Terms of Service

User Agreement

This User Agreement (this “Agreement”) is between you, the Customer, together with any company or other business entity you are representing, if any (collectively, “Customer”), and Digioh, Inc. (“Digioh”).

WHEREAS, Digioh provides (i) the Digioh website located at digioh.com (the “Digioh Site”), (ii) certain software programs (the “Software”), and (iii) certain merchants services (collectively, “Services”);

WHEREAS, Customer desires to make use of the Digioh Site, Software and Services upon Customer’s registration with Digioh; and

WHEREAS, as a condition precedent to Digioh accepting such Customer’s registration, Customer and Digioh agree to be bound by the terms and conditions of this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Digioh agrees as follows:

1. Eligibility Criteria

The Software and Services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If Customer is registering as a business entity, Customer represents that Customer has the authority to bind such entity to this Agreement. Digioh may use techniques to confirm the accuracy of the information Customer provides when Customer registers on the Digioh Site. If for any reason, Digioh, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to Customer, to revoke any and all licenses under this Agreement or to refuse to provide the Software and Services under this Agreement to Customer.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE DIGIOH SITE OR THE SERVICES OR THE SOFTWARE. CUSTOMER’S USE OF THE DIGIOH SITE OR THE SERVICES OR THE SOFTWARE CONFIRMS CUSTOMER’S UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

2. Digioh Software and Trademark Ownership and Licenses

2.1 Software Ownership

Customer acknowledges and agrees that, as between Customer and Digioh, all Software and any other content provided by Digioh, and all worldwide intellectual property rights therein, are the exclusive property of Digioh. All rights in and to the Software not expressly granted to Customer in this Agreement are reserved by Digioh.

2.2 Software License

Subject to the terms and conditions of this Agreement, Digioh grants to Customer a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Digioh (“Digioh Servers”) through the Digioh Site.

2.3 Software License Restrictions

Customer acknowledges that the Software and its structure, organization, and source code constitute valuable intellectual property of Digioh. Accordingly, Customer will not, either directly or through a third party: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software.

2.4 Digioh Trademark Ownership, License and Restrictions

Subject to the terms and conditions of this Agreement, and upon Customer’s election to use and pay applicable fees for certain features of the Software, Digioh grants to Customer a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to Customer by Digioh under this Agreement (“Digioh Marks”), solely for display on those locations on Customer’s web pages as designated by Digioh in its sole discretion, and that Digioh may periodically change from time to time. Digioh grants no rights in the Digioh Marks other than those expressly granted in this Section 2.4. Customer acknowledges Digioh’s exclusive ownership of the Digioh Marks and that all use of Digioh Marks inures to Digioh benefit. Customer agrees not to take any action inconsistent with such ownership and Customer agrees not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Digioh Marks or in such a way as to create combination marks with the Digioh Marks. At Digioh’s request, in its sole discretion, Customer will immediately discontinue all use and display of the Digioh Marks. Customer acknowledges and agrees that, except with respect to the trademark license granted herein in and to the Digioh Marks, no licenses are granted by Digioh to any other trademarks, service marks, or trade names owned by Digioh, its parent, or affiliates. Customer agrees that the nature and quality of all products and services rendered by Customer in connection with the Digioh Marks and all related advertising, promotional and other uses of the Digioh Marks by Customer shall be of a high standard so as to protect and enhance the Digioh Marks and the goodwill pertaining thereto. Customer further agrees that all materials bearing the Digioh Marks shall conform to the guidelines that Digioh may establish from time to time and that Customer shall obtain Digioh’s approval prior to using the Digioh Marks in any manner that is inconsistent with Digioh’s guidelines.

2.5 Additional Features

Certain additional features of the Software that Digioh may make available to Customer may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions (“Additional Software”). Similarly, Digioh may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (“Additional Services”). Customer agrees that Customer will not use such Additional Software or Additional Services unless Customer has agreed to the applicable terms and conditions, including Customer’s payment of additional fees as required.

