"Customer" means any entity or individual other than Ziggeo (and its successors or assigns) who accesses or uses the Ziggeo Services.
"Customer Application" means any software or application other than the Ziggeo Services that interfaces with the Ziggeo Services and includes any services (web-based or other services) or other applications made available by Customer through that software or application.
"Customer Data" means all data text, video, audio clips, photographs, written posts and comments, software, scripts, graphics and interactive features and other information (collectively, "Content") added, created, uploaded, submitted, distributed or posted to the Ziggeo Services by Customer or End Users, including but not limited to video records, video message content and Customer Applications and any tags or metadata added, created, uploaded, submitted, distributed or posted to the Ziggeo Services by Customer or End Users. For the avoidance of doubt, Customer Data does not include any Ziggeo Services, including without limitation the Site, the Ziggeo APIs and Documentation.
"Documentation" means all of the instructions, demonstrations of Ziggeo Services, code samples, the Ziggeo markup language, on-line help files and technical documentation made available by Ziggeo for the Ziggeo Services.
"Emergency Services" means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
"End User" means an end user of a Customer Application.
"Rate Schedule" means the schedule of fees located at /pricing, as such may be updated from time to time. "Ziggeo API" means an application programming interface for the Ziggeo Services (or feature of the Ziggeo Services) provided to Customer by Ziggeo.
"Ziggeo Services" means the services provided by Ziggeo, including the Site, all programs, features, functions, applications, report formats, the Ziggeo APIs, any other software, Documentation, technical support and all Content (including any tags, metadata or analyses generated by Ziggeo or the Ziggeo Services) included in any of the foregoing other than Customer Data, and any updates or upgrades of any of the foregoing.
(a) Use the Documentation and Ziggeo APIs as needed to develop Customer Applications;
(b) Offer and make the Ziggeo Services available to End Users solely in connection with the use of each Customer Application, in accordance with the Documentation, including the right to charge fees to End Users for use of or access to such Customer Applications. Customer may not offer the Ziggeo Services on a standalone basis or for any other purpose other than in connection with Customer Applications; and
(c) Otherwise use the Ziggeo Services solely in connection with and as necessary for Customer's permitted activities here under.
The Ziggeo Services may permit Customer to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Ziggeo Services. When Customer accesses third-party resources on the Internet, Customer does so at Customer’s own risk. These other resources are not under Ziggeo’s control, and Customer acknowledges that Ziggeo is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply Ziggeo’s endorsement or any association between Ziggeo and their operators. Customer further acknowledges and agrees that Ziggeo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
3.4 Payment Processor. Ziggeo uses a third-party payment processor (the "Payment Processor") to bill Customer through a payment account linked to Customer’s account on the Ziggeo Services (Customer’s "Billing Account") for use of the Ziggeo Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Ziggeo is not responsible for error by the Payment Processor. By choosing to use Ziggeo Services, Customer agrees to pay Ziggeo, through the Payment Processor, all charges at the prices then in effect for any use of such Ziggeo Services in accordance with the applicable payment terms (including but not limited to those set forth in the Rate Schedule), and Customer authorizes Ziggeo, through the Payment Processor, to charge Customer’s chosen payment provider (Customer’s "Payment Method"). Customer agrees to make payment using that selected Payment Method. Ziggeo reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
3.5 Payment Method. The terms of Customer’s payment will be based on Customer’s Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of Customer’s chosen Payment Method. If Ziggeo, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on Customer’s Billing Account upon demand.
3.6 Recurring Billing. The Ziggeo Services are provided subject to recurring period charges and other fees and amounts as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Ziggeo Services have a recurring payment feature and accepts responsibility for all recurring charges prior to cancellation. ZIGGEO MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY ZIGGEO) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE CUSTOMER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE ZIGGEO REASONABLY COULD ACT. TO TERMINATE CUSTOMER’S AUTHORIZATION OR CHANGE CUSTOMER’S PAYMENT METHOD, GO TO https://ziggeo.com/signin.
3.7 Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER’S BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP CUSTOMER’S BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY ZIGGEO OR ZIGGEO’S PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT https://ziggeo.com/signin. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT ZIGGEO MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF APPLICABLE ZIGGEO SERVICES UNDER CUSTOMER’S BILLING ACCOUNT UNLESS CUSTOMER HAS TERMINATED CUSTOMER’S APPLICABLE ZIGGEO SERVICES AS SET FORTH ABOVE.
3.8 Change in Amount Authorized. If the amount to be charged to Customer’s Billing Account varies from the amount Customer pre-authorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and Ziggeo shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Customer has with Customer’s payment provider will govern Customer’s use of Customer’s Payment Method. Customer agrees that Ziggeo may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
3.9 Auto-Renewal for Subscription Services. Unless Customer opts out of auto-renewal, which can be done by submitting a request to Ziggeo at , any subscription-based Ziggeo Services Customer has signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign subscription-based Ziggeo Services at any time, go to https://ziggeo.com/signin. If Customer terminates a subscription-based Ziggeo Service, Customer may use Customer’s subscription until the end of Customer’s then-current term; Customer’s subscription will not be renewed after Customer’s then-current term expires. However, Customer won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
3.10 Reaffirmation of Authorization. Customer’s non-termination or continued use of a Ziggeo Service subject to the usage fees set forth on the Rate Schedule or other fees or amounts as otherwise agreed to by Customer through the Ziggeo Services reaffirms that Ziggeo is authorized to charge Customer’s Payment Method for that Paid Service. Ziggeo may submit those charges for payment, and Customer will be responsible for such charges. This does not waive Ziggeo’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use such Ziggeo Services.
3.11 Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Ziggeo Services otherwise subject to usage fees set forth on the Rate Schedule or otherwise through the Ziggeo Services must be used within the specified time of the trial. Customer must stop using such Ziggeo Services before the end of the trial period in order to avoid being charged for such Ziggeo Services. If Customer cancels prior to the end of the trial period and is inadvertently charged for such Ziggeo Services, please contact Ziggeo at .
3.12 Disputes. Customer will notify Ziggeo in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to Ziggeo within 60 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 60-day period described in this Section, Customer will not be entitled to dispute any fees paid or payable by Customer.
3.13 Suspension. Customer acknowledges that, in the event Customer's usage exceeds the amounts prepaid by Customer or any other failure to pay amounts due as described in this Section 3, Ziggeo will be entitled suspend the Ziggeo Services associated with Customer's account without prior notice to Customer. Ziggeo will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to any suspension of Ziggeo Services pursuant to this Section.
(a) Definition. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of any party’s rights; or (iv) is independently developed by the receiving party’s employees who have not had access to the disclosing party's Confidential Information.
(b) Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
ZIGGEO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. ZIGGEO SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ZIGGEO BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF ZIGGEO HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ZIGGEO BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
THE ZIGGEO SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER ZIGGEO NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD ZIGGEO HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE ZIGGEO SERVICES TO CONTACT EMERGENCY SERVICES.
(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of New York and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(b) Injunctive Relief. Notwithstanding any provision in this Section to the contrary, Ziggeo may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action Customer takes or threatens to take in violation of the terms of this Agreement.
(c) Individual Basis Only. It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
Contact. Customer may contact Ziggeo at:
Last Updated: July 6, 2015