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ACCEPTANCE OF TERMS OF USE THIS AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU" OR "YOUR") AND ZIGGYTV ("ZIGGYTV", "OUR," "US," "WE") REGARDING YOUR ACCESS TO AND USE OF THE ZIGGYTV.COM WEBSITE AND SOFTWARE (THE "SOFTWARE"). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO PURCHASE. BY ACCESSING THE SOFTWARE, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS AS OUTLINED IN THIS LEGAL NOTICE. ZIGGYTV USERS
Downloading ZiggyTV does not constitute
a license for obtaining or distributing unauthorized files. When you
download ZiggyTV software from www.ZiggyTV.com, you agree to refrain from
using ZiggyTV for the purpose of copyright infringement.
ZiggyTV respects the privacy of its users. ZiggyTV does not log IP addresses and/or any other identifying information. However, your Internet Service Provider (ISP) may be required by disclose such information.
DIGITAL MILLENNIUM COPYRIGHT ACT ZiggyTV is committed to respecting and protecting the legal rights of copyright owners. As such, ZiggyTV adheres to the following notice and take down policy, in full compliance with Sections 512(c) and/or 512(d) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to ZiggyTV’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following: • • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; • • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works; • • Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material; • • Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; • • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and • • A
statement that, under penalty of perjury, the information in the
notification is accurate and you are authorized to act on behalf of
the owner of the exclusive right that is allegedly infringed.
ZiggyTV reserves the right to change these terms and conditions from time to time at its sole discretion, without prior notice, by posting such revised terms and conditions on the website. It is Your obligation to routinely review these terms and conditions and Your continued use of the website following any such change (whether or not You have reviewed such change) constitutes Your binding acceptance to follow and be bound by the terms and conditions as changed. THE SERVICE The fee assessed by ZiggyTV entitles You to access the location, evaluation, and or recommendation of software products available from the web site and for the installation and technical support provided. All software recommendations refer to software that is available without charge to individuals at large for specific purposes. The service makes no download speed performance guarantees or the availability of specific files for download on the peer to peer network. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service. In order to use the Service, You must obtain access to the Internet and pay any service fees associated with such access. YOUR CONDUCT You agree not to: (a) upload, transmit, post, email or otherwise make available to the Software, any content or other material in any format that: (b) is false, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another's privacy, libelous and/or otherwise objectionable; (c) infringes any third party's intellectual property; or (d) contains viruses, worms, Trojan horses, corrupted files, or any other similar software or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You agree that you will not transmit or access any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party and agree to indemnify and hold harmless ZiggyTV from their claims if you do. TECHNOLOGICAL AND USE LIMITATIONS ZiggyTV will make reasonable efforts to keep the website operational. However, certain technical difficulties or routine site maintenance/upgrades may, from time to time, result in temporary service interruptions. ZiggyTV also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that ZiggyTV shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service. INTELLECTUAL PROPERTY RIGHTS ZiggyTV makes no claim to ownership or other control or rights to any software recommended by the Service. None of the fee entitles You, as a Purchaser to any ownership, licensing rights or recourse with regard to use of the software other than those rights offered by the software owners or licensees. SUBSCRIPTION E-MAILS ZiggyTV is a direct marketer that delivers email messages to its subscribers. All information voluntarily provided to ZiggyTV by a registrant may be used to support our marketing partner’s data services business. These services include the provision of personally identifiable data to marketing companies, advertising agencies, data compilers, data companies, and, to the extent permitted by law, individual reference, email marketers and look-up service programs. Such information may be used by such companies to provide users via email with information on products and services that may be of interest to them. Users may unsubscribe to electronic mailings sent by us at any time by following the instructions contained at the end of every ZiggyTV newsletter or mailing. Users wishing to unsubscribe from ZiggyTV messages may reply to the message with the word 'remove' in your email message subject line or by clicking the "Remove yourself from future email here" link. COPPA Since you may not become a member of ZiggyTV's Network if you are under the age of 18, ZiggyTV complies with the Children's Online Privacy