2.6 Changes in Software

Digioh reserves the right to change, amend and/or otherwise alter the Software without prior notice to the Customer. If such changes materially alter Customer’s ability to use the Software, Customer must notify Digioh within 30 days of such change and Digioh and Customer will work together to provide a solution to restore Customer’s prior use. If the parties cannot agree to such a solution within 30 days, then Customer may terminate use of the Software immediately upon the end of such 30 day period; provided, however, Customer shall be responsible for all fees due through the termination date and Digioh will not refund any fees or payments in the event of such termination.

3. Services

3.1 Services

Upon activation of Customer’s account and subject to the payment of applicable fees, during the term of this Agreement (evidenced by the payment of the applicable fees) Digioh will provide Customer the Services as provided on the pricing page of the Digioh Site and for the Software licensed to Customer under this Agreement, subject to any additional services described on Customer’s applicable Purchase Order or similar agreement.

3.2 Changes in Services

Digioh reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to Customer. Customer agree to receive administrative communications from Digioh in regards to the Software, Services, Customer’s account, policy changes and system updates. If Customer does not agree to such changes, then Customer may terminate use of the Services. Digioh will not refund any fees or payments in the event of such termination.

3.3 Service Downgrades

Downgrading Customer’s Service may cause the loss of content, features, or capacity of Customer’s account. Digioh shall not be liable for losses in connection with the foregoing.

3.4 Authorization

Customer authorizes Digioh to process any and all of Customer’s Digioh account transactions initiated through the use of the password and/or passphrase that Customer establishes through registration on the Digioh Site. Customer is solely responsible for maintaining the confidentiality of such password and/or passphrase.

4. Customer’s Usage and Content Control

4.1 Control of Customer’s Webpages; Ownership and Control of Content

Customer will be solely responsible for the development, promotion, back-up, operation and maintenance of Customer’s own webpages (“Customer’s Webpages”). Customer will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the Customer Content (as hereinafter defined). Digioh will give Customer discretion over the Customer Content, provided that (a) the Customer Content is compatible and interoperable with the Software and Services provided by Digioh under this Agreement, and (b) the Customer Content and Customer’s use of the Services, Software and the Digioh Site complies with all applicable laws and the terms and conditions of this Agreement. Customer retains all right, title and interest in and to all intellectual property rights embodied in the Customer Content, exclusive of any content provided by Digioh. Notwithstanding anything contained in the foregoing, if Customer breaches any of the terms or conditions of this Agreement, Digioh is entitled to suspend or terminate Customer’s account and use of the Software and the Services. For purposes hereof, the term “Customer Content” shall mean all materials, information and images displayed on Customer’s Webpages published by or distributed through Digioh from time to time, including all descriptions of the products and services Customer offer to its customers and any user-generated content found on or related to Customer’s Webpages.

4.2 Limited Obligations

Customer acknowledges and agrees that Digioh has no obligation to Customer or any third party, and undertakes no responsibility, to review Customer’s Webpages, the products or services listed therein or any other content, including user-generated content, published and/or distributed on Customer’s Webpages to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, Digioh may take any actions with respect to the content or materials or Customer’s Webpages that Digioh believes in its sole discretion are prudent or necessary to minimize or eliminate Digioh’s potential liability or to protect other users of Digioh’s Site or services. The parties hereby agree that Digioh will not have access to from Customer, and Customer shall ensure that Digioh does not receive from Customer, any personally identifiable information of any third party (“PII”). To the extent that any PII is transmitted to Digioh in connection with Digioh’s performance of the Services: (a) Digioh shall store such transmitted PII solely on a temporary basis; (b) Digioh shall delete such PII promptly upon Digioh’s receipt of written request from Customer regarding such deletion; and (c) Digioh shall not have access to any key required to unlock encrypted data with respect to such PII. Notwithstanding the foregoing, if Digioh is required to share any Customer Content or PII with any of Digioh’s subcontractors in connection with the performance of the Services, Digioh shall require each such subcontractor to agree to be subject to the same or similar prohibitions with respect to such Customer Content and/or PII as to which Digioh is subject pursuant to the terms of this Agreement.

