1.1. These terms and conditions (“Terms”) set out important information regarding the rights, obligations and the restrictions that may apply to you as a user (“User”) when you access our website at www.zimvibez.com (“Website”) and/ or access, use or download the ‘zimvibes’ digital application (also sometimes referred to under the name of ‘zimvibes’) (“Application”) and any services offered in conjunction with the zimvibes digital application, such as streaming & downloading music content, purchasing music content as full tracks or ringback tones, sharing music content, dedicating music content, marking a music content as favorite, etc. (“Services”) as they are made available on various digital media devices, such as tablets, cell phones, handheld devices or PCs, (“Devices”), and networks, such as those of mobile operators, internet service providers (“Networks”). The Website, Application and the associated Services, are provided by TashTinLLC (“we”, “us” and “our” as appropriate). We are a limited company incorporated in New York.
1.2. The Application is a digital application that facilitates the use of Services, which generally consist of a central audio and video music recognition service that provides songs and artist identification, also called tagging and in some cases, access to related third party applications (“Third Party Applications”) and websites (“Third Party Sites”) that can be used in conjunction with the Application and/ or Services.
1.3. These Terms may be accessed via the Application directly from your Device or on our Website at www.zimvibez.com. If you wish to use our Website, the Application and/ or the Services (collectively referred to as “Spice Services”) you must agree to be bound by these Terms, as set out below, and all and any applicable laws regarding your use of Spice Services. You must also pay any charges for the Services which may be applicable.
1.4. If any of these Terms are unacceptable to you or in the event that any future changes to these terms are unacceptable to you, do not use Spice Services. your continued use of Spice Services (including, but not limited to, the downloading of the Application or any Application upgrades and/ or use of the Services) now, or following the posting of notice of any changes in these Terms, will be deemed acceptance by you of these Terms and any such changes, or modifications. You agree to use Spice Services only for purposes that are legal, proper and in accordance with these Terms and any local binding policies or guidelines. By doing any of the following acts you agree to be bound by these Terms:
- downloading the Application or an upgrade to the Application offered from time to time; or
- Using Spice Services on your Device.
- In the event that you are or become a paying customer of any part of the Application and/ or Services or any other product part of the Spice Services offering, we will provide to you relevant information regarding price, delivery procedure and cancellation options on a case by case basis, before completing the payment for your purchase. Any purchase will be effective upon the processing of your payment.
- Each time you attempt to interact with Spice Services, such as when you tag a music track for example, you will send data for which your Network will charge at your usual data rates.
- Unless otherwise specifically provided by us, our license to you under these Terms is personal to you and allows you to access and use the Application and the Services only on the Device on which the Application was first installed. The license is not transferrable to another person or another Device without our agreement, which will only be given in exceptional circumstances, or if otherwise expressly provided in these Terms.
- To use the Spice Services, you must be a major:
2.1. To use Spice Services you must be aged 18 or older. Additionally, if you are under 18, you must get the permission of your parent or guardian and the person who pays your mobile phone bills (if different) and get them to agree to these Terms on your behalf before you use Spice Services and before you provide any personal information to us. Also, to use some of the Services you may be asked to register with us and provide certain personal details. See the section on privacy below regarding what we do with this information.
2.2. You represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms and have obtained all necessary third-party consents, licences and permissions necessary to enter into and fully perform your obligations under these Terms. In the event you are reading these terms to provide permission to a minor to use Spice Services, you also represent and warrant that you have the full authority to act on behalf of the service user and that you are either more than 18 years of age and contracting for yourself or are the parent or guardian of the person who will use the Services and are entering into this contract to cover their usage. In any case, you affirm that you are, or the person who will use Spice Services (where you are the parent or guardian of that person) is, over the age of 18, as the Services are not intended for children under 18. If you are under 18 years of age, then please do not use Spice Services. If you are the parent or guardian of a person under the age of 18 then please do not let that person use Spice Services. Your access to the Services may be deleted or blocked without warning if it is found that you are misrepresenting your age or the age of the person using Spice Service. In this case your membership account and all related data may also be deleted without warning. Your access to the Services is solely for your personal use, and you must not authorize others to use your account.
- Data Protection
- Proprietary Rights And License
4.1. All trademarks, copyright, database rights and other intellectual property rights of any nature in the Spice Services, any name, mark or logo related to us and/or the Services are owned either directly by us or by our licensors. You may not adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to any of these marks and logos. You agree and acknowledge that the access and use of the Spice Services shall not be construed to confer on you any rights of any nature including rights in any form of intellectual property contained in the Services or related to us. If in the course of accessing and using the Spice Services, you even unintentionally infringe the rights including rights in any form of our intellectual property in the Spice Services, you shall immediately cease and desist any such use.
