TERMS OF SERVICE
Last Modified: June 22, 2018
Welcome to DigTribute, an online marketplace provided by DigTribute, Inc. and its affiliates (collectively, “DigTribute,” “we,” “our,” or “us”) for businesses and brands to offer their goods and services for purchase by retail customers. These Terms of Service govern your use of the DigTribute mobile application and website accessible at http://www.digtribute.us (each, a “Site”) and the services made available therein (collectively, the “Service”).
Unless expressly stated otherwise, these Terms apply to the brands and businesses promoting their goods and services through the Service (each, a “Merchant”), customers who use the Service to browse for and purchase promotions for goods and services (each, a “Promotion”) in accordance with the terms of such promotion (each, a “Customer”), and users who refer Merchant’s promotions to Customers (each, a “Participant”). Merchants and Customers are referred to in these Terms together as “Users,” or “you.”
Please read these Terms carefully to ensure that you understand each provision. These Terms contain mandatory binding arbitration on an individual to resolve disputes, rather than jury trials or class actions.
IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP USING THE SITE AND DO NOT USE ANY PORTION OF THE SERVICE, OR PURCHASE ANY PROMOTIONS FOR PRODUCTS OR OTHER GOODS OR SERVICES OFFERED THROUGH THE SERVICE.
1. The DigTribute Service
1.1 Service Description. The Service is an online marketing platform through which certain Merchants will sell promotions for goods and services directly to Participants and Customers (such goods and services, the “Merchant Products”). Merchants are the sellers of the Merchant Products and are solely responsible to you for the care, quality, and delivery of the Merchant Products provided.
Certain Merchant Products, and other available programs and pricing on the Service may change at any time in our sole discretion, without notice.
1.2 Eligibility. The Service are intended solely for Users who are 18 years of age or older. By accessing or using the Service, you represent and warrant that you are 18 or older and otherwise have capacity to contract. If you are accessing or using the Service, or opening a User Account (as defined below) with DigTribute on behalf of a company, entity, or organization, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to these Terms; (ii) have read these Terms; (iii) understand these Terms, and (iv) agree to these Terms on behalf of such company, entity, or organization.
1.3 License Grant. Subject to the terms and conditions of these Terms, DigTribute hereby grants to you a non-exclusive, limited, personal (except with regard to Merchants), non-transferable, non-sublicensable, freely revocable license to access and use the Site and the Service as permitted by the features of the Service. You agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell, or re-sell any content, software, products, or services obtained from or through the Site without the express permission of DigTribute. All rights not expressly granted to you in these Terms are reserved and retained by DigTribute.
1.4 Usage Restrictions. The rights granted to you in these Terms are subject to the restrictions in this Section. You hereby warrant, represent and agree that you will not use the Service or any DigTribute Content in the following manner: (i) rent, lease, sublicense, sell, transfer, assign, redistribute, host, or otherwise commercially exploit the Service or any part thereof; (ii) modify, make derivative works of, disassemble, reverse compile, attempt to find the source code of, or reverse engineer any part of the Service; (iii) access the Service in order to build a similar or competitive service; (iv) except as expressly stated herein, copy, reproduce, distribute, republish, download, post, display or transmit any part of the Services; (v) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter, interfere with or disrupt a computer or communication network, handheld device, mobile device, data, the Service, or any other system, device or property; (vi) access (or attempt to access) any of the Service by means other than through the interface that is provided by DigTribute; (vii) access or use the Service in a way intended to avoid incurring any applicable fees; (viii) remove, obscure, or alter any proprietary rights notices (including copyrights and trademark notices); (ix) circumvent, disable, or otherwise interfere with the security or functionality of the Service or of features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services or their content; (x) attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Service, the server(s) on which the Service are stored, or any server, computer, or database connected to the Service; (xi) infringe or violate the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (xii) violate any law, statute, ordinance, or regulation; (xiii) impersonate any person or entity, including without limitation any employee or representative of DigTribute; (xiv) jeopardize the security of a User Account or anyone else’s User Account; (xv) attempt, in any manner, to obtain the password, User Account, or other security information from any other User; (xvi) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DigTribute without our express written consent; (xvii) use any meta tags or any other "hidden text" utilizing DigTribute’s name or trademarks without our express written consent; or (xviii) run Maillist, Listserv, or any form of auto-responder or “spam” on the Service or any processes that otherwise interfere with the proper working of the Service (including by placing an unreasonable load on the Service’s infrastructure).
