Last updated: 21 February 2013
This End User License Agreement constitutes a valid and binding agreement between blinkx, Inc. (referred to as "blinkx") and you, as a user, for the use of the blinkx Software. You must enter into this Agreement by clicking on the "I AGREE" button (or similar buttons or links as may be designated by blinkx to show your acceptance of this Agreement and/or your agreement to download and install the blinkx Software). You hereby agree and acknowledge that this Agreement covers all of your use of the blinkx Software, whether it be from this installation or from any other terminals where blinkx Software has been installed, by you or by third parties. Furthermore, by installing and continuing to use the blinkx Software, you agree to be bound by the terms of this Agreement and any new versions or updates hereof.
You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by blinkx to show your acceptance of this Agreement and/or your agreement to download and install the blinkx Software), you expressly acknowledge and agree to be bound by, the Terms of Service and Privacy Policy applicable to the blinkx Website and the content, services and features provided on or through the blinkx Software, and any new versions or updates thereof. For the blinkx Software Terms of Service, see http://www.blinkx.com/termsandconditions/TOS. For the Privacy Policy, see http://www.blinkx.com/corporate/about/privacy-policy.
2.1. As consideration for using the blinkx Software and receiving access to the content and programming available via the blinkx Software, you agree and understand that:
2.1.1. blinkx and the blinkx Software will, and will permit third parties to, display advertising and other information within the interface of the blinkx Software and/or in connection with the display of content and programming. blinkx or the blinkx Software serves, and permits third parties to serve, advertisements within or adjacent to the content and programming delivered to you by the blinkx Software. You understand and agree that blinkx or the blinkx Software, or applicable third parties, may include content-targeted advertisements or other related information, as further described in the blinkx Privacy Policy. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the blinkx 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. The blinkx 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 blinkx Software users, and to facilitate the operation of the network of computers running instances of the blinkx Software.
2.1.3. The blinkx 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 blinkx.
3.1. License Grant. Subject to the terms of this Agreement, blinkx 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 blinkx Software, for the sole purpose of watching the video and other content provided on or through the blinkx Software, and otherwise accessing the other services and features provided on or through such blinkx 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 blinkx 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 blinkx Software, including the content, programming, services and features contained on or through the blinkx Software, if this license has been terminated by blinkx;
3.2.3. operate or utilize the blinkx Software, including the content, programming, services and features contained on or through the blinkx Software, in a manner that violates the Terms of Service or Privacy Policy;
3.2.4. operate or utilize the blinkx 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 blinkx 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 blinkx Software, including, without limitation, through sublicense, to any other person or entity;
3.2.6. remove any proprietary notices from the blinkx Software, or from any content, services, programming, or features contained on or through the blinkx Software;
3.2.7. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the blinkx Software and/or data and/or content or programming transmitted, processed or stored by blinkx or other users of the blinkx Software;
3.2.8. use any unlicensed or unauthorized copies of the blinkx Software;
3.2.9. collect any information or communication about the users of the blinkx Software by monitoring, interdicting or intercepting any process of or communication initiated by the blinkx 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 blinkx Software or its ability to communicate and function with other computers running the blinkx Software;
3.2.11. with the exception of completely deleting the blinkx Software from your computer, and those actions permitted by your manual use of the user interface provided as part of the blinkx Software, take any action, including downloading and/or using third party software, that (1) modifies the settings of the blinkx Software as it functions with your computer, or (2) otherwise modifies, alters, blocks or interferes with the functioning of the blinkx Software;
3.2.12. attempt to hack the blinkx Software or any communication initiated by the blinkx Software or to defeat or overcome any encryption and/or other technical protection methods implemented by blinkx with respect to the blinkx Software and/or data and/or content or programming transmitted, processed or stored by blinkx or other users of the blinkx Software;
3.2.13. interfere with or in any manner compromise any of blinkx' 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 blinkx Software, including, without limitation, the blinkx Software’s advertising and/or content delivery and display functionality.
4.1. You acknowledge and agree that:
4.1.1. blinkx, in its sole discretion, may discontinue or suspend your right to access the blinkx Software or content delivered by blinkx at any time for any reason, and may at any time suspend or terminate any license hereunder without prior notice for any reason.