4.2. Any content provided by us as part of Spice Services, including but not limited to ringtones, lyrics, artist information and downloads contains copyrighted material, trademarks and other proprietary rights belonging to us and our licensors. All right, title and interest in and to such content vests in us and our licensors. You are granted a limited, revocable, non-exclusive license to listen and/or view that content as part of the Services solely for your personal use. Except as expressly authorized by us, you may not copy, modify, translate, reproduce, distribute, publish, broadcast, perform, display, sell, assign, create derivative works, lease or sub-license that content, in whole or in part.
4.3. You agree and confirm that you shall not at any time reveal or make public any and all our proprietary and/or confidential information, our business, the Spice Services, that you may gain access to during the course of accessing and using the Spice Services.
- Conditions Of Use
5.1. The Spice Services are currently made available to you for your personal and non-commercial use. We reserve the right to amend or withdraw the Spice Services, provided to you in accordance with these Terms, at any time and for any reason.
5.2. If you breach these conditions and are using Spice Services via a subscription package, we may immediately terminate your current subscription package by giving you reasonable prior notice, where practicable. We will inform you, free of charge, that you have breached the conditions and then terminate or suspend your current service account or bring your current subscription period to an end. Specific rules relating to individual subscription packages may be notified on our Website.
5.4. We may change, suspend or discontinue any aspect of Spice Services at any time, including the availability of any feature, database and/ or content. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without liability. Such changes will be notified with reasonable notice, where they are material and where practicable, and you will have the opportunity to terminate the service should you not accept the new Terms. Where these changes or suspensions would amount to a complete termination of the Services you may be entitled to a refund of the reasonable part of any charges paid by you.
5.5. Continued use of the Application and/ or Services may require a download of new releases of software with different functionality and that may have different licence terms.
5.6. You are solely responsible for your use of the Services. We do not create, monitor, examine or inspect the content delivered to you through the Services, if any. Such content may include links to third-party websites and content. The linked content is not under our control and we are not responsible whatsoever for the content of any such linked content. The content does not represent or reflect any of our advice, views, opinions or beliefs and we do not endorse or claim any responsibility for the online content, delivered through the Services. You agree and acknowledge that the content delivered through the use of the Services by you, is specifically requested by you, and that we are not responsible for the nature of such content that it delivered to you.
5.7. You must only use the Services and anything available via the Services for lawful purposes (complying with all applicable laws, in a responsible manner, and not in a way that might damage our name or reputation or that of any of Spice’s affiliates. You agree and acknowledge that the use of the information delivered to you through the Services is your sole responsibility, and that Spice shall not at any time be held responsible for any unlawful usage of the content secured through the Services, by you.
5.9. You shall not host, display, upload, modify, publish, transmit, update or share any information that:
(a) belongs to another person and to which You does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; or unlawfully threatening or unlawfully harassing;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights or third party’s trade secrets or rights of publicity or privacy or shall not be fraudulent or involve the sale of counterfeit or stolen items;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee/ users about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; or contains any Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, diminish value of, surreptitiously intercept or expropriate any system, data or personal information;
(i) threatens the unity, integrity, defense, security or sovereignty of any nation, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offense or prevents investigation of any offense or is insulting any other nation.
(j) is false, inaccurate or misleading;
5.10. You agree not to misuse Spice Services and, in particular, you agree that you will not, modify, adapt, translate, or reverse engineer any portion of Spice Services or its contents, or use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Website and/or Application, save only to the extent permitted by applicable law; or use the Spice Services for any improper, unlawful or immoral purpose.
- Location based Services
6.1. Where we collect location-based information, we will generally do it on an anonymous basis for the improvement of our Application or Services. You consent to our use of anonymous location based services information collected from you.
6.2. Where we collect location-based information that is personally identifiable we will give you options to manage your disclosure of this information within our Application or on your Device. Depending on your version of the Application and the functionalities available on your Device you may benefit from advanced options to manage the disclosure of location-based information.
6.3. Where this technology is used in conjunction with any Third Party Applications or Sites further information on usage policies and options management shall be available from such third parties. It is your responsibility to find, read and understand the usage policies of these services, get fully familiar with all the available disclosure options and manage these in a way that fits your purposes.
6.4. As a separate issue, you may receive contextual advertising from us. Please see the Section on advertising.
- Third Party Applications And Services
7.1. Spice Services may enable you to use functionalities of Third Party Applications and/ or to link to Third Party Sites that are not owned or controlled by us. Content, products and services that are part of any Third Party Applications and/ or Sites to which we may connect (including but not limited to, social networking sites, sites on which you can view content and from which you can make purchases, or record a geographic location that you find yourself in) are subject to the terms and conditions of the relevant application and/ or website. We have no control over and are not responsible or liable for any matters relating to your dealings with such third parties.