2. Merchant Rights and Obligations.
2.1 Promotion Information. You, as a Merchant, acknowledge and agree that, any Promotions made available to other Users of the Service shall be complete, accurate and current, including all information regarding any restrictions on redemption associated therewith, and such information shall be conspicuously posted and clearly written. Merchant shall be responsible for all content contained therein, and will comply with the Merchant Guidelines.
2.2 Relationship with DigTribute. You, as a Merchant, acknowledge and agree that any purchase of Merchant Products associated with a Promotion shall be directly between Merchant and Customer. Merchant shall post a conspicuous notice on the Promotion that the sale of any Merchant Products associated with such Promotion constitutes a transaction solely between Merchant and a Customer. You, as a Merchant, acknowledge and agree that DigTribute shall be in no way responsible or incur any liability associated with the sale or purchase of such Merchant Product.
2.3 Promotion Redemption. If, through the Service, you offer a Promotion as a Merchant, then you agree that you shall honor such Promotion until the later of (i) you disabling, deactivating or otherwise removing such Promotion from the Service, or (ii) the date of expiration of such Promotion as set forth in the terms applicable to such Promotion. You, as a Merchant, agree to confirm all Customer purchases of your Merchant Products immediately following (but no more than within thirty (30) days of) Customer’s purchase of such Merchant Product. DigTribute has the right to request from you such confirmation, and you agree that failure to respond to such request within fifteen (15) days of such request shall be deemed a confirmed purchase of such Merchant Product. In the event that a Merchant and a Customer disagree on whether the purchase of a particular Merchant Product qualifies under the DigTribute Promotion, the Merchant and Customer agree that DigTribute has the right to make such determination (and award any applicable fees).
2.4 Referral Incentives. If through the Service, you, as a Merchant, offer a referral incentive to a Participant for successfully referring a Customer to purchase a Promotion (each, an “Incentive”), then you agree that you shall honor such Incentive, and will provide Participant with its Incentive immediately upon but no more than within thirty (30) days of) purchase of a Promotion by a Customer referred by such Participant. In the event of any dispute or disagreement about whether a User qualifies as a “Participant” or should otherwise be compensated as a “Participant” under a particular Promotion, DigTribute has the right to make such determination. Compliance with Law. You, as a Merchant, represent and warrant that you are in compliance with all applicable laws, rules and regulations.
2.5 Deposit. For each Promotion, in order to make such Promotion available via the Service, Merchant agrees to pay DigTribute a deposit sufficient to cover any fees that may be due to DigTribute, any Participants and the Customer upon redemption of such Promotion via the Service, as set forth in the applicable Order Form prior to the Promotion being made available via the Service (the “Deposit”). For avoidance of doubt, Merchant is not obligated to make any Deposit, and may cancel any Promotion prior to its posting on the Service if it does not wish to pay such Deposit. All fees paid to DigTribute, Customer and Participant shall first be satisfied by the Deposit and all amounts of the Deposit remaining shall be refunded to Merchant (without interest).
3. Customer and Participant Rights and Obligations.
3.1 Participant Eligibility. In order to be eligible for any Incentives or qualify as a “Participant,” you must distribute the Promotion via the Service in accordance with the functionalities of the Service and these Terms. In the event of any dispute or disagreement about whether a User qualifies as a “Participant” or should otherwise be compensated as a “Participant” under a particular Promotion, DigTribute has the right to make such determination.
