1. ACCEPTANCE OF TERMS
1.1 These Terms are entered into by and between you and DivX, LLC and its corporate affiliates ("DivX"), and you accept and are subject to these Terms by using or accessing the DivX Property. If you are using the DivX Property on behalf of your employer, you accept these terms on your and your employer’s behalf (and any reference to “you” or “your” includes your employer) and represent and warrant that you are authorized to accept these Terms on your employer's behalf, and that your employer agrees to indemnify you and DivX for violations of these Terms. If you do not agree to all of the terms herein or are dissatisfied with the DivX Property, your sole remedy is to stop using the DivX Property.
2. DESCRIPTION OF DivX PROPERTY
2.1 The term “DivX Property” means this website and any and all property, services, software, widgets, websites, devices, hardware, platforms, interfaces, resources, tools, products, content, data, applications, metadata, images, rich media, text, music, sound, photographs, graphics, video, advertisements, messages and other materials, products, services or technology owned by DivX or its affiliates, licensors, partners or end users or made available to you by DivX directly or indirectly (e.g. on DivX Property, via hyperlinks or otherwise). DivX controls and operates DivX Property from various locations and makes no representation that the DivX Property is appropriate or available for use in any or all locations. DivX Property may not be available in your location, and DivX Property may vary among locations. Upgrades, updates, maintenance and support of DivX Property are provided by DivX at its sole discretion.
2.2 Subject to these Terms, DivX hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the DivX Property as intended and permitted by DivX solely for your personal, non-commercial use. You agree not to access or use the DivX Property through any interface other than the one provided by DivX for such access and use. No other use is permitted without the prior written permission of DivX. The permitted use described in this paragraph is contingent on your compliance at all times with these Terms.
2.3 As between you and DivX, DivX and its affiliates, licensors and partners shall exclusively own and hold all right, title and interest in and to the DivX Property including without limitation any and all intellectual property and proprietary rights and any derivatives, revisions, enhancements, modifications or condensations. You receive no ownership rights or other rights in the DivX Property (other than rights to use DivX Property as expressly permitted in and subject to these Terms) and shall not, and shall ensure your employer, employees, agents and affiliates do not, directly or indirectly contest DivX’s ownership of the DivX Property.
3. YOUR OBLIGATIONS AND CONDUCT
3.1 In consideration of your use of the DivX Property, you agree to: (a) provide accurate, current, and complete information about you on any registration form, if any, and in your DivX account, if any, and on the DivX Property (the "Registration Data"); (b) maintain the security of your password and identification, if any; (c) maintain and promptly update the Registration Data, and any information you provide to DivX, to keep it accurate, current and complete; (d) comply with these Terms and all applicable laws, rules and regulations; and (e) accept all risks of unauthorized access to information and Registration Data. You have sole responsibility for adequate protection and backup of data and for any equipment, hardware, software, infrastructure, internet connections, technology and other services you use to access or otherwise use in connection with the DivX Property. You are fully responsible for all activities that occur using your password, user names and/or DivX account, regardless of whether such activities are undertaken by you or a third party.
3.2 You are entirely and exclusively responsible for all information that you upload, display on, post or otherwise transmit via the DivX Property. You agree not to upload, post or otherwise transmit via the DivX Property information that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to DivX or other users of the DivX Property; (b) includes unauthorized disclosure of personal information or violates any laws, rules or regulations; (c) violates or infringes anyone's intellectual property, publicity or other rights or is tortious; or (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. DivX reserves the right to edit or remove any information that violates these Terms or that contains third-party commercial advertisements.
3.3 You agree that you will not use the DivX Property to: (a) transmit spam, bulk or unsolicited communications; (b) pretend to be DivX or someone else, or spoof DivX's or someone else's identity; (c) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any content; (d) misrepresent your affiliation with a person or entity; (e) disrupt the DivX Property or normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to use the DivX Property; (f) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including without limitation attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm; or (g) collect, store or provide to DivX any personal data about other users unless specifically authorized in writing by such users and DivX.
4.1 You may obtain direct access via the DivX Property to DivX Property or other information that is confidential information of DivX and its affiliates, licensors, partners or suppliers, including without limitation technical, contractual, product, program, pricing, marketing and other valuable information that should reasonably be understood as being confidential or is deemed confidential by DivX ("Confidential Information"). You must hold Confidential Information in strict confidence. As between you and DivX, DivX and its affiliates, licensors, partners and suppliers shall exclusively own and hold all right, title and interest in and to the Confidential Information including without limitation any and all intellectual property and proprietary rights and any derivatives, revisions, enhancements, modifications or condensations.
4.2 Your obligations regarding Confidential Information will continue in perpetuity after the date of disclosure. Upon termination of the Terms or DivX's written request, you must cease use of Confidential Information and return or destroy it.
