Graboid Software End User License Agreement

Graboid Software End User License Agreement

This agreement governs use of the Graboid software application.

1. Initial Terms

1.1. Effect of Agreement. This End User License Agreement constitutes a valid and binding agreement between Graboid Inc. (referred to as “Graboid”) and you, as a user, for the use of the Graboid Software. You must enter into this Agreement by clicking on the “I AGREE” button (or similar buttons or links as may be designated by Graboid to show your acceptance of this Agreement and/or your agreement to download and install the Graboid Software). You hereby agree and acknowledge that this Agreement covers all of your use of the Graboid Software, whether it be from this installation or from any other terminals where Graboid Software has been installed, by you or by third parties. Furthermore, by installing and continuing to use the Graboid Software, 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 Graboid to show your acceptance of this Agreement and/or your agreement to download and install the Graboid Software), you expressly acknowledge and agree to, and to be bound by, the Terms of Service and Privacy Policy applicable to the Graboid Website and the content, services and features provided on or through the Graboid Software, and any new versions or updates thereof. The Terms of Service, Privacy Policy and Copyright Policy can all be accessed through the Graboid Website.

2. As consideration for using the Graboid Software and receiving access to the content available via the Graboid Software, you agree and understand that:

2.1.1. Graboid and the Graboid Software may, and may permit third parties to, display advertising and other information within the interface of the Graboid Software and/or in connection with the display of content and programming. Graboid or the Graboid Software serves, and permits third parties to serve, advertisements within or adjacent to the content and programming delivered to you by the Graboid Software. You understand and agree that Graboid or the Graboid Software, or applicable third parties, may include content-targeted advertisements or other related information, as further described in the Graboid Privacy Policy. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Graboid 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 Graboid 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.

2.1.3. The Graboid 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 Graboid.

3. License Grant

3.1. License Grant. Subject to the terms of this Agreement, Graboid 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 Graboid Software, for the sole purpose of watching the video and other content provided on or through the Graboid Software, and otherwise accessing the other services and features provided on or through such Graboid 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 Graboid 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 Graboid Software, including the content, programming, services and features contained on or through the Graboid Software, if this license has been terminated by Graboid;

3.2.3. operate or utilize the Graboid Software, including the content, programming, services and features contained on or through the Graboid Software, in a manner that violates the Terms of Service or Privacy Policy;

3.2.4. operate or utilize the Graboid 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 Graboid 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 Graboid Software, including, without limitation, through sublicense, to any other person or entity;

3.2.6. remove any proprietary notices from the Graboid Software, or from any content, services, programming, or features contained on or through the Graboid Software;

3.2.7. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Graboid Software and/or data and/or content or programming transmitted, processed or stored by Graboid or other users of the Graboid Software;

3.2.8. use any unlicensed or unauthorized copies of the Graboid Software;

3.2.9. collect any information or communication about the users of the Graboid Software by monitoring, interdicting or intercepting any process of or communication initiated by the Graboid 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 Graboid Software or its ability to communicate and function with other computers running the Graboid Software;

3.2.11. with the exception of completely deleting the Graboid Software from your computer, and those actions permitted by your manual use of the user interface provided as part of the Graboid Software, take any action, including downloading and/or using third party software, that (1) modifies the settings of the Graboid Software as it functions with your computer, or (2) otherwise modifies, alters, blocks or interferes with the functioning of the Graboid Software;

3.2.12. attempt to hack the Graboid Software or any communication initiated by the Graboid Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Graboid with respect to the Graboid Software and/or data and/or content or programming transmitted, processed or stored by Graboid or other users of the Graboid Software;

3.2.13. interfere with or in any manner compromise any of Graboid’s 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 Graboid Software, including, without limitation, the Graboid Software’s advertising and/or content delivery and display functionality.

4. Your Additional Covenants, Acknowledgments and Agreements

4.1. You acknowledge and agree that:

4.1.1. Graboid, in its sole discretion, may discontinue or suspend your right to access the Graboid Software or content delivered by Graboid at any time, and may at any time suspend or terminate any license hereunder without prior notice.

4.1.2. Graboid reserves the right to add or remove features or functions, or to provide upgrades, updates or programming fixes, to the Graboid 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, and further acknowledge and agree that your failure to accept any such fixes, updates and upgrades will permit Graboid to terminate your right to use the Graboid Software.

4.1.3. When installed on your computer, the Graboid Software may periodically communicate with Graboid servers and/or Graboid Software installed by other users. Additionally, third party software installed on Your computer may periodically communicate with third party servers for the purposes described in the license agreement or privacy policy between you and that third party.

4.1.4. Graboid has no obligation to make available to you any subsequent versions of its software applications.

4.1.5 When minimized, the Graboid Software will continue to operate unless You affirmatively exit the software from your task bar or other applicable application interface.

