This User Agreement (this “Agreement”) is between you, the client, together with any company or other business entity you are representing, if any (collectively, “Client”), and Digioh, LLC (“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, Client desires to make use of the Digioh Site, Software and Services upon Client’s registration with Digioh; and
WHEREAS, as a condition precedent to Digioh accepting such Client’s registration, Client 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, Client and Digioh agrees as follows:
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 Client is registering as a business entity, Client represents that Client has the authority to bind such entity to this Agreement. Digioh may use techniques to confirm the accuracy of the information Client provides when Client 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 Client, to revoke any and all licenses under this Agreement or to refuse to provide the Software and Services under this Agreement to Client.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE DIGIOH SITE OR THE SERVICES OR THE SOFTWARE. CLIENT’S USE OF THE DIGIOH SITE OR THE SERVICES OR THE SOFTWARE CONFIRMS CLIENT’S UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
2.1 Software Ownership
Client acknowledges and agrees that, as between Client 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 Client in this Agreement are reserved by Digioh.
2.2 Software License
Subject to the terms and conditions of this Agreement, Digioh grants to Client 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
Client acknowledges that the Software and its structure, organization, and source code constitute valuable intellectual property of Digioh. Accordingly, Client 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 Client’s election to use and pay applicable fees for certain features of the Software, Digioh grants to Client a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to Client by Digioh under this Agreement (“Digioh Marks”), solely for display on those locations on Client’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. Client acknowledges Digioh’s exclusive ownership of the Digioh Marks and that all use of Digioh Marks inures to Digioh benefit. Client agrees not to take any action inconsistent with such ownership and Client 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, Client will immediately discontinue all use and display of the Digioh Marks. Client 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. Client agrees that the nature and quality of all products and services rendered by Client in connection with the Digioh Marks and all related advertising, promotional and other uses of the Digioh Marks by Client shall be of a high standard so as to protect and enhance the Digioh Marks and the goodwill pertaining thereto. Client further agrees that all materials bearing the Digioh Marks shall conform to the guidelines that Digioh may establish from time to time and that Client 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 Client 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”). Client agrees that Client will not use such Additional Software or Additional Services unless Client has agreed to the applicable terms and conditions, including Client’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 Client. If such changes materially alter Client’s ability to use the Software, Client must notify Digioh within 30 days of such change and Digioh and Client will work together to provide a solution to restore Client’s prior use. If the parties cannot agree to such a solution within 30 days, then Client may terminate use of the Software immediately upon the end of such 30 day period; provided, however, Client 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.
Upon activation of Client’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 Client the Services as provided on the pricing page of the Digioh Site and for the Software licensed to Client under this Agreement, subject to any additional services described on Client’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 Client. Client agree to receive administrative communications from Digioh in regards to the Software, Services, Client’s account, policy changes and system updates. If Client does not agree to such changes, then Client 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 Client’s Service may cause the loss of content, features, or capacity of Client’s account. Digioh shall not be liable for losses in connection with the foregoing.
Client authorizes Digioh to process any and all of Client’s Digioh account transactions initiated through the use of the password and/or passphrase that Client establish through registration on the Digioh Site. Client is solely responsible for maintaining the confidentiality of such password and/or passphrase.
4.1 Control of Client’s Webpages
Client will be solely responsible for the development, promotion, back-up, operation and maintenance of Client’s own webpages (“Client’s Webpages”), including the operation of Client’s Webpages, accepting, processing and filling customer orders generated through Client’s Webpages, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Client’s Webpages.
4.2 Ownership and Control of Content
Client will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on, including all descriptions of the products and services Client offer to customers Client and user-generated content on and related to Client’s Webpages. As a conduit, Digioh will give Client discretion over Client’s content provided it is compatible and interoperable with the Software and Services provided by Digioh under this Agreement and Client’s content and use of the Services, Software and the Digioh Site, so long as Client complies with all applicable laws and the terms and conditions of this Agreement. Client retains all right, title and interest in and to all intellectual property rights embodied in Client’s content, exclusive of any content provided by Digioh. Notwithstanding anything contained in the foregoing, if Client breaches any of the terms or conditions of this Agreement, Digioh is entitled to suspend or terminate Client’s account and the Software.
