ARBITRATION NOTICE: THE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE ANY DISPUTE RELATED TO THE ONLINE SERVICES, WHICH LIMITS ACCESS TO A JUDGE, JURY AND THE ABILITY TO PARTICIPATE IN A CLASS ACTION. ARBITRATION MAY ALSO LIMIT THE REMEDIES AVAILABLE TO YOU. YOU SHOULD REVIEW CAREFULLY THE PROVISIONS OF SECTION 15.7 PRIOR TO ACCEPTING THE TERMS.
1.1 Acceptance. Your access to and use of the Online Services and your creation of a registered account with Digidust (“Account”) is conditioned on your acceptance of and compliance with the Terms and, as such, by accessing or using the Online Services or any Supplemental Service, you agree that you: (1) have read and understand the Terms; (2) are bound by the Terms; (3) are of legal age to form a binding agreement with Digidust; and (4) have the authority to agree to the Terms either (i) personally or (ii) on behalf of the entity that you have named as the User during the registration process.
1.2 Use. Subject to your compliance with the Terms, Digidust grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to access the Website and your Account on a single mobile device or computer that you own or control solely for your own personal or internal business purposes, upon your paid subscription for the Online Services as set forth on the Website.
1.3 Fees. The Online Services are premium and paid services that are available to you upon subscription as set forth on the Website, excluding any free trial period promotion offered as set forth on the Website. By subscribing and registering for an Account, you agree to pay Digidust the monthly subscription fees indicated on the Website for the term of subscription selected by you. Fees for the Online Services are non-refundable for use of the Online Services, and only a portion of any fees paid in advance by you under your subscription plan may be refunded upon termination. Any monthly or annual subscription fees refund shall be prorated based on the portion of the month prior to termination.
1.4 Location-Based Information. You understand that the Privacy Notice establishes important terms in respect of information that we collect from the Global Positioning System (“GPS”) functionality on your device when you use the Online Services on a mobile device.
1.5 Mobile Communications. If you request to receive updates or other information by mobile phone or text message, you consent to receiving text messages from us and our otherwise communicating with you via your mobile device. The foregoing is provided as part of the Online Services. However, your mobile carrier's standard messaging, data and other rates and fees still apply to any messages you send, our confirmations and all subsequent SMS correspondence and/or transmissions. You should check with your carrier to find out what plans are available and how much they cost. All charges are billed by and payable to your mobile service provider. At any time, you may text “STOP” to cancel or “HELP” for customer support information. You agree that Digidust will not be liable for any delays in the receipt of any SMS messages, as delivery is subject to effective transmission from your mobile service operator.
1.6 Prohibitions. You cannot use the Online Services if you are barred from receiving any services or products under the laws of the United States or other applicable jurisdictions. You may only use the Online Services in accordance with the Terms and all applicable local, state, national and international laws, rules and regulations. IF YOU DO NOT AGREE OR CANNOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1.7 Twitter and Instagram Limits. You understand that Twitter and Instagram may impose limits on the Online Services through their API that could limit your access to the Online Services or otherwise prevent Digidust from providing the Online Services in whole or part to you.
Please review the Privacy Notice, incorporated herein and applicable to your use of the Online Services, to understand Digidust's privacy practices.
3.2 Continued Use. Digidust may require you to provide consent to the updated Terms in a specified manner before further use of the Online Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using any part of the Online Services. YOU UNDERSTAND THAT WE RECOMMEND THAT YOU REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
4. Limited License.
The Online Services, and the information and content available on the Website, are protected by copyright and other intellectual property rights laws throughout the world. Unless otherwise specified by Digidust in a separate license, your right to use the Website is subject to the Terms.
4.1 Digidust Software. Use of any software and associated documentation that is made available via the Online Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. Such license terms may be posted with the Software downloads or at the page of the Website where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Digidust provide you with any tangible copy of our Software. Digidust shall not deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the: (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this Section 5.1, tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Digidust grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Online Services in the manner permitted by the Terms. Some of the Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of the Terms.
4.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion thereof; (b) you shall not frame or utilize framing techniques to enclose any trademark, or logo (including images, text, page layout or form) of Digidust ; (c) you shall not use any metatags or other “hidden text” using Digidust's Marks (as defined in Section 8.2); (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Website in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website. Any future release, update or other addition to the Website shall be subject to the Terms. Digidust, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website terminates the licenses granted by Digidust pursuant to the Terms.
