Jaksta Video Converter for Mac distribution permissions and end-user license agreement

END USER LICENSE AGREEMENT


Copyright © 2012 JAKSTA Pty LLC. All rights reserved.

Schedule

Item 1: Jaksta Video Converter for Mac

Item 2: The SOFTWARE will ATTEMPT to record 50% of any streamed media from 3rd PARTY STREAMING MEDIA PROVIDERS in formats specified in the accompanying written materials.

Item 3: The SOFTWARE will ATTEMPT to record 100% of any streamed media from 3rd PARTY STREAMING MEDIA PROVIDERS in formats specified in the accompanying written materials.

IMPORTANT READ CAREFULLY: This End User License Agreement is a legal agreement between the LICENSEE and JAKSTA for the SOFTWARE PRODUCT identified in item 1 of the Schedule. By installing, copying or otherwise using the SOFTWARE PRODUCT, the LICENSEE agrees to be bound by the terms of this EULA. If the LICENSEE does not agree to the terms of this EULA do not install, copy or use the SOFTWARE PRODUCT.

1. Definitions
The following definitions are applicable to this EULA.
1.1 EULA means this End User License agreement.
1.2 LICENSEE means YOU or the organisation (if any) on whose behalf YOU are taking the EULA.
1.3 SOFTWARE PRODUCT or SOFTWARE means the software identified at item 1 in the Schedule and all associated media, printed materials and may include online or electronic documentation.
1.4 JAKSTA means JAKSTA Technologies Inc, 20 Vineyard Ave, San Anselmo, CA 94960, USA.
1.5 LICENSE means the license to use the SOFTWARE granted to the LICENSEE under this EULA.
1.6 TERMS means the terms and conditions that apply to all software and components of software that are not subject to this EULA or otherwise owned by JAKSTA.
1.7 YOU means an individual authorised to use the SOFTWARE as set forth herein.

1.8 3rd Party Streaming Media Providers means any 3rd party that provides via any means, streaming media services or downloadable data that may or may not be recordable or downloadable with the product identified at Item 1 in the Schedule.
1.9 3rd Party Search Providers means any 3rd party that provides video, music and/or radio search facilities used by the product identified at Item 1 in the Schedule.
1.10 RESTRICTED MODE means the software features are restricted as identified at item 2 in the Schedule.
1.11 UNRESTRICTED MODE means the software features are restricted as identified at item 3 in the Schedule.

1.12 ATTEMPT means to try to perform, make, or achieve.

1.13 OPEN SOURCE SOFTWARE means certain "open source" software packages selected by JAKSTA for inclusion in the SOFTWARE's distribution package.
2. Grant of License
2.1 Shareware License. JAKSTA grants the LICENSEE an irrevocable, non transferable non exclusive LICENSE to install and use the SOFTWARE in RESTRICTED MODE in respect of one computer at the same time or as provided by the TERMS (if any).
2.2 Registered License. JAKSTA grants the LICENSEE an irrevocable, non transferable non exclusive LICENSE to install and use the SOFTWARE in UNRESTRICTED MODE in respect of one computer at the same time or as provided by the TERMS (if any), provided the LICENSEE pays an additional fee to JAKSTA to obtain a license key and register this license key with the SOFTWARE and allows the SOFTWARE to access www.JAKSTA.com to verify the license key.
2.3 The LICENSEE is permitted to make copies of the SOFTWARE for backup and archival purposes.
3. Covenants
3.1 The LICENSEE hereby covenants to JAKSTA not to, nor permit or offer to: sell, rent, lease, translate, decompile, adapt, vary, modify, disassemble, reverse engineer, create derivative works of, modify, sub-license, loan, or distribute the SOFTWARE other than with the express and written permission of JAKSTA.
3.2 The LICENSEE further covenants not to distribute the SOFTWARE license keys except with the express and written permission of JAKSTA.
4. Assignment
4.1 The LICENSEE may not assign or transfer its rights and obligations in this EULA without the prior written consent of JAKSTA.
5. Termination
5.1 Upon the happening of any of the following events JAKSTA has the right to immediately terminate this EULA;
(1) The LICENSEE commits a breach of any of the covenants contained in clause 3.1 and 3.2.
(2) The LICENSEE attempts to assign or transfer its interest in the SOFTWARE to any other company or person without the express and written consent of JAKSTA.
5.2 The LICENSEE may terminate this agreement at any time by giving JAKSTA 30 days notice in writing of its decision to terminate this EULA.
5.3 Termination of this EULA will terminate the LICENSE but will not relieve the LICENSEE from any expressed or implied obligation under this EULA.
5.4 On termination of this EULA the LICENSEE will:
(1) Immediately delete the SOFTWARE from any computer on which it is installed.
6. Warrants
6.1 JAKSTA warrants that the SOFTWARE will perform substantially in accordance with the Schedule and the accompanying written materials for thirty (30) days or the shortest time permitted by applicable law, which ever is greater.
6.2 The warranty under clause 6.1 does not apply to defects in the SOFTWARE due to accident, abuse, misapplication, abnormal use or a malware.
6.3 The LICENSEE acknowledges that errors may exist in the SOFTWARE and that JAKSTA will not be responsible for any loss or damage arising from any errors in the SOFTWARE.

