BEFORE DOWNLOADING, INSTALLING OR USING THE DIGITAL MEDIA PLAYER, PLEASE READ THIS END USER LICENSE AGREEMENT, AND ALL OTHER RULES, TERMS, CONDITIONS AND POLICIES RELATED TO THE DIGITAL MEDIA STORE, INCLUDING BUT NOT LIMITED TO THE DIGITAL MEDIA STORE TERMS AND CONDITIONS OF USE AND THE DIGITAL MEDIA STORE PRIVACY POLICY, WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS END USER LICENSE AGREEMENT (ALL SUCH RULES AND POLICIES, IN ADDITION TO THIS END USER LICENSE AGREEMENT, ARE COLLECTIVELY REFERRED TO HEREINAFTER AS THE “AGREEMENT”). BY CLICKING THE “ACCEPT” OPTION IN THE INSTALLATION PROCESS, AND BY DOWNLOADING OR OTHERWISE USING THE DIGITAL MEDIA PLAYER SOFTWARE AND FEATURES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. THIS DIGITAL MEDIA PLAYER SOFTWARE, INCLUDING ANY THIRD PARTY SOFTWARE AND CONTENT AS INCORPORATED THEREIN AND THE ACCOMPANYING DOCUMENTATION, ARE SUBJECT TO COPYRIGHT AND OTHER PROTECTIONS, AND IS OWNED BY LICENSOR OR ITS THIRD PARTY LICENSORS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU SHOULD PROMPTLY EXIT THIS PROGRAM BY CLICKING “NO.”
The Agreement is a legal agreement between you (either an individual or a single legal entity who will be referred to as “Licensee” or “you” or “your”), on the one hand, and iN DEMAND LLC (“iN DEMAND”), Time Warner Cable Inc. and its affiliated or related entities (collectively, “Time Warner Cable”) and each of their subsidiaries, affiliates and licensors, on the other hand. iN DEMAND and Time Warner Cable are individually and collectively referred to herein as “Licensor” or “we,” “us,” or “our.”
1. THE SERVICE
The Digital Media Store, currently located at http://videostore.rr.com (the “Service”), offers and makes available various types of downloads of digitized versions of movies, television shows, and other video and audio-visual content (collectively, “Digital Content”) and other services under certain terms and conditions as set forth in the Agreement.
2. AUTHORIZED DEVICES
As used in the Agreement, “Authorized Device” means a personal computer, PDA, portable digital-media player, and/or other mobile computing device that meets minimum system requirements that we may establish from time to time, or any other device that we may expressly authorize in writing from time to time. You may only install the Software (as defined below) and view Digital Content from or through the Service on Authorized Devices.
3. DIGITAL MEDIA PLAYER SOFTWARE
In order to download and view Digital Content from or through the Service on an Authorized Device, you will need to install the Digital Media Player software (the “Software”) on any such Authorized Device, subject to the license and other restrictions set forth in the Agreement. The Software will perform a number of other functions, including, for example, the management of your Digital Content, as further described below:
a. Software Upgrades. We may upgrade the Software from time to time to introduce new Software features and otherwise enhance the Software and the Service. The Software may cause your Authorized Device to automatically connect to the Internet and check your Authorized Device for upgrades, and in such cases, it may install automatically and without notice the available and appropriate updates to the Software on your Authorized Device, which upgrades and updates may include, for example, bug fixes, patches, enhanced functions, and new versions. By installing and/or using the Software, you consent to such updates being delivered and implemented in such manner.
b. Information Provided. We respect your privacy, and the Software will not access computer files or other information on your computer that are not used by or otherwise related to the Service. Additionally, the Software will not provide us with information related to the Digital Content once it is stored on your Authorized Device or your use thereof. However, the Software may provide us with information about your Authorized Device’s operating system, software, amount of available disk space, and Internet connectivity. We will use any such information accessed or collected through the Software in accordance with the Digital Media Store Privacy Policy.
c. Removal of Software. The Software is designed to enable you to view Digital Content from the Service on Authorized Devices in accordance with the Agreement. For this reason, if you choose to “uninstall” or otherwise remove the Software, in whole or in part, from an Authorized Device on which you had previously downloaded and/or installed the Software, for example by using the Software’s “uninstall” feature, then you will no longer be able to view the Digital Content you have downloaded from the Service on such “uninstalled” Authorized Device, unless and until you re-download and re-install the Software and accept and agree to the terms and conditions and agreement applicable thereto at such time.