4.3 Content License

During the period that Digioh provides Services to Customer pursuant to this Agreement, Customer hereby grants to Digioh and its subcontractors a non-exclusive, irrevocable, sublicensable, royalty-free, transferable worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Customer Content and trademarks solely to host Customer’s Webpages, run the Software, provide Customer with the Services and to otherwise promote and manage the Digioh Site. For avoidance of doubt, this license allows Digioh to publish Customer Content on behalf of Customer in connection with the Software and Services. Customer understands and agrees that copies of Customer Content may continue to be stored on Servers after Customer terminates Customer’s account. Digioh agrees not to use Customer Content after Customer terminates Customer’s account except as required to comply with legal requests or requirements.

5. Covenants and Prohibitions

5.1 Covenants

Customer covenants that its use of the Services, including any products, services, or content published and distributed on Customer’s Webpages, and Customer’s activities related to or arising out of the Customer’s use of the Services, shall not violate this Agreement as it may be amended from time to time, or any of the following. Customer’s use of the Services shall not:

  1. be false, fraudulent, inaccurate or misleading;
  2. infringe or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
  3. violate any law, statute, ordinance or regulation (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, unfair competition, anti-discrimination, criminal activities or false advertising);
  4. be defamatory, libelous, offensive, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
  5. contain any viruses, trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
  6. involve the transmission of any unsolicited commercial or bulk email (known as “spamming”) and Customer shall not use Customer’s account or Customer’s Webpages as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid, ponzi schemes or the like;
  7. involve the collection, sale or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent Customer shall maintain a written record for a period of three (3) years after any termination of this Agreement;
  8. be harmful or potentially harmful to the Digioh’s Servers structure as determined in Digioh’s sole discretion, including without limitation overloading Digioh’s technical infrastructure;
  9. involve subleasing Customer’s account or offering “free space” on or other access to Customer’s account or Customer’s Webpages to third parties;
  10. create liability for Digioh and its subcontractors or expose them to undue risk or otherwise engage in activities that Digioh, in its sole discretion, determines to be harmful to Digioh, its affiliates, operations, reputation, or goodwill;
  11. link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate this Agreement; and
  12. bypass or override any restrictions on Customer’s account or Customer’s Webpages through use of any features of the Services or Software or otherwise.

5.2 Prohibited Activities

Customer agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Customer’s Webpages:

  1. Blood, bodily fluids or body parts;
  2. Burglary tools;
  3. Counterfeit, stolen or infringing items;
  4. Illegal drugs and drug paraphernalia;
  5. Fireworks, destructive devices and explosives;
  6. Identity documents, personal financial records or personal information (in any form, including mailing lists);
  7. Lottery tickets, sweepstakes entries or slot machines;
  8. Obscene material or child pornography;
  9. Offensive material or hate speech;
  10. Police badges or uniforms;
  11. Prescription drugs or devices;
  12. Stocks or other securities;
  13. Stolen property;
  14. Tobacco products; or
  15. Alcoholic products.

Customer further agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Customer’s Webpages, except as permitted by, and in full compliance with, all applicable federal, state, local and other laws:

  1. Digital files that Customer does not own or have all necessary rights or license to store, display, perform, copy and distribute;
  2. Event tickets;
  3. Food items;
  4. Hazardous, restricted or perishable items;
  5. Pesticides;
  6. Used clothing or bedding;
  7. Adult items or pornography;
  8. Content or material that is infringing or otherwise violates the law, including, music, movies, e-books, games, videos, photographs and software; or
  9. Weapons and other related items, including, without limitation, explosives, firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives and martial arts weapons.