8.1. We reserve the right to deliver advertising to you in conjunction with your use of Spice Services and utilize the processor bandwidth and storage hardware on your Device for this purpose
8.3. Advertising may be contextual, that is it may be sent to you based on your current location or use of Spice Services. Any opt out that you send us in relation to direct marketing communications does not apply to such advertising.
9.1. We will use reasonable efforts to make the Services available at all times. However you acknowledge the Services are provided over mobile networks and so the quality and availability of the Services may be affected by factors outside of our reasonable control. In the event the Services are unavailable to you for any factors not attributable to us and due to any reasons attributable to any third party service provider, we shall not be responsible for the same in any event whatsoever.
9.2. We, our group of companies and sub-contractors do not accept any responsibility whatsoever for unavailability of the Services, or any difficulty or inability to download or access content or any other communication system failure which may result in the Services being unavailable. To the extent permitted in law, you hereby agree and acknowledge that you shall not at any time institute any suit, claims, actions, proceedings, against us for any reason relating to the unavailability of the Services.
9.3. We will occasionally restrict your access to the Spice Services to carry out repairs, maintenance or to introduce new functionality or services and we will endeavour to keep disruption to a minimum.
9.4. You hereby agree and confirm that we shall not be held liable for any unavailability or non-functionality of the Services due to war, industrial action, flood, or act of God. You further agree and confirm that we shall not be responsible for any disruption in the functionality of the Services and/or any unavailability in the Services, arising due to the mobile network provider and/or any other third party, and/or any intermediary who may deliver the Services to you (“Customer”) and that you shall not hold us liable for any of the same.
- System Requirements
10.1. In order to access and use the Spice Services, you are required to have a compatible Device.
10.2. It is your responsibility to ensure your Device meets all the necessary technical specifications to enable you to access and use the Spice Services.
10.2.1. IPhone: Requires iOS 6.0 or later. App is optimized for iPhone 5.
10.2.2. Android: Required Android version 2.3 and above. Compatible with Android Phones.
11.2. We may at any time terminate your account or prevent you from gaining access to Spice Services. If we terminate your account, we may immediately delete all the files and information on your profile and prevent you accessing your profile. We will use reasonable efforts to give you notice of termination or suspension of access to Spice Services, but this may not always be possible. We will not be liable to you or to any third party for termination or for any permanent or temporary suspension of any of the Website, Application or Services. In the event you are a paying customer and our Services to you are terminated you may be entitled to a refund of the reasonable part of any charges paid by you.
11.3. You agree that notwithstanding the termination, we will continue to be entitled to use the information supplied by you or collected from you during the use and access of the Spice Services by you.
- Limitation of Liability
SPICE, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES WILL NOT BE LIABLE TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE AND LOSS (INCLUDING LOSS OF PROFIT, LOSS OF DATA AND WORK STOPPAGE), COSTS, EXPENSES AND PAYMENTS, REGARDLESS OF THE ALLEGED LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, PRODUCT LIABILITY AND STRICT LIABILITY, THAT MAY RESULT FROM, OR IN CONNECTION WITH THE USE OR THE INABILITY TO ACCESS AND USE THE SPICE SERVICES, OR FROM ANY FAILURE, ERROR, OR DOWNTIME IN THE FUNCTION OF THE SERVICES, OR FROM ANY FAULT OR ERROR MADE BY OUR STAFF, OR FROM YOUR RELIANCE ON CONTENT DELIVERED THROUGH THE SERVICES, OR FROM THE NATURE OF CONTENT DELIVERED THROUGH THE SERVICES, OR FROM ANY COMMUNICATION WITH US OR FROM ANY DENIAL OR CANCELLATION OF REQUEST FOR INFORMATION THROUGH THE SERVICES, OR FROM RETENTION, DELETION, DISCLOSURE OR ANY OTHER USE OR LOSS OF CONTENT THROUGH THE SERVICES, REGARDLESS OF WHETHER WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO THE CORRECTIONS OF SUCH ERRORS, AS DEEMED FIT BY US IN ITS SOLE DISCRETION. WITHOUT PREJUDICE TO THE AFORESAID, IT IS HEREBY ACKNOWLEDGED BY THE END USER THAT OUR AGGREGATE LIABILITY, FOR ANY REASONS WHATSOEVER, WILL NOT EXCEED USD. 10/- (USD TEN ONLY) OR THE TOTAL COST PAID BY YOU IN THE PERIOD OF 2 (TWO) MONTHS PRIOR TO WHICH THE CLAIM AROSE, WHICHEVER IS LOWER.