6.4 The LICENSEE acknowledges that 3rd PARTY STREAMING MEDIA PROVIDERS can at their discretion change the technologies and licensing agreements required to stream and/or download media from their websites and that the SOFTWARE may not technically and/or legally be able to record such media and therefore the warranty under clause 6.1 does not apply to the SOFTWARE's ability and/or inability to record any particular streaming or downloadable media.

6.5 The LICENSEE acknowledges that 3rd PARTY SEARCH PROVIDERS can at their discretion change the technologies and licensing agreements required to provide the SOFTWARE's search features and functions and that the SOFTWARE may not technically and/or legally be able to continue to use such providers at some point in the future and therefore the warranty under clause 6.1 does not apply to the SOFTWARE's ability and/or inability to perform a search at any given time.

6.6 The LICENSEE acknowledges that the SOFTWARE contains software licensed from MusicIP and that the LICENSEEs use of that software is governed by the MusicIP EULA as detailed in clause 10.

6.6 The LICENSEE acknowledges that the SOFTWARE may send performance and/ or usage statistics to JAKSTA.
6.7 The LICENSEE acknowledges that OPEN SOURCE SOFTWARE has been selected by JAKSTA for inclusion in the SOFTWARE, and that OPEN SOURCE SOFTWARE is not owned by JAKSTA, and that OPEN SOURCE SOFTWARE is distributed by JAKSTA to the LICENSEE for the LICENSEE's use under the terms of certain open source license agreements, copies of which are included within the SOFTWARE's distribution package and software about pages. The LICENSEE acknowledges that OPEN SOURCE SOFTWARE is third-party software that has not been manufactured, tested or otherwise approved by JAKSTA and that nothing in this EULA shall obligate JAKSTA to provide any support for the OPEN SOURCE SOFTWARE.
6.8 No employee, agent or representative of JAKSTA has the authority to bind JAKSTA to any oral representation or warranty concerning the SOFTWARE. Any written representation or warranty not contained in this EULA will not be enforceable by the LICENSEE.
7. Exclusions
7.1 To the maximum extent permitted by law, JAKSTA excludes, for itself and any supplier of software incorporated in the SOFTWARE, all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by the LICENSEE directly or indirectly (including without out limitation lost costs, profits and data) arising out of:
(1) Use or misuse of the SOFTWARE;
(2) Inability to use or obtain access to the SOFTWARE;
(3) Negligence of JAKSTA or its employees, contractors or agents, or of any supplier of software incorporated in the SOFTWARE, in connection with the performance of JAKSTA's obligations under this EULA; or
(4) Termination of the EULA by either party for any reason.
8. Limitations
8.1 The SOFTWARE is provided "AS IS" and all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this EULA or to this EULA generally, including without limitation, warranties as to: quality, fitness; merchantability; correctness; accuracy; reliability; correspondence with any description or sample, meeting the LICENSEEs or any other requirements; uninterrupted use; compliance with any relevant legislation and being error or malware free are excluded.
9. Severability
9.1 If anything in this EULA is unenforceable, illegal or void then it is severed and the rest of this EULA remains in force.

9. Applicable Law
9.1 The internal laws of the State of California govern this EULA.
9.1 The LICENSEE and JAKSTA submit to the exclusive jurisdiction of the courts for the State of Utah, or if there is federal jurisdiction, the United States District Court for the State of California.

10. MusicIP License
10.1 The SOFTWARE contains song recognition technology from MusicIP which is licensed as such:

PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE USING THE MUSICIP SERVICES. BY CLICKING THE "AGREE/ACCEPT" LINK OR BY USING THE MUSICDNS SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE SERVICES AND CLICK "DISAGREE/DECLINE."

License Grant and Restrictions
License Grant. Subject to the terms and conditions of this EULA, MusicIP hereby grants to you, and you hereby accept a non-exclusive, limited right to access and use the MusicDNS Services as provided herein.

MusicIP Services.
The MusicDNS Service and potentially other services (collectively and individually, "Services") are accessible by user via the MusicIP Proprietary Software (meaning all computer software programs, applications, code and databases and metadata owned by or developed by or on behalf of MusicIP, expressly excluding any third party software, data or public domain materials).

The MusicDNS Service is a web-based MusicIP proprietary technology, software and related data services. The MusicDNS Service analyzes each digital electronic file containing a musical sound recording (a "Track") contained on a Service End User's storage medium, creates a custom byte array called a "Fingerprint" for such Track, and generates and assigns a Portable Unique Identifier ("MusicIP PUID") to each Track after it is assigned a Fingerprint. The complete set of metadata compiled, collected, maintained and/or updated by MusicIP, including the Fingerprints, MusicIP PUIDs and other associated data elements required to operate the MusicDNS Service is the "MusicIP Metadata." The MusicIP Proprietary Software allows you to submit (i) your local metadata and "Fingerprints" created by the MusicIP Proprietary Software to identify tracks and receive back MusicIP Metadata and a MusicIP PUID for each Fingerprint, or (ii) a MusicIP PUID and receive back MusicIP Metadata corresponding to the MusicIP PUID.

