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 ("WEBSITE") AND THE ZIGGYTV SOFTWARE ("SOFTWARE"). YOU MUST READ THIS AGREEMENT CAREFULLY PRIOR TO DOWNLOADING THE SOFTWARE. BY DOWNLOADING AND ACCESSING THE SOFTWARE, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OUTLINED BELOW.
IMPORTANT NOTICE: Downloading the Software does not constitute permission or a license for obtaining or distributing unauthorized files. It is illegal for you to distribute copyrighted files without permission. When You download the Software you agree that you will not use the Software for the purpose of copyright infringement.
Original works of authorship, including literary, dramatic, musical, artistic, and certain intellectual compositions are protected by copyright law. If a person publicly performs, reproduces, distributes copies, or displays works without consent of the copyright owner, they could be in violation of the law. Please ensure that you are aware of, respect and comply with all copyright laws. Go to www.copyright.gov to learn more about U.S. copyright law. For more information on academic, music, movie, gaming, and webcast copyrights please visit the www.riaa.com, www.copyright.com, www.creativecommons.org, www.mpaa.org websites.
You agree that any and all downloading will be limited to time-shifting, personal, private and non-commercial uses only. You agree that you will not use the Software to make more than one download recording of any Internet broadcast. You agree that you will not share, distribute, or broadcast any files downloaded with the Software in any way. You agree not to keep the recording any longer than is reasonably necessary in order to listen to or view the broadcast at a more convenient time.
DESCRIPTION OF ZIGGYTV`S SERVICES
The Software and Website is a search technology that produces search results referencing media information and content located across the Internet. The Software and Website do not share, host, store, or provide any kind of content, including but not limited to, any video, audio or game content. The services provided by the Software are based on third party-websites. Any linked websites provided in the Software`s search results are in no way connected to, under the control of, or associated with ZIGGYTV. The Software is designed purely as an internet search, discovery and information tool. We are not a "file sharing" site, or software, whether peer-to-peer or otherwise.
The Software allows users to "time shift" and record Internet broadcasts. Time shifting allows a consumer view and/or listen to a work or sound recording that is publically broadcast, to a more convenient time for the consumer.
It is not an infringement of copyright to time shift a communication broadcast and to reproduce a work or sound recording, if
(a) the user makes no more than one recording of the broadcast;
(b) the user keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time;
(c) the user does not distribute, share, broadcast or give the recording away; and
(d) the recording is for, time-shifting, personal, private, non-commercial uses only.
All multimedia, informational, educational, or social network content accessed by you while using the ZIGGYTV Website and/or Software`s search functionality is hosted and provided by external websites whose content is available to the general public. Those websites and their owners and operators are responsible for the content being hosted, stored, served and/or re-transmitted and such sites have the responsibility to serve and distribute the multimedia content they offer to the public. ZIGGYTV and/or its developers do not maintain any relationship with the third party websites and therefore cannot be responsible for or control the content available on those sources. Because ZIGGYTV does not own or have editorial control over third party websites, it is possible that Your Internet searches will link you to files on third party websites that have been posted without the copyright owner`s authorization. You are responsible for ensuring that your activities comply with the law. To protect such copyright holders ZIGGYTV supports DMCA Takedown Notice(s) and does not support technologies to circumvent Digital Rights Management "DRM" security encryption.
Links on the Website or made via the Software to third party websites are not referrals or endorsements of the linked entities or their websites and the contents of such websites, but are provided solely for Your Internet search convenience. The Website and the Software`s search results clearly list the third party website source of all the multimedia content provided and it is Your responsibility to read and accept of the "terms of service" of each third party website before using the Software to access any content.
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 Website`s 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`s Copyright Agent for the purpose of receiving DMCA Takedown Notices is: ZIGGYTV Support. Please email all takedown notices to: support[at]ziggytv.com. For clarity, DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Website. You acknowledge that in order for ZIGGYTV to be authorized to take any action, Your DMCA Takedown Notice must comply with all of the foregoing requirements.
TIME SHIFTING AND FAIR USE
The Software is compliant with the fair use "time shifting" provisions of the United States Supreme Court`s decision in the case of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), (referred to hereafter as the "Betamax Decision"). Time shifting is the recording of programming to a storage medium to be viewed or listened to at a time more convenient to the consumer. Typically, this refers to TV programming but can also refer to broadcasts of radio, video, and other multimedia.
The Betamax Decision ruled that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement, but is fair use.
The Court`s ruling in favor of Sony hinged on the principle that the technology in question had significant non-infringing uses. On the question of whether Sony could be described as "contributing" to copyright infringement, the Court stated:
"[There must be] a balance between a copyright holder`s legitimate demand for effective -- not merely symbolic -- protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses....