4.3 Passive Conduit
Client acknowledges that, by only providing Client with the ability to publish and distribute Client’s own or third party products, services or content, Digioh and its Software is acting only as passive conduits for the distribution and/ or publishing of such products, services or content in the Client’s Webpages. Digioh has no obligation to Client or any third party, and undertakes no responsibility, to review Client’s Webpages, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Client’s Webpages to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Digioh believes in its sole discretion that Client’s Webpages or any products, services, content or other materials in the Store or on Digioh Servers may create liability for Digioh or harm other users of Digioh’s websites or services, then Client agrees that Digioh may take any actions with respect to the content or materials or Client’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.
4.4 Content License
During the period that Digioh provides Services to Client pursuant to this Agreement, Client hereby grants to Digioh and its subcontractors a non-exclusive, irrevocable, sublicenseable, royalty-free, transferable worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Client’s content and trademarks solely to host Client’s Webpages, run the Software, provide Client with the Services and to otherwise promote and manage the Digioh Site. Client understands and agrees that copies of Client’s Webpages may continue to be stored on Servers after Client terminates Client’s account. Digioh agrees not to use Client’s content after Client terminates Client’s account except as required to comply with legal requests or requirements.
Client covenants that any products, services, or content published and distributed on Client’s Webpages and Client’s related activities shall not violate this Agreement as it may be amended from time to time, or any of the following:
i. be false, fraudulent, inaccurate or misleading;
ii. infringe or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
iii. 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);
iv. 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;
v. 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;
vi. involve the transmission of any unsolicited commercial or bulk email (known as “spamming”) and Client shall not use Client’s account or Client’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;
vii. 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 Client shall maintain a written record for a period of three (3) years after any termination of this Agreement;
viii. 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;
ix. involve subleasing Client’s account or offering “free space” on or other access to Client’s account or Client’s Webpages to third parties;
x. 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;
xi. 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
xii. not to bypass or override any restrictions on Client’s account or Client’s Webpages through use of any features of the Services or Software or otherwise.
5.2 Prohibited Activities
Client agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Client’s Webpages:
i. Blood, bodily fluids or body parts;
ii. Burglary tools;
iii. Counterfeit, stolen or infringing items;
iv. Illegal drugs and drug paraphernalia;
v. Fireworks, destructive devices and explosives;
vi. Identity documents, personal financial records or personal information (in any form, including mailing lists);vii. Lottery tickets, sweepstakes entries or slot machines;
viii. Obscene material or child pornography;
ix. Offensive material or hate speech;
x. Police badges or uniforms;
xi. Prescription drugs or devices;
xii. Stocks or other securities;
xiii. Stolen property;
xiv. Tobacco products; or
xv. Alcoholic products.
Client further agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on through or connected with Client’s Webpages, except as permitted by, and in full compliance with, all applicable federal, state, local and other laws:
i. Digital files that Client does not own or have all necessary rights or license to store, display, perform, copy and distribute;
ii. Event tickets;
iii. Food items;
iv. Hazardous, restricted or perishable items;
vi. Used clothing or bedding;
vii. Adult items or pornography;
viii. Content or material that is infringing or otherwise violates the law, including, music, movies, e-books, games, videos, photographs and software; or
ix. 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
In addition to the above, all permission-based communications sent using the Services must include the following (and Client is required to take the corresponding actions set forth below):
i. A working “unsubscribe” link. (Client must honor all unsubscribe requests within 72 hours of receipt);
ii. The recipient’s accurate e-mail address in the “to” line and the sender’s accurate e-mail address in the “from” line;
iii. An accurate “re” line;
v. A working “abuse” address and/or link. (Client must answer all complaints forwarded to this address within 72 hours from receipt); and
vi. An up-to-date website that corresponds with the domain portion of the response e-mail. Client’s Webpages must conspicuously display Client’s up-to-date mailing address, telephone number and facsimile number.