Use of the Services requires Internet access and use of certain Services may require you to accept additional terms of service that will be presented to you before use of such Services. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that MusicIP shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content types (including genres, sub-genres and categories and subcategories and the like) and descriptions are provided for convenience, and you acknowledge and agree that MusicIP does not guarantee their accuracy.

Certain Services may include materials from third parties. MusicIP does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials, or for any other materials, products, or services of third parties. You agree to not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that MusicIP is not in any way responsible for any such use by you.

You agree that the Services involve certain proprietary information and material that is owned by MusicIP and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. MusicIP is the owner of all right, title and interest in all intellectual property rights, including all copyrights, patents, trademarks, trade secrets, and all related rights associated with the MusicIP Proprietary Software and the Services, including all associated software, logos, text, and graphics, but excluding third party or public domain material.

The Services consist of interactive Internet applications that perform a variety of communications over the Internet as part of their normal operation. A number of communications features are automatic and are enabled by default. By using the Services, you consent to the Services' communications features. Once you are connected to the Services, there will be communications with MusicIP's servers. You are responsible for any telecommunications or other connectivity charges incurred through use of the Services.

Reservation Of Rights. MusicIP reserves all rights not specifically granted to you hereunder. MusicIP reserves the right in its sole discretion to delete, remove or change any data, information or metadata supplied to MusicIP by you. MusicIP and its licensors reserve the right to change, suspend, remove, or disable your access to any Services at any time without notice. In no event will MusicIP be liable for the removal of or disabling of access to any such Services. MusicIP may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

Restrictions.
No Modifications, Reverse Engineering Or Spidering. You shall not alter, modify, enhance, work around any technical limitation in, or make any derivative works of the MusicIP Proprietary Software or the Services. You shall not, and shall not cause or permit any third party to, disassemble, decompile, reverse engineer or otherwise attempt to derive source code, or spider, crawl or robotically or automatically collect or extract information from the MusicIP Proprietary Software or the Services. You shall not use the MusicIP Proprietary Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.

No Resale Or Commercial Use. You shall not copy, re-sell, rent, lease, lend, provide access to third parties or otherwise transfer the MusicIP Proprietary Software or the Services. You may not use any MusicIP Proprietary Software or the Services in any way to provide, or as part of, any commercial product, service or application. You shall not collect, compile, disclose, transfer, distribute, sell, rent or license as a data set all or substantially all the MusicIP Metadata.

No Payment. Under no circumstances will MusicIP or its licensees become liable to you for any payment to you for any information or metadata you supply.

Representations, Warranties and Indemnity
DISCLAIMER OF WARRANTY. MUSICIP DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS PROVIDED IN THIS SECTION 5, THE MUSICIP PROPRIETARY SOFTWARE IS PROVIDED HEREUNDER ON AN "AS-IS" BASIS, AND MUSICIP DISCLAIMS ALL WARRANTIES THAT THE MUSICIP PROPRIETARY SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE OR OPERATE OTHER THAN AS SET FORTH HEREIN.

Your Representations And Warranties. You represent and warrant to MusicIP that: (i) your performance under this Agreement shall at all times comply with all applicable laws, rules and regulations; (ii) you will not use the MusicIP Proprietary Software to upload, post, email, transmit, or otherwise make available any material that 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 any telecommunications equipment; and (iii) you will not use the Services in connection with any activity that infringes the rights of any third party.

Indemnification.
You hereby agree, at your expense, to defend, indemnify and hold harmless MusicIP and its officers, directors, employees and agents from and against any and all Claims brought against any of them by a third party arising out of a breach of your representations, warranties or covenants in this Agreement.
Each indemnified party hereunder shall give prompt written notice of any Claim to the indemnifying party. The indemnifying party shall have exclusive control over the defense and settlement of the Claim, provided that the indemnified party, at its expense, may elect counsel to participate on its behalf in the action and shall have the right to approve in advance any settlements that could adversely affect the rights of the indemnified party. The indemnified party shall provide reasonable information and assistance to the indemnifying party, at the indemnifying party's expense, in the defense of such Claim.

Privacy
The MusicDNS Privacy Policy, at
http://www.musicip.com/privacy.jsp shall govern your use of the Services.

Limitation of Liability

LIMITATION OF DAMAGES. Except for the obligations set forth in sections 2 or 5, in no event shall either party be liable to the other for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party arising out of or related to its performance under this agreement, whether in an action in contract or tort (including negligence) or otherwise, even if the other party has been advised of the possibility of such damages.

Limitation Of Liability. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE IN SECTION 7.1 AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF MUSICIP AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU BASED ON REASONABLE RELIANCE UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES OR U.S.$50.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

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