These Yahoo! TV Widget Developer Terms of Use (“Developer TOU”) and the Yahoo! Terms of Service (“TOS”) set forth the terms and conditions between Yahoo! Inc. and its affiliates (collectively “Yahoo”) and you that govern your access to and use of the Yahoo! TV Widget System (collectively, “Agreement”). By using any portion of the Yahoo! TV Widget System, you accept the terms of this Agreement. If you disagree with any of the provisions in this Agreement, then Yahoo does not grant you permission to use the Yahoo! TV Widget System or license to any portion thereof. Yahoo can update and change this Agreement at any time without notice to you. Your access to and/or use of the Yahoo! TV Widget System after any such change means you accept such change. Capitalized terms not defined in this Developer TOU have the meaning ascribed to them in the TOS. Certain defined terms in this Developer TOU are included in the definitions of capitalized terms in the TOS: (a) the Yahoo! TV Widget System is a Yahoo! Service and all references in the TOU to Yahoo! Service shall apply to the Yahoo! TV Widget System, and (b) each TV Widget is Content (thus, your TV Widget is your Content) and all references to Content in this Agreement shall apply to TV Widgets. If there is a conflict between the terms of the Developer TOU and the TOS, the terms of the Developer TOU shall control. The imposition of additional enumerated restrictions or liabilities on your actions or omissions by one document over the other shall not be considered in and of itself a conflict. At any time you can review the most current version of the Developer TOU at http://info.yahoo.com/legal/us/yahoo/tvwidget/tvwidget-4251.html and the most current version of the TOS at http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html.
Definitions and General Obligations
1.1 The capitalized terms in this Agreement shall have the meanings ascribed to them as follows:
“Authorized Users” means your employees or independent contractors who are developing your TV Widgets and who require access to the WDK and Yahoo Confidential Information on a need-to-know basis in order to develop such TV Widgets.
“Creative” has the meaning set forth in Section 2.2 herein.
“OSS” means open source software subject to licenses (i.e., GNU General Public License or GNU Lesser/Library GPL) that require as a condition of use, copying, modification or distribution, that such software (including modifications or derivative works derived therefrom) be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge.
“Sample Code” means exemplary source code, such as the source code for Yahoo! TV Widgets in the WDK provided by Yahoo and identified clearly as such by Yahoo in the WDK.
“TV Widget” means a TV Widget developed to run on the Yahoo! Widget Engine.
“Widget Development Kit” or “WDK” means, collectively, any software code, documentation, instructions, tutorials, runtime environments, testing environments, tools, APIs, files and other materials that Yahoo and/or Yahoo’s partners or affiliates make available to you to enable your development of TV Widgets, including without limitation, the Yahoo! Widget Engine, Yahoo! TV Widgets, Documentation, Sample Code, and Yahoo! APIs.
“Yahoo! API” means a published application programming interface or other web service owned by Yahoo and provided by Yahoo to the general public subject to certain published guidelines on the Yahoo Developer Network and published terms and conditions on http://info.yahoo.com/legal/us/yahoo/api/api-2140.html.
“Yahoo Confidential Information” has the meaning set forth in Section 5.
“Yahoo! TV Widget” means a TV Widget (or a template or toolbox thereof) owned by Yahoo.
“Yahoo! Widget Engine” means the software platform that powers the Yahoo! TV Widget System.
“Yahoo! TV Widget System” means collectively (i) the Yahoo! Widget Engine, (ii) the WDK, (iii) the Yahoo! Widget Gallery, (iv) Yahoo! TV Widgets, (v) Creative; and (vi) and any other services, applications, programs, or features developed by Yahoo or on Yahoo’s behalf for the purposes of maintaining, distributing, and developing items (i) through (v) of this definition.
“Yahoo! Widget Gallery Service” means Yahoo’s online gallery service from which users may preview, download, or otherwise access TV Widgets which run on the Yahoo! Widget Engine.
“Your (your) TV Widget” means a TV Widget developed by you or on your behalf, by using the WDK, and/or for operation on the Yahoo! Widget Engine.
