Joost® Browser Plug-In End User License Agreement
Last updated: November 2008
1. Initial Terms
1.1. Effect of Agreement. This End User License Agreement constitutes a valid and binding agreement between Joost (as defined in Section 11.10) and you, as a user, for the use of the Joost® Browser Plug-In. 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® Browser Plug-In). You hereby agree and acknowledge that this Agreement covers all of your use of the Joost® Browser Plug-In, whether it be from this installation or from any other terminals where Joost® Browser Plug-In has been installed, by you or by third parties. Furthermore, by installing and continuing to use the Joost® Browser Plug-In, 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® Browser Plug-In), you expressly acknowledge and agree to, and to be bound by, the Terms of Service and Privacy Policy applicable to the Site, and any new versions or updates thereof. Both the Terms of Service and Privacy Policy can be accessed through the Site under the Terms & Policies pages of the Site.
2. Permission from You for Joost® Browser Plug-In to Use Your Computer and Bandwidth to Enable the Peer-to-Peer Viewing of Video on the Site and to Manage the Network of Computers Running the Joost® Browser Plug-In
2.1. As consideration for using the Joost® Browser Plug-In, you agree and understand that:
2.1.1. The Joost® Browser Plug-In 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 Service users, and to facilitate the operation of the network of computers running instances of the Service.
2.1.2. The Joost® Browser Plug-In 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® Browser Plug-In, for the sole purpose of enabling the peer-to peer viewing of video on the Site, 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® Browser Plug-In in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance, or any rights of a third party;
3.2.2. operate or utilize the Joost® Browser Plug-In if this license has been terminated by Joost;
3.2.3. operate or utilize the Joost® Browser Plug-In in a manner that violates the Terms of Service or Privacy Policy;
3.2.4. operate or utilize the Joost® Browser Plug-In 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® Browser Plug-In;
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® Browser Plug-In, including, without limitation, through sublicense, to any other person or entity;
3.2.6. remove any proprietary notices from the Joost® Browser Plug-In;
3.2.7. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Joost® Browser Plug-In and/or data and/or content or programming transmitted, processed or stored by Joost or other users of the Service;
3.2.8. use any unlicensed or unauthorized copies of the Joost® Browser Plug-In;
3.2.9. 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® Browser Plug-In or its ability to communicate and function with other computers running the Joost® Browser Plug-In;
3.2.10. with the exception of completely deleting the Joost® Browser Plug-In from your computer, take any action, including downloading and/or using third party software, that (1) modifies the settings of the Joost® Browser Plug-In as it functions with your computer, or (2) otherwise modifies, alters, blocks or interferes with the functioning of the Joost® Browser Plug-In;
3.2.11. attempt to hack the Joost® Browser Plug-In or any communication initiated by the Joost® Browser Plug-In or to defeat or overcome any encryption and/or other technical protection methods implemented by Joost with respect to the Joost® Browser Plug-In and/or data and/or content or programming transmitted, processed or stored by Joost or other users of the Service; or
3.2.12. interfere with or in any manner compromise any of Joost's security measures.
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® Browser Plug-In 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 functions, or to provide upgrades, updates or programming fixes, to the Joost® Browser Plug-In 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® Browser Plug-In.
4.1.3. When installed on your computer, the Joost® Browser Plug-In may periodically communicate with Joost servers and/or Joost® Browser Plug-Ins installed by other users.
4.1.4. When minimized, the Joost® Browser Plug-In will continue to operate unless You affirmatively exit the software from your task bar or other applicable application interface.
4.1.5. You can uninstall the Joost® Browser Plug-In at any time, in your sole discretion, by using your Internet browser's "Add-on" tools or other applicable functionality that permit you to disable plug-in software applications.
5. Proprietary Rights
5.1. You acknowledge and agree that any and all Intellectual Property Rights to or arising from the Joost® Browser Plug-In are and shall remain the exclusive property of Joost and/or its affiliates and 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.
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® Browser Plug-In 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® Browser Plug-In shall terminate and you must cease all use of the Joost® Browser Plug-In AND completely remove from all hard drives and other storage media all copies of the Joost® Browser Plug-In 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. Your Representations and Warranties
7.1. You represent and warrant that you possess the legal right and ability to enter into this Agreement and to comply with its terms.
