So I’m installing the update to my DIVX software and I notice that after I’ve accepted the license agreement I’ve been asked yet to accept what looks like a lot more legalese. I pause and see that it’s titled "DIVX Agreement Addenda" and I start to read it. This here is some funny stuff! (It’s long but entertaining.)
Terms of Use
Last Updated: July 19, 2007Hello! Welcome to the web sites, web properties, and other things web-ish owned and operated by DivX, Inc. ("DivX"). We make available a variety of services through these sites and properties (a group we’ll collectively, including our software and all video and other content available through DivX.com <http://www.divx.com> and Stage6 <http://www.stage6.com>, refer to as the "site") that we’re proud of, and we hope you’ll find them useful. Please read this agreement carefully. it explains how you can use the site, what you can’t do on the site, and what will happen to you if you misbehave (hint: you won’t like it… or then again maybe you will, but if you’re one of those kinky types, please do us both a favor and keep it to yourself).
Before we get started, our lawyers would like us to explain several things to you. They’re really quite nice people, so we’re happy to oblige. For starters, our lawyers would like you to know that everything you do at our site is governed by this document, our Privacy Policy <http://stage6.divx.com/privacy_policy>, and any other agreements applicable to the services you use on the site. They’d also like you to know that you have to be at least 18 or have the express permission of your parents to enter this agreement, and therefore to use this site. You also have to be at least 13 to use the site, regardless of whether your parents would give you permission; if you’re under 13, go hang out somewhere else until you’re old enough. (We promise to wait right here until you get back.) If you continue on to use the site, you represent to us that you meet these age requirements. Finally, our lawyers say that if you do not agree with anything we explain, require, or allow, your only recourse is to not use the site. By using the site, you are agreeing to everything we say here, including if we were to say that Santa Claus is real and lives with the Easter Bunny. We also reserve the right to change the terms of this agreement at any time, but agree to put the last date we updated it at the top of the page. So check back regularly to monitor when it changes if you’re one of those people that likes to monitor legal documents for changes.
There, that’s done. Now, to help you better understand the agreement, we’ve constructed this document based on how we think you might use the site. Be sure to read and understand each section of the agreement that applies to your personal use of the site.
If you are a visitor. First, understand that none of our software, nor anything on the site is yours. You also don’t own our building, our computers, or the clothes on our backs, save for our "Madonna’s `Who’s That Girl’ World Tour" t-shirt from 1987 which you can have if you want it (well, not actually, could you imagine what would happen if you all wrote us asking for that shirt?). Anyway, you may watch and download videos for your personal use, make backup copies for your personal use, and you can even show them privately to your friends (so long as your friends agree to abide by this agreement as well). Do not attempt to hack, circumvent, reverse engineer, or otherwise interfere with the site, our services, the software (including encryption or security technologies), or anything else you don’t own. It’s just not nice. If you download anything from the site (including software and content), please keep all copyright and other notices intact, and please remember that the content is subject to copyright, so you do not have the right to go post it on other websites unless the copyright owner gives you permission. Finally, please understand that you use the site at your own risk. We’re not your mother, so we’re not responsible for your use or misuse of anything you find here, nor are we responsible if you are offended or insulted or otherwise harmed. As the doctor once said, if it hurts when you touch there, stop touching there. If at any point you stop enjoying your use of our site, we suggest you try one of the other 18 quadrillion web sites available to you on the Internet. Honestly, life’s too short to keep doing something that you don’t like. Keep that in mind.
If you contribute by commenting, modding, or otherwise participating. First of all, thanks. We’re building an open, active community, and it’s not much fun if people don’t participate. Still, while we want this community to be open and active, there are some limits on what you should do. We don’t review anything before you post it and we have no obligation to undo anything you or anyone else has done (though we reserve the right to do so), so think twice before you speak. Understand the spirit of the community we’ve set out here and don’t do anything against that spirit. To help you understand this, here’s a top-seven list of dos and don’ts (we’ve shortened from the original 10 for you to let you read less):
7) Do no harm. More specifically, don’t post anything that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, violent, threatening, or racially, sexually, ethnically or otherwise objectionable. Don’t deliberately provoke arguments with no other intent than to gain attention for the sake of attention. In short, don’t be a jerk. <http://meta.wikimedia.org/wiki/Don%27t_be_a_dick>
6) Don’t steal, pirate or swindle. In other words, don’t post anything that you don’t own or otherwise have the right to transmit and share. We take our own intellectual property rights seriously (as should you) and respect the intellectual property rights of others. It is our policy to respond to notices of alleged copyright infringement that comply or substantially comply with the Digital Millennium Copyright Act ("DMCA"), (the text of which can be found at the U.S. Copyright Office Web Site <http://lcWeb.loc.gov/copyright/>), and other applicable intellectual property laws. Steps for submitting notices under the DMCA to us are summarized and available at <http://stage6.divx.com/copyright_infringement>
5) Don’t undermine our feedback or ratings systems. Meaning, no falsifying accounts to earn extra mod points and no importing or exporting feedback information off of the site or using it for purposes unrelated to DivX.