1.2 You certify and represent to Yahoo that:
you are of legal age in the jurisdiction in which you reside (at least 18 years of age in many countries) to enter into a binding contract;
have the right and authority to enter into this Agreement on your own behalf, or if you are entering into this Agreement on behalf of your company or organization, that you have the right and authority to legally bind your company or organization to the terms and obligations of this Agreement;
You will provide Yahoo with current, true, accurate and complete information about yourself and your company or organization; and
You will monitor and be responsible for your Authorized Users’ use of the Yahoo! TV Widget System and their compliance with the terms of this Agreement.
License Grants, Restrictions and Requirements for the Yahoo! TV Widget System.
2.1 WDK Components. Yahoo grants you and your Authorized Users during the Term the worldwide, non-exclusive, non-assignable, and non-sublicensable right to access, download, and use a reasonable number of copies of the WDK on computers owned or controlled by you, solely for the purposes of developing, testing, and distributing TV Widgets, subject to the limitations and restrictions set forth in this Agreement. There are several components that may be referenced by or contained within the WDK. The terms and restrictions for your use of each of these components are as follows:
Yahoo! Widget Engine: The Yahoo Widget Engine is considered “Software” under the TOS. You may not reverse-engineer, decompile, disassemble, modify, decrypt, or create derivative works of the Yahoo! Widget Engine. You may only copy and distribute the Yahoo! Widget Engine to your Authorized Users solely for the internal purposes of testing your TV Widgets.
Yahoo! Developer Network APIs: If your TV Widget incorporates a Yahoo! API, you must agree to and comply with the terms of use for such Yahoo! API. Terms of service for Yahoo! APIs can be found at http://info.yahoo.com/legal/us/yahoo/api/api-2140.html. Your TV Widget may not call on any APIs owned by Yahoo which are private and not available to the general public, unless you have entered into a separate agreement with Yahoo permitting you to do so.
Sample Code. You may copy, modify, share, create derivative works from, and distribute Sample Code identified as such and provided by Yahoo to you in the WDK, provided that you do not use any images, audio files, or other Content apart from the code and follow these conditions:
Redistributions in source code form must contain the copyright notice "Copyright © Yahoo! Inc. 2008-2009, All Rights Reserved," this list of conditions, and the disclaimer below.
Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the disclaimer below in the documentation and/or other materials provided with the distribution.
Neither the name of Yahoo nor the names of its contributors may be used to endorse or promote products derived from Yahoo! TV Widgets without specific prior written permission of Yahoo.
DISCLAIMER TO BE INCLUDED WITH MODIFIED YAHOO! TV WIDGET CODE:
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Documentation, tutorials, specifications, and definitions (collectively, “Documents”). You and your Authorized Users may copy and distribute the Documents internally for the purposes of development and testing of your TV Widgets, in any medium, non-commercially and without modification only, provided that these Developer Terms of Use, the copyright notices, and the notice stating that these Developer Terms of Use apply to the Document are reproduced in all copies. You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. You may not accept compensation in exchange for copies.
2.2 Creative. As part of Yahoo’s assistance to developers creating TV Widgets, Yahoo may create and assemble images, graphics, video, audio, music, text, or any combination of the foregoing (“Creative”) as exemplary designs for illustrative purposes, or for production use by developers. If you desire to use such Creative and Yahoo has indicated to you in writing that you may use such Creative in your TV Widget, then Yahoo grants you during the Term the worldwide, non-assignable, non-sublicensable, and non-exclusive license to reproduce, distribute, and display the Creative solely within your TV Widget, and in any medium in connection with the promotion and marketing of such TV Widget, solely for as long as your TV Widget is available to users via the Yahoo! Widget Gallery. While Yahoo owns the copyright to all portions of the Creative which Yahoo has originally developed and created, the underlying materials from which the Creative is composed may be subject to the rights of third parties, such as stock photography images providers. Therefore, you are responsible for separately obtaining the appropriate rights from such third parties to use such underlying materials.