8. Indemnity
8.1. 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® Browser Plug-In, or (c) violation of any rights of any third party.
9. Disclaimer of Warranties
9.1. THE JOOST® BROWSER PLUG-IN 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® BROWSER PLUG-IN, 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® BROWSER PLUG-IN 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® BROWSER PLUG-IN.
9.2. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE JOOST® BROWSER PLUG-IN REMAINS WITH YOU TO THE MAXIMUM EXTNT PERMITTED BY LAW.
9.3. As some jurisdictions do not allow some of the exclusions set forth in this Section 9, some of these exclusions may not apply to you.
10. Limitation of Liability
10.1. 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® BROWSER PLUG-IN, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF JOOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE JOOST® BROWSER PLUG-IN IS TO UNINSTALL AND CEASE USE OF SUCH JOOST® BROWSER PLUG-IN.
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. General Provisions
11.1. 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® Browser Plug-In), you are entering into a legally binding contract. 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.
11.2. Jurisdictional Matters; Claims. You represent that you are of legal age to form a binding contract in your jurisdiction. 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® Browser Plug-In. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Joost® Browser Plug-In is allowed.
11.3. Third Party Licenses/Notices. The Joost® Browser Plug-In 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/.
11.4. 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 Site. Your continued use of the Joost® Browser Plug-In shall constitute your acceptance to be bound by the terms and conditions of such revised Agreement.
11.5. 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.
11.6. 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.
11.7. Governing Law; Jurisdiction; Waiver of Claims. If you are using the Joost® Browser Plug-In in the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law rules thereof. If you are using the Joost® Browser Plug-In in the United Kingdom, this Agreement shall be governed by and construed in accordance with the laws of England & Wales, without regard to conflict of law rules thereof. If you are using the Joost® Browser Plug-In in any other country, this Agreement shall be governed by and construed in accordance with the laws of the Netherlands, without regard to conflict of law rules thereof.
Any action brought by you against Joost arising out of this Agreement shall be brought exclusively in the courts located in New York, London or Amsterdam (as applicable according to the applicable governing law), and any action brought by Joost against you arising out of this Agreement shall, at the election of Joost, be brought either in the courts located in New York, London or Amsterdam as aforesaid, or in the applicable courts of the jurisdiction in which you reside. You and Joost hereby consent to, and irrevocably submit yourselves to, the exclusive personal jurisdiction and venue of such courts. 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.
11.8. Entire Agreement. The terms set forth in this Agreement constitute the final, complete and exclusive agreement with respect to the Joost® Browser Plug-In 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.
11.9. 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.
11.10. Definitions.
11.10.1. Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
11.10.2. 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® Browser Plug-In or the Service.
11.10.3. Joost: Joost Technologies B.V.., it being understood that Joost may provide certain elements of the Service to you through one or more of its affiliates, including without limitation, in the UK and the US.
11.10.4. Joost® Browser Plug-In: the browser plug-in software distributed by Joost (including all software and code in such software) that enables, among other matters, the peer-to-peer viewing of video on the Site, and all future programming fixes, updates and upgrades thereof. The term "Joost® Browser Plug-In" will also include any online or enclosed documentation, and data distributed to your computer for processing relating to such software.
11.10.5. 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 Service.
11.10.6. Service: includes (a) the Site, (b) the services, features, tools, and applications provided by and through the Site (including by the Joost® Browser Plug-In made available through the Site), and (c) all data, text, images, sounds, video, content, programming and software made available on or through the Site (including the Joost® Browser Plug-In).
11.10.7. Site: any and all elements, contents and the 'look and feel' of the website available under the URL www.joost.com (together with its directly associated domains, from which website the Joost® Browser Plug-In can be downloaded).
11.10.8. Terms of Service: means the agreement between Joost and you for the use of the Service and the content, services and features provided on or through the Service;
11.10.9. You: you, the end user of the Joost® Browser Plug-In, also used in the form "your" where applicable.
12. Comments/Inquiries
If you have any comments or inquiries regarding this Agreement or the Joost® Browser Plug-In, please contact Joost as follows:
or
Attention: Customer Service
Joost Technologies B.V.
Schipholweg 101T
2316 XC Leiden
The Netherlands
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® BROWSER PLUG-IN, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO JOOST THE RIGHTS SET FORTH HEREIN.