3.2 Relationship with DigTribute. You, as a Customer or Participant, acknowledge and agree that any purchase of Merchant Products associated with a Promotion shall be directly between Merchant and Customer. You, as a Customer or Participant, acknowledge and agree that DigTribute shall be in no way responsible or incur any liability associated with the sale or purchase of any Merchant Products or for Merchant’s failure to honor any Promotion. You, as a Participant, acknowledge and agree that any Incentive due to you as a result of Participant’s referral of any Merchant Product associated with a Promotion shall be directly between Merchant and Participant, and DigTribute shall be in no way responsible or incur any liability for Merchant’s failure to honor such Incentive.
3.3 Promotion Redemption. In order to receive the benefits described in a Promotion, Customer must enter a transaction number or other confirmation number provided by Merchant (a) at the time Customer purchases the Merchant Product associated with the Promotion through the Merchant’s website, and (b) through the Service (or by email to [email@example.com]) to DigTribute, immediately after making such purchase described in (a). Merchants shall have thirty (30) days from purchase of the applicable Merchant Product to confirm such transaction number, honor such Promotion, and provide any applicable Incentives to any applicable Participant. In the event that a Merchant and a Customer disagree on whether the purchase of a particular Merchant Product qualifies under the DigTribute Promotion, the Merchant and Customer agree that DigTribute has the right to make such determination (and award any applicable fees).
5. Modification of the Terms. DigTribute reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms periodically for changes. When we change the Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. If any such revision is unacceptable to you, your only remedy is to terminate your DigTribute User Account.
6. Mobile Software
6.1 Generally. We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. DigTribute does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. DigTribute hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one DigTribute User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software.
You acknowledge that DigTribute may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and DigTribute or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. DigTribute reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
6.2 Mobile Software from Apple App Store. The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between you and DigTribute, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to DigTribute as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to DigTribute as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, DigTribute, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and DigTribute acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
6.3 Mobile Software from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms are between you and DigTribute only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) DigTribute, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to DigTribute’s Google-Sourced Software.
7. Termination. DigTribute may terminate your User Account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect, or feature of the Service) for any reason or no reason, at any time in its sole discretion, with or without notice.
You agree that DigTribute, in its sole discretion and for any or no reason, may terminate any User Account (or any part thereof) you may have with DigTribute. In addition, DigTribute reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any User Data. You agree that any termination of your access to the Service or any account you may have or portion thereof may be affected without prior notice, and you agree that DigTribute will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies DigTribute may have at law or in equity.
8. Account Activity Responsibility
8.1 User Accounts. In order to use certain aspects of the Service, you will have to register for the Service and create an account (“User Account”). When creating your User Account for the Service, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your User Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your User Account or password. If you have reason to believe that your User Account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify DigTribute. DigTribute will not be liable for any losses caused by any unauthorized use of your User Account. You may never use another person’s User Account without permission.
8.2 Merchant Administrator Accounts. The person who first completes the Service registration on behalf of any Merchant is the initial “Administrator” for purposes of such Merchant’s use of the Service, and exercises certain options to initially determine the level of access, privacy, and security for the Service related to the Merchant (“Administrator Account”). For example, the Administrator will determine who can be a User of the Service under the organization associated with that Administrator and Merchant and the level of privileges that such Users will possess. Each Administrator may designate other Users as additional and/or successor Administrators, and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the Service billing record for a Merchant will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to User Accounts.
8.3 System Access. You may choose to allow DigTribute to automatically retrieve data from your system(s) or third-party systems or services on your behalf, including without limitation, Participants’ contacts information. You hereby represent and warrant that you have the permission, authority, and rights to allow DigTribute to so automatically access such system(s) and services and you hereby grant DigTribute permission to access such system(s) and services and retrieve User Data therefrom by indicating the same within your User Account. DigTribute disclaims any and all liability associated with accessing and retrieving User Data from such system(s) and services on your or your Merchant’s behalf. If at any time you do not have the right and authority to allow DigTribute automatic access to such system(s), then you hereby agree to immediately disable such functionality within your User or Administrator Account.
8.4 Account Information. You acknowledge and agree that DigTribute may access, preserve and disclose your User Account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of DigTribute, its users, or the public.