4.3 Third-Party Materials. As a part of the Website, you may have access to materials that are hosted by another party. You agree that it is impossible for Digidust to monitor such materials and that you access these materials at your own risk.
5.1 Registering Your Account. In order to access your Account, you will be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an Account with Digidust, including providing payment information based on the selected subscription level as set forth on the Website. You are responsible for safeguarding the password or credentials that you use to access the Online Services and for any activities or actions under your Account. We encourage you to use passwords that use a combination of upper and lower case letters, numbers and symbols with your Account.
5.2 Registration Data. In registering for an Account, you agree: (1) to provide true, accurate, current and complete information about yourself as prompted by the Online Services registration form including, but not limited to, name, username, e-mail, usage stats (collectively, the “Registration Data”); and (2) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are: (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Digidust Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Digidust Properties by minors. You may not share your Account or password with anyone, and you agree: (1) to notify Digidust immediately of any unauthorized use of your password or any other breach of security; and (2) to exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or that Digidust has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Digidust has the right to suspend or terminate your Account and refuse any and all current or future use of the Digidust Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Digidust reserves the right to remove or reclaim any usernames at any time and for any reason including, but not limited to, claims by any other party that a username violates such Third Party’s rights. You agree not to create an Account or use the Digidust Properties if your Account has been previously suspended or terminated by Digidust, or if you have been previously banned from any of the Digidust Properties. Digidust reserves the right to share Registration Data with other parties including, but not limited to, brands, clients, partners, and sponsors.
5.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Website including, but not limited to, a mobile device that is suitable to connect with and use the Website. You are solely responsible for any fees, including an Internet connection and mobile carrier fees that you incur when accessing the Website.
6. Responsibility for Content on Twitter or Instagram.
6.1 Types of Content. You acknowledge that all content posted directly or indirectly to your Twitter or Instagram account is the sole responsibility of the party from whom such content originated. This means that you, and not Digidust, are entirely responsible for all content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) during your term of use of the Online Services (“Your Content”). Your Content also includes content from a third party that you Make Available on your Twitter or Instagram account during the term of your use of the Online Service.
6.2 No Obligation to Pre-Screen Content. You acknowledge that neither Digidust nor its parents, subsidiaries, affiliates, officers, employees, agents, representatives, insurers, partners, software-as-a-service clients and licensors, and each of their successors and valid assigns (individually, a “Digidust Party” and, collectively, the “Digidust Parties”) has any obligation to pre-screen Your Content posted to your Twitter or Instagram account.
7.1 Website. Except with respect to Your Content, you agree that Digidust owns all rights, title and interest in and to the Website and the Online Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website.
7.2 Trademarks. Graphics, logos, trademarks, service marks, trade dress and trade names (collectively, “Marks”) used on or in connection with the Website or the Online Services are property of Digidust by ownership or license and may not be used without permission in connection with any third party products or services. Other Marks that may appear on or in the Website or in connection with the Online Services are the property of their respective owners. You are not granted any right, title or interest in or to any Marks in connection with your use of the Online Services.
7.3 Your Content. Digidust does not claim ownership of Your Content as posted to your Twitter or Instagram account. You represent to Digidust that you own and/or have a royalty-free, perpetual, irrevocable, transferable, assignable, sublicensable, worldwide, non-exclusive right (including any moral rights) and license to use, license, sublicense, reproduce, modify, adapt, publish, publicly perform, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term (including any extensions) of any worldwide intellectual property right that may exist in Your Content.
7.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Digidust.
7.5 Your Twitter or Instagram Profile. Your Content in your Twitter or Instagram profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s express permission.
7.6 Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, wiki, feedback or other information about any of the Online Services provided by you (“Submissions”), including through online forums or similar pages, to Digidust are non-confidential and shall become the sole property of Digidust. Digidust shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of such Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You agree that such Submissions are posted at your own risk and that Digidust has no obligations (including, without limitation, obligations of confidentiality) with respect to such Submissions. You represent and warrant that you have all rights necessary to submit Submissions. You hereby grant to Digidust a fully paid, royalty-free, perpetual, irrevocable, worldwide, transferable, assignable, fully sublicensable, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Submissions, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website and the Online Services.
8.1 Commercial Activities. You agree that you will not under any circumstances (except to the extent expressly authorized by the Terms):
Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose (i) any portion of the Website (including your Account) or (ii) the access to or use of the Website;
Make Available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation through the Website;
Use the Online Services for any commercial purpose including, but not limited to, communicating or facilitating any commercial advertisement, solicitation or activity;
Engage in any chain letters, contests, sweepstakes and lotteries, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) through the Online Services; or
Market any goods or services through the Online Services for any business purposes.