Client is solely responsible for the transmission of all such permission-based communications related to Client’s Webpages and Client’s use of the Services. Digioh reserves the right to suspend or terminate Services and the Client’s license to use the Software in the event Digioh receives, in its sole and exclusive discretion, an excessive number of complaints related to Client’s permission-based communications, whether such complaints are made by parties whom “opt-in” or otherwise.
Client shall pay the fees set forth on the Pricing page for the Software license and Services purchased by Client, or as otherwise set forth on Client’s Purchase Order with Digioh from time to time. Digioh may change the fees for its Services from time to time. If Client does not accept a change in the fees, then Client may terminate Client’s account. Client agrees not to disguise, hide or otherwise misrepresent the number of products that Client offers on or through Client’s Webpages through use of any features of the Services or Software or otherwise.
6.2 Payment Terms
Digioh will bill Client automatically by credit card or by other electronic payment methods, and Client 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 Client 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 Client 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 Client, Digioh in its sole discretion may re-attempt to collect the amount due up to 6 times (including by continuing to charge the Client’s credit card or other electronic means of payment) before suspending or terminating Client’s account or immediately suspend or terminate Client’s account. The suspension or termination of a Client’s account does not relive Client of any amounts due to Digioh pursuant to a Purchase Order or otherwise.
All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Client 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.
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. CLIENT 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.
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 CLIENT OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES CLIENT 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 CLIENT MAY HAVE WITH RESPECT TO CLIENT’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.
Client 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 Client or generated by users of Client’s Webpages, (b) any claims arising from the sale or license of goods or services on Client’s Webpages, or (c) any breach of this Agreement or the documents it incorporates by reference by Client or Client’s agents. 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 Client, and in such case, Client agrees to cooperate with Digioh’s defense of such claim.
It shall be a breach of this Agreement by Client if: (a) Client fails to pay any fees due to Digioh under this Agreement or any Purchase Order; (b) Client breaches this Agreement or the documents it incorporates by reference in any other manner; (c) Digioh is unable to verify or authenticate any information Client provides to Digioh; or (d) Digioh believes in its sole discretion that Client’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 Client 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.
Without limiting other remedies, upon Client’s breach of this Agreement (as described in Section 11.1 above, Digioh may limit Client’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Client’s account, in whole or in part, and refuse to provide some or all of the Software functionality or Services to Client. Suspension may include the disabling of any access to information or data related to Client’s account. In the event of any such suspension, Client 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. Client will remain responsible for the payment of any such fees during any such period of suspension.
Without limiting other remedies, upon Client’s breach of this Agreement (as described in Section 11.1 above), Digioh may terminate this Agreement and Client’s account. In connection with a breach of this Agreement by Client, Digioh shall have the sole discretion to determine whether this Agreement and the Client’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 Client shall stop using the Digioh Site, Services and Software and destroy all copies of the Software in Client’s possession, if any. Upon termination, there will be no refund provided to Client except as otherwise agreed to in writing by Digioh and all outstanding fees owed by Client shall become immediately due and payable. Termination shall not affect the rights of Digioh to recover from Client’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.
12.1 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. Client agrees that any cause of action that may arise under this Agreement or in connection with Client’s use of the Software or Services will be commenced and heard only in the appropriate court having jurisdiction in San Francisco County, California. Client hereby consents to the exclusive jurisdiction of and venue in such courts.
12.2 Legal Compliance
Client shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Client’s use of the Software, the Services, and Client’s listing and sale of products and services on Client’s Webpages.
12.3 No Agency
Client 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.
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 Client, by e-mail to the email address Client 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 Client 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.