9. Payment Terms; Charges and Taxes
9.1 DigTribute Fee. Merchant shall pay DigTribute a percentage of the sale price of the Merchant Product associated with any Promotion, or as otherwise agreed upon by the Merchant and DigTribute, in each case, as set forth in the applicable Order Form. Merchant authorizes DigTribute to deduct such fee from the Deposit following confirmation of the transaction by Merchant with DigTribute in accordance with the terms and conditions of these Terms. You, as a Merchant, will comply with all Merchant payment terms, as described in the Order Form.
9.2 Customer and Participant Responsibility. You are responsible for paying any applicable taxes associated with the Service and/or the Promotions, as applicable.
9.3 Merchant’s Failure to Pay. If Merchant’s payment method fails or Merchant is past due on amounts owed, we may collect fees owed using other collection mechanisms. Your Merchant User Account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You, as a Merchant, are also responsible for paying any governmental taxes imposed on your use of the Service and/or related to any Promotion or Merchant Products, including, but not limited to, sales, use, or value-added taxes. To the extent DigTribute is obligated to collect such taxes, the applicable tax will be added to your billing account.
9.4 Fee Changes. DigTribute reserves the right to change the amount of, or basis for determining, any fees or charges for the Service we provide, and to institute new fees, charges, or terms effective upon prior notice to our Users. You will receive notice of any fee change at least five (5) days before the scheduled date of such fee change. For avoidance of doubt, any fee change will only apply to Promotions created after the effective date of the fee change.
10. Code of Conduct. When using the Service you agree not to use and not to encourage or allow any User to use, our Service in prohibited manners, including but not limited to the following:
10.1 Using the Site or Service to encourage any illegal, abusive, or other activities that interfere with the business or activities of DigTribute.
10.2 Using the Site or Service to transmit any material that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material that DigTribute reasonably believes degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category.
10.3 Using the Site or Services in any manner that may subject DigTribute or any third party to liability, damages, or danger.
10.4 Using the Site or Services in connection with any unsolicited or harassing messages (commercial or otherwise) including unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes.
10.5 Using the Site or Services to engage in or in connection with fraudulent activity.
10.6 Violating or facilitating the violation of any local, state, federal, or foreign law, ordinance or regulation, including laws and regulations regarding the transmission of data or software.
10.7 Taking any action to participate in, encourage, or promote any activity prohibited under these Terms.
10.8 Upload or transmit via the Service pornographic, embarrassing or otherwise inappropriate content.
10.9 Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
10.10 Impersonate another person or access another User’s User Account without that User’s permission or to violate any contractual or fiduciary relationships.
10.11 Share DigTribute-issued passwords with any third party or encourage any other User to do so.
10.12 Misrepresent the source, identity, or content of User Data.
10.13 Using the Site or Service to transmit any material that infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party.
10.14 Using the Site or Service in any manner that violates industry standards, any third party policies or requirements that DigTribute may communicate to its Users including any usage requirements.
10.15 Attempting to bypass, remove, circumvent, disable, damage, break or otherwise interfere with security-related features of the Site or Service, features that prevent or restrict use or copying of any content accessible through the Site or Service, or features that enforce limitations on use of the Site or Service.
10.16 Modifying, disassembling, reverse compiling, attempting to find the source code of, or reverse engineering any part of the Site or Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
10.17 Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Site or Service or any other conduct that adversely impacts the availability, reliability, or stability of the Site or Service.
10.18 Transmitting, uploading, or distributing any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs or any software intended to damage or alter, interfere with or disrupt a computer or communication network, handheld device, mobile device, data, the Site, the Service, or any other system, device or property.
10.19 Engaging in any unsolicited advertising, marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction).
10.20 Using the Site or Service to harvest or otherwise collect any personally identifiable information about others, including account names, email addresses or phone numbers.
10.21 Using the Site or Service, or any component of the Site or Service, in any manner not authorized by DigTribute or that in our sole discretion could damage, disable, overburden, or impair the Site or Service.