5.3 Permission Based Communications

Customer may use Digioh’s Services to transmit permission-based (opt-in) communications for purposes of marketing Customer’s goods and services, provided that Customer otherwise complies with the standards set out in this Agreement, Digioh’s Terms of Use, Digioh’s Privacy Policy and all applicable laws including, but not limited to, the CAN-SPAM Act or any other applicable privacy, data protection, advertising, consumer protection, or electronic communications law. All marketing conducted using Digioh’s services must be permission (opt-in) based. Customer must keep adequate and verifiable records to prove that Customer’s marketing is strictly permission-based. In addition, should Customer purchase mailing lists or other types of data that are to be used to contact third parties via the Services, Customer must verify that the lists have been compiled on a strict “opt-in” basis. Customer is solely responsible for determining whether and how it may lawfully use any data, output, or other information provided through the Services.

In addition to the above, all permission-based communications sent using the Services must include the following (and Customer is required to take the corresponding actions set forth below):

  1. A working “unsubscribe” link. (Customer must honor all unsubscribe requests within 72 hours of receipt);
  2. The recipient’s accurate e-mail address in the “to” line and the sender’s accurate e-mail address in the “from” line;
  3. An accurate “re” line;
  4. A working link to User’s privacy policy;
  5. A working “abuse” address and/or link. (Customer must answer all complaints forwarded to this address within 72 hours from receipt); and
  6. An up-to-date website that corresponds with the domain portion of the response e-mail. Customer’s Webpages must conspicuously display Customer’s up-to-date mailing address, telephone number and facsimile number.

Customer is solely responsible for the transmission of all such permission-based communications related to Customer’s Webpages and Customer’s use of the Services. Digioh reserves the right to suspend or terminate Services and the Customer’s license to use the Software in the event Digioh receives, in its sole and exclusive discretion, an excessive number of complaints related to Customer’s permission-based communications, whether such complaints are made by parties whom “opt-in” or otherwise.

6. Fees and Taxes

6.1 Fees

Customer shall pay the fees set forth on the Pricing page for the Software license and Services purchased by Customer, or as otherwise set forth on Customer’s Purchase Order with Digioh from time to time. Digioh may change the fees for its Services from time to time. If Customer does not accept a change in the fees, then Customer may terminate Customer’s account. Customer agrees not to disguise, hide or otherwise misrepresent the number of products that Customer offers on or through Customer’s Webpages through use of any features of the Services or Software or otherwise.

6.2 Payment Terms

Digioh will bill Customer automatically by credit card or by other electronic payment methods, and Customer agrees to pay such non-refundable fees in connection with either monthly or yearly subscriptions, as agreed to in a Purchase Order or other similar agreement between Customer and Digioh. All payments are due in advance of the following month or year, as applicable, of the Services being performed and the Software being provided. All amounts billed in advance are non-refundable, except in the case of the termination of this Agreement by Customer in connection with the uncured breach by Digioh (pursuant to the terms of Section 11.1). Notwithstanding the foregoing, there will be no refunds or credits for partial months of service, or refunds for months unused with an open account. Upon any non-payment by Customer, Digioh in its sole discretion may re-attempt to collect the amount due up to 6 times (including by continuing to charge the Customer’s credit card or other electronic means of payment) before suspending or terminating Customer’s account or immediately suspend or terminate Customer’s account. The suspension or termination of a Customer’s account does not relieve Customer of any amounts due to Digioh pursuant to a Purchase Order or otherwise.

6.3 Taxes

All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Customer will be responsible for payment of all such taxes (other than taxes based on Digioh’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.

7. Disclaimer of Warranties

DIGIOH, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. DIGIOH, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. CUSTOMER ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

8. Limitation of Liability

IN NO EVENT SHALL DIGIOH, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, SERVICES, ANY ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). DIGIOH, ITS SUPPLIERS, AND SERVICE PROVIDERS, CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES CUSTOMER PAID TO DIGIOH FOR THE SOFTWARE AND THE SERVICES IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE. ANY CAUSE OF ACTION A CUSTOMER MAY HAVE WITH RESPECT TO CUSTOMER’S USE OF THE DIGIOH SITE, THE SERVICES OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.