Client 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. Client agrees that this Agreement and any other documents referenced or incorporated hereunder may be assigned by Digioh, in Digioh’s sole discretion without Client’s consent and without notice to Client.
12.7 No Third Party Beneficiary
Client 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.
By accepting this Agreement, Client 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 Client. Client 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 Client or its agents does not waive Digioh’s right to act with respect to subsequent or similar breaches.
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.
12.12 Entire Agreement
12.13 United States Export Laws and Use Outside of the United States
United States export control laws govern Client’s use of the Digioh Site and the Services. These laws apply to Client regardless of whether a Client actually resides in the United States. Client 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. Client may not use the Digioh Site or the Services to offer or provide services through Client’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/
A. Services Available on the Digioh Site
Users of the Digioh Site who simply browse the Digioh Site (“Guests”) may be able to view products and information, request information and engage in certain services on the Digioh Site. Users of the Digioh Site who enter into a separate User Agreement with Digioh (“Clients”) may be able to engage in certain other services on or through the Digioh Site. Guests and Clients may be collectively referred to herein as “Users”.
Except as expressly provided in a separate User Agreement between a Client and Digioh, Digioh reserves the right, for any reason, in its sole discretion, to terminate, change, upgrade, suspend or discontinue any aspect of the Digioh Site, including, but not limited to, content, features, hours of availability or equipment required for access. Digioh may also impose limits on certain features of the Digioh Site, or restrict a User’s access to part or all of the Digioh Site without notice to such User or penalty to Digioh.
B. Proprietary Rights in Content and Trademarks
The Digioh Site, all the content (including, for example, audio, photographs, illustrations, graphics, video and software), code, data, works of authorship and materials thereon, the look and feel, design and organization of the Digioh Site, and the compilation of the material on the Digioh Site (collectively, the “Content”) are protected by U.S. and international copyright, trademark and other laws. Digioh and its licensors own, solely and exclusively, all rights, title and interest in and to the Digioh Site, the Content, including, but not limited to, all intellectual property and proprietary rights therein. Users’ use of the Digioh Site and/or the Content does not grant to any User any ownership of any Content. For the sake of clarity, Posted Content (defined below) is not included in the defined term Content.
The trademarks, logos, service marks and trade names (collectively, the “Trademarks”) displayed on the Digioh Site or in connection with the Content made available through the Digioh Site are registered and unregistered Trademarks of Digioh and its licensors and may not be used except with written permission of the respective Trademark owner. Nothing contained on the Digioh Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to any User the ability to use any Trademark displayed on the Digioh Site without the written permission of Digioh or the third party that may own the applicable Trademark. A User’s misuse of the Trademarks displayed on the Digioh Site or on or through any of the Digioh Site’s services is strictly prohibited.
Digioh grants no license to any User to access, display and copy the Content for any use whatsoever, except as expressly agreed to by Digioh in writing otherwise. Users agree to not remove, alter or obscure any proprietary notices provided in or with the Content. All rights not expressly granted in this Agreement are reserved to Digioh.
C. User Accounts
Users who create an account on the Digioh Site agree to the following terms and conditions with regard to their account:
i. To provide complete and accurate information to create User’s account and to keep User’s account information up-to-date.
ii. To choose a user name and password for User’s account. Users understand that it is a User’s responsibility to choose a user name and password and to maintain the confidentiality of User’s password. Users agree to notify Digioh promptly if a User becomes aware that its password or account has been used without User’s consent. To do so, please contact Digioh at support (at) digioh.com.
iii. That Digioh may refuse to grant any User a user name that belongs to or is already being used by another User or that is offensive, in Digioh’s sole discretion.
iv. Not to impersonate any other person, thing or entity through User’s user name.
v. Not to access anyone other User’s account.
vii. That certain pages on the Digioh Site may be restricted to Users over the age of 18 and Users agree not to access or attempt to access such pages if a User is not over the age of 18.
viii. Not to post or display any content that is not suitable for minors unless properly designated.
ix. That Digioh may temporarily or permanently discontinue providing the Digioh Site or the services at any time and that as a result Users may be prevented from accessing the Digioh Site, the services and User’s account.
x. To be solely responsible for all activities that occur under User’s account.
xi. That any hardware and software required to use the Digioh Site or the services is User’s sole responsibility.