4.3 The Terms impose no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) you lawfully possessed prior to your receipt from DivX, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public lawfully through no act or omission by you, or otherwise without violation of the Terms; (c) you lawfully obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently and lawfully developed without the use of Confidential Information and without the participation of individuals who have had access to it; or (e) is required by law to be disclosed in response to a valid order by a court or other governmental body or as necessary to establish the rights of either party under these Terms, but only as disclosed after prior notice to DivX adequate to afford DivX the opportunity to object to the disclosure or seek confidential treatment in its discretion.
5. YOUR CONTENT
5.2 If you wish to submit products to DivX for inclusion on our websites, databases or other DivX Property, please contact us for more information. Notwithstanding anything to the contrary, by submitting such products and other materials to DivX, you acknowledge and agree that those products and materials will not be returned to you and may be used by DivX at its discretion on an unrestricted basis for any purpose. As between you and DivX, DivX and its affiliates shall exclusively own and hold all right, title and interest in and to such products and materials you submit to DivX, including without limitation any and all intellectual property and proprietary rights and any derivatives, revisions, enhancements, modifications or condensations. For the avoidance of doubt, all information, data, editorial content, materials, images, rich media and other content about products collected and/or created by DivX (including without limitation with or without reference to the products and/or materials you submitted to DivX) are the property of DivX and are DivX Property for purposes of these Terms.
6. CONTENT PROVIDED VIA LINKS AND THIRD PARTY CONTENT
You may find third party content and/or links to third party Internet sites or resources in or on the DivX Property. You acknowledge and agree that DivX is not responsible for activities of third parties or the availability of such content or external third party sites or resources, and DivX does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources or from third parties. DivX will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such content, goods or services.
You agree to indemnify and hold DivX and its subsidiaries, affiliates, licensors, partners and suppliers and their respective shareholders, officers, directors, agents, licensors, suppliers, customers, alliance members, partners, employees and representatives harmless from any claims made or brought by a third party, including without limitation lawsuits, actions, proceedings, arbitrations, liabilities, damages, fees, penalties, judgments, settlements, expenses or demands, reasonable attorneys' fees, due to, relating to or arising out of your content, property or any information or materials you provide or provided to DivX, use of or access to DivX Property by you and/or your affiliates, shareholders, officers, directors, agents, licensors, suppliers, customers, alliance members, partners, employers, employees and representatives (including without limitation any use on behalf of your employer or any third party), your violation of the Terms, or your violation of any rights of another.
8. NOTICES; MODIFICATION AND TERMINATION OF DIVX PROPERTY
DivX may provide notice to you via email, regular mail, or posting notices or links to notices via the DivX Property. DivX and its designees reserve the right to, at any time, monitor, restrict access to, edit, remove, delete, modify, limit, suspend or terminate the DivX Property (or any part thereof or related information or files), and/or your use of or access to the foregoing, with or without notice and in its sole discretion. If you breach these Terms, these Terms and any and all of your rights to use or access DivX Property shall immediately and automatically cease and terminate. DivX will not be liable to you or any third-party for any deletion, modification, limitation, suspension, or termination of the DivX Property (or any part thereof or related information or files), or loss of related information.
9. ADVERTISEMENTS AND PROMOTIONS
DivX may run advertisements and promotions on the DivX Property, including without limitation on behalf of third parties. Your correspondence or business dealings with, or participation in promotions of, advertisers or companies other than DivX found on or through the DivX Property, 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 or company. DivX is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of advertisements or promotions on the DivX Property.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Except as expressly authorized by DivX, you agree not to reproduce, link to (via hyperlinks or otherwise), scrape, modify, rent, copy, lease, loan, sell, distribute, mirror, frame, syndicate, cache, store, record, publish, download, transmit, display or create derivative works of the DivX Property, in whole or in part, by any means. You may not, for example, publish any portion of the DivX Property (or links thereto) on any internet, intranet or extranet site or incorporate the DivX Property in any product, database, compilation, archive or cache. You must not modify, decompile, or reverse engineer any software DivX discloses to you, and you must not remove or modify any copyright or trademark notice, or other notice of ownership. You shall not attempt to circumvent any content protection mechanisms or digital rights management systems.
10.2 "DivX Trademarks" means all names, marks, brands, logos, designs, trade dress, slogans and other designations DivX uses in connection with its products and services. You agree to comply with DivX’s trademark and logo usage requirements as may be in effect from time to time. You may not use, remove or alter any DivX Trademarks, or co-brand your own products or material with DivX Trademarks, without DivX's prior written consent. You acknowledge DivX's rights in DivX Trademarks and agree that any use of DivX Trademarks by you shall inure to DivX's sole benefit. You agree not to incorporate any DivX Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.
10.3 DivX is committed to respecting others' intellectual property rights, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement on DivX Property, please contact our Copyright Agent in accordance with our Copyright Policy which is available here and incorporated into these Terms.