8.2 Unauthorized Use or Access. You agree that you will not under any circumstances:
Interfere or attempt to interfere with the proper functioning of the Online Services or connect to or use the Website in any way not expressly permitted by the Terms;
Systematically retrieve data or other content from the Website to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders or otherwise;
Use, display, mirror or frame the Website, Digidust's name, any Digidust trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Digidust's express written consent;
Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Website or that is in transit from or to the Website, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Website;
Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Website, whether through the use of a network analyzer, packet sniffer or other device;
Make any automated use of the Website, or take any action that imposes or may impose (in Digidust’s sole discretion) an unreasonable or disproportionately large load on the infrastructure on the Website;
Bypass any robot exclusion headers or other measures Digidust takes to restrict access to the Website, or use any software, technology or device to send content or messages, scrape, spider or crawl the Website, or harvest or manipulate data;
Use, facilitate, create, or maintain any unauthorized connection to the Website, including, but not limited to (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Website, or (ii) any connection using programs, tools or software not expressly approved by Digidust;
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Online Services, or to obtain any information from the Website;
Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Solicit or attempt to solicit personal information from other Users of the Online Services;
Use the Online Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Online Services to send altered, deceptive or false source-identifying information; or
Upload or transmit (or attempt to upload or to transmit) any material to the Website that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
8.3 General. In connection with your use of the Online Services you will not, as to your Twitter or Instagram account:
Make Available any of content that: (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
Harm minors in any way;
Impersonate any person or entity including, but not limited to, Digidust personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Make available any content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
Make Available any content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
Register for more than one Account or register for an Account on behalf of an individual other than yourself;
Advocate, encourage or assist any third party in doing any of the foregoing activities in this Section 9.3.
9. Indemnification. You agree to indemnify and hold the Digidust Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Website; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; and (e) your violation of any applicable laws, rules or regulations. FURTHER, YOU AGREE THAT DIGIDUST IS NOT RESPONSIBLE FOR ANY CANCELLATION OF YOUR TWITTER OR INSTAGRAM ACCOUNT OR OTHER REPRIMAND BY TWITTER OR INSTAGRAM AS A RESULT OF YOUR USE OF THE ONLINE SERVICES. Digidust or a Digidust Party reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Digidust in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Online Services, the Terms or your access to the Website.
10. Disclaimer of Warranties.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE ONLINE SERVICES IS AT YOUR SOLE RISK, AND THE ONLINE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. DIGIDUST PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
DIGIDUST PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE ONLINE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE ONLINE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ONLINE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE ONLINE SERVICES WILL BE CORRECTED.
YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE ONLINE SERVICES.
THE ONLINE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DIGIDUST MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DIGIDUST OR THROUGH THE ONLINE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Digidust may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Digidust’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT DIGIDUST PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD DIGIDUST PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TWITTER OR INSTAGRAM DURING THE TERM OF USE OF THE ONLINE SERVICES.
11. Limitation of Liability.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL DIGIDUST OR ANY DIGIDUST PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, MORAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ONLINE SERVICES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT DIGIDUST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE ONLINE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (I) THE USE OR INABILITY TO USE THE ONLINE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE ONLINE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ONLINE SERVICES; OR (V) ANY OTHER MATTER RELATED TO THE ONLINE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL DIGIDUST OR ANY DIGIDUST PARTY BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT THAT YOU HAVE PAID FOR USE OF THE ONLINE SERVICES, THROUGH THE DATE OF BREACH AS DETERMINED BY AN ARBITRATOR OR COURT OF COMPETENT JURISDICTION AS SET FORTH IN SECTION 15.7.2, AND YOU EXPRESSLY AGREE THAT SUCH LIMITATION IS FAIR AND REASONABLE IN EXCHANGE FOR YOUR USE OF THE ONLINE SERVICES.
11.3 User Content. DIGIDUST PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT ON OR TO YOUR TWITTER OR INSTAGRAM ACCOUNT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DIGIDUST AND YOU.
EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THE LAWS OF ANY SUCH JURISDICTION APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Term and Termination.
12.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Online Services, unless terminated earlier in accordance with the Terms.
12.2 Prior Use. Notwithstanding the foregoing, if you used the Online Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Online Services (whichever is earlier) and will remain in full force and effect while you use the Online Service, unless earlier terminated in accordance with the Terms.