Users who create or administer an account on the Digioh Site for another person or entity agree to the following terms and conditions with regard to the account:
i. Such User will abide by all of the terms and conditions provided above with respect to individual accounts.
ii. Such User represents that it is properly authorized to represent the person or entity for which User initiates or administers an account
iii. By posting or otherwise submitting content, including photographs, audio, text, graphics or other works of authorship on the Digioh Site (collectively, “Posted Content”), such User represents, warrants and covenants that such User owns all right, title and interest in and to the Posted Content and such User has the authority to post and/or share the Posted Content on the Digioh Site.
iv. To the extent that a User posts or otherwise provides Posted Content on or through the Digioh Site or User’s account, such User grants to Digioh a non-exclusive, fully paid up, royalty free, irrevocable, unlimited, worldwide license to reproduce, commercialize, display, perform, use and create derivative works from such Posted Content, unless otherwise provided in an applicable User Agreement between a Client and Digioh.
D. Digioh’s Rights
Digioh reserves the following rights:
ii. To change or alter the Digioh Site, the form and nature of the Digioh Site or any services provided through the Digioh Site, including requiring payment for some or all uses of the Digioh Site, at any time.
iii. To review, modify, filter, disable, delete and remove any and all content and information from the Digioh Site.
iv. To update and download automatically any software provided on or through the Digioh Site.
v. To cooperate with any law enforcement, court or government investigation or order or third party requesting or directing that Digioh disclose information or content or information that a User provides, or if Digioh decides in its sole discretion that such disclosure is in Digioh or its customers best interests.
vi. To display advertising and promotions, which may be targeted to certain users or sections of the Digioh Site based upon queries made or preferences indicated, and may not be identified as paid advertisements or promotions.
Each User agrees that the foregoing are rights of, but not obligations of, Digioh and that Digioh may, but is not obligated to exercise any of these rights.
E. Prohibited Uses
Users may use the Digioh Site and the services only for lawful purposes. Users may not transmit, post, store, distribute, display or present any information, software, data, file or material in violation of any applicable law or regulation. Users may not use the Digioh Site or the services to facilitate, or otherwise assist others in, the violation of any law or regulation.
i. Post content or information that is obscene, hateful, threatening, defamatory, includes child pornography, or creates a risk to anyone’s privacy or safety.
ii. Promote, do or further any unlawful, misleading, discriminatory or malicious activity.
iii. Solicit personal information from anyone under 18 years of age.
iv. Transmit unsolicited commercial messages (Spam), junk mail, pyramid schemes, chain letters or similar materials or information.
v. Upload or transmit viruses, worms or other malicious code.
vi. Violate or infringe anyone’s intellectual property rights, including copyrights, trademarks, patents and trade secrets. For instance, Users may not use the Digioh Site to provide pirated or counterfeit works, information to circumvent copyright protection devices or links to such works or information or impermissibly use someone else’s copyrighted work or trademarks.
vii. Violate or infringe anyone’s privacy or publicity rights, such as impersonating another person or entity or posting images of someone without their permission.
viii. Forge or otherwise manipulate headers, tags or identifiers in order to disguise the origin of any message or transmittal that Users send or receive on or through the Digioh Site.
ix. Falsely express or imply that Digioh sponsors, endorses or is otherwise affiliated with a User.
x. Violate any law, statute, ordinance or regulation including export, intellectual property and privacy laws.
xi. Interfere with, circumvent, disable or attempt to interfere with, circumvent or disable the Digioh Site, the proper working of the Digioh Site, security features of the Digioh Site, or the equipment connected to the Digioh Site.
xii. Impose an unreasonable or disproportionately large load on the infrastructure of the Digioh Site or Digioh’s systems or networks.
xiii. Restrict or inhibit any other person from using the Digioh Site (including without limitation by hacking or defacing any portion of the Digioh Site).
xiv. Create a database by downloading and storing the Content or any part thereof.
