Zinc Terms of Service
Effective date: October 24, 2012
Do not click on an “I agree” or similar button unless you are 18 or older, a resident of the United States, and agreeing to these terms. These terms contain an arbitration provision and a waiver of class action claims (see section 13 below for more information).
1. Zinc.tv and your Zinc Account
If you register for an account on zinc.tv, you must provide us with accurate information. We suggest picking a strong password (so no “password”, please). Keep your password secure and to yourself. We reserve the right to add or change features of the Zinc Service, and to permanently or temporarily suspend your use of the Zinc Service, at any time for any reason without any notice or liability to you. You may close your account at any time by emailing us at ZincTVsupport@tivo.com.
2. License and Restrictions
Subject to your compliance with these terms, we grant you a license to use the Zinc Service for your personal, non-commercial use as permitted by the features and functionality of the zinc.tv site. You must be at least the age of majority in the state where you live and a resident of the United States to use the Zinc Service. You agree (except to the extent that any such restrictions are prohibited by applicable law) not to: (a) circumvent or overcome (or attempt to do so) any technological measures restricting access to any portion of the Zinc Service; or (b) attempt to gain unauthorized access to the Zinc Service through hacking, password mining or any other means. You may only use the Zinc Service in accordance with all applicable laws and regulations, and not for any unlawful or prohibited activity.
3. IP Rights
We reserve all rights not expressly granted to you. These terms do not provide you with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of TiVo's intellectual property rights other than to the extent expressly authorized above.
4. Copyright Policy
We respect the intellectual property rights of others, and expect our users to do the same. If you are a copyright owner (or are authorized to act on behalf of the owner of an exclusive right under copyright) and believe that your copyright is being infringed, we will respond to notices of alleged copyright infringement if you provide us with the following information:
• a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
• identification of the copyrighted work claimed to have been infringed;
• identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
• your contact information (including your name, address, telephone number, and email address);
• a statement by you 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 the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. We will terminate a user's account if, under appropriate circumstances, the user is determined to be a repeat infringer. Our designated copyright agent for notices of alleged copyright infringement is:
Attn: Copyright Agent
2160 Gold Street
Alviso, CA 95002
The Zinc Service may include third-party ads, the types and frequency of which are subject to change. TiVo assumes no responsibility or liability for any such ads, and any such ads do not constitute an endorsement by TiVo of any product or service advertised.
We disclaim any confidentiality obligations or use restrictions related to any information or materials that you may provide to us, including anything related to any future TiVo products or services. Any such information and materials will be non-confidential, and if you provide any such information or materials to us, you grant us a perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free, and worldwide license to implement, use, modify or otherwise commercially exploit, in any way, your idea, suggestion or materials (or any part thereof).
7. Term and Termination
These terms will be effective from the date when you accept these terms until terminated. We may immediately suspend your account and/or terminate these terms for your breach. All provisions of these terms that by their nature should continue (such as sections 6 and 9 - 14) will survive termination.
8. Changes to these Terms
We may update these terms (and/or any linked policies) from time to time. If we determinate that any updates are material, then we will notify you in advance by sending an email to the email address associated with your account or posting a notice to the zinc.tv homepage. By continuing to use the Zinc Service after those revisions become effective, you agree to be bound by the revised version of these terms.
9. Disclaimer of Warranties
We are providing you with the Zinc Service “AS IS” and “AS AVAILABLE” without warranties of any kind, and your use of the Zinc Service is at your own risk. To the greatest extent permitted by law, TiVo and its licensors expressly disclaim any and all warranties, whether express or implied, including any warranties regarding accuracy, operability, availability, use, non-infringement, title, merchantability, fitness for a particular purpose, or usage of trade.
10. Limitation of Liability
To the greatest extent permitted by law, TiVo and its licensors, affiliates, and service providers will not be liable to you under any theory of liability for (a) any indirect, incidental, consequential, special, or exemplary damages (even if TiVo has been advised of the possibility of such damages and/or such damages are foreseeable) arising out of or in any way connected with your use of (or inability to use) the Zinc Service, or (b) any direct damages in excess of what you have paid TiVo for use of the Zinc Service or $100, whichever is greater.
You will indemnify and defend us from and against any and all third-party claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys fees and related litigation costs) arising out of or related to your breach of these terms. We will promptly notify you of any such claim, and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense, and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.
12. Governing Law/Venue
These terms are to be governed in all respects by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to any conflict of law provisions.
13. Dispute Resolution/Arbitration/Class Action Waiver
The arbitration process can be a faster, simpler, less formal, and less expensive route than filing a lawsuit and going to court. In arbitration you are still entitled to a fair hearing, but your rights will be determined by a neutral arbitrator (and not a judge or jury). Arbitrator decisions are as enforceable as any court order, and are subject only to very limited review by a court. You acknowledge that you and TiVo are giving up the right to sue in court and to have a trial before a judge or jury.
