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Joost Software End User License Agreement
Last updated: 15th May 2007
1. Initial Terms
1.1. Effect of Agreement. This End User License Agreement constitutes a valid and binding agreement between Joost Operations, S.A. (referred to as “Joost”) and you, as a user, for the use of the Joost Software. You must enter into this Agreement by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Joost to show your acceptance of this Agreement and/or your agreement to download and install the Joost Software). You hereby agree and acknowledge that this Agreement covers all of your use of the Joost Software, whether it be from this installation or from any other terminals where Joost Software has been installed, by you or by third parties. Furthermore, by installing and continuing to use the Joost Software, you agree to be bound by the terms of this Agreement and any new versions or updates hereof.
1.2. Terms of Service; Privacy Policy. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Joost to show your acceptance of this Agreement and/or your agreement to download and install the Joost Software), you expressly acknowledge and agree to, and to be bound by, the Terms of Service and Privacy Policy applicable to the Joost Website and the content, services and features provided on or through the Joost Software, and any new versions or updates thereof. The Terms of Service can be accessed through the Joost Website at http://www.joost.com/tos.html. The Privacy Policy can also be accessed through the Joost Website at http://www.joost.com/privacy.html.
2. Permission from You for Joost Software to Deliver Advertising and Use Your Computer and Bandwidth to Provide Content to You and other users of Joost Software and to Manage the Network of Computers Running Joost Software
2.1. As consideration for using the Joost Software and receiving access to the content and programming available via the Joost Software, you agree and understand that:
2.1.1. Joost and the Joost Software will, and will permit third parties to, display advertising and other information within the interface of the Joost Software and/or in connection with the display of content and programming. Joost or the Joost Software serves, and permits third parties to serve, advertisements within or adjacent to the content and programming delivered to you by the Joost Software. You understand and agree that Joost or the Joost Software, or applicable third parties, may include content-targeted advertisements or other related information, as further described in the Joost Privacy Policy. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Joost Software, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser.
2.1.2. Joost and the Joost Software will, and will permit third parties to, make available software applications – that Joost calls “widgets” – to be used on or within the interface of the Joost Software. These widgets will work within or adjacent to the content and programming delivered to you by the Joost Software. You understand and agree that these widgets may gather certain information from you, as further described in the Joost Privacy Policy, or in the privacy policy applicable to the widget. Widgets made available by third parties, either on or through the Joost Software or on third party websites are not owned or controlled by Joost. Joost assumes no responsibility for the content, functionality, services, privacy policies, or other practices of these widgets. You are encouraged to read the terms and other policies published by applicable third parties on their websites or otherwise. By using the Joost Software, you agree that Joost will not be liable in any manner due to your use of any third-party widget.
2.1.3. The Joost Software will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer (or other applicable device) for the limited purpose of facilitating the communication between, and the transmittal of data, content, programming, services or features to, you and other Joost Software users, and to facilitate the operation of the network of computers running instances of the Joost Software.
2.1.4. The Joost Software will take organizational and technical measures intended to protect the privacy and integrity of the computer resources (or other applicable device) you are utilizing, however, you acknowledge and agree that this is not a representation or warranty of Joost.
3. License Grant
3.1. License Grant. Subject to the terms of this Agreement, Joost hereby grants you a limited, non-exclusive, personal, non-commercial, non-sublicensable, non-assignable license to download, install and use on a single computer (or other applicable device) owned or controlled by you, the Joost Software, for the sole purpose of watching the video and other content provided on or through the Joost Software, and otherwise accessing the other services and features provided on or through such Joost Software, all subject to and in strict compliance with the restrictions described in this Agreement and in the Terms of Service.