Users may not do any of the following without Digioh’s written permission:
i. Use, copy, republish, upload, distribute, collect, modify, transmit, or post the Content or the Digioh Site for commercial purposes.
ii. Modify, remove, delete, augment, add to, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part.
iii. Access or attempt to access the Digioh Site or collect or index information provided to Digioh using any automated means, such as robots, spiders, scrapers, scripts, harvesting Ôbots, or the similar means or equivalent manual processes.
iv. Solicit, trace or otherwise collect any information from Users.
v. Frame or use framing techniques to enclose the Digioh Site or any part thereof.
vi. Use any metatags or any other “hidden text” using any Trademarks of Digioh.
vii. Reverse engineer, decompile or otherwise extract source code provided on or through the Digioh Site.
Digioh grants operators of public search engines permission to use spiders and other automated means to collect and copy Content from the Digioh Site solely to the extent necessary to create publicly available searchable indices of such Content, excluding caching or archiving such Content. Digioh reserves the right to revoke this permission at any time either generally or in specific cases. In addition to any remedies that Digioh may have at law or in equity, if Digioh reasonably determines that a User has violated or are likely to violate the foregoing prohibitions, Digioh may take any action it reasonably deems necessary to cure or prevent the violation, including, without limitation, the immediate removal of materials that violate the foregoing prohibitions from the Digioh Site.
F. Submissions and Privacy
G. Forums and Promotions
The Digioh Site may provide certain areas for Users to communicate with other Users, including through blogs, chat rooms, online communities and the like (the “Forums”). Digioh does not endorse the content in the Forums and specifically disclaims any responsibility or liability to any person or entity for any loss, damage, injury, claim, liability or other cause of any kind or character based upon or resulting from any material, content or other communication provided through a Forum. Digioh reserves the right, but is not obligated, to review messages in the Forums and is not responsible for the content of any such messages. Digioh also reserves the right, but is not obligated, to delete, edit or remove a message, in whole or in part, posted to a Forum for any reason and to exclude any User from using a Forum. Please be aware that when a User posts to a Forum, such User may be disclosing certain information to others. To protect Users’ safety, each User should use their best judgment when using the Forums and carefully consider the information that such User discloses in the Forums. Digioh reserves the right to cooperate with any law enforcement, court, third party or government investigation or order requesting or directing Digioh to disclose information posted to a Forum, or if Digioh decides in its sole discretion that such disclosure is in its’ or its customers’ best interests. Digioh may, from time to time, include contests, promotions, sweepstakes or other activities (collectively, “Promotions”) that require a User to submit material or information concerning such User. Please note that all Promotions may be governed by separate rules that may contain certain eligibility requirements, such as restrictions as to age or geographic location. Users are responsible to read all Promotions’ rules to determine whether or not a User is eligible to participate. If a User enters any Promotion, such User agrees to abide by and to comply with all Promotions rules.
H. Copyright and Trademark Infringement
Digioh respects the intellectual property rights of others and expects Users to do so as well. If a User believes that its copyrighted work has been copied or posted on or through the Digioh Site in a way that constitutes copyright infringement, then such User should send a written notice to our Designated Agent (see below) that contains the following:
i. A description of the copyrighted work that User believes has been infringed;
ii. A description of what the allegedly infringing work is;
iii. A description of the location where the allegedly infringing work is located on the Digioh Site;
iv. An address and telephone number where such User can be contacted, including an email address if possible;
v. A statement that such User has a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
vi. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
vii. A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.