2.3 You may not incorporate any OSS into your TV Widget in a manner which would cause the non-OSS portions of the WDK to be subject to any OSS licensing requirements.
2.4 You may not distribute, share, or transfer (except as otherwise permitted in this Section 2), or sell, lease, reverse-engineer, derive income from the provision of, derive the source code of (if Yahoo provides such code only in binary), decompile, or sublicense any or all of the WDK or Yahoo! Widget Gallery and any access or access codes thereto. If you make copies or reproduce any portion of the WDK, you shall retain and reproduce in full the copyright, disclaimers and other proprietary notices as they appear in the WDK.
2.5 While you may communicate generally to the public about your TV Widgets, you must do so truthfully, and you may not use the Yahoo! trademarks, service marks, or logos in connection with your TV Widgets, or otherwise give the general public the impression that any of your TV Widgets are created, endorsed, or sponsored by Yahoo.
2.6 You may provide technical and other evaluation and feedback to Yahoo concerning the Yahoo! TV Widget System, Yahoo! Widget Gallery, WDK, or Yahoo! TV Widgets (“Feedback”). You shall not provide any Feedback to Yahoo which consists of proprietary or confidential information for which you do not have the right to share with Yahoo!. Any Feedback you provide to Yahoo will be subject to the license terms set forth in Section 3 of this Agreement.
2.7 You may not distribute your TV Widgets to run on the Yahoo! Widget Engine except as set forth in Section 2.9 (Yahoo! Widget Gallery Service).
2.8 You MAY NOT advertise or create TV Widgets within the Yahoo! TV Widget System, or otherwise use the Yahoo! TV Widget System:
to promote or distribute time bombs, crash bugs, viruses or other devices or functions that will or may harm, disrupt, or destroy any data, information, material, equipment, network, system or function, or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of distributing spyware, adware, spam, phishing, or other malicious programs or code;
to promote or distribute child pornography, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, tobacco products, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade in stocks and securities, gambling or gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons or accessories; and any services or products which are illegal in the jurisdiction in which your TV widget is distributed;
in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity;
to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake, because you understand that the Yahoo! TV Widget System is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which Yahoo is not responsible;
in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with this Agreement, or other requirements or guidelines as determined by Yahoo in its sole discretion;
in a manner that scrapes or stores a user’s credentials (i.e., passwords and user log-in i.d.) or other personally identifiable information for the purposes of accessing such user’s Yahoo! account(s), or accesses Yahoo-issued tokens or otherwise authenticates against the Yahoo user database unless Yahoo has expressly permitted you to do so in writing; and
to promote or distribute alcoholic beverages or products, or adult or pornographic content (even if legal in your jurisdiction).
to download, reproduce, or retransmit any content in a manner not authorized by the owner thereof;
to promote or distribute a TV Widget which is marketed specifically for the purposes of locating and displaying “pirated” content (i.e., content distributed in a manner that violates copyright) on the Internet;
to remove any digital rights management or similar content protection technology associated with Internet content that is accessed by your TV Widget; and
to intentionally obfuscate (to the extent legally prohibited) any device characteristic information, e.g., device ID, device locale, IP address, MAC address and other available information from a television or peripheral device to which your TV Widget has been downloaded.
2.9 You SHALL do the following when accessing or using the Yahoo! TV Widget System:
If your TV Widget (including any advertising or advertising services contained therein) will access, collect, store, copy, distribute, or otherwise use the personal information of users, such as users’ log-in and password credentials, email addresses, location or geographical information, or any information or files stored or created by a particular user on an Internet service or website, you must (a) notify each user of such TV Widget with how the user’s personal information will be accessed, collected, stored, transmitted, shared with third parties, and otherwise used by you and your TV Widget; (b) obtain lawful consent from such user; (c) access, collect, store, transmit, share, and use such personal information lawfully and in a manner that respects and safeguards the user’s privacy; and (d) maintain and post a privacy policy which truthfully and accurately describes items (a) through (c) in this Section.
