content (up to a maximum of 30 seconds) for the purpose of promoting and publicising the Si-Mi service.

15. Security

a. Si-Mi will use every reasonable effort to maintain, and keep in place, the security of Your Uploaded Content to protect against unauthorized access.

b. Si-Mi will use every reasonable effort to maintain, and keep secure, any personal information which You have provided to Si-Mi from time to time in connection with this Agreement and to protect such information against unauthorized access. However, Si-Mi reserves the right to disclose Your personal information if it is legally obliged to do so by a court of law law enforcement agency.

c. Si-Mi will make every reasonable effort to ensure the security of its host server content (including Your personal information).

d. You agree to fully indemnify Si-Mi against all claims, costs, losses, or other damages You may incur as a result of a security breach of the Si-Mi host server including but not limited to any fraudulent or illegal transactions involving the unauthorised use of Your Uploaded Content.

e. You acknowledge that from time to time and for any reason, the Si-Mi host server may be down or unavailable for intermittent periods of time and you agree that you are not entitled to make any claim in damages or loss of Your Net Proceeds or in any other cause of action against Si-Mi as a result of this occurring.

f. Whilst Si-Mi will make every reasonable e粑fort to ensure the security of its host server, all financial transactions via the Si-Mi Website are entered into by You at Your own risk and you agree that you are not entitled to make any claim in damages or loss of Your Net Proceeds or in any other cause of action against Si-Mi as a result of a breach of this security.

16. Indemnity

You indemnify and at all times will keep Si-Mi indemnified from and against all costs, damages or expenses (including attorneys costs and expenses) incurred by the Si-Mi in defending and/or settling any actions, suits, proceedings, claims or demands made or brought against Si-Mi in consequence of any breach or non-performance of any or all of Your agreements, representations, undertakings and/or warranties in these Terms and Conditions.

17. Force Majeure

a. Si-Mi shall not be deemed to be in default or in breach of this Agreement as a result of any event beyond the reasonable control of Si-Mi ("Force Majeure").

b. In the event of a force majeure, Si-Mi will not be responsible or liable for any loss of Your Uploaded Content and will not bear any costs associated with replacing that content.

18. GST

a. Where required, Si-Mi will comply with the Australian A New Tax System (Goods and Services Tax) Act 1999 ("GST legislation").

b. All amounts payable on the Si-Mi site are exclusive of GST. If GST is applicable, then this will be charged at the rate governed by the GST Act.

c. Si-Mi will collect GST payable by end users of the Uploaded Content (i.e. downloaders of the Uploaded Content), and will remit such GST in accordance with the GST Legislation.

d. In the event that clause 18 a. is applicable, You are required to provide Your ABN number to Si-Mi at the same time as submitting Your Uploaded Content, as per the mandatory field in the upload content page.

19. Alteration of These Terms and Conditions

You acknowledge and agree that Si-Mi has the right to alter, revise or modify these Terms and Conditions in its sole discretion at any time. Each time You use the Si-Mi service you should read these Terms and Conditions to ensure that if an alteration, revision or modification has been made to them, that you accept them, or else you must not participate in the Si-Mi services.

20. General

a. Subject to clause 18 taking effect, this Agreement contains the entire agreement of the parties on this subject matter. All representations, communications and prior agreements in relation to the subject matter are superseded by this Agreement.

b. Si-Mi is entitled at it's discretion to assign the benefit this Agreement and / or any of its rights under this Agreement in whole or in part to any other party.

c. In the event of a dispute between You and Si-Mi, You agree to abide by and adhere to the jurisdiction of the courts in Victoria, Australia and be bound by the laws in that jurisdiction.

21. Purchasing and Selling Physical Items on the Si-Mi Services

In addition to the Si-Mi Service encompassing aspects of facilitating the exchange of uploading, downloading and viewing of digital content, the Si-Mi Service also encompasses aspects of facilitating the exchange of physical item(s).

a. If a Si-Mi Service user wishes to sell physical item(s) on the Si-Mi Service, then the terms and conditions set out above in relation to Uploading Content apply equally to offering for sale a physical item(s) but in place of the words "Uploaded Content" the words "Physical Item(s) for Sale" is applicable which shall have the meaning of any physical item(s) that You offer for sale using the Si-Mi Service by placing a description of the item(s) and a photograph of the item (if possible) on the Si-Mi Server. Furthermore, the word "Uploader" means "Seller". Clause 3 of these terms and conditions applies equally to Physical Items for Sale including your acknowledgement that you own (or have permission to de粑l with) all right, title and interest in the Physical Items for Sale.

b. If a Si-Mi Service user wishes to purchase physical item(s) in the Si-Mi Service, then the terms and conditions set out above in relation to Downloading Content apply equally to purchasing a physical item(s) but in place of the words "Downloaded Content" the words "Physical Item(s) for Purchase" is applicable which shall have the meaning of any physical item(s) that You offer to purchase using the Si-Mi Service by placing an order bid for the physical item(s) on the Si-Mi Server. Furthermore, the word "Downloader" means "Purchaser".

c. Payment for the physical item(s) shall be in accordance with clause 5 of these terms and conditions "Payment of Your Net Proceeds".

d. All other terms and conditions set out above apply equally to physical item(s) but with the process of the exchange between the Physical Item(s) Seller and the Physical Item(s) Purchaser being such that when the Physical Item(s) are successfully purchased, the Seller will be automatically sent an e-mail stating what physical item(s) have been sold and to whom (including the successful purchaser's e-mail address and delivery address for the physical item(s)). The Seller will be automatically sent a reminder that the physical item(s) and agrees to send the items to the Purchaser within three (3) business days of the Seller being notified of the successful purchase. The successful purchaser will be sent an e-mail stating that they have successfully purchased the physical item(s) and that such item(s) will be sent to them within three (3) business days of the Seller being informed by e-mail by the Si-Mi Service of the successful purchase. That e-mail to the successful purchaser will also state that if the he/she has any queries or questions regarding the purchase, he/she must contact the Seller directly (and an e-mail address of the Seller will be provided to the purchaser).

e. Si-Mi provides its Si-Mi Service on an "as is" basis and without any warranty or condition, express, implied or statutory. To the extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. In no event shall we be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the Si-Mi Service or these terms and conditions (however arising, including negligence).

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