If a User receives a copyright notice from Digioh that such User believes is incorrect, then such User may send a counter notice to Digioh’s Designated Agent (see below). After receiving a counter notice, Digioh may reinstate the content in question under Sections 512(g)(2) and (3) of the Copyright Act. A counter notice must include:
i. A physical or electronic signature of the alleged infringer;
ii. A description of the material that was removed or to which access was disabled;
iii. A description of the location where the allegedly infringing work was located on the Digioh Site before it was removed or access was disabled;
iv. A statement, under penalty of perjury, that the alleged infringer has a good faith belief that the material was removed or that access was denied as a result of a mistake or misidentification;
v. The alleged infringer’s name, address and telephone number; and
vi. A statement that the alleged infringer consents to the jurisdiction of the federal court with jurisdiction over the address provided by the alleged infringer, or if the alleged infringer is outside of the United States, then that the alleged infringer consents to jurisdiction in San Francisco County, California and will accept service of process from the party who is alleging the infringement.
Our Designated Agent for copyright notice claims can be reached at:
Attn: Digioh Designated Agent
2431 Mission St.
San Francisco, CA 94110
trademarks (at) digioh.com
Digioh also takes trademark rights seriously and will investigate reasonable trademark issues that are brought to its attention. Please keep in mind, however, that trademark rights are territorial and more than one party can own a trademark in different territories. More than one party may also use a trademark on sufficiently different goods or services. If a User believes that a trademark that User owns has been infringed on or through the Digioh Site or through Digioh’s services, then such User may send a notice to our Designated Agent (see above) that includes the following:
i. Sufficient information to identify the trademark that was allegedly infringed;
ii. Such User’s ownership rights in such trademark, including the territories in which User has rights or registrations;
iii. Information as to the goods and services on which User uses the trademark and the length of time such User has been using the trademark on each of the identified goods and services;
iv. A statement of User’s basis for why User’s trademark rights have been infringed, including a description of the allegedly infringing trademark and the goods and services on which it is used;
v. The location of the allegedly infringing material on the Digioh Site;
vi. User’s contact information, including address, telephone number and email address; and
vii. A statement, made under penalty of perjury, that the above information in the notice is accurate and that the signatory is the trademark owner or is authorized to act on behalf of the trademark owner.
False Claims and Other Things To Note
A User may be liable for damages if such User materially misrepresent that User’s intellectual property rights have been violated, for instance if the alleged infringement is a fair use of User’s copyright or trademark. Therefore, if a User is not sure whether or not User’s intellectual property rights have been infringed, please contact an attorney before contacting Digioh. Digioh may provide a copy of any User’s notice or counter notice to the other parties concerned and may also provide it to third parties, including posting any communications in place of the disabled content.
I. Violations of This Agreement and Termination
J. United States Export Laws and Use Outside of the United States
United States export control laws govern Users’ use of the Digioh Site. These laws apply to Users and Users of Digioh’s services regardless of whether a User actually resides in the United States. Users may not use the Digioh Site 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. 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. Digioh controls and operates the Digioh Site from its offices in the United States of America. Digioh does not represent that Content on the Digioh Site are applicable, appropriate or available for use in locations outside the United States. Persons who choose to access the Digioh Site from locations outside of the United States do so on their own initiative, and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
K. Linking to the Digioh Site
A User may link to the Digioh Site as long as such User: (i) links to the full version of an HTML formatted page of the Digioh Site; (ii) not link directly to any image hosted on the Digioh Site, such as using an “in-line” linking method to cause the image hosted by Digioh to be displayed on another website; and (iii) not link from any other website to the Digioh Site in any manner such that the Digioh Site, or any page of the Digioh Site, is “framed,” surrounded or obfuscated by any third party content, materials or branding. Digioh reserves all of its rights under the law to insist that any link to the Digioh Site be discontinued, and to revoke a User’s right to link to the Digioh Site from any other website at any time, in the sole discretion of Digioh.