4) Don’t solicit. No posting of any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation. (Asking people to buy your content does not count as soliciting).
3) Don’t scrounge. Thus, no collecting or storing personally identifiable information about other visitors for commercial or unlawful purposes. You wouldn’t want someone to do it to you, so don’t do it to others.
2) Do not disturb. Please don’t interfere with or disrupt any of our services, servers or networks connected to our services, or disobey any requirements, procedures, policies or regulations of networks connected to our services or our site itself.
1) Don’t steal, pirate or swindle. We know this was number 6, but it bears repeating. We don’t want unlicensed content on our site. If there is stuff on the site you recognize, it is probably because we worked really hard to license it. When you post pirated content, you cause our lawyers to turn grey prematurely. Remember, this is a community of creators; you wouldn’t want someone stealing your stuff from here, so don’t steal their stuff from elsewhere (and by the way, if you do create stuff to post on here and someone else steals it, the DMCA protects you too; check out those links in number 6).
Of course, there is much you can do on the site, and we actively encourage you to engage with and monitor the site. Please use the "Report Inappropriate Content" link next to the content, or notify us at TOUViolations@divx.com <mailto:TOUViolations@divx.com> or by mail at Community Team, DivX, Inc., 4780 Eastgate Mall, San Diego, CA 92121 if you come across conduct that you believe violates this agreement and/or is contrary to the spirit of our community. We also welcome your suggestions on ways we could improve our site. But while we welcome these suggestions, please understand that by making them, you have given (by which we mean, you legally "assign") these suggestions to us to use as we see fit, and you won’t be compensated for them. (That’s just the way it’s gotta be.)
In the end, it comes down to this: we are going to hold you responsible for any activity that goes on under your username, so keep your password secure, logout when you leave a public computer, and let us know immediately if you identify unauthorized use of your password or account, or any other security breach. We can’t be liable for any loss or damage if you fail to do these things.
If you purchase software, services, content, or anything else. If you purchase anything on our site, recognize that it is governed by license and/or law and treat it accordingly. In particular, our software is governed by intellectual property laws and export control laws, and Content is governed by license and intellectual property laws; compliance with these and other applicable laws is your responsibility. Unless we specifically tell you otherwise, all purchases you make are final. We do want you to be happy, so if you experience technical difficulties or if you have questions, please contact us at support@divx.com <mailto:support@divx.com> or stage6support@divx.com <mailto:stage6support@divx.com>. We will do our very best to respond to you promptly.
If you publish or create channels. What holds for others participating on the site holds for you as well. Still, we’ve got another agreement for you, the Publisher’s Agreement <http://stage6.divx.com/publisher_agreement>, and your use of the site tells us you understand and agree to everything in both of these agreements.
If You Link to Us. We’re happy to have you link to us, but it’s important that we protect the integrity of the DivX brand (and its logos, etc.). So, you may link to the site, but only if you use the linking code we provide to you and if you comply with the DivX Trademark and Usage Guidelines <http://www.divx.com/company/about/trademark.php>. Also, if you choose to link to us by embedding videos you find on the site in your web pages, please remember that your license to the content is only for personal use and only if those you display to agree to the same terms and conditions, so make sure to point visitors of your site back to this terms of use and make sure to get permission from the original publisher.
Other Legal Stuff. Please read this section carefully. It’s very important stuff, but we’ve found it impossible to re-write it in plain English. Imagine your favorite lawyer standing next to you in your room and reading it to you.
