By accessing or otherwise using the Licensor Property (as defined below), you (“you” or, as applicable, “your”) accept and agree to be bound by the following terms and conditions (“Agreement”). If you are entering this Agreement on behalf of a company or other legal entity or party, you represent and warrant that you have the legal authority to bind such company, legal entity or party to this Agreement, in which case “you” shall mean such company, legal entity or party. This Agreement is a legal agreement between you and TiVo Corporation or one or more of its affiliated entities (“Licensor”, “we”, or “us”). The Licensor entity or entities party to this Agreement shall be determined by Licensor in its sole discretion.
Your Agreement with us includes (1) this Agreement, as revised and updated from time to time by Licensor in Licensor’s discretion (the most current version can be found here) and (2) all other documents, policies and terms, found at http://developer.rovicorp.com and http://developers.tivo.com (together, the “Websites”) (collectively, the “Additional Terms”). The Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict between the content in this Agreement and the Additional Terms, this Agreement shall control with respect to your use of the Licensor Property.
Licensor reserves the right to change this Agreement in our sole discretion and with or without notice to you. The most current version of the Agreement will supersede all previous versions. By using the Licensor Property subsequent to publication of modifications to the Agreement, you are automatically bound by and subject to the full language of the most current Agreement, as revised. If you disagree with anything in this Agreement (or changes to this Agreement), your only recourse is to discontinue your use of the Licensor Property.
1. License Grant to you and Reservation of Rights
1.1 License Grant. Subject to your compliance with the terms and conditions in this Agreement, and solely for the duration of this Agreement, Licensor grants you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to use the Licensor Property solely internally for non-commercial internal testing and evaluation of such Licensor Property. All other uses of the Licensor Property are prohibited. No end users or third parties are permitted to use or access Licensor Property and no Licensor Property may be used in conjunction with a television listings grid of any kind or distributed in any way to be used with a television listings grid without Licensor’s prior written authorization.
1.2 Reservation of Rights. Except as expressly set forth in this Agreement, 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 product, content, technology, intellectual property or service of Licensor or its affiliates or licensors. In addition, nothing in this Agreement shall be deemed to grant to you or any third party the right or license to use Licensor 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 Licensor or its affiliates or licensors. Nothing in this Agreement shall be deemed to be a waiver or release of your past, present or future obligations to acquire such rights and/or licenses from Licensor or its affiliates or licensors.
2. Licensor Property. As between you and Licensor, Licensor retains all right, title and interest, including without limitation all intellectual property rights, in and to, the Licensor Property. “Licensor Property” means (i) the Websites, (ii) anything found on or accessed via the Websites, (iii) anything accessed via the APIs, including, without limitation, (a) the Specifications and APIs and any and all elements and components thereof and (b) the Content available through the APIs, and (iv) any feedback (e.g. suggested improvements), about any Licensor property, technology, products or services in existence or in development (“Feedback”), in each case, including, without limitation, any and all intellectual property and proprietary rights and any derivatives, revisions, enhancements, modifications or condensations thereof. If you provide Licensor with any Feedback, you assign all right, title and interest in and to such Feedback to Licensor, and acknowledge that Licensor will be entitled to use, including, without limitation, implement and exploit, any such Feedback in any manner without any restriction or obligation. You further acknowledge and agree that Licensor is not obligated to act on such Feedback. “Content” includes, any data or information Licensor chooses to include in its Metadata Cloud Services products, in each case, that Licensor may provide or otherwise make available from time to time in its sole discretion via the APIs or pursuant to this Agreement. Content shall not include and you will not have any rights to use in any manner any audio samples even if, as a technical matter, Licensor provides audio samples to you via the APIs, and you shall pay to Licensor any fees, penalties, charges or expenses assessed against you by Licensor if you use any audio samples. The “APIs” consist of programmatic web application programming interfaces, code and associated tools and documentation which will display certain Content as released from Licensor from time to time, subject to the limitations and conditions described in this Agreement. The “Specifications” mean specifications as updated from time to time, and documentation relating to building a television listings grid product, including list of features or functions thereof, requirements for functionality (e.g., adherence to certain API’s) and/or branding, return path data functionality, labeling and patent, copyright or trademark notice guidelines.