- Disclaimer of Warranties
13.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS TERMS, WE EXPRESSLY DISCLAIMS ANY OTHER WARRANTY WITH RESPECT TO THE USE OF THE SERVICES OR ANY CONTENT OR INFORMATION DELIVERED OR SENT THROUGH THE SPICE SERVICE TO YOU. THE SERVICES ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED GUARANTEE OR ASSURANCE OF QUALITY, RELIABILITY OF THE CONTENT DELIVERED THROUGH SPICE SERVICES. WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO SPICE SERVICES. WE DO NOT WARRANT OR GUARANTEE THAT THE USE OF SPICE SERVICES WILL NOT CAUSE ANY DAMAGES TO YOUR DEVICE OR TO ANY OTHER SERVICES PROVIDED TO YOUR DEVICE OR APPLICATIONS AND CONTENT THAT RESIDE ON YOUR DEVICE. YOU AGREE AND ACKNOWLEDGE THAT THE USE, AND ACCESS OF SPICE SERVICES IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
13.2. WE DO NOT WARRANT OR GUARANTEE THAT SPICE SERVICES WILL OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE MANNER, OR THAT SPICE SERVICES WILL ALWAYS BE AVAILABLE OR FREE FROM ERRORS OR THAT SPICE SERVICES WILL BE IMMUNE FROM UNAUTHORIZED ACCESS.
13.3. WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT YOU WILL FIND SPICE SERVICES SUITABLE FOR YOUR NEEDS. WE DO NOT WARRANT OR GUARANTEE THAT THE CONTENT YOU RECEIVE TO YOUR DEVICES WILL BE FREE FROM TECHNICAL INACCURACIES OR THAT THE CONTENT WILL BE LEGAL, NON INFRINGING OR WILL NOT VIOLATE ANY RIGHTS OR APPLICABLE LAWS OR THAT THE CONTENT WILL NOT CONTAIN ANY OBJECTIONABLE MATERIALS.
13.4. WE CANNOT AND DO NOT GUARANTEE THAT SPICE SERVICES AND ANY CONTENT THEREUNDER WILL BE FREE FROM VIRUSES AND/OR OTHER CODE THAT MAY HAVE CONTAMINATING OR DESTRUCTIVE ELEMENTS. IT IS YOUR RESPONSIBILITY TO IMPLEMENT APPROPRIATE SECURITY SAFEGUARDS (INCLUDING ANTI-VIRUS AND OTHER SECURITY CHECKS) TO SATISY YOUR PARTICULAR REQUIREMENTS AS TO THE SAFETY AND RELIABILITY OF THE CONTENT.
14.1. You hereby indemnify and hold harmless, and upon our request, defend, us, our affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim, action, or proceeding brought by a third party based on a breach of any warranty, representation, covenant or obligation by you under these Terms. You will reimburse us and our affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section, provided that we attempt to obtain your written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. We shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon our request. We shall have the right, at your expense, to participate in the defense thereof under your direction.
14.2. Nothing in these Terms shall be construed so as to exclude or limit our liability or that of any third party for death or personal injury as a result of negligence.
14.3. Nothing in these Terms affects any mandatory statutory rights that you may have as a consumer, except to the extent permitted by law.
- Amendments to the Terms
We may amend and modify this Terms from time to time, including any and all documents and policies incorporated thereto without any prior notice to you. You agree to be bound by any of the changes made in the Terms, including changes to any and all documents and policies incorporated thereto. Continuing to access and use the Services will indicate your acceptance of the amended Terms. If you do not agree with any of the amended Terms, then you must avoid any further use and access of the Services. Spice advises you to periodically read these Terms, as it may change from time to time.
- Entire Agreement
- Governing law and Jurisdiction
These Terms and the relationship between you and us shall be governed by the laws of South Africa without regards to its conflict of law provision. You and we agree to submit to the personal and exclusive jurisdiction of the courts of Johannesburg, South Africa. In case of any dispute or other matter arising in reference to the Terms and/or the Spice Services, such dispute or other matter shall be referred to a sole arbitrator appointed by us and shall be governed by the applicable arbitration and conciliation laws of South Africa. The venue for arbitration shall be Johannesburg, South Africa and shall be conducted in English language. All the costs, charges and expenses in connection to the arbitration shall be solely borne by the user who raised the dispute.
- Waiver and severability of Terms
Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms 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 the Terms remain in full force and effect.
You agree and confirm that the indemnities, confidentiality obligations, limitation of liability, disclaimer of warranties, dispute resolution mechanism, shall survive the efflux of time.
You agree and acknowledge that your relationship with Spice and its affiliated companies is not a confidential, fiduciary or other special relationship.