TERMS OF SERVICE
LAST UPDATED: April 1, 2022
Welcome to Digiphy.it. Please read these terms of service ("Terms of Service") carefully. These Terms of Service, along with any applicable Order Form and supplemental terms that may be presented to you for your review and acceptance (collectively, the “Agreement”), constitute the legal contract between Digiphy.it Corporation (“Digiphy”) and any entity subscribing to use the Digiphy website at www.digiphy.it (the "Site") and the related services offered by Digiphy through the Site (together with the Site, the “Services”) (such entity will be referred to herein as a “Partner”), as well as any visitors, users, individuals, and others who access the Services. By executing an Order Form that references this Agreement, or by accessing and using the Services, you acknowledge that you have read, understood, and agree to be bound by the Agreement. If you do not agree to the Agreement or these Terms of Service at any time, please do not use the Services. If you are entering into this Agreement on behalf of a Partner or any other entity, you represent that you have the authority to bind such entity to this Agreement.
Please keep in mind, Digiphy may also offer other products and/or services to Partners pursuant to a separate manually or digitally executed agreement (“Services Agreement”). If you visit or use the Site using an account (as defined below) to exercise rights made available to you pursuant to a Services Agreement, you may be subject to additional or different terms or conditions included in that Services Agreement. In the event of any conflict between these Terms of Service and the terms and conditions set out in your Services Agreement, the terms of your Services Agreement will prevail.
If you have questions regarding the Agreement, these Terms of Service or about Digiphy, please contact us by email at email@example.com.
1. APPLICABLE TERMS AND POLICIES
- Modifications. Digiphy may, in its sole discretion, modify or revise the Terms of Service at any time, and you agree to be bound by such modifications or revisions. Although we may attempt to notify you when major changes are made to the Terms of Service, you should periodically review the most up-to-date version, which will always be posted at https://www.digiphy.it/terms. Your continued use of the Services constitutes your acceptance of such changes.
- You Must Be 16 or Older. If you are creating an account on behalf of yourself or a company, you represent that you are the age of majority in your jurisdiction and fully able and competent to agree to these Terms of Service. You affirm you are 16 years of age or older, as the Services are not intended for, and do not knowingly collect personal information from, individuals under 16. If you are between 16 and the age of majority in your jurisdiction, you may use the Services only with the involvement of a parent or guardian.
2. SERVICES; PARTNER PROFILES AND PARTNER USER ACCOUNTS
- A Digiphy Partner may purchase, access and use, and Digiphy shall provide to Partner, the Services selected via the Site or, if applicable, set out in one or more ordering documents to be agreed upon by the parties in writing to the extent and for the term stated therein. Partner may use the Services solely for its internal use and for the Services’ intended purpose. Partner may not use the Services for any illegal or unauthorized purpose or to promote any illegal, illicit, or offensive product or service, nor may Partner, in the use of the Services, violate any laws in Partner’s jurisdiction, the laws applicable to Partner in its customers’ jurisdictions, or the laws of the United States. Partner will not provide access to the Services to any third party, except that Partner may allow its Affiliates to access and use the Services if authorized by Digiphy in writing and provided Partner is fully liable for its Affiliates’ use of the Services and compliance with the Agreement. “Affiliate” means an entity that controls, is controlled by, or is under common control with, a party. Partner will ensure that only its or its permitted Affiliates’ designated Representatives (each, a “Partner User”) are authorized to access and use the Services and that such Partner Users comply with this Agreement. “Representatives” mean employees, contractors, or service providers (such as employees of a creative agency contracted to perform functions related to the Services) of a Partner. Partner will notify Digiphy immediately upon learning of any unauthorized access or use of the Services, or any other breach of security related to the Services. Partner will not circumvent, disable or otherwise interfere with security-related features of any Digiphy Technologies (as defined in Section 6.b) or features that prevent or restrict use or copying of the Digiphy Technologies or any content therein.
- Partner Profile and Account Creation. In order to access and use certain features of the Services, a Partner will have to register for a Digiphy Profile (“Profile”). To create a Profile, the Partner must create at least one Partner User account (“Account”), and may create more than one Account, subject to the service tier selected by the Partner. To create an Account, you will be asked to provide your first and last name, valid email address, and any other information indicated as required. You may also provide optional information, such as information to permit integrations with third-party sites or services such as Shopify.
When creating an Account, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password and keeping your password secure. You agree to notify Digiphy immediately if you suspect any unauthorized use of your Account, access to your password, or any other breach of security. You are solely responsible for any and all use of your Account. Although Digiphy will not be liable for your losses caused by any unauthorized use of your Account, you may be liable for the losses of Digiphy or others due to such unauthorized use.
Digiphy may refuse to open, may suspend, or may terminate Profile and/or an Account for any reason, in Digiphy’s sole discretion.