You represent and warrant to Yahoo that you have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute any Content in or made available via your TV Widgets in the manner contemplated under this Agreement, and that use by Yahoo or others of any such Content and your TV Widgets via the Yahoo! TV Widget System as contemplated under this Agreement shall not violate the proprietary or privacy rights of any person or entity (e.g., copyright, patent, and trademark), or any applicable regulation or law.
If Yahoo notifies you that any of your TV Widgets have allegedly or in fact infringed upon any third party rights or violated any relevant laws, you will use expedited and best efforts to (a) assist Yahoo in any investigation of such alleged infringement or violation; or (b) remove or disable access to such TV Widgets immediately.
You shall truthfully represent at all times what your TV Widgets will do for users, and what your TV Widgets will do with user data. You will comply with all legal process served upon you or upon Yahoo by litigants or government agencies seeking the disclosure of information concerning your TV Widget, including user data collected and/or stored by you or your TV Widget. You are also solely responsible for all costs associated with processing such requests. In responding to such requests, you shall comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with the disclosure of user data.
You shall be solely responsible for developing your TV Widgets, and for any Content or services that you display, transmit, make available, or distribute via your TV Widgets. You shall also be solely responsible for supporting users of your TV Widgets and for providing and enforcing terms, policies and restrictions applicable to your TV Widgets with such users. You shall provide a legitimate email address or publicly accessible website to which users can submit their questions, complaints, and feedback about your TV Widgets.
You shall promote and refer to all applications developed with the WDK or developed to run on the Yahoo! Widget Engine with the label of “TV Widgets.”
2.10 Yahoo! Widget Gallery Service.
Yahoo provides the Yahoo! Widget Gallery Service, which allows developers to distribute their TV Widgets internationally, and which provides users with access to various TV Widgets created by developers and Yahoo. Yahoo shall market and promote TV Widgets from time to time within the Yahoo! Widget Gallery. You may only distribute your TV Widgets to run on the Yahoo! Widget Engine if you submit your TV Widget to the Yahoo! Widget Gallery, Yahoo! accepts your submission, and you comply with the terms of use herein. During the TV Widget submission process, you will be able to determine the distribution territory for your TV Widgets by geography and OEM channel (the “Territory”).
By submitting your TV Widget to the Yahoo! Widget Gallery, you represent and warrant that your TV Widget complies with this Agreement. You may not submit a TV Widget to the Yahoo! Widget Gallery if it does not comply with this Agreement. Even if your TV Widget complies with this Agreement, Yahoo! may decide at its sole discretion not to include your TV Widget into the Yahoo! Widget Gallery.
By submitting your TV Widget to the Yahoo! Widget Gallery, you hereby represent and warrant that you have the right to, and do grant to Yahoo, its affiliates, and distribution partners of Yahoo and its affiliates, a worldwide, non-exclusive, fully paid-up, royalty-free license to store, archive, access, distribute, publicly display, publicly perform, copy, and transmit:
(a) Solely via the Yahoo! Widget Gallery within the Territory, your TV Widget, including the information, content, materials, audio files, audio-visual files, elements, programming, clips, segments, source art, graphics, images, meta data, trademarks, service marks, and logos and any other Content you make available via such TV Widget, via any medium or communications systems through which the Yahoo! TV Widget System is made available, including, without limitation, the Internet; and
(b) the trademarks, service marks, logos, demonstrations, snippets, and screen shots of your TV Widget, in any medium, solely in connection with the marketing and promotion of the Yahoo! TV Widget System, associated products and services, and/or your TV Widget.
If Your Submitted Widget is accepted by Yahoo to be displayed and distributed via the Yahoo! Widget Gallery, you may generally communicate to the public that Your Submitted Widget is in the Yahoo! Widget Gallery, but you may not mislead the public by stating or implying that Your Submitted Widget is endorsed or sponsored by Yahoo. You may not issue a press release concerning Yahoo without Yahoo’s prior written approval.