Protection Act of 1998. Advertisers and Publishers are also obligated to comply with COPPA. If you inform ZiggyTV that ZiggyTV has collected or received information from a child under 18, ZiggyTV will delete such information immediately from its databases. No ZiggyTV Web Site is specifically directed to children under 18. ZiggyTV shall not knowingly distribute to third parties any personally identifiable information erroneously collected from children under 18. PAYMENT Your account will be considered delinquent if your credit card company or bank refuses for any reason to pay the amount billed to it. You agree to pay ZiggyTV all reasonable attorneys fees and collection agency costs incurred by ZiggyTV to collect any past due amounts. SUPPORT Subject to the terms hereof, ZiggyTV will provide you with email support services for the Service and associated software. Under no circumstances will ZiggyTV have any obligation to provide you with hard-copy documentation, upgrades, enhancements, modifications, or phone support. TERMINATION You agree that ZiggyTV, in its sole discretion, may terminate your ID, password, account (or any part thereof) or use of the Service for any reason, including, without limitation, if ZiggyTV believes that you have violated or acted inconsistently with the Agreement. ZiggyTV may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that ZiggyTV may immediately deactivate or delete your account and/or bar any further access to the Service. Termination shall not relieve you of any obligations to pay accrued charges. CANCELLATION You can cancel your account anytime with no further obligation. Use the "Contact Us" link on the web site to cancel your account. DISCLAIMER OF WARRANTIES YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE SOFTWARE, THE WEBSITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE SOFTWARE, OR THE WEBSITE, OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MATERIAL, AND ALL SERVICES PROVIDED BY COMPANY, IS BORNE EXCLUSIVELY BY YOU. SHOULD THE MATERIAL, OR ANY OTHER SERVICE PROVIDED BY COMPANY, PROVE DEFECTIVE AND/OR CAUSE ANY DAMAGE TO YOUR COMPUTER OR INCONVENIENCE TO YOU, YOU, AND NOT COMPANY, ASSUME THE ENTIRE COST AND ALL DAMAGES WHICH MAY RESULT DIRECTLY AND INDIRECTLY FROM ANY AND ALL SUCH DEFECTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. UNDER NO CIRCUMSTANCES, AND UNDER NO CAUSE OF ACTION OR LEGAL THEORY, SHALL THE COMPANY, ITS SUPPLIERS, LICENSEES, RESELLERS, OR OTHER SUBSCRIBERS, OR THEIR SUPPLIERS, LICENSEES, RESELLERS OR SUBSCRIBERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES RESULTING FROM ANY USE OF MATERIALS OR OTHER USE OF THE WEBSITE. LIMITATION OF LIABILITY YOU HEREBY AGREE THAT WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, PROFITS OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE SERVICE WILL NOT EXCEED THE TOTAL FEES PAID BY YOU UNDER THIS AGREEMENT. YOU AGREE TO BE PERSONALLY LIABLE AND FULLY INDEMNIFY THE COMPANY, ITS AGENTS, AND ITS SUCCESSORS AND ASSIGNS FOR ANY AND ALL DAMAGES DIRECTLY, INDIRECTLY AND/OR CONSEQUENTIALLY RESULTING FROM ANY ATTEMPTED OR ACTUAL UNAUTHORIZED DOWNLOADING OR OTHER DUPLICATION OF MATERIALS FROM THE WEBSITE BY YOU ALONE, OR WITH, OR UNDER THE AUTHORITY OF, ANY OTHER PERSON(S), INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL AGENCY(IES), WHEREIN SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, ALL DIRECT AND CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY RESULTING FROM UNAUTHORIZED DOWNLOADING OF MATERIALS FROM THE WEBSITE. ANY LIABILITY OF COMPANY, INCLUDING, WITHOUT LIMITATION, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OR ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT OF MEMBERSHIP FEE PAID BY, OR ON BEHALF OF, THE SUBSCRIBER TO THE COMPANY FOR THE PRECEDING MONTHLY BILLING PERIOD OR PAID TRIAL PERIOD, AS APPLICABLE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. COMPANY IS NOT LIABLE FOR DAMAGES RESULTING FROM DISSEMINATING, FAILING TO DISSEMINATE, OR INCORRECTLY OR INACCURATELY DISSEMINATING ANY MATERIAL, DATA, ADVERTISEMENT OR OTHER COMMUNICATION AT OR THROUGH THE WEBSITE. CLASS ACTION WAIVER WHETHER IN COURT, SMALL CLAIMS COURT, OR ARBITRATION YOU AND WE MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS-ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED. YOU HEREBY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING NOW OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, OR TO THE ONLINE SERVICE (“CLAIM”), REGARDLESS OF THE NATURE OF THE CAUSE(S) OF ACTION ASSERTED (INCLUDING CLAIMS FOR INJUNCTIVE, DECLARATORY, OR EQUITABLE RELIEF), SHALL BE RESOLVED BY BINDING ARBITRATION. CLAIMS SUBJECT TO ARBITRATION INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERPLEADERS, OR OTHERWISE. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, AND YOU THEREFORE AGREE TO WAIVE ANY RIGHT THAT YOU OR WE MIGHT OTHERWISE HAVE HAD TO A JURY TRIAL OR THE OPPORTUNITY TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY. YOU FURTHER AGREE THAT YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION (SUCH AS AN ACTION IN THE FORM OF A PRIVATE ATTORNEY GENERAL) TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY; NOR WILL YOU BE ABLE TO PARTICIPATE AS A CLASS MEMBER IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY. MISCELLANEOUS The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees. Effective January 1, 2008 |
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