Term Of Use

Last Updated: February 28, 2008

Hello! 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 and our other web services, 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, 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.

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), and other applicable intellectual property laws. Steps for submitting notices under the DMCA to us are summarized and available at http://www.divx.com/legal/copyright_infringement.php

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 notify us at 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. 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 other agreements for you, those agreements will be part of the specific services you opt to use, and your use of the site tells us you understand and agree to everything in the applicable 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. 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 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. ©2007 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.

First Things First
Let's make one thing clear up front: you own your plug-ins and all the stuff (“Stuff” defined later) they allow DivX Connected™ users to access. We do not own your plug-ins, themes or your stuff. Nothing in this agreement changes that in any way.
We are, however, developing the DivX Connected™ platform, which we hope will provide another venue for you to distribute your stuff. We encourage you to distribute your stuff by creating a plug-in or a theme for the DivX Connected™ platform. By creating a plug-in or theme, you give users who access the DivX Connected™ experience to access to your stuff.
But before you publish your plug-in or theme, we need to agree on a few things. Read this agreement carefully. By accepting this agreement and publishing your plug-in or theme for use on the DivX Connected™ platform, you agree to be bound by these terms and conditions and enter 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 Do We Mean By Stuff
To ensure we understand one another, let’s define “Stuff.” Throughout this agreement, when we reference your “stuff,” what we’re talking about are the images, icons, video blogs, websites, services (containing video, games, or other content or services) or other appropriate content you make available through the DivX Connected™ platform.

What We May Do With Your stuff
If you publish your stuff for the DivX Connected™ platform (remember, stuff includes everything mentioned above, plus all video, images, metadata, music, trademarks and logos you choose to share), you agree to give us a (here comes the legalese… bear with us) limited, non-exclusive, worldwide and transferable right and license to your stuff (including the right to sublicense) to use and to create derivative works from your stuff and to use any of your applicable Trademarks or logos so that we may do the following:

• Create a plug-in for the DivX Connected™ platform that will give users access to your stuff through the “Plug-ins” sections of the DivX Connected™ user interface.
• Create a theme for the DivX Connected™ platform that will be applied by users to the DivX Connected™ user interface.
• Publish, distribute, offer for download or otherwise promote plug-ins and themes you (or we, as stated above) create for the DivX Connected™ platform.
• Promote your stuff and your brand by displaying and allowing our sublicensees to display screen shots and/or clips of your stuff in promotional settings.
• Help drive traffic to your websites and get some exposure for your stuff through the plug-ins or themes you create for the DivX Connected™ platform.
• Encode, host, distribute and display (including from a mobile WAP site) demos and downloads of your stuff to promote to users for use on the DivX Connected™ platform.

We may do all or none of the above, at our sole discretion. If we choose not to make your stuff available to users of the DivX Connected™ platform, we will delete your plug-in from our servers and do our best to notify you.

What others May Do With Your stuff
Hopefully they’ll watch and use your stuff by installing plug-ins and themes you create for the DivX Connected™ platform. They may even show your stuff privately to their friends.

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 stuff or other materials you provide. You are the lifeblood of the DivX Connected™ platform and we love you, but if you publish stuff you don't have the rights to and we find out about it, we will remove it. Publishing stuff you don't have the rights to makes us angry, and you wouldn't like us when we're angry...

Changing this Agreement
We 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.

How to end this agreement
As you probably guessed by now, we are allowed to terminate this agreement at any time. You may also terminate the agreement at any time after the 6-month anniversary of the date of this agreement. Whomever terminates the agreement must provide the other written notification, including via email, at lest 30 days before the scheduled termination.
Ending this agreement through termination of expiration will end all rights and licenses we grant to one another. If you elect to terminate the agreement, we will use "commercially reasonable efforts" (yes, that phrase is from our lawyers, how'd you guess?) to remove your content from our servers within thirty (30) days of our receipt of your notice that you're terminating this agreement. End users and our sublicensees who have already received copies of your plug-in and have already established access to your stuff may continue to use it at least until you disable access to the stuff.  End users and our sublicensees who have already received copies of your theme may continue to use that theme indefinitely.
Regardless, you understand that making your stuff available on the DivX Connected™ platform 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 their stuff that we believe does not comply in this way. If we terminate you or your stuff, 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.