3.2. License Restrictions. Notwithstanding anything in this Agreement to the contrary, you agree that you will not:
3.2.1. operate or utilize the Joost Software in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;
3.2.2. operate or utilize the Joost Software, including the content, programming, services and features contained on or through the Joost Software, if this license has been terminated by Joost;
3.2.3. operate or utilize the Joost Software, including the content, programming, services and features contained on or through the Joost Software, in a manner that violates the Terms of Service or Privacy Policy;
3.2.4. operate or utilize the Joost Software for non-personal or commercial purposes or for the benefit of any third party or charge any person for the use or distribution of the Joost Software;
3.2.5. sell, assign, rent, lease, distribute, export, import, act as intermediary or provider, act as a service bureau, or otherwise grant rights in the Joost Software, including, without limitation, through sublicense, to any other person or entity;
3.2.6. remove any proprietary notices from the Joost Software, or from any content, services, programming, or features contained on or through the Joost Software;
3.2.7. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Joost Software and/or data and/or content or programming transmitted, processed or stored by Joost or other users of the Joost Software;
3.2.8. use any unlicensed or unauthorized copies of the Joost Software;
3.2.9. collect any information or communication about the users of the Joost Software by monitoring, interdicting or intercepting any process of or communication initiated by the Joost Software or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
3.2.10. use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to monitor, distort, delete, damage or disassemble the Joost Software or its ability to communicate and function with other computers running the Joost Software;
3.2.11. with the exception of completely deleting the Joost Software from your computer, and those actions permitted by your manual use of the user interface provided as part of the Joost Software, take any action, including downloading and/or using third party software, that (1) modifies the settings of the Joost Software as it functions with your computer, or (2) otherwise modifies, alters, blocks or interferes with the functioning of the Joost Software;
3.2.12. attempt to hack the Joost Software or any communication initiated by the Joost Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Joost with respect to the Joost Software and/or data and/or content or programming transmitted, processed or stored by Joost or other users of the Joost Software;
3.2.13. interfere with or in any manner compromise any of Joost's security measures; or
3.2.14. alter, modify, delete, or otherwise interfere with or in any manner compromise any content, programming, advertising, services and/or features contained on or through the Joost Software, including, without limitation, the Joost Software’s advertising and/or content delivery and display functionality.
4. Your Additional Covenants, Acknowledgments and Agreements
4.1. You acknowledge and agree that:
4.1.1. Joost, in its sole discretion, may discontinue or suspend your right to access the Joost Software or content delivered by Joost at any time, and may at any time suspend or terminate any license hereunder without prior notice.
4.1.2. Joost reserves the right to add or remove features or functions, or to provide upgrades, updates or programming fixes, to the Joost Software at any time in its sole discretion. You agree to accept any and all such upgrades, updates or programming fixes presented to you, including version updates, and further acknowledge and agree that your failure to accept any such fixes, updates and upgrades will permit Joost to terminate your right to use the Joost Software.
4.1.3. When installed on your computer, the Joost Software may periodically communicate with Joost servers and/or Joost Software installed by other users. Additionally, third party software installed on Your computer may periodically communicate with third party servers for the purposes described in the license agreement or privacy policy between you and that third party.
4.1.4. Joost has no obligation to make available to you any subsequent versions of its software applications.
4.1.5. When minimized, the Joost Software will continue to operate unless You affirmatively exit the software from your task bar or other applicable application interface.
4.1.6. You can uninstall the Joost Software at any time, in your sole discretion, by using your computer’s “Add/Remove” Control Panel functionality or other applicable functionality that permits you to uninstall downloaded software applications.
5. Proprietary Rights
5.1. You acknowledge and agree that any and all Intellectual Property Rights to or arising from the Joost Software are and shall remain the exclusive property of Joost and/or its licensors. Nothing in this Agreement intends to transfer any such Intellectual Property Rights to, or to vest any such Intellectual Property Rights in, you. You are only entitled to the limited use of the Intellectual Property Rights granted to you in this Agreement. You will not take any action to jeopardize, limit or interfere with the Intellectual Property Rights. You acknowledge and agree that any unauthorized use of the Intellectual Property Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
You acknowledge and understand that all title and Intellectual Property Rights in and to any third party content that is not contained in the Joost Software, but may be accessed through use of the Joost Software, including, without limitation, any content, programming, advertising, services and/or features contained on or through the Joost Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such content. You understand that You are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for or to any such third party content, including any rights for uses that require a synchronization or public performance license with respect to the underlying musical composition. Additionally, the unauthorized reproduction or distribution of such third party content, including, without limitation, any content, programming, advertising, services and/or features contained on or through the Joost Software, is prohibited by applicable law.
6. Termination
6.1. This Agreement will be effective as of the date you accept this Agreement and will remain effective until terminated by you or Joost as set forth below.
6.2. You may terminate this Agreement at any time provided you permanently delete or destroy your copies of the Joost Software as required by Section 6.4 below.
6.3. Joost may terminate this Agreement at any time, with or without cause by providing notice to you.
6.4. Upon termination of this Agreement for any reason, all licenses and rights to use the Joost Software shall terminate and you must cease all use of the Joost Software AND completely remove from all hard drives and other storage media all copies of the Joost Software in your possession or under your control.
6.5. Joost will not be liable in respect to any damage caused by the termination of this Agreement.
6.6. Section 3.2 and Sections 5 through 13 shall survive any termination of this Agreement.
7. Links to Third Party Sites
7.1. The links provided either through or framed within the Joost Software and any website operated by Joost or its affiliates are provided as a courtesy only, and the sites they link to are not under the control of Joost in any manner whatsoever. Therefore, Joost is in no manner responsible for the contents of any such linked site or any link contained within a linked site, including any changes or updates to such sites. Joost is providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by Joost of any linked site and/or any of its content therein.