12.3 Termination of Services by Digidust. Digidust has the right to modify, suspend or terminate any of the Online Services provided to you at any time without or without reason. You agree that all terminations for cause shall be made in Digidust’s sole discretion.
12.4 Termination of Services by You. If you want to terminate the Online Services provided by Digidust, you may do so by notifying Digidust at any time. Your notice should be sent, in writing, to Digidust as set forth in Section 15.10.
12.5 Effect of Termination. Termination of any of the Online Services includes removal of access thereto and barring of further use thereof. Termination of all of the Online Services also includes deletion of your password and all related information, files and Your Content associated with or inside your Account (or any part thereof). Upon termination of any of the Online Services, your right to use such Service will automatically terminate immediately. You understand that any termination of Online Services may involve deletion of Your Content associated therewith from our live databases. Digidust will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms that by their nature should survive, shall survive termination of Online Services including, without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.1 Violations. If Digidust becomes aware of any possible violations by you of the Terms, Digidust reserves the right to investigate such violations. If, as a result of the investigation, Digidust believes that criminal activity has occurred, Digidust reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. You understand that the Privacy Notice sets forth other terms regarding Digidust’s cooperation with Third Parties and authorities, and the disclosure of Your Content and information related to your Account.
13.2 Breach. In the event that Digidust determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate in respect of the Digidust Properties, Digidust reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Digidust) that you have violated the Terms;
Discontinue your Account;
Notify and/or send Your Content to cooperate fully with the proper law enforcement authorities for further action; and/or
Pursue any other action that Digidust deems to be appropriate.
13.3 No Subsequent Registration. If your registration(s) with or ability to access the Digidust Properties, or any other Digidust community is discontinued by Digidust due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Digidust Properties or any Digidust community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Digidust Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Digidust reserves the right, in its sole discretion, immediately to take any or all of the actions set forth herein without any notice or warning to you.
14. International Users.
The Website can be accessed from countries around the world and may contain references to the Online Services that are not available in your country. Such references do not imply that Digidust intends to announce the applicable Online Services in your country. The Online Services are controlled by Digidust from its facilities in the United States of America. Digidust makes no representations that the Online Services are appropriate or available for use in other locations. Those who access or use the Online Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
15. General Provisions.
15.1 Electronic Communications. The communications between you and Digidust use electronic means, whether you visit the Website or send Digidust e-mails, or whether Digidust posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (i) consent to receive communications from Digidust in an electronic form, and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Digidust provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2 Release. You hereby irrevocably and forever release the Digidust Parties from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Online Services including, but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Online Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
15.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Digidust’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force Majeure. Digidust shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
If you believe that Digidust has not adhered to the Terms, YOU UNDERSTAND THAT YOU ARE ENCOURAGED TO contact Digidust by emailing us at [email protected]
We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
15.6 Limitations Period. YOU AND DIGIDUST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE ONLINE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AS DEFINED UNDER APPLICABLE LAW. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15.7 Dispute Resolution. By using the Digidust Properties in any manner, you expressly agree to the dispute resolution provisions in this Section 15.7.
15.7.1 Small Claims. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the Online Services where the total amount of the award sought is less than Five Thousand U.S. Dollars and No Cents (US$5,000.00) may be resolved in a cost effective manner through confidential binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties will comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) all arbitration proceedings shall be held in English and the American variation thereof; (iii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Digidust may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. You understand that the laws of the jurisdiction where you are located may be different from Florida law and U.S. law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Online Services. Notwithstanding anything to the contrary in this Section 15.7, if available in accordance with applicable law and rules, either party hereto may bring an individual action in small claims court (or the applicable state equivalent) located in the jurisdiction where you reside and use the Online Services, and in such event the arbitration provisions herein shall have no effect unless such action is transferred or removed to a different court, in which case the arbitration provisions hereof shall control for all purposes, provided that nothing herein shall be construed as limiting any right of appeal of any party hereto related to any decision by a small claims court (or applicable state equivalent).