4.1.2. blinkx reserves the right to add or remove features or functions, or to provide upgrades, updates or programming fixes, to the blinkx 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.
4.1.3. When installed on your computer, the blinkx Software may periodically communicate with blinkx servers and/or blinkx Software installed by other users.
4.1.4. blinkx has no obligation to make available to you any subsequent versions of its software applications.
4.1.5. You can uninstall the blinkx Software at any time, in your sole discretion, by using your computer’s "Add/Remove/Uninstall Programs" Control Panel functionality or other applicable functionality that permits you to uninstall downloaded software applications.
5.1. You acknowledge and agree that any and all Intellectual Property Rights to or arising from the blinkx Software are and shall remain the exclusive property of blinkx 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 blinkx Software, but may be accessed through use of the blinkx Software, including, without limitation, any content, programming, advertising, services and/or features contained on or through the blinkx 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 blinkx Software, is prohibited by applicable law.
6.1. This Agreement will be effective as of the date you accept this Agreement and will remain effective until terminated by you or blinkx as set forth below.
6.2. You may terminate this Agreement at any time provided you permanently delete or destroy your copies of the blinkx Software as required by Section 6.4 below.
6.3. blinkx 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 blinkx Software shall terminate and you must cease all use of the blinkx Software AND completely remove from all hard drives and other storage media all copies of the blinkx Software in your possession or under your control.
6.5. blinkx 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.
7.1. The links provided either through or framed within the blinkx Software and any website operated by blinkx or its affiliates are provided as a courtesy only, and the sites they link to are not under the control of blinkx in any manner whatsoever. Therefore, blinkx 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. blinkx is providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement of or sponsorship by blinkx of any linked site and/or any of its content therein.
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.
9.1. You agree to indemnify, hold harmless and defend blinkx 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 blinkx 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 blinkx Software, or (c) violation of any rights of any third party.
10.1. THE BLINKX SOFTWARE IS PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY BLINKX, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE BLINKX 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. FURTHER, BLINKX DOES NOT REPRESENT OR WARRANT THAT THE BLINKX SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES BLINKX WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF TRANSMISSIONS OF DATA MADE THROUGH THE BLINKX SOFTWARE.
10.2. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE BLINKX 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.
11.1. IN NO EVENT SHALL BLINKX, 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 BLINKX SOFTWARE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF BLINKX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE BLINKX SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH BLINKX 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.
11.4. In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, you agree that the aggregate liability of blinkx shall not exceed the amount of fifty United States dollars (US$50).
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 blinkx to show your acceptance of this Agreement and/or your agreement to download and install the blinkx 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 blinkx 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 nor may you download, install or use the blinkx 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 nor may you download, install or use the blinkx Software. By entering into this Agreement you explicitly guarantee that you have verified whether your use of the blinkx Software is allowed in your own jurisdiction.
12.3. Investigation; Disclosure. blinkx 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 blinkx may disclose information provided by you to comply with law enforcement or any legal, governmental or regulatory order or action.
12.4. Reservation of Rights; Modification. blinkx reserves all rights not expressly granted in this Agreement. blinkx may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on the blinkx Website. Your continued use of the blinkx Software shall constitute your acceptance to be bound by the terms and conditions of such revised Agreement.
12.5. 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.
12.6. Waiver. The failure of blinkx 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.
12.7. Governing Law; Jurisdiction; Waiver of Claims. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its principals of conflicts of law. The parties hereto expressly understand and agree that any action brought by you against blinkx arising out of this Agreement shall be brought exclusively in the courts located in San Francisco County, California, and any action brought by blinkx against you arising out of this Agreement shall, in blinkx’ absolute and sole discretion, be brought in either the courts located in San Francisco County, California, 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 against blinkx on a representative or class member basis, or as a private attorney general, and agree not to assert any claims against blinkx unless such claims are asserted by you in the forum required by this Agreement no later than one (1) year following the date that your claim or cause of action arose.
12.8. Entire Agreement. The terms set forth in this Agreement constitute the final, complete and exclusive agreement with respect to the blinkx 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. blinkx may, at its sole discretion, assign this Agreement without giving prior notice.
12.9. Definitions.
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 BLINKX SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.