8. Your Representations and Warranties
8.1. You represent and warrant that you possess the legal right and ability to enter into this Agreement and to comply with its terms.
9. Indemnity
9.1. You agree to indemnify, hold harmless and defend Joost and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all damages, claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees and other dispute resolution expenses) incurred by Joost arising out of or relating to your (a) violation or breach of any term of this Agreement, the Terms of Service, or any applicable law, regulation, policy or guideline, whether or not referenced herein, (b) use or misuse of the Joost Software, or (c) violation of any rights of any third party.
10. Disclaimer of Warranties
10.1. THE Joost SOFTWARE IS PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY JOOST, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE Joost SOFTWARE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. JOOST FURTHER DOES NOT REPRESENT OR WARRANT THAT THE Joost SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES JOOST WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF TRANSMISSIONS OF DATA MADE THROUGH THE Joost SOFTWARE.
10.2. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE Joost SOFTWARE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.3. As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
11. Limitation of Liability
11.1. IN NO EVENT SHALL JOOST, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR BUNDLED SOFTWARE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE Joost SOFTWARE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF JOOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE Joost SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH Joost SOFTWARE.
11.3. As some jurisdictions do not allow some of the exclusions set forth in this Section 11, some of these exclusions may not apply to you. .
12. General Provisions
12.1. Electronic Signatures. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Joost to show your acceptance of this Agreement and/or your agreement to download and install the Joost Software), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Joost Software. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
12.2. Jurisdictional Matters; Claims. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Joost Software. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, you may not enter into this Agreement and you may not download, install or use the Joost Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Joost Software is allowed.
12.3. Third Party Licenses/Notices. The Joost Software contains code from a number of third party vendors and open source projects. The licensing and copyright notice information, together with any other applicable information, relating to this third party code can be found at the URL http://opensource.joost.com/.
12.4. Investigation; Disclosure. Joost reserves the right to investigate occurrences which may involve any violations of this Agreement, the Terms of Service or Privacy Policy, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You expressly acknowledge and agree that Joost may disclose information provided by you to comply with law enforcement or any legal, governmental or regulatory order or action.
12.5. Reservation of Rights; Modification. Joost reserves all rights not expressly granted in this Agreement. Joost may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on the Joost Website. Your continued use of the Joost Software shall constitute your acceptance to be bound by the terms and conditions of such revised Agreement.
12.6. Severability. Should any term or provision of this Agreement be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall remain in full force and effect.
12.7. Waiver. The failure of Joost at any time or times to require performance of any provision of this Agreement shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing.
12.8. Governing Law; Jurisdiction; Waiver of Claims. This Agreement shall be governed by and construed in accordance with the laws of Luxembourg, without regard to conflict of law rules thereof. The parties hereto expressly understand and agree that any action brought by you against Joost arising out of this Agreement shall be brought exclusively in the courts located in Luxembourg, and any action brought by Joost against you arising out of this Agreement shall, at the election of Joost, be brought in either the courts located in Luxembourg, or the applicable courts of the jurisdiction in which you reside. The parties hereby consent to, and irrevocably submit themselves to, the exclusive personal jurisdiction and venue of such courts as set forth in this section. You further agree not to bring claims on a representative, class member basis, or as a private attorney general, and agree not to assert any claims against Joost unless such claims are asserted by you in the forum required by this Agreement no later than one year following the date that your claim or cause of action arose.
12.9. Entire Agreement. The terms set forth in this Agreement constitute the final, complete and exclusive agreement with respect to the Joost Software and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. You may not assign this Agreement or any rights hereunder. Joost may, at its sole discretion, assign this Agreement without giving prior notice.
12.10. Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
12.11. Definitions.
12.11.1. Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
12.11.2. Intellectual Property Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the Joost Software or the Joost Website.
12.11.3. Joost: refers to "Joost Operations, S.A.", a company formed under the laws of Luxembourg.
12.11.4. Joost Software: the software distributed by Joost (including all software and code in such software) that provides for, among other matters, the digital distribution of video and other content, and all future programming fixes, updates and upgrades thereof. The term "Joost Software" will also include any online or enclosed documentation, and data distributed to your computer for processing relating to such software.
12.11.5. Joost Website: any and all elements, contents and the 'look and feel' of the website available under the URL www.joost.com, among other URLs, from which website the Joost Software can be downloaded.
12.11.6. Privacy Policy: means the privacy policy set forth by Joost from time to time with respect to the collection of information from users of the Joost Software.
12.11.7. Terms of Service: means the agreement between Joost and you for the use of the Joost Software and the content, services and features provided on or through the Joost Software;
12.11.8. You: you, the end user of the Joost Software, also used in the form "your" where applicable.
13. Express Agreement
13.1. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE Joost SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO JOOST THE RIGHTS SET FORTH HEREIN.