15.7.2 Arbitration. Any other dispute (including whether the claims asserted can be arbitrated) shall be referred to and finally determined through binding and confidential arbitration (“Arbitration”) at a mutually agreed upon location in Miami-Dade County, Florida, USA. Arbitration shall be subject to the U.S. Federal Arbitration Act, 9 U.S.C. §§1 et seq., as amended (the “FAA”), and not any state arbitration law. Arbitration shall be conducted before one (1) commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”), who shall be selected in accordance with AAA Rules and Procedures (defined below). As modified by the Terms, and unless otherwise agreed upon by the parties hereto in writing, Arbitration will be governed by the AAA’s Commercial Arbitration Rules and any Expedited Rules thereof, and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “AAA Rules and Procedures”). Arbitration, its proceedings, and all pleadings and written evidence will be in the English language and the American variation thereof. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 11. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties hereto without appeal or review except as permitted by Florida law or the FAA.
15.7.3 Effect of Arbitration on Your Rights. Pursuant to this Section 15.7, you are GIVING UP your RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be BROUGHT IN small claims court AS SET FORTH IN SECTION 15.7.1. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT Arbitration and its related procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
15.7.4 Arbitration Procedures. You and Digidust must abide by the following rules: (i) ANY CLAIMS BROUGHT BY you OR Digidust MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to costs of litigation, Digidust will pay as much of your filing and hearing fees in connection with Arbitration as the arbitrator deems necessary to prevent Arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Digidust also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of Arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) Arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any Arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law. FOR PURPOSES OF CLARIFICATION AS TO THE RIGHTS POTENTIALLY WAIVED HEREUNDER, THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR JOINED OR CONSOLIDATED ARBITRATION.
15.7.5 Non arbitrable Matters. Notwithstanding the agreement to arbitrate herein, claims of defamation, violation of the U.S. Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030 et seq., as amended, and infringement or misappropriation of the other party’s patents, copyrights, Marks or trade secrets shall not be subject to Arbitration; such claims shall be exclusively brought in and resolved by the state or federal courts located in and for Miami-Dade County, Florida. Additionally, notwithstanding this agreement to arbitrate, either party hereto may seek emergency equitable relief before the state or federal courts located in Miami-Dade County, Florida, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located in such country for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
15.7.6 Severability. With the exceptions set forth in Section 15.7.4 (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal by a court of competent jurisdiction, or otherwise conflicts with AAA Rules and Procedures as determined by the arbitrator, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, any such prohibitions set forth in Section 15.7.4 is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Digidust shall be entitled to arbitration. If for any reason, any claim is allowed to proceed in court rather than in Arbitration, the dispute shall be exclusively brought in and resolved by the state or federal courts in Miami-Dade County, Florida, and the parties hereto irrevocably and unconditionally waive any right to a trial by jury in respect of such litigation. In addition, and notwithstanding anything to the contrary herein, in the event that the class action waiver in Section 15.7.4 is determined to be invalid or unenforceable by a court of competent jurisdiction, then, subject to the right to appeal such a ruling, any class action, if allowed to proceed, shall proceed only before a court of competent jurisdiction in and for miami-dade county, florida, and not in class-wide arbitration, and the parties irrevocably and unconditionally waive any right to a trial by jury in respect of such class action. For more information on AAA and AAA Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15.8 Governing Law. The Terms and the Online Services and any action related thereto will be governed and interpreted by and under the laws of the State of Florida, consistent with the FAA, without giving effect to any principles that provide for the application of the law of another jurisdiction, and, as applicable, U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms.
15.9 Choice of Language. The parties hereto expressly desired that the Terms and all related documents were drafted in English, in the American variation thereof. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Where Digidust requires that you provide an e-mail address, you are responsible for providing Digidust with your most current e-mail address. In the event that the last e-mail address you provided to Digidust is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Digidust’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Digidust at the following address: DIGIDUST 801 NORTHPOINT PARKWAY WEST PALM BEACH, FL 33407, (561) 855-0200, [email protected]
Such notice shall be deemed given when received by Digidust by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.11 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.12 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.13 Export Control. You may not use, export, import, or transfer the Digidust Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Online Services, and any other applicable laws. In particular, but without limitation, the Online Services may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Online Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Digidust Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Digidust are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Digidust products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.14 Entire Agreement; Construction. The Terms are the final, complete and exclusive agreement of the parties hereto with respect to the subject matter hereof and supersede and merge all prior discussions between the parties hereto with respect to such subject matter. Sections headings are included for convenience of reference only and shall not affect interpretation of any term or provision of the Terms. Terms used and defined in the singular shall mean to include the plural, and vice versa.
16. International Provisions.
The following provisions shall apply only if you are located in the countries listed below.
16.1 United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
16.2 Germany. Notwithstanding anything to the contrary in Section 16, Digidust is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).