No Warranty. THE SITE, INCLUDING WITHOUT LIMITATION ALL INFORMATION, CONTENT AND SERVICES MADE AVAILABLE ON IT, IS PROVIDED "AS IS" AND WITH NO WARRANTY OF ANY KIND. DIVX EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE VIEW OR OBTAIN CONTENT, SOFTWARE AND/OR OTHER MATERIAL THROUGH THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE VIEWING OR DOWNLOAD OF SUCH CONTENT, SOFTWARE OR OTHER MATERIAL.
THIS SITE IS CONTROLLED AND OPERATED BY DIVX FROM ITS FACILITIES IN THE UNITED STATES. DIVX MAKES NO WARRANTY OR REPRESENTATION THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL DIVX, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR MISUSE OF THE SITE OR ITS SERVICES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT DIVX SHALL NOT BE LIABLE FOR ANY THIRD PARTY CONTENT YOU ACCESS, DOWNLOAD AND/OR PURCHASE THROUGH THE SITE OR FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL ACTIVITIES OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM FROM ANY OF THE FOREGOING LIES ENTIRELY WITH YOU.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH ANY OF THE TERMS CONTAINED IN THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. UNDER NO CIRCUMSTANCES SHALL DIVX BE LIABLE TO YOU FOR ANY AMOUNT.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Release and Waiver. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against DivX and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with use of the site. If you are a California resident, you specifically agree to waive your rights under California Civil Code § 1542, which states, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Residents of other jurisdictions similarly waive their rights under applicable and/or analogous laws, statutes or regulations.
Indemnification. You agree to defend, hold harmless and indemnify DivX, its officers, directors, employees or agents, from and against any third party claim arising from or in any way related to your use or misuse of the site, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, DivX will provide you with written notice of such claim, suit or action.
Governing Law; Venue. This agreement shall be construed as if jointly drafted by the parties. This agreement shall be governed by and construed and enforced in accordance with the laws of the State of California (United States of America) without regard to its rules on conflict of laws or any other rules that would result in the application of a different body of law. Any legal proceedings arising out of or relating to this agreement or its alleged breach shall be brought in the Federal District Court for the Southern District of California or, in the event that such court lacks jurisdiction, in the California state courts in San Diego County, California, to the exclusion of any other forum. The parties hereby submit to the exclusive personal jurisdiction of these courts and hereby waive any forum non conveniens, venue or other challenge to the appropriateness of such courts. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties also unconditionally waive their respective rights to a jury trial for any claim or cause of action arising out of or relating to, directly or indirectly, this agreement or the subject matter thereof.
Miscellaneous. If any provision of this agreement is held to be invalid or unenforceable, including without limitation the warranty disclaimers and liability limitations set forth above, such provision shall be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. DivX’s failure to act with respect to a breach by you or others does not waive DivX’s right to act with respect to subsequent or similar breaches. The failure of DivX to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of this agreement. Those rights and obligations which by their very nature are intended to survive termination or expiration of this agreement shall survive, including without limitation your obligation to indemnify DivX, DivX’s disclaimer of all warranties, and the limitation of liability herein. This agreement, together with the privacy policy and any other agreements between you and DivX concerning the site or its services, constitutes the entire agreement between DivX and you with respect to the site.
That’s All Folks. Thanks for reading all the way to the end. We’re excited about all of our offerings, including Stage6 and we hope you are too. Now close this window and move on to the fun stuff.
NOTICE: The term "DivX ®" is a trademark of DivX, Inc. ©2006 All rights reserved. All other marks that appear throughout the site belong to DivX or the respective owners of such marks and are protected by U.S. and international copyright and trademark laws. Any use of any of the marks appearing throughout the Site without the express written authorization of DivX or the owner of the mark, as appropriate, is strictly prohibited
DivX® Publisher Agreement
July 19, 2007
First things first
Let’s make one thing clear up front: you own your content. We do not own your content. Nothing in this agreement changes that in any way.
We are, however, creating a content service (the "site", as defined by the Terms of Use <http://stage6.divx.com/terms_of_use>) that will, we hope, help support you as you publish YOUR content. But before you publish, we need to reach agreement on a few things. Read this agreement carefully. By accepting this agreement and publishing your content into the site, you’re agreeing to be bound by these terms and conditions and entering a binding contract with us (by "us," "we," and similar terms we mean DivX, Inc. and other entities owned or controlled by it). We, in turn, are entering a binding contract with you (and by "you," we mean you individually or your company or other entity on whose behalf you are entering this agreement). Got all that? Great, moving on.