10.22 Attempt to gain unauthorized access to the Site or Service, or any part of them, other User Accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Site or Service or any activities conducted on the Site or Service.
10.23 Modify the Site or Service in any manner or form, or use modified versions of the Site or Service, including but not limited to for the purpose of obtaining unauthorized access to the Site or Service.
10.24 Use any robot, spider, scraper, or other automated means to access the Site or Service for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Site or Service.
10.25 Modify, adapt, translate or create derivative works based upon the Site or Service.
10.26 Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Site or Service to any third party; provide time sharing or similar services for any third party.
10.27 Access the Site or Service if you are a direct competitor of DigTribute, except with DigTribute’s prior written consent, or for any other competitive purposes.
10.28 Remove, obscure, or alter any proprietary rights notices (including copyrights and trademark notices) posted on the Site or Services, or any part thereof.
10.29 Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DigTribute without our express written consent.
10.30 Use any meta tags or any other "hidden text" utilizing DigTribute’s name or trademarks without our express written consent.
10.31 Run Maillist, Listserv, or any form of auto-responder or “spam” on the Site or Service or any processes that otherwise interfere with the proper working of the Site or Service (including by placing an unreasonable load on the Site’s and/or Service’s infrastructure).
10.32 Access or use the Site or Service in a way intended to avoid incurring any applicable fees.
11. User Data
11.1 Use of User Data. By submitting User Data to DigTribute, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Data required for DigTribute and its subcontractors and service providers to provide the Service. DigTribute shall have no right to sublicense or resell User Data. However, except as prohibited by law, you agree that DigTribute may collect, analyze, and use data derived from User Data, which may include Personal Data and/or information collected from or about an individual but which does not identify the individual personally, as well as data about you, and other Users’ access and use of the Service, for purposes of operating, analyzing, improving, or marketing the Service and any related services. If DigTribute shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from User Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual or the User. By way of example and not limitation, DigTribute may: (a) track the number of users on an anonymized aggregate basis as part of DigTribute’s marketing efforts to publicize the total number of Users of the Service; (b) analyze aggregated usage patterns for product development efforts; or (c) use anonymous data derived from User Data in a form which may not reasonably identify either a particular individual or the User to develop further analytic frameworks and application tools. You further agree that DigTribute will have the right, both during and after the term of these Terms, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
11.3 Security Incidents. In the event that User Data is disclosed to or accessed by an unauthorized party, DigTribute will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the User Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
11.4 No Responsibility for Backups. DigTribute will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. You are solely responsible for backing up your User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data.
11.5 Rights to User Data. You own all right, title and interest (including all intellectual property rights) in and to your User Data.
12. Ownership; Proprietary Rights. The Service is owned and operated by DigTribute. The visual interfaces, graphics, design, images, text, illustrations, compilation, information, computer code, products, software, services, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music and all other elements of the Service provided by DigTribute, including without limitation User Data belonging to other Users (“DigTribute Content”), and all intellectual property rights related thereto, are the exclusive property of DigTribute and its licensors (including other Users who submit User Data to the Services). Except as expressly provided herein, nothing in these Terms shall be deemed to create a license in or under any such DigTribute Content or the intellectual property rights therein or thereto, and you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the DigTribute Content. DigTribute is not responsible for any harm or damage that may occur if DigTribute Content is not accurate, reliable, effective, complete or current, and we make no endorsement, representation, warranty, or guarantee of any kind about any such content, information, services, communications, or recommendations. We do not represent, warrant, or guarantee that any User or other person or entity contributing to the Service is presenting accurate or complete information through the Service or otherwise. We do not independently verify or attempt to confirm any information they provide. You acknowledge that information provided through the Service may be unavailable, inaccurate, or incomplete.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place DigTribute under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, DigTribute does not waive any rights to use similar or related ideas previously known to DigTribute, or developed by its employees, or obtained from sources other than you.
14. Third-Party Sites, Third-Party Information
16. Disclaimers; No Warranties
16.1 The Service and any third-party or User Data, software, services, or applications made available in conjunction with or through the Service is provided “as is” and “as available” without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, DigTribute, its suppliers, licensors, and partners disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.