4. DIGITAL MEDIA PLAYER LICENSE GRANT AND RESTRICTIONS
Subject to the terms and conditions set forth in the Agreement, we hereby grant to you, and you hereby accept, a limited, non-transferable, non-assignable, non-sub licensable, royalty-free, non-exclusive license to download, install, and use the Software on Authorized Devices, solely in accordance with the terms and conditions of the Agreement, and solely for the purpose of downloading and viewing Digital Content obtained from or through the Service.
a. Unless specifically and expressly permitted by us, you will not (i) permit other individuals to use the Software as licensed by you hereunder except in strict compliance with the terms of the Agreement; (ii) modify, translate, adapt, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), or create derivative works from or based upon the Software or any part thereof; (iii) copy the Software (except for one copy for back-up or archival purposes); (iv) rent, lease, loan, sell, transfer, publish, display, distribute, disclose or otherwise make available the Software, or any portion thereof, or otherwise transfer rights to the Software or any portion thereof; (v) remove any proprietary notices, marks or labels on the Software; (vi) export, import or re-export the Software in violation of any applicable law, rule or regulation of any jurisdiction; or (vii) disclose, without Licensor’s prior written approval, the Software, or any code, information or materials contained or related to the Software, license keys, analysis or performance information, results of Software performance benchmarks or documentation to any entity or person, or use any of the foregoing other than as expressly authorized hereunder. Any such forbidden use may result in the immediate termination of your license to the Software. The features of the Software are intended only for use with Digital Content. Licensee shall notify Licensor immediately of any actual or imminent unauthorized access to, or use or disclosure of, any of the foregoing. Licensee recognizes that the unauthorized use or disclosure of any of the foregoing will give rise to irreparable injury to Licensor or its licensors or affiliates for which monetary damages may be an inadequate remedy; and Licensee agrees that Licensor or its licensors or affiliates may seek and obtain injunctive relief against the breach or threatened breach of Licensee’s obligations hereunder, in addition to any other legal and equitable remedies which may be available.
b. You agree that you will only use the Software in a manner that complies with all applicable laws in the jurisdictions in which you use the Software, including but not limited to applicable restrictions concerning copyright and other intellectual property rights.
c. You may only use the Software for your Non-Commercial, Private Use. As used herein, "Non-Commercial, Private Use" means a presentation of Content for which no fee or consideration of any kind (other than that which you pay to us to purchase or rent the Content) is charged or received, which takes place in your private home or apartment or, if outside your private home or apartment (e.g. in a hotel room, dorm room, office or airport waiting lounge) is limited to a private viewing for you and your invitees. Non-Commercial, Private Use specifically excludes any public presentation (e.g., a presentation in a dorm lounge) and any presentation by a place of public accommodation or other commercial establishment (e.g. a bar or restaurant), even if no fee is charged for viewing of the Content. Copies of Digital Content, which are downloaded or copied using the Software only as expressly permitted under the Agreement, and which are protected by the copyright laws or related laws of any jurisdiction, are for your own personal use only and may not be distributed to any third party.
d. You may not use the Software in an attempt to circumvent, or in conjunction with any device, program or service designed to circumvent, technological measures employed to control access to, use of or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
e. The Software employs Digital Rights Management Systems (“DRMs”) that may be accessed and used by third-party software programs and Digital Content owners. In order to play and view certain Digital Content accessed through the Service, various files may be placed onto your Authorized Devices along with such DRMs, which are designed to manage and enforce intellectual-property rights and restrictions in digital content and media. You may not take any action to circumvent or defeat the security or content usage rules or restrictions provided or employed by either the DRMs or the Software. DRMs may be able to revoke your ability to view or use applicable Digital Content in particular ways or at all. We are not responsible for the operation of third party DRMs in any way, including any such revocation of your right to use Digital Content. We are not responsible for any communications to or from any third-party DRM provider, or for the collection or use of information by third-party DRMs. You consent to the communications enabled and/or performed by the DRM and/or the files that may be placed onto your Authorized Device along therewith, including automatic updating of the DRM without further notice. You hereby agree to release and hold us harmless from any claim, liability or loss relating to your use of a third-party DRM.