3. Developer Accounts and Usage Limitations
3.1 Developer Accounts and Keys. In order to obtain access to the Licensor Property, you must create a developer account. You may be limited by the account creation process to one account per email address. Licensor may permit you to create multiple accounts per email address in Licensor’s sole discretion. You will be issued one or more unique security keys, secrets, tokens, passwords and/or other credentials (collectively, “Keys”) for accessing the Licensor Property and managing your account. You may only access your account with the Key issued to you by Licensor. Access may not always be available. You may not sell, transfer, sublicense or otherwise disclose your Keys to any other party or use them with any third party application(s), technology, website(s) or property unless otherwise permitted by Licensor in writing. You are responsible for maintaining the secrecy and security of your Keys. You are fully responsible for all activities that occur using your Keys, regardless of whether such activities are undertaken by you or a third party. You should notify us immediately if you believe your Keys have been compromised or misappropriated in any way, including, without limitation, by a third party. Keys are valid for thirty (30) days, unless access is earlier terminated or extended by Licensor, in its sole discretion.
3.2 Usage Limitations. You must access the Content through the APIs in a manner that requires you to fully refresh each time a call is made for Content. Currently, you are allowed to make up to 10,000 API calls per day in the aggregate, as calculated by Licensor, during the term of this Agreement, with a maximum of five API calls per second in the aggregate, as calculated by Licensor, for each Key issued to you. Licensor may change such usage limits at any time without notice. In addition to its other rights under this Agreement, Licensor may utilize technical or other measures to prevent overusage and/or stop usage of the Licensor Property at any time.
4. Term and Termination
4.1 Term. The Term of this Agreement shall start on the date you first access or use Licensor Property and shall continue in force thereafter, unless modified or terminated as provided herein.
4.2 Licensor Termination and Modification of Licensor Property. Licensor may at any time and in its sole discretion change, limit, suspend, disable, terminate or discontinue all or any aspect of the Licensor Property, including, without limitation, its general availability and your use of and access to all or any portion of the Licensor Property. Furthermore, Licensor may at any time and in its sole discretion change, limit, suspend, disable, terminate or discontinue all or any portion of this Agreement. Notwithstanding anything to the contrary herein, if your entering into this Agreement with Licensor would cause any liability to Licensor and/or jeopardize Licensor’s compliance with any law, rule, regulation, executive order, treaty or other obligation, then this Agreement is void and shall never enter into effect, regardless of whether or not Licensor takes any action related to your request to enter into this Agreement, including but not limited to issuing you a Key. This Agreement shall immediately and automatically terminate if you breach this Agreement in any manner or if Licensor disables your Key or otherwise terminates your access to your Key or developer account. You agree and acknowledge that Licensor shall have no liability for any change, limitation, suspension, disablement, termination or discontinuance of Licensor Property, your Key(s) and/or this Agreement or any change in functionality of your applications, property, business or systems arising therefrom.
4.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) closing your developer account, and at such time your use of the Licensor Property shall cease or (ii) ceasing use of the Licensor Property.
4.4 Effect of Termination.
a) If Licensor modifies, terminates your access to and/or discontinues providing any or all of the Licensor Property at any time, (i) the rights granted to you herein for earlier versions of, discontinued or terminated Licensor Property shall automatically terminate, (ii) you shall immediately cease using such earlier versions of or discontinued Licensor Property as well as Licensor Property for which your access has been terminated and (iii) you shall also immediately comply with the Purge Obligation with respect to such Licensor Property. “Purge Obligation” shall mean the obligation by you to (1) destroy all copies of Licensor Property, in any form, and purge all copies of Licensor Property from your computer systems, software, technology, documents or other computer or other storage device or media under your ownership, access or control or in which any materials have been placed and (2) destroy any and all records, notes, analyses, memoranda, drawings and other written or tangible materials, documents or other media containing Licensor Property.