4.1.6. You can uninstall the Graboid Software at any time, in your sole discretion, by using your computer’s “Add/Remove” Control Panel functionality or other applicable functionality that permits you to uninstall downloaded software applications.

5. Proprietary Rights

5.1. You acknowledge and agree that any and all Intellectual Property Rights to or arising from the Graboid Software are and shall remain the exclusive property of Graboid 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 Graboid Software, but may be accessed through use of the Graboid Software, including, without limitation, any content, programming, advertising, services and/or features contained on or through the Graboid 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 Graboid Software, is prohibited by applicable law.

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 Graboid as set forth below.

6.2. You may terminate this Agreement at any time provided you permanently delete or destroy your copies of the Graboid Software as required by Section 6.4 below.

6.3. Graboid 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 Graboid Software shall terminate and you must cease all use of the Graboid Software AND completely remove from all hard drives and other storage media all copies of the Graboid Software in your possession or under your control.

6.5. Graboid 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. Links to Third Party Sites

7.1. The links provided either through or framed within the Graboid Software and any website operated by Graboid or its affiliates are provided as a courtesy only, and the sites they link to are not under the control of Graboid in any manner whatsoever. Therefore, Graboid 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. Graboid is providing these links merely as a convenience, and the inclusion of any link does not in any way imply or express affiliation, endorsement or sponsorship by Graboid of any linked site and/or any of its content therein.

8. Your Representations and Warranties

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. Indemnity

9.1. You agree to indemnify, hold harmless and defend Graboid 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 Graboid 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 Graboid Software, or (c) violation of any rights of any third party.

10. Disclaimer of Warranties

10.1. THE Graboid SOFTWARE IS PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY GRABOID, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE Graboid 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. GRABOID FURTHER DOES NOT REPRESENT OR WARRANT THAT THE Graboid SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES GRABOID WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF TRANSMISSIONS OF DATA MADE THROUGH THE Graboid SOFTWARE.

10.2. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE Graboid 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. Limitation of Liability

11.1. IN NO EVENT SHALL GRABOID, 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 Graboid SOFTWARE, INCLUDING ANY DAMAGES RESULTING THEREFROM, EVEN IF GRABOID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2. YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE Graboid SOFTWARE IS TO UNINSTALL AND CEASE USE OF SUCH Graboid 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.

12. General Provisions

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 Graboid to show your acceptance of this Agreement and/or your agreement to download and install the Graboid 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 Graboid 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 and download, install or use the Graboid 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 and you may not download, install or use the Graboid Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Graboid Software is allowed.

12.3. Third Party Licenses/Notices. The Graboid Software contains code from a number of third party vendors and open source projects.

12.4. Investigation; Disclosure. Graboid 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 Graboid may disclose information provided by you to comply with law enforcement or any legal, governmental or regulatory order or action.

12.5. Reservation of Rights; Modification. Graboid reserves all rights not expressly granted in this Agreement. Graboid may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on the Graboid Website. Your continued use of the Graboid Software shall constitute your acceptance to be bound by the terms and conditions of such revised Agreement

12.6. 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.

12.7. Waiver. The failure of Graboid 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.

12.8. Governing Law; Jurisdiction; Waiver of Claims. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario, without regard to conflict of law rules thereof. The parties hereto expressly understand and agree that any action brought by you against Graboid arising out of this Agreement shall be brought exclusively in the courts located in Ontario, and any action brought by Graboid against you arising out of this Agreement shall, at the election of Graboid, be brought in either the courts located in Ontario, 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 on a representative, class member basis, or as a private attorney general, and agree not to assert any claims against Graboid 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.

12.9. Entire Agreement. The terms set forth in this Agreement constitute the final, complete and exclusive agreement with respect to the Graboid 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. Graboid may, at its sole discretion, assign this Agreement without giving prior notice.

12.10. 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.

12.11. Definitions.

12.11.1. Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.

12.11.2. 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 Graboid Software or the Graboid Website.

12.11.3. Graboid: refers to “Graboid Inc., a company formed under the laws of the province of Ontario.

12.11.4. Graboid Software: the software distributed by Graboid (including all software and code in such software) that provides for, among other matters, the digital distribution of video and other content, and all future programming fixes, updates and upgrades thereof. The term “Graboid Software” will also include any online or enclosed documentation, and data distributed to your computer for processing relating to such software.

12.11.5. Graboid Website: any and all elements, contents and the ‘look and feel’ of the website available under the URL www.Graboid.com, among other URLs, from which website the Graboid Software can be downloaded.

12.11.6. Privacy Policy: means the privacy policy set forth by Graboid from time to time with respect to the collection of information from users of the Graboid Software.

12.11.7. Terms of Service: means the agreement between Graboid and you for the use of the Graboid Software and the content, services and features provided on or through the Graboid Software;

12.11.8. You: you, the end user of the Graboid Software, also used in the form “your” where applicable.

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 Graboid SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO GRABOID THE RIGHTS SET FORTH HEREIN.