16.2 DigTribute, its suppliers, licensors, and partners do not warrant that the functions contained in the Service will be uninterrupted or error-free, that the Service will meet your requirements, that defects will be corrected, or that the Service or the server that makes it available is free of viruses or other harmful components.
16.3 DigTribute, its suppliers, licensors, and partners do not warrant or make any representations regarding the use or the results of the use of the Service in terms of correctness, accuracy, reliability, or otherwise. You understand and agree that you download or otherwise obtain third party or User Data, DigTribute Content, or data through the use of the Service at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such third party or User provided information, material, or data. DigTribute will not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store or maintain any third-party or User Data.
16.4 DigTribute does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and DigTribute will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
16.5 Certain federal laws, state laws, and laws of provinces and other jurisdictions do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights. These Terms give you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
17. Limitation of Liability
17.1 Under no circumstances, including, but not limited to, negligence, will DigTribute or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation losses or liability resulting from loss of data, loss of revenue, anticipated profits, or loss of business opportunity) that result from your use or your inability to use the information or materials on the Service, or any other interactions with DigTribute, even if DigTribute or a DigTribute authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, DigTribute’s liability will be limited to the fullest extent permitted by applicable law.
17.2 In no event will DigTribute’s or its affiliates’, contractors’, employees’, agents’, or third-party partners’, licensor’s, or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your use of the Service, including without limitation your interactions with other users, (whether in contract, tort including negligence, warranty, or otherwise) exceed the amount paid by you, if any, for accessing the Service during the twelve (12) months immediately preceding the day the act or omission occurred that gave rise to your claim.
17.3 You acknowledge and agree that DigTribute has offered its products and services, set its prices, and entered into these terms in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the disclaimers of warranty and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the disclaimers of warranty and the limitations of liability set forth herein form an essential basis of the bargain between you and DigTribute.
18. Indemnification. You agree to defend, indemnify and hold harmless DigTribute and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) your use of and access to the Service, including any data or work transmitted or received by you; (b) your violation of any term of these Terms, including without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claim or damages that arise as a result of any of your User Data or any other data that are submitted via your User Account; or (f) any other party’s access and use of the Service with your unique username, password or other appropriate security code. DigTribute will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by DigTribute. DigTribute will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.
19. Location of the Service. The Service is controlled and operated from our facilities in the United States. DigTribute makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.
20. Governing Law; Arbitration; and Class Action/Jury Trial Waiver
20.1 Governing Law. You agree that: (a) the Service shall be deemed solely based in California; and (b) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
20.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from DigTribute. For any dispute with DigTribute, you agree to first contact us at [firstname.lastname@example.org] and attempt to resolve the dispute with us informally. In the unlikely event that DigTribute has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and DigTribute agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing DigTribute from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.
20.3 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, we each agree that to the fullest extent permitted by applicable law, all claims must be brought in the parties’ individual capacity, and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.
21.1 Notice and Modifications. DigTribute may provide you with notices, including those regarding changes to DigTribute’s terms and conditions, including these Terms, by email, regular mail, or postings on the Service. Notice will be deemed given twenty-four hours after email is sent, unless DigTribute is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Service is deemed given five (5) days following the initial posting. DigTribute reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. DigTribute is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. DigTribute may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
21.2 Waiver. The failure of DigTribute to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by DigTribute.
21.3 Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions; except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
21.4 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DigTribute without restriction.
21.5 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 3 and 8 through 21.
21.6 Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
21.7 Entire Agreement. This, including the agreements incorporated by reference, constitutes the entire agreement between you and DigTribute relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by DigTribute as set forth in these Terms.
21.8 Claims. You and DigTribute agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
21.9 Disclosures. The Service is offered by DigTribute, Inc., located at 3525 Del Mar Heights Road #987 San Diego, CA 92130, and can be reached via email at email@example.com. If you are a California resident, (a) you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information; and (b) in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.