What you guarantee to us
To publish, you guarantee (by which we legally mean "represent and warrant") to us that you have (and will continue to have, as long as your content is on the site) all the rights to the content you publish necessary to publish that content, that you have the legal right and authority to grant to us the rights and licenses described in this agreement, and that our use of the content (as authorized by you in this agreement) won’t violate or infringe upon anyone’s intellectual property or other rights or constitute unfair competition against, or defame, anyone (this is a site for content creators, not for people looking to infringe other people’s rights by posting a rip for a DVD they bought or to share episodes of their favorite TV shows). You also guarantee to us that the content you publish doesn’t violate any law, is not pornographic or obscene, and is not otherwise something that will get you or us into trouble. Lastly, you also guarantee that you agree to and will behave in accordance with the Terms of Use <http://stage6.divx.com/terms_of_use>. If you can’t guarantee these things, do not accept this agreement. Do not publish your content to the site. In fact, just stop reading now and go away.
Still reading? Excellent.
What we may do with your content
If you publish your content[1] <http://stage6.divx.com/publisher_agreement> to the site (content includes, for example, all video, images, metadata, music, trademarks and logos you choose to share, but we’ll just refer to all of this as "your content" going forward), you agree to give us a (here comes the legalese, but bear with us) non-exclusive, fully-paid, royalty-free, worldwide, assignable right and license to your content and username so that we may do the following:
· Make it available to other visitors to the site, including by hosting it on our servers; indexing it for searches; and displaying it via streaming and/or downloading technologies via any platform or provider through which the site is available. If necessary, we will proportionally resize your content and convert it to another video format (while doing our best to not degrade visual quality) to make it available on such additional platforms.
· Use it to promote your content and your brand by displaying limited (no more than 30 seconds) excerpts of your content in promotional settings. If necessary, we will proportionally resize your content and convert it to another video format (while doing our best to not degrade visual quality). As part of the indirect promotion of DivX and the site, we may modify this type of content to insert a small DivX or Stage6 watermark that will be displayed as it plays.
· Use it to promote our products and services by displaying limited excerpts or screenshots of your content, including, possibly your username. We may do this in places including but not limited to third party sites, and presentations and marketing materials (both printed and contained on things like promotional CDs or DVDs) where we try to tell the world how great the site and the people like you who participate in it really are.
· Display advertisements, including third party advertisements, adjacent to your content (or anywhere on the site for that matter). If your content is viewed using one of our player applications or plug-ins, we may display advertisements before or after your content plays (but these advertisements will not be inserted into your content itself). You will receive no share of any revenue we may receive from these types of advertisements. (Opportunities for you to receive a share of revenue will be incorporated into the site in the future, but will be governed by a separate agreement.)
We may do all of the above, but we may also do none of it, at our sole discretion. If we choose not to make your content available to other visitors to the site, we will delete your content from our servers and do our best to notify you that we have done so.
What other visitors may do with your content
Hopefully watch it. They may also download it for personal use, make backup copies for personal use, and even show them privately to their friends, all as set forth in the Terms of Use above.
What we are not responsible for
We are not responsible for any loss, theft, intellectual property infringement or damage of any kind to your content. Nor are we responsible for how good or bad your content is (that’s entirely up to you, but we’re pulling for you), world peace, world war, existential angst, or ugly babies (though many of us have very cute babies, and we take full responsibility for that).
We own the things we own
You acknowledge that we own all right, title and interest in and to Stage6, DivX products and services, including the Stage6 Uploader software and portions thereof and the DivX WebPlayer software, including without limitation, all intellectual property rights. (We know that’s obvious, but some people need it spelled out.)
You own the things you own
We stated it earlier, but it bears repeating: nothing in this agreement gives us any ownership right in your content, or other materials provided by you. You are the lifeblood of this site and we love you, but if you publish content you don’t have the rights to and we find out about it, we will remove it and will likely terminate your account; publishing content you don’t have the rights to makes us angry – you wouldn’t like us when we’re angry… Please understand that when we don’t like what we see, we may send you a warning (or not), block, remove, or refuse to publish any or all of your content for any reason at all, including that we had a bad dream about it, or that our girlfriends all thought you were too cute, or lower your karma (yes, we mean that). If we really don’t like you, we can terminate your account at any time. Don’t take it too personally (and please see our Repeat Infringer Policy <http://stage6.divx.com/info/repeat_infringer_policy>). Additionally, you may remove any of your content from the site at any time-using the online tools provided-without any prior notice to us. That said, please see the “Continued use of Content” section below to understand what rights we will retain in the event you remove your content from the site.