9. Indemnity

Customer agrees to indemnify and hold Digioh, its suppliers, and service providers, and each of their officers, members, managers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (a) any content provided, stored, sold or otherwise distributed by Customer or generated by users of Customer’s Webpages, (b) any claims arising from the sale or license of goods or services on Customer’s Webpages, (c) any breach of this Agreement or the documents it incorporates by reference by Customer or Customer’s agents, (d) Customer’s use of the Services in connection with any marketing or communications campaigns, (e) Customer’s failure to obtain legally required consent, provide notice, or otherwise satisfy a legal requirement applicable to Customer’s communications with individuals identified through or in connection with Customer’s use of the Services, and (f) any violation of applicable law, including but not limited to marketing, privacy, data protection, advertising, consumer protection, or electronic communications law. Digioh’s, its suppliers’ and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by Digioh. Digioh reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, and in such case, Customer agrees to cooperate with Digioh’s defense of such claim.

10. Customer Data, Customer’s Data and Privacy Policy

As between Digioh and Customer, Customer shall own all data disclosed by or collected about (a) an individual or entity that accesses Customer’s Webpages to browse or shop, and (b) Customer. Digioh treats all personal information collected through the Digioh Site as provided in our Privacy Policy, which is incorporated herein by reference and as it may be amended from time to time. Customer must establish and agree to post, maintain and adhere to a privacy policy for Customer’s Webpages that informs Customer’s customers what personal information is collected, how it is used, the effective date of Customer’s privacy policy and how Customer’s customers can learn of changes to such privacy policy and otherwise complies with applicable laws and regulations. As it relates to Customer’s use of the Services, Customer is solely responsible for establishing, posting, and maintaining a privacy policy that is in compliance with applicable law. Customer may not use Customer’s customer information to send unsolicited commercial messages (spam) or otherwise in violation of any law, statute, ordinance or regulation.

11. Breach, Suspension and Termination

11.1 Breach

It shall be a breach of this Agreement by Customer if: (a) Customer fails to pay any fees due to Digioh under this Agreement or any Purchase Order; (b) Customer breaches this Agreement or the documents it incorporates by reference in any other manner; (c) Digioh is unable to verify or authenticate any information Customer provides to Digioh; or (d) Digioh believes in its sole discretion that Customer’s actions may harm, cause financial loss or legal liability for Digioh or Digioh’s users or affiliates. It shall be a breach of this Agreement by Digioh if Digioh breaches this Agreement or the documents it incorporates by reference in any other manner; provided that Customer must give notice in writing to Digioh of such breach and allow Digioh 30 days’ from the date notice is received to cure such breach.

11.2 Suspension

Without limiting other remedies, upon Customer’s breach of this Agreement (as described in Section 11.1 above), Digioh may limit Customer’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Customer’s account, in whole or in part, and refuse to provide some or all of the Software functionality or Services to Customer. Suspension may include the disabling of any access to information or data related to Customer’s account. In the event of any such suspension, Customer will be notified and given 10 days to correct such breach. In the event that such breach is not corrected within 10 days of the receipt of such notice, the account may be terminated under Section 11.3 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. Customer will remain responsible for the payment of any such fees during any such period of suspension.

11.3 Termination

Without limiting other remedies, upon Customer’s breach of this Agreement (as described in Section 11.1 above), Digioh may terminate this Agreement and Customer’s account. In connection with a breach of this Agreement by Customer, Digioh shall have the sole discretion to determine whether this Agreement and the Customer’s account is suspended pursuant to Section 11.2 of this Agreement or terminated pursuant to this Section 11.3.

11.4 Rights Upon Termination

In the event of expiration or termination of this Agreement for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and Customer shall stop using the Digioh Site, Services and Software and destroy all copies of the Software in Customer’s possession, if any. Upon termination, there will be no refund provided to Customer except as otherwise agreed to in writing by Digioh and all outstanding fees owed by Customer shall become immediately due and payable. Termination shall not affect the rights of Digioh to recover from Customer’s losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys’ fees or expert witnesses’ cost or other costs of any kind as set forth in this Agreement.