The question is thus whether the Betamax is capable of commercially significant non-infringing uses ... one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court`s factual findings reveal that even the unauthorized home time-shifting of respondents` programs is legitimate fair use....
When one considers the nature of a televised copyrighted audiovisual work ... and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact ... that the entire work is reproduced ... does not have its ordinary effect of militating against a finding of fair use."
ZIGGYTV USER PRIVACY
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 to disclose such information.
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.
TECHNOLOGICAL AND USE LIMITATIONS
ZIGGYTV will make reasonable efforts to keep the Software operational. However, certain technical difficulties or routine site maintenance/upgrades may, from time to time, result in temporary service interruptions. ZIGGYTV reserves the right at any time to modify or discontinue, whether temporarily or permanently, all or any part of the functions of the Software with or without notice to You. 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 permanent or temporary modification, suspension, discontinuance of, or interruption to the Software.
Subject to the terms hereof, ZIGGYTV will provide You with email support services for the Software. Under no circumstances will ZIGGYTV have any obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications, or phone, chat or other support.
You agree that ZIGGYTV, in its sole discretion, may terminate Your account (or any part thereof), Website or Software access or use of the Software 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 Software, or any part thereof, with or without notice. You agree that any termination of Your access to the Software 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 Software.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING 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 SOFTWARE PROVIDED BY ZIGGYTV, IS BORNE EXCLUSIVELY BY YOU. SHOULD THE MATERIAL, THE SOFTWARE, PRODUCT OR ANY OTHER SERVICE PROVIDED BY ZIGGYTV, PROVE DEFECTIVE AND/OR CAUSE ANY DAMAGE TO YOUR COMPUTER OR INCONVENIENCE TO YOU, YOU, AND NOT ZIGGYTV, ASSUME THE ENTIRE COST AND ALL DAMAGES THAT MAY RESULT DIRECTLY AND INDIRECTLY FROM ANY AND ALL SUCH DEFECTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES AND COUNTRIES 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 ZIGGYTV, 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 OR SOFTWARE.
LIMITATION OF LIABILITY
YOU HEREBY AGREE THAT ZIGGYTV 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 SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE SOFTWARE WILL NOT EXCEED THE TOTAL FEES PAID BY YOU TO ZIGGYTV UNDER THIS AGREEMENT.
YOU AGREE TO BE PERSONALLY LIABLE AND FULLY INDEMNIFY ZIGGYTV, ITS AGENTS, AND ITS SUCCESSORS AND ASSIGNS FOR ANY AND ALL DAMAGES DIRECTLY, INDIRECTLY AND/OR CONSEQUENTIALLY RESULTING FROM ANY ATTEMPTED OR ACTUAL UNAUTHORIZED USE, DOWNLOADING OR OTHER DUPLICATION OF MATERIALS FROM THE WEBSITE OR ANY THIRD PARTY WEBSITE BY USING THE SOFTWARE, WHETHER USED BY YOU ALONE, OR BY, OR WITH, OR UNDER THE AUTHORITY OF, ANY OTHER PERSON(S), WHETHER WITH OUR WITHOUT YOUR KNOWLEDGE PERMISSION OR AUTHORIZATION, INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL AGENCY(IES), WHEREIN SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, ALL DIRECT AND CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY RESULTING FROM UNAUTHORIZED USE OR DOWNLOADING OF MATERIALS FROM THE WEBSITE.
YOU AGREE THAT ANY LIABILITY OF ZIGGYTV, 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, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OR ACTION, SHALL BE STRICTLY LIMITED TO THE TOTAL FEES PAID BY, OR ON BEHALF OF, THE SUBSCRIBER TO ZIGGYTV FOR THE PRECEDING MONTHLY BILLING PERIOD OR PAID TRIAL PERIOD, AS APPLICABLE. SOME STATES OR COUNTRIES 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. ZIGGYTV 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.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ZIGGYTV, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, THREATENED CLAIMS LEGAL ACTIONS, JUDGMENTS, COSTS, EXPENSES OR OTHER CAUSES OF ACTION OF ANY NATURE WHATSOEVER ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH, BUT NOT LIMITED TO, (1) YOUR USE OF THE WEBSITE AND SOFTWARE; (2) YOUR BREACH OF THIS AGREEMENT; OR (3) YOUR IMPROPER USE OF OR ANY ILLEGAL ACTIVITIES BY YOU IN RELATION TO WEBSITE AND SOFTWARE.
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 SOFTWARE, 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.
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 attorney`s fees.
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