You and TiVo agree to try in good faith for 30 days to informally resolve any dispute before starting arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the dispute as well as the relief sought. We will provide a form if you email us at ZincTVsupport@tivo.com. If you want to send such a notice to TiVo, send it by U.S. Mail to TiVo Inc., 2160 Gold Street, Alviso, CA 95002, attn.: Legal Department, and if we want to send such a notice to you, we will send it to the email address associated with your account. If you and TiVo do not reach an agreement to resolve the dispute within 30 days after the date the notice was sent, then either of us may start arbitration as described below.
The American Arbitration Association (AAA) will administer the arbitration, and the arbitration will be governed by the AAA's Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes, as modified by these terms. Those rules and information about how to start arbitration are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by these terms. The arbitration will be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.
The arbitrator's award will be final and specifically enforceable under applicable law, and judgment may be entered upon it in any court with jurisdiction. If the arbitrator finds in your favor on the merits of your claim, TiVo will pay you the amount of the award or US$150, whichever is greater (and amounts reimbursed by TiVo for your filing fee and your share of the arbitration costs will count towards that amount).
If you seek $10,000 or less, TiVo will reimburse your filing fee and your share of the arbitration costs (including your share of arbitrator compensation) at the conclusion of the proceeding (unless the arbitrator determines your claims are frivolous). TiVo will not seek recovery of its attorneys fees or costs in arbitration (unless the arbitrator determines your claims are frivolous). If you seek more than $10,000, the arbitration costs, including arbitrator compensation, will be split between you and TiVo according to the AAA's Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
You and TiVo each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. By entering into these terms, you are waiving the right to participate in a class action. Further, unless both you and TiVo agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this waiver is found to be illegal or unenforceable, then you and TiVo agree that it will not be severable, that this entire section will be unenforceable, that any dispute will be resolved exclusively in a state or federal court located in Santa Clara County, California, and that we both submit to the personal jurisdiction of such courts. If a claim proceeds in court rather than through arbitration, we each waive any right to a jury trial.
This section does not: (a) prevent either of us from litigating any dispute in small claims court; (b) apply to disputes arising out of or related to infringement or other misuse of intellectual property rights, or unauthorized use, piracy or theft (and for any of those disputes, either you or TiVo may file suit in any court with jurisdiction); or (c) prevent either of us from bringing a dispute to the attention of any federal, state, or local government agencies.
If you do not want to be bound by this binding arbitration provision and class action waiver, you must notify TiVo within 30 days of the date that you first accept or receive these terms by sending a written notification via U.S. Mail to TiVo Inc., 2160 Gold Street, Alviso, CA 95002, attn.: Legal Department that includes your name, address, account number (if you have one), and a clear statement that you do not wish to resolve disputes with TiVo through arbitration.
14. General Legal Terms
Assignment: You may not assign or transfer these terms (or any of your rights or obligations under these terms) without TiVo's prior written consent; any attempted assignment or transfer without complying with the foregoing will be void. TiVo may freely assign or transfer these terms. These terms inure to the benefit of and are binding upon the parties and their respective legal representatives, successors, and assigns.
Electronic Communications: You consent to receive communications from TiVo by email, and acknowledge that all agreements, notices, disclosures and other communications that TiVo provides to you electronically will satisfy any legal requirement that such communications be in writing.
Entire Agreement; Amendments: These terms supersede all prior discussions and writings regarding (and constitutes the entire agreement between us with respect to) the Zinc Service. Any amendments to this agreement must be in writing and signed by TiVo.
Interpretation: In construing or interpreting these terms, the headings are for convenience only, and are not to be considered.
Language: English is the authoritative text of these terms and all communications, notices, arbitrations and other actions and proceedings relating to these terms will be made and conducted in English.
Notices: To be valid, all notices permitted or required under these terms must be sent in writing by a party as follows (unless a party changes such information by giving notice in accordance with this section): (a) if to you, by TiVo via email to the address associated with your account, and (b) if to TiVo, by you via postal mail to TiVo Inc., 2160 Gold Street, Alviso, CA 95002, attn.: Legal Department. Notices will be deemed given (a) if to you, when emailed, and (b) if to TiVo, on receipt by TiVo.
Severability: If any provision of these terms is found to be unenforceable or invalid, such unenforceability or invalidity will not render these terms unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law.
Waiver: No waiver of any breach of these terms will constitute a waiver of any other breach.
22. Contact Information
Please direct all questions, complaints or claims with respect to zinc.tv to: TiVo Inc., 2160 Gold St., PO Box 2160, Alviso, CA 95002-2160.