12. General

12.1 Governing Law and Jurisdiction

This Agreement shall be governed in all respects by the laws of the State of California without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. Customer agrees that any cause of action that may arise under this Agreement or in connection with Customer’s use of the Software or Services will be commenced and heard only in the appropriate court having jurisdiction in San Francisco County, California. Customer hereby consents to the exclusive jurisdiction of and venue in such courts.

12.2 Legal Compliance

Customer shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Customer’s use of the Software, the Services, and Customer’s listing and sale of products and services on Customer’s Webpages.

12.3 No Agency

Customer and Digioh are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

12.4 Force Majeure

Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorist act, governmental act or order, act of God, failures in electric power or telecommunications services, or any other event beyond the control of the party.

12.5 Notices

Except as explicitly stated otherwise, any notices to be given under this Agreement shall be given as follows: (i) if the Digioh, by e-mail at support (at) digioh.com; if to Customer, by e-mail to the email address Customer provides to Digioh during the registration process. Notice shall be deemed given twenty four (24) hours after an email is sent. Alternatively, Digioh may give Customer notice by certified mail, postage prepaid and return receipt requested, to the address, if any, provided to Digioh during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

12.6 Assignment

Customer shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder, without the express written consent of Digioh, which may be withheld in Digioh’s sole discretion. Any assignment, transfer or delegation in contravention of the foregoing provision will be null and void. Customer agrees that this Agreement and any other documents referenced or incorporated hereunder may be assigned by Digioh, in Digioh’s sole discretion without Customer’s consent and without notice to Customer.

12.7 No Third Party Beneficiary

Customer acknowledges and agrees that nothing herein, express or implied, is intended to or will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.

12.8 Amendment

By accepting this Agreement, Customer further agrees to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Digioh may, from time to time, amend this Agreement unilaterally provided that notice of such amendment is sent to Customer. Customer shall be deemed to have consented to the terms and conditions of such amendment(s) (i) by affirmatively consenting to such amendment(s) by electronic acknowledgement and acceptance or (ii) by not objecting in writing to Digioh within 30 days’ of receiving notice of such amendment.

12.9 Severability; Waiver

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Digioh’s failure to act with respect to a breach by Customer or its agents does not waive Digioh’s right to act with respect to subsequent or similar breaches.

12.10 Construction

Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term “including” means “including but not limited to,” and “discretion” means the sole discretion of the applicable party unless expressly stated to the contrary.

12.11 Survival

The provisions of this Agreement that by their nature are ongoing, or as explicitly provided, will survive termination or expiration of this Agreement for any reason, including, but not limited to, Sections 2.4 (Ownership), 6 (Fees and Taxes), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnity), 10 (Customer Data, Customer’s Data, & Privacy Policy), 11.4 (Rights Upon Termination), and 12 (General).

12.12 Entire Agreement

Customer shall also be bound by the terms and conditions set forth in Digioh’s Terms of Use, a copy of which can be found at digioh.com; provided, in the event of an inconsistency between the Terms of Use and this Agreement, this Agreement shall control. This Agreement, together with the agreements, documents and policies that are incorporated herein by reference, sets forth the entire understanding and agreement between Customer and Digioh with respect to the subject matter hereof.

12.13 United States Export Laws and Use Outside of the United States

United States export control laws govern Customer’s use of the Digioh Site and the Services. These laws apply to Customer regardless of whether a Customer actually resides in the United States. Customer may not use the Digioh Site or any Services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the United States, but illegal to export. Customer may not use the Digioh Site or the Services to offer or provide services through Customer’s Webpages to end users with whom United States citizens may not do business. Additional information about United States export laws may be obtained from the United States government’s portal to exporting and trade services at http://www.export.gov/exportcontrols.html.