Continued use of Content
If this agreement is terminated by either one of us or if you remove any plug-in, theme or other stuff. we may continue to use your plug-in, theme or stuff in printed materials, OEM devices, 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. Users of your plug-in may continue to use the plug-in to access your stuff, even after this agreement is terminated (in whole or with respect to a specific plug-in), provided they remain in compliance with the Terms of Use and other relevant agreements, if any, unless and until you terminate access via the plug-in.  Users of your themes may continue to use them, even after this agreement is terminated (in whole or with respect to a specific theme), provided they remain in compliance with the Terms of Use and other relevant agreements.
Confidential and private information

Unless we have entered into a separate, valid, nondisclosure agreement with you for this deal, the DivX Privacy Policy lays out how we will treat your personal information. Please read it.

Other Legal stuff
Please read the remaining sections carefully. It's very important stuff, but impossible to rewrite 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.
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.

Parties’ relationship. The relationship between us and you is not a legal partnership, but is one of independent contractors. The section titles used in this agreement are purely for convenience and carry with them no legal or contractual effect.

Assignment. This Agreement shall benefit and bind the parties hereto and their respective permitted successors and assigns. DivX may assign its rights under this Agreement to a successor entity or to an entity that is majority owned and/or controlled by DivX. You may assign your rights under this Agreement only on prior written notice to DivX, and only after tendering to us an express written acknowledgement of our rights herein, signed by your proposed assignee, and in a form reasonably acceptable to us.

Governing Law. 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 agree that the licenses granted by the licensor under this Agreement are subject to Section 365(n) of the United States Bankruptcy Code.

No waiver. No waiver shall be implied by the conduct of the parties. To be effective, a waiver must be in writing and be signed by the party to be charged. A waiver of any break of either party of any term of provision of this agreement shall not constitute a waiver of any subsequent breach.

Severability: The invalidity or unenforceability of any provision of this agreement shall not affect the validity or enforceability of any other provisions of this agreement, which shall remain in full force and effect.

Representations & warranties. You hereby represent and warrant that:

• You have the full right, power and authority to enter into and perform this agreement and to grant to us the licenses as herein provided.
• No rights you grant under this agreement will infringe upon, misappropriate, or result in any claim in respect of any common law, statutory or other rights of any kind of any person, firm, corporation, or other entity, including without limitation contractual rights, patents, copyrights, trademarks, trade secrets, libel, slander, defamation, rights with respect to privacy, publicity, name and likeness, and claims of unfair competition or any claims of any nature.
• The rights you grant to us herein are free and clear of any claims, demands, liens, or encumbrances.
• You will assist us in obtaining, securing, executing and/or transferring said rights (and perfecting the record thereof) as may be required.
• You will be solely responsible for obtaining and paying for any and all performance rights, licenses and license fees, royalties, residuals, and consents to this agreement to or by any third parties who appeared in and/or provided services or materials in connection with your stuff and to or by any other third party, person, firm, or company whose consent may be required in respect of the rights granted to us hereunder, including without limitation all participants, performers, writers, songwriters, artists, producers, and other persons, firms and companies. At our request, you will provide us with copies of documentation verifying your clearance and/or licensing of all third party intellectual property or other proprietary rights in the stuff, including, without limitation, music clearances, athlete and participant releases, trademark and/or tradename releases.

Indemnification. You will defend, indemnify, save and hold DivX and our officers, directors, employees, and authorized and/or licensed partners harmless from any and all damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, demand or action by a third party resulting from a breach or inaccuracy (actual and alleged) of any of your representations, warranties, or obligations in this agreement. You also hereby agree to assume directly or reimburse us, on demand (as we may elect) for any and all damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees and costs) made or assumed by or assessed against us with respect to any matter to which the foregoing indemnification applies.

Liability limitation. EXCEPT TO SATISFY THE INDEMNIFICATION OBLIGATIONS SET FORTH, (I) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, GENERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF PROFIT AND/OR GOODWILL AND INTERRUPTION OF BUSINESS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY OF THE LIMITED REMEDIES HEREIN FAIL THEIR ESSENTIAL PURPOSE AND (II) NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED A DOLLAR AMOUNT EQUAL TO THE FEE, IF ANY, PAID BY YOU TO US UNDER THIS AGREEMENT.