You shall provide truthful and accurate information when submitting your TV Widget to the Yahoo! Widget Gallery, and you shall amend such information when you submit updated versions of your TV Widget if that is necessary to maintain the truthfulness and accuracy of information about Your Submitted Widget.
Yahoo reserves the right to remove Your Submitted Widget from the Yahoo! Widget Gallery at any time and for any reason in its sole discretion, and in particular if Yahoo deems in its sole discretion that you or Your Submitted Widget does not comply with the Developer TOU and the TOS.
2.11 Yahoo reserves the right, in its sole discretion, to access, preserve, or disclose information regarding your TV Widget, including but not limited to code executed by the Yahoo! Widget Engine, and user data collected and/or stored by you or your TV Widget, in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any user data, personal data, or usage data violates the rights of third parties; (iv) respond to a user’s request for technical support; or (v) protect the rights, property or personal safety of Yahoo and its affiliates, its users and the public. If your TV Widget does not comply with this Agreement, Yahoo reserves the right to remove, disable access to, or block your TV Widget from operating on the Yahoo! TV System.
Ownership and Intellectual Property.
3.1 Yahoo and its licensors own all right, title, and interest in and to the Yahoo! TV Widget System and any updates, modifications, or derivatives thereof. The Yahoo! TV Widget System may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement. Yahoo will have a perpetual, worldwide, irrevocable, sublicensable, and royalty-free license to utilize, modify, and distribute your Feedback, as well as incorporate such Feedback into the Yahoo! TV Widget System, or any versions thereof. However, you agree that Yahoo’s incorporation of Feedback into Yahoo’s products and services does not grant you any proprietary rights therein. Other than the license grant expressly set forth herein, this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Yahoo.
3.2 You own all right, title, and interest in to any TV Widgets (except for any Sample Code that is integrated into the TV Widgets) that you develop, and any derivative works thereof. As a condition of using the Yahoo! TV Widget System, you grant Yahoo a worldwide, non-exclusive, perpetual, sublicensable license to access, distribute, display, copy, and perform the TV Widgets within the Yahoo! Widget Gallery Service, and to reproduce screenshots and images of your TV Widget in marketing and promotional materials, in any medium, related to the Yahoo! TV Widget System.
Updates; No Support or Maintenance
Yahoo may extend, enhance, or otherwise modify the Yahoo! TV Widget System or any components thereof (“Updates”) at any time without notice, but Yahoo has no express or implied obligation to provide you with any such Updates. If Yahoo does provide you with Updates, then your use of and access to such Updates is governed by this Agreement. Yahoo is not obligated to provide any maintenance, technical or other support for the Yahoo! TV Widget System.
Confidentiality.
5.1 Information Deemed Confidential.
You agree that the Yahoo! Widget Engine, future versions of the Yahoo! Widget Engine and any other non-public information that you learn about Yahoo’s products, designs, research, development, know-how, business, finances, or personnel in connection with your use of any part of the Yahoo! TV Widget System will be deemed “Yahoo Confidential Information” under this Agreement.
5.2 Obligations Regarding Confidential Information.
You agree to protect Yahoo Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but no less than a reasonable degree of care. You may use Yahoo Confidential Information solely for the purpose of exercising your rights and performing your obligations under this Agreement. You may not use Yahoo Confidential Information for any other purpose, or for your own or any third party’s benefit, without the express prior written consent of an authorized representative of Yahoo. You further agree not to disclose or disseminate Yahoo Confidential Information to anyone, or to discuss anything about the Yahoo Confidential Information with anyone, other than those of your Authorized Users who are bound by a written agreement that prohibits unauthorized use or disclosure of the Confidential Information, or except as otherwise agreed in writing by Yahoo. You may disclose Yahoo Confidential Information to the extent required by law, provided that you take reasonable steps to notify Yahoo of such requirement before disclosing the Yahoo Confidential Information and to obtain protective treatment of the Yahoo Confidential Information. You acknowledge that damages for improper disclosure of Yahoo Confidential Information may be irreparable; therefore, Yahoo is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
5.3 Press Releases and Other Publicity.
You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of you and Yahoo without Yahoo’s express prior written approval.