b) Upon the termination of this Agreement for any reason the rights granted to you herein, including all licenses to the Licensor Property shall terminate. Upon such termination, you shall also immediately cease using all Licensor Property and comply with the Purge Obligation. An officer of your company shall certify in writing to Licensor regarding such complete purge, cessation and destruction and to the effect that, to the best of your knowledge, the Licensor Property is not stored, through your acts or omissions, accidental or otherwise, on any other storage device or medium not currently under your control. Your payment obligations shall remain in effect until such certificate is received by Licensor.
5. Restrictions and Requirements.
5.2 If Content includes movie, television, music and/or video game previews, trailers, scenes and/or samples (“Trailers”), then the following additional terms and conditions shall apply to Trailers: a) no part of the Trailers may be duplicated by you and you may not alter or edit the Trailers in any way; b) you acknowledge that each individual Trailer is created from the copyrighted material of its respective owner and agree to exercise good faith efforts to protect Licensor’s and/or its licensors’ ownership rights and the various copyrights in underlying material; c) you may only link to the Trailers per the instructions provided by Licensor (and/or its licensors), which may be amended from time to time, and using the unique account number(s) provided by Licensor; d) you shall be solely responsible for obtaining any performance rights, consents, licenses and permissions and paying all related fees, costs, payments and/or royalties due to third parties in connection with the Trailers (including, without limitation, fees, payments or royalties owed to ASCAP, BMI, SESAC or other performing rights organizations) and e) all rights to use Trailers granted herein shall automatically cease on the earlier of (i) the date the Content ceases to include Trailers, (ii) the date your Keys are no longer valid, (iii) the date this Agreement terminates and (iv) ninety (90) days after you first receive access to Trailers.
6. Confidential Information. The term “Licensor Confidential Information” means any information of or relating to Licensor that becomes known to you through disclosure, observation or otherwise, and that is designated as confidential by Licensor, that could reasonably be construed to be confidential or that is not generally known or readily ascertainable to the public, including, without limitation, nonpublic information regarding the Licensor Property and Licensor’s products, services, programs, features, data, techniques, technology, code, ideas, inventions, research, testing, methods, procedures, know-how, trade secrets, business and financial information and other activities. All Licensor Confidential Information remains the property of Licensor, and no license or other right in any Licensor Confidential Information is granted hereby. You will not disclose any Licensor Confidential Information to any third party, and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. If you are a corporate entity, you will limit your internal distribution of Licensor Confidential Information to your employees and agents who have a need to know, and will take steps to ensure that dissemination is so limited. You will not use any Licensor Confidential Information for the benefit of anyone other than Licensor. Upon Licensor’s written request, you will destroy or return to Licensor all Licensor Confidential Information in your custody or control. In addition to the terms of this provision, you and Licensor will continue to be subject to any non-disclosure agreement that you and Licensor have entered into separately. This provision will survive any expiration or termination of this Agreement.
7. Indemnity. You agree to hold harmless, defend and indemnify Licensor, and its subsidiaries, affiliates and licensors, and their respective officers, agents, and employees, advertisers or partners, from and against any claim arising from or in any way related to your use of any Licensor Property, violation of this Agreement, violation of applicable laws, rules and regulations, including, without limitation, privacy laws, or any other actions or claims connected with or related to your use of Licensor services, including, without limitation, any liability of any kind and nature including, without limitation, any expenses, claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees.