10.4 Except as expressly set forth in these Terms, no right or license, express or implied, is granted to you or any third party by estoppel, implication, exhaustion or other doctrine of law, equity or otherwise with respect to any DivX Property or any other product, content, technology, intellectual property or service of DivX or its affiliates, licensors or partners. In addition, nothing in these Terms shall be deemed to grant to you or any third party the right or license to use DivX Property on any platform or device, in any place or in any manner which is not expressly authorized hereunder. For clarity, no right or license, express or implied, is granted to you or any third party by estoppel, implication, exhaustion or other doctrine of law, equity or otherwise with respect to any patent or patent application of DivX or its affiliates, licensors or partners. Nothing in these Terms shall be deemed to be a waiver or release of your past, present or future obligations to acquire such rights and/or licenses from DivX or its affiliates, licensors or partners.
11. DISCLAIMER OF WARRANTIES
11.1 YOUR USE OF THE DivX PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL ADVERTISEMENTS AND OTHER CONTENT, IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. DIVX AND ITS AFFILIATES, LICENSORS, LICENSEES, SUPPLIERS, CUSTOMERS AND PARTNERS SHALL HAVE NO DIRECT OR INDIRECT LIABILITY OR RESPONSIBILITY ARISING FROM YOUR USE OF OR RELIANCE ON THE DivX PROPERTY. THE DivX PROPERTY IS PROVIDED ON AN "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. DivX DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ROVI MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, AVAILABILITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE ROVI PROPERTY.
11.2 DivX MAKES NO WARRANTY OR REPRESENTATION THAT: (A) THE DivX PROPERTY WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DivX PROPERTY WILL BE ACCURATE, COMPLETE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, TIMELY, SECURE, ERROR-FREE OR RELIABLE; (C) THE QUALITY OF ANY DivX PROPERTY OR PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE DivX PROPERTY WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (D) ANY ERRORS OR DEFECTS IN THE DivX PROPERTY WILL BE CORRECTED.
11.3 YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR PROPERTY OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE DivX PROPERTY (INCLUDING WITHOUT LIMITATION DAMAGE CAUSED BY CHANGES TO DivX PROPERTY), INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
12. LIMITATION OF LIABILITY
12.1 TO THE FULLEST EXTENT PERMITTED BY LAW, DivX IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE DivX PROPERTY, EVEN IF DivX HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO: (A) THE USE OF OR THE INABILITY TO USE THE DivX PROPERTY; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE DivX PROPERTY; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR CONTENT, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; (D) DEATH OR PERSONAL INJURY OR (E) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.
12.2 TO THE EXTENT THAT THE APPLICABLE LAWS OF ANY JURISDICTION DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DEATH OR PERSONAL INJURY, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXCLUSION OF STATUTORY RIGHTS OR DAMAGES FOR FRAUDULENT MISREPRESENTATION, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY, BUT ONLY TO THE EXTENT THAT THE EXCLUSION OR LIMITATION IS NOT ALLOWED BY APPLICABLE LAWS.
14. GENERAL TERMS
14.1 The Terms constitute the entire agreement between you and DivX relating to the subject matters herein, and cancel and supersede any prior versions of the Terms. No modifications made by you to the Terms will be binding on DivX unless in writing and signed by an authorized DivX representative. DivX reserves the right to terminate and/or change these Terms at any time in its sole discretion with or without notice. DivX may notify you of any such changes solely by changing these Terms and making them available on this website. Your continued use of the DivX Property after the posting of any amended Terms shall constitute your agreement to be bound by any such changes. You shall not assign or otherwise transfer the Terms or any right granted hereunder. You also may be subject to additional terms and conditions that may apply when you use DivX or third-party products or services.
14.2 You agree that any material breach of Sections 3, 4, 5, 6 and 10 of the Terms will result in irreparable harm to DivX for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, DivX will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if DivX seeks such an injunction.
14.3 California law and controlling U.S. federal law govern any action related to the Terms and/or your use of the DivX Property. Choice of law rules of any jurisdiction and the United Nations Convention on Contracts for the International Sale of Goods will not apply to any dispute under the Terms. You and DivX agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, U.S.A.
14.4 The DivX Property and products derived or obtained from the DivX Property may be subject to the U.S. export laws, rules and regulations and the export or import laws, rules and regulations of other countries. You agree to comply strictly with all such laws, rules and regulations and, in particular, shall: (a) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (b) not use DivX Property or anything derived from the DivX Property to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide DivX Property or anything derived from the DivX Property to prohibited countries and entities identified in the U.S. export regulations.
14.5 Rights and obligations under the Terms which by their nature should survive will remain in full effect after termination or expiration of the Terms.
14.6 Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of the Terms is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Terms will remain in full force and effect.
14.7 In the event of a conflict between these Terms and any other agreements between you and DivX, DivX shall determine in its discretion which terms shall govern.
14.9 This English language version of these Terms governs your relationship with DivX and any translations of the Terms into another language shall not be binding on DivX.
Last updated April 10, 2014
San Diego, CA