Term and Termination.
This Agreement commences upon your receipt or use of any portions of the Yahoo! TV Widget System, and continues until terminated by either you or Yahoo (the “Term”). You may terminate this Agreement at any time by discontinuing your use of the Yahoo! TV Widget System and by destroying all your copies of the WDK. This Agreement terminates automatically if you violate any of its terms, Yahoo publicly posts a written notice of termination on Yahoo's web site(s) or on the Yahoo! TV Widget System, or Yahoo sends a written (including email or text message) notice of termination to you directly. Your obligations in this Agreement survive its termination.
Disclaimer of Warranties.
YAHOO DOES NOT REPRESENT OR WARRANT THAT THE YAHOO! TV WIDGET SYSTEM, OR ANY PORTION THEREOF, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.
THE YAHOO! TV WIDGET SYSTEM IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND YAHOO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT.
YOUR USE OF THE YAHOO! TV WIDGET SYSTEM IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF IT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA OR DAMAGE TO YOUR OR ANY OF YOUR TV WIDGET USERS’ TELEVISIONS, COMPUTER SYSTEMS OR SOFTWARE.
Limitation of Liability.
YAHOO SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE YAHOO! TV WIDGET SYSTEM, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT YAHOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL YAHOO’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL CUMULATIVE DAMAGES EXCEED THE AMOUNT OF US $100.00.
Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 7 AND 8 MAY NOT APPLY TO YOU.
Hold Harmless and Indemnity.
To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify Yahoo and its subsidiaries, affiliates, officers, employees, agents, licensors, co-branders, distribution partners or other partners from and against (i) any breach by you of a warranty or representation set forth herein, and (ii) any third party claim arising from or in any way related to your use or your Authorized Users’ use of the Yahoo! TV Widget System in a manner inconsistent with this Agreement, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Yahoo shall use good faith efforts to provide you with written notice of such claim, suit or action.
General Terms.
11.1 Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement, you and Yahoo shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Yahoo, express or implied, and you shall not attempt to bind Yahoo to any contract.
11.2 Invalidity of Specific Terms. If any provision of these TOU 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 such documents remain in full force and effect.
11.3 Location of Lawsuit and Choice of Law. This Agreement and the relationship between you and Yahoo shall be governed by the laws of the United States and the State of California without regard to its conflict of law provisions. You and Yahoo agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California.
11.4 No Waiver of Rights by Yahoo. Yahoo's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
11.5 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Yahoo! TV Widget System or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
11.6 Assignment. This Agreement may not be assigned, nor may any of your obligations under this Agreement be delegated, in whole or in part, by you by operation of law, merger, or any other means without Yahoo’s express prior written consent and any attempted assignment without such consent will be null and void. Yahoo may assign its rights and obligations under this Agreement in whole or in part to its affiliates and subsidiaries without notice to you.
11.7 Miscellaneous. The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect this Agreement. Any construction or interpretation to be made of this Agreement shall not be construed against the drafter. This Agreement and any documents incorporated herein by reference constitute the entire agreement between Yahoo! and you with respect to the subject matter hereof superseding any prior agreements between you and Yahoo! with respect to the Yahoo! TV Widget System.
11.8 Government End Users. The Yahoo! Widget Engine, WDK, and any Software are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
11.9 Export and Import Compliance. The Yahoo! Widget Engine, WDK, and any Software are subject to the United States export controls and may be subject to the export or import regulations of other countries. You agree to comply strictly with all applicable export and import laws and regulations. In particular, you: (a) represent and warrant that you are not a party identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; (b) you are not located in or a national of a country subject to U.S. embargo (as of February 2009, the countries subject to U.S. embargo are: Cuba, Iran, North Korea, Sudan and Syria); (c) agree not to use the Yahoo! Widget Engine, WDK, and any Software for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws; (d) agree not to re-export or transfer the Yahoo! Widget Engine, WDK, and any Software in violation of the U.S. export controls.
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