8. Disclaimer of Warranties; Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING DISCLAIMERS AND LIMITATIONS OF LIABILITY WHICH SHALL APPLY TO YOU AND THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW:
YOUR USE OF THE Licensor PROPERTY, LICENSOR SERVICES AND/OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE LICENSOR PROPERTY OR ANY LICENSOR SERVICES IS AT YOUR SOLE RISK. THE LICENSOR PROPERTY AND ANY LICENSOR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL INDEMNITIES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LICENSOR SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU AGREE TO THE FOLLOWING LIMITATION OF LIABILITY WHICH SHALL APPLY TO YOU AND THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW: YOU EXPRESSLY UNDERSTAND AND AGREE THAT NONE OF LICENSOR, ITS AFFILIATES OR LICENSORS SHALL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO CASE SHALL THE AGGREGATE LIABILITY OF LICENSOR OR ITS AFFILIATES OR LICENSORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR LICENSOR PROPERTY EXCEED US$10.00. YOU HAVE BEEN ADVISED AND AGREE THAT LICENSOR HAS NOT SECURED ANY RIGHTS TO ANY INFORMATION RELATING TO TELEVISION PROGRAMS ORIGINATING OUTSIDE OF THE UNITED STATES, IMAGES AND EXCERPTS. IT IS YOUR SOLE OBLIGATION AND RESPONSIBILITY TO IDENTIFY, SOLICIT AND OBTAIN ANY NECESSARY APPROVALS FOR SUCH MATERIALS AND USE THEREOF.
9. Release and Waiver. To the maximum extent permitted by applicable law, you hereby release and waive all claims against rights holders in the Licensor Property, Licensor and its subsidiaries, affiliates, and the respective officers, agents, employees, licensors, advertisers or partners of the foregoing from any and all liability of any kind and nature including, without limitation, any expenses, claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, arising from or in any way related to your use of the Licensor Property. If you are a California resident, you waive your rights under California Civil Code Section 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.”
10. General Information
10.1 Publicity. Neither party shall issue any press release or make any public disclosure regarding this Agreement.
10.2 Entire Agreement. This Agreement, including the other documents explicitly incorporated by reference, constitutes the entire agreement between you and Licensor and govern your use of the Licensor Property, superseding any prior agreements between you and Licensor.
10.3 Choice of Law and Forum. This Agreement and the relationship between you and Licensor shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Licensor agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo, California.
10.4 Assignment. You may not assign or transfer (e.g. through a transfer of equity, asset or other ownership interest) this Agreement in whole or in part (including, without limitation, your rights and/or obligations hereunder). Licensor may, without notice to you, assign or transfer this Agreement (including, without limitation, its rights and/or obligations hereunder) in its sole discretion.
10.5 Notices. Any notices required to be delivered by Licensor or which Licensor otherwise opts to send to you, may be sent via email or communicated in telephone calls to you, posting of a Take Down Notice or other notice on this site or the Websites.
10.6 Survival. In the event of any termination or expiration of this Agreement for any reason, Sections 1.2, 2, 4, and 6 – 10 shall survive termination. Notwithstanding the foregoing, other provisions may survive expiration or termination of this Agreement if their survival is reasonably necessary to effectuate the intent of the parties under this Agreement.
10.7 Waiver. The failure of Licensor to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
10.8 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
10.9 Attorneys Fees. The prevailing party shall be entitled to reasonable attorney’s fees, costs and related expenses arising out of any action to enforce this Agreement.
10.10 Remedies. You acknowledge that your breach of this Agreement may cause irreparable harm to Licensor and/or its licensors, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Licensor may be legally entitled, Licensor shall have the right to seek immediate injunctive relief in the event of a breach of this Agreement by you or any of your officers, employees, consultants or other agents.
10.11 Severability of Terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
10.12 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action you have arising in connection with Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10.13 Third Party Beneficiaries. Nothing in this Agreement should be construed to confer any rights to third party beneficiaries; provided that rights holders in the Content shall each be third party beneficiaries of this Agreement to enforce against you all rights of Licensor hereunder as if each was a party hereto.
10.14 Export Controls. You shall, in connection with your use of the Licensor Property, comply with all applicable export and re-export control laws, rules and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with your use of the Licensor Property.
10.15 Interpretation. You agree that Licensor has sole discretion in determining the interpretation of the meaning of the terms of this Agreement, including determining your compliance with this Agreement.