How to end this agreement
As you probably guessed by now, we are each allowed to terminate this agreement at any time, providing that the one who terminates the agreement notifies the other in writing, including via email. Terminating the agreement will end all rights and licenses we grant to one another, save those listed in the "Continued use of Content" and “Miscellaneous” (with respect to survival) sections below. If you elect to terminate your account, we will use "commercially reasonable efforts" (yes, that phrase is from our lawyers, how’d you guess?) to remove your content from Stage6 within thirty (30) days of our receipt of your notice that you’re terminating this agreement.
Regardless, you understand that your participation in the site is entirely at our sole discretion and subject to your continued compliance with this agreement. We can and will refuse participation to any person or content that we believe does not comply in this way. If we terminate you or your content’s participation in the site, we may do so without prior notice. For that matter, we can terminate the site entirely, or any feature that is a part of the site, without prior notice. Let’s hope it doesn’t come to that.
Changing this agreement
This agreement may be revised by us at any time by providing new terms and conditions to you when you next log in to your Stage6 account, or by sending notice to you at the email address registered with your account. To accept these new terms, follow the instructions in those terms and continue using the site. To reject the new terms, delete all of your content and stop using the site, or send us an email at TOU@divxcorp.com <mailto:Stage6Rejection@divxcorp.com>, in which case we’ll terminate your account and you won’t be able to publish (unless you sign up again).
Continued use of Content
If this agreement is terminated by either one of us or if you remove any piece of content from the site, we may continue to use your content and username in printed materials or fixed media storage devices (such as DVDs and CDs) that are in existence as of the date of termination until such materials are depleted or are reissued, whichever comes first. Other visitors may continue to use your content as described above, even after this agreement is terminated (in whole or with respect to a specific piece of content), provided they remain in compliance with the Terms of Use and other relevant agreements, if any.
Confidential and private information
The DivX Privacy Policy <http://stage6.divx.com/privacy_policy> lays out how we will treat your personal information. Particularly with respect to your role as a publisher, you must understand and agree that we may transfer or disclose your personal information to third parties, including to those that may reside in places with less restrictive data laws than your own, for the purpose of facilitating your and your content’s participation in the site as described earlier in this agreement, as well as other types of participation you choose to engage in through other agreements with us.
How we should notify one another
When we must notify you of something relating to this agreement, we agree to do so by using the electronic mail address you provide when registering for your Stage6 account and/or through the messaging features of the site. When you must notify us of something, you agree to do so by using the email address <mailto:stage6support@divx.com> (and including "Attn: Stage6 Notification" in the subject line), or as otherwise provided in writing for such notice purposes (such as for notification that someone is infringing your copyright, which should be done as we explain on our copyright infringement page at: <http://stage6.divx.com/copyright_infringement>.
Other legal stuff
Please read the remaining sections carefully. It’s very important stuff, but we’ve found it impossible to re-write it in plain English. If it helps you get through it, imagine a lawyer standing next to you and reading it to you. When the text is in ALL CAPS, imagine the lawyer yelling.
Your obligation to indemnify You agree to indemnify, defend and hold DivX and its respective directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss and expense (including reasonable legal fees, damage awards, and settlement amounts) brought against any Indemnified Person(s) arising out of, or related to, or which may arise from your content, your username, DivX’s authorized use of the foregoing, your use of the site and/or the uploader software, and/or your breach of this agreement. The Indemnified Persons may in their sole discretion control the defense, at your expense, of any claim indemnified herein. In the event that the Indemnified Persons determine not to control the defense of any claim hereunder, any Indemnified Person may join in defense with counsel of its choice at its own expense. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on DivX or affects our rights in connection therewith without the advance written approval of DivX, which will not be unreasonably withheld or delayed. You agree to notify DivX immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges relating to your content or that could affect your or our ability to fully perform or exercise your or our rights under this agreement.