5. OWNERSHIP AND RESERVATION OF RIGHTS.
The Software, including, but not limited to, any images, photographs, animations, video, audio, music and text thereon, and the user documentation, are proprietary to Licensor, its licensors and/or the author(s), and are protected by law, including without limitation, under United States copyright laws and international treaty provisions. Except for the rights explicitly granted to you in the Agreement, all right, title and interest in the Service, Software, and Digital Content are reserved and retained by us, and we do not transfer any right, title or interest in the Service, Software, or Digital Content to you. You do not acquire any ownership rights in the Software or Digital Content as a result of downloading the Software or Digital Content or agreeing to this Agreement.
6. LIMITED TO U.S.
Due to restrictions placed on us by our content providers, we are currently only able to make the Service and Software available to customers located in the United States, and you may not use the Software or Service if you are located outside of the United States. If you are located inside the United States, you may not transfer the Software or any Digital Content outside the United States. As used herein, the term “United States” refers to the 48 contiguous United States, the District of Columbia, Alaska and Hawaii.
7. ADDITIONAL TERMS
a. The Agreement is effective until terminated. If you violate any of the terms or conditions of the Agreement or otherwise abuse the Service or Software, your license to Digital Content may immediately terminate and we may, in our discretion, immediately revoke your access to the Service without notice to you and without refund of any fees. In such event, you must delete all copies of Software and Digital Content that you have downloaded on any Authorized Device, and we shall have the right to automatically delete all Software and Digital Content on your Authorized Device without notice to you.
b. You agree that third party content providers providing Digital Content to the Service that you access, rent or download through the Service are intended third-party beneficiaries under the Agreement.
8. EXPORT RESTRICTIONS. You may not use, or export or re-export, the Software, including any third party software as incorporated therein, except as consistent with the Agreement and as authorized by United States laws. In particular, but without limitation, the Software and any third party software as incorporated therein may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Table of Denial Orders or Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or location, or on any such list.
9. INDEMNIFICATION.
Licensee agrees, at its own expense, to indemnify, defend and hold harmless Licensor, its affiliates and licensors, and their respective directors, officers, trustees, employees and agents, from and against any action, damages, suits, claims, liabilities, costs and expenses (including reasonable attorneys fees) based on a claim arising from or relating to this Agreement or Licensee’s use of the Software, the Digital Content, the Service or any other part, feature or tool of or made available through the Software. The indemnified party shall have exclusive right to control such defense. In no event shall Licensee settle any such claim, lawsuit or proceeding in any manner that materially prejudices the indemnified party’s rights without the indemnified party’s prior written approval.
10. ENTIRE AGREEMENT.
The Agreement, and any additional terms and conditions that we may impose in connection with supplements, updates, Internet-based services and support services that you use in connection with the Software, constitute the entire agreement applicable to the Software.
11. APPLICABLE LAW.
New York state law governs the interpretation of the Agreement and applies to claims for breach of it, regardless of conflict of laws principles. The parties agree to submit to the jurisdiction of the state and Federal courts, as applicable, located in New York County, New York.
12. DISCLAIMER OF WARRANTY.
THE SOFTWARE IS LICENSED “AS-IS,” AND YOU BEAR THE SOLE RISK AND RESPONSIBILITY OF INSTALLING AND USING IT. WE GIVE OR MAKE NO WARRANTIES, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES FOR INFORMATION, DATA OR CONTENT MAINTENANCE OR STORAGE, UPTIME OR UNINTERRUPTED ACCESS, OR ANY WARRANTY OF ACCURACY, CORRECTNESS, PRECISION, TIMELINESS, THOROUGHNESS, COMPLETENESS, USE OR APPLICATION, ADEQUACY AND SUITABILITY. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. HOWEVER, TO THE MAXIMUM EXTENT PERMITTED BY LAWS APPLICABLE TO YOU IN YOUR JURISDICTION, WE AND OUR SUPPLIERS, LICENSORS AND THIRD PARTY PROVIDERS, EXPRESSLY EXCLUDE THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
13. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES.
OUR AND OUR SUPPLIERS’ TOTAL CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO US, IF ANY, FOR THE DIGITAL CONTENT DOWNLOADED, RENTED OR OTHERWISE OBTAINED FROM OR THROUGH THE SERVICE DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE THE CLAIM FIRST AROSE. IN NO EVENT SHALL WE, NOR ANY OF OUR SUBSIDIARIES, DIVISIONS, AFFILIATES, AGENTS, REPRESENTATIVES, THIRD PARTY PROVIDERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE. This limitation applies to anything related to the Software, Service, Digital Content (including code) on third-party Internet sites, or third-party programs; and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law. It also applies even if we knew or should have known about the possibility of the damages.