M. Third Party Websites
Users may be able to link from the Digioh Site to third party website, and third party website may link to the Digioh Site (“Linked Site”). Users acknowledge and agree that Digioh has no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through a Linked Site, even if they are owned or run by Digioh’s affiliates. Links to a Linked Site do not constitute an endorsement or sponsorship by Digioh of such Linked Site or the information, content, products, services, advertising, code or other materials presented on or through such Linked Site. Digioh disclaims any liability for links (i) from another website to the Site and (ii) to another website from the Digioh Site. Digioh cannot guarantee the standards of any Linked Site to which links are provided on the Digioh Site and Digioh will not be held responsible for the contents of such Linked Site, or any subsequent links. Digioh does not represent or warrant that the contents of any third party website are accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Digioh is not responsible for any transmission received from any Linked Site. Any reliance on the contents of a third party website is done at User’s own risk and each User assumes all responsibilities and consequences resulting from such reliance.
N. Disclaimer of Warranties
BY ACCESSING THE DIGIOH SITE, EACH USER AGREES TO ASSUME ALL RESPONSIBILITY AND RISK FOR SUCH USER’S USE OF THE DIGIOH SITE AND THE CONTENT. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER DIGIOH NOR ITS OFFICERS, MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS, LICENSORS OR LICENSEES (“RELATED PARTIES”) MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE DIGIOH SITE, THE SERVICES OR THE CONTENT. NEITHER DIGIOH NOR ANY RELATED PARTIES ENDORSE OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THE DIGIOH SITE OR ANY CONTENT OR THAT THE DIGIOH SITE OR ANY CONTENT IS NON-DEFAMATORY, NON-INFRINGING OR OTHERWISE LAWFUL. NEITHER DIGIOH NOR ANY RELATED PARTIES WARRANT THAT THE FUNCTIONS PERFORMED BY THE DIGIOH SITE, THE SERVICES OR THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS IN THE DIGIOH SITE, THE SERVICES OR THE CONTENT WILL BE CORRECTED. NEITHER DIGIOH NOR ANY RELATED PARTIES GUARANTEE OR WARRANT THAT THE FILES AVAILABLE FOR DOWNLOADING WILL BE FREE FROM INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES OR PROGRAMS. THE DIGIOH SITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “WHERE AVAILABLE” AND “AS AVAILABLE” BASIS. EACH USER ACKNOWLEDGES THAT ANY RELIANCE ON OR USE OF THE DIGIOH SITE AND THE CONTENT IS AT USER’S SOLE RISK.
O. Limitation of Liability
IN NO EVENT WILL DIGIOH OR ANY RELATED PARTY BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE DIGIOH SITE, ANY LINKED SITE OR THE CONTENT OR SERVICES CONTAINED OR ACCESSED THROUGH SUCH DIGIOH SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT DIGIOH OR A RELATED PARTY IS AWARE OF OR OF ADVISED THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY PROBLEM WITH THE DIGIOH SITE OR THE CONTENT, EACH USER AGREES THAT SUCH USER’S SOLE REMEDY IS TO CEASE USING THE DIGIOH SITE OR THE CONTENT. EACH USER SPECIFICALLY AGREES THAT DIGIOH WILL NOT BE LIABLE FOR ANY USER’S CONTENT, OR DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT A USER ASSUMES THE FULL RISK OF HARM OR DAMAGE FROM THE FOREGOING.
P. Governing Law; Exclusive Jurisdiction
Q. Limitations on Claims
Any cause of action a User may have with respect to User’s use of the Digioh Site or the Content must be commenced within one (1) year after the claim or cause of action arises.
R. Entire Agreement and Assignment
S. Our Policy Concerning Children
The Digioh Site is not intended for use by children. If a User is under 18 years of age, such User may use the Digioh Site only with the involvement or consent of such User’s parent or guardian.
T. Notice for California Users
This notice is for California users of the Digioh Site: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (914) 445-1254 or (800) 952-5210.