Assigning rights. You may not resell, assign or transfer any of the rights granted to you hereunder, unless expressly authorized in writing by DivX. Any such attempt shall be null and void. This agreement, and any rights reserved by and/or granted to DivX under it, may be assigned by DivX without restriction to any subsidiary, parent or spin-off of DivX.
Miscellaneous. The relationship between us and you is not a legal partnership, but is one of independent contractors. The words "you" or "your" shall also mean heirs, executors, administrators, successors, legal representatives and permitted assigns. This agreement does not affect any right that either party would have had, or shall have, independent of the agreement including rights relating to your content under applicable law, including but not limited to copyright law. Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet or other network disturbances. If any provision of this agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this agreement shall otherwise remain in full force and effect and remain enforceable between the parties. The failure of either party to act in the event of a breach of this agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches. The section titles used in this agreement are purely for convenience and carry with them no legal or contractual effect. Except as to any prior version of this agreement between you and DivX that sets forth the license to and use by DivX of your content, (i) nothing in this agreement is intended to be, or will be construed as, altering, revising, modifying or otherwise amending any other content hosting services agreement; and (ii) in the event of a conflict between this agreement and any other content hosting service agreement that you enter into with DivX with respect to your content, the terms of that other content hosting services agreement shall govern. Except as otherwise set forth herein, this agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. This agreement shall be construed as if jointly drafted by the parties. This agreement shall be governed by and construed and enforced in accordance with the laws of the State of California (United States of America) without regard to its rules on conflict of laws or any other rules that would result in the application of a different body of law. Any legal proceedings arising out of or relating to this agreement or its alleged breach shall be brought in the Federal District Court for the Southern District of California or, in the event that such court lacks jurisdiction, in the California state courts in San Diego County, California, to the exclusion of any other forum. The parties hereby submit to the exclusive personal jurisdiction of these courts and hereby waive any forum non conveniens, venue or other challenge to the appropriateness of such courts. The parties hereby unconditionally waive their respective rights to a jury trial for any claim or cause of action arising out of or relating to, directly or indirectly, this agreement or the subject matter thereof. The parties specifically exclude from application to the agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The following provisions shall survive any expiration or termination of this Agreement: What you guarantee to us, What we are not responsible for, We own the things we own, You own the things you own, How to end this agreement, Continued use of content, Confidential and private information, Your obligation to indemnify, Assigning rights, Miscellaneous and Disclaimer and limitation of liability.
Disclaimer and limitation of liability. THE SITE, DIVX PRODUCTS AND SERVICES, ANY COPY PROTECTION AND/OR SECURITY FEATURES, AND THE UPLOADER ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER. DIVX AND ITS LICENSORS AND THIRD-PARTY SERVICE PROVIDERS (INCLUDING BUT NOT LIMITED TO TELECOMMUNICATIONS, SERVER AND HOSTING SERVICES, POWER SUPPLIERS, AND OTHER SERVICE PROVIDERS (COLLECTIVELY, "SERVICE PROVIDERS")) EXPRESSLY DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, AND PERFORMANCE OF THE SITE, ANY TECHNOLOGY USED IN CONNECTION THEREWITH, ANY CONTENT THEREIN, TERRITORY RESTRICTION FEATURES AND TECHNOLOGY, IF ANY, AND THE UPLOADER; THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE; AND WARRANTIES AS TO THE PERFORMANCE OF COMPUTERS OR NETWORKS. DIVX, ITS LICENSORS AND THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT ANY DIVX PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE RESULTS OR INFORMATION OBTAINED FROM USE OF DIVX PRODUCTS OR SERVICES WILL BE ACCURATE OR RELIABLE. EXCEPT FOR ANY PAYMENT OBLIGATIONS INCURRED BY DIVX PURSUANT TO A SEPARATE AGREEMENT BETWEEN YOU AND DIVX, IN NO EVENT SHALL DIVX, ITS LICENSORS AND SERVICE PROVIDERS BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, INCLUDING STAGE6 AND THE UPLOADER, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR CONTENT, AND FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE UPLOADER.
[1] <http://stage6.divx.com/publisher_agreement> "Content." That’s an ugly word for what can be a beautiful thing, don’t you agree? But after much discussion, fueled by much pizza and beer, we can’t come up with a generic term that works better and is as easily understood, so we’ve resigned to use it in this document. But we invite you to cringe, as we do, every time you read it.