- Prohibitions. A Partner may not (a) create more than one Profile; (b) provide any false or unauthorized information to us or create a Profile for any person or entity other than the Partner; or (c) access the Profile of another Digiphy Partner. A Partner User may not (a) create more than one Account; (b) provide any false or unauthorized information (including without limitation personal information) to us, create an Account for anyone other than themself, or permit any other person to create an Account for them; (c) use the account, username, or password of another Digiphy Account holder at any time or disclose their password to any third party. We reserve the right to suspend or terminate any Profile or Account if any information provided during the Account creation process or thereafter proves to be inaccurate, false, misleading, duplicative of an existing Profile or Account, or violative of our Terms of Service.
3. FEES AND PAYMENTS
We reserve the right to charge for all or certain of our Services, including through free or paid service subscriptions (each, a “Subscription”). Where applicable, Partner will pay the fees for the Services in accordance with the payment terms stated on the Site and/or in any ordering document (“Fees”). Unless otherwise specified, the following terms apply to a Partner’s purchase of Digiphy Services:
- If you (as a Partner) choose to sign up for a paid Subscription, such Subscription is paid for by an upfront payment with automatic monthly renewals, as described more fully below. You acknowledge and agree that Digiphy is authorized to charge your Payment Method (as defined below) used for (i) the initial monthly subscription fee, and (ii) renewal subscription fees in subsequent months. You must cancel your Subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method. Refunds cannot be claimed for any partial subscription period.
- Partner may have access to a free trial period of a paid Subscription, which will automatically convert into a paid Subscription term after a specified period of time. In such instances, you can disable the automatic conversion by following the cancellation instructions set forth on the Settings page of your Account prior to the date of conversion.
- Partner’s purchases are non-cancelable and payment for Services is non-refundable, except as otherwise stated in this Agreement or applicable ordering documents.
- Unless Digiphy has agreed to an alternative payment arrangement, Partner, through its designated Partner User’s Account, must provide Digiphy with a valid credit card number and any other payment information required for Digiphy to process Partner’s payment (“Payment Method”), and will keep such Payment method current. By submitting that information to Digiphy or a third-party credit card processor, Partner agrees that it has authorized Digiphy and/or the processor to charge the credit card for all Fees, including monthly fees and any overages, and the termination fees described in Section 4.d, below.
- Digiphy or a third-party credit card processor will automatically bill the Payment Method submitted as part of the order process for the Fees and Partner hereby consents to such automatic billing. By using the Services, Partner agrees to a recurring payment plan, acknowledges that such Services have an initial and recurring payment feature, and accepts responsibility for all recurring charges prior to cancellation. DIGIPHY MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM PARTNER, UNTIL PARTNER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY DIGIPHY) THAT PARTNER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. Partner may terminate its authorization and/or update its Payment Method via its designated Partner User’s Account settings.
- Digiphy reserves the right to change the Fees in its sole discretion; provided, however, that Digiphy shall provide prior written notice to Partner via email and the revised Fees shall not be effective until the Partner’s renewal term following the effective date of the new Fees.
All Fees and other amounts paid to Digiphy shall be exclusive of all taxes and Partner shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Partner hereunder, except that Partner shall not pay or be responsible for any taxes imposed on, or with respect to, Digiphy’s net income or payroll.
If a Partner has signed up for a paid Subscription fails to make any payment when due, without limiting Digiphy’s other rights and remedies: (i) Digiphy may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law, calculated daily and compounded monthly; (ii) Digiphy reserves the right to recover from Partner all reasonable costs incurred by Digiphy in collecting any late payments or interest; and (iii) if such failure continues for ten days or more, Digiphy may suspend Partner’s, its permitted Affiliates’, and its Partner Users’ access to any portion or all of the Services until such amounts are paid in full or may convert the Partner’s paid Subscription into a free Subscription (and decrease the Services provided to Partner accordingly).
4. TERM; TERMINATION
- Partner Profile and User Account Termination. These Terms of Service shall remain in full force and effect while a Partner and any of such Partner’s Partner Users use the Services, have a Profile and/or an Account, and even after a Partner Profile and/or your Partner User Account is terminated. A Partner may terminate its Profile and/or any of its Partner User Accounts, at any time, for any reason, by following the directions in the Partner Profile or Partner User Account settings. You agree that we may also terminate your Partner Profile and/or any Partner User Account, or use of the Services at any time in our sole discretion, if the Partner or Partner User breach these Terms of Service, or otherwise, and you agree that we shall not be liable to you or any third party for any such termination. If you or we terminate your Partner Profile or Partner User Account, your access to the Services will be terminated and any Partner Content, as defined below, you have provided or uploaded will no longer be accessible through your Profile or Account. Although you will not have access to your uploaded Partner Content, you agree that the Partner Content that you provided and/or uploaded to the Services may persist and appear within the Services or otherwise. Upon your request, and in Digiphy’s sole discretion, you may be able to reinstate your Account after termination. Notwithstanding anything to the foregoing, to the extent a Partner has a Service Agreement with Digiphy, the term and termination provisions of that Service Agreement will supersede this Section and will govern.
Subscription Modification or Cancellation. You may change or cancel your Subscription at any time by following the directions in the Billing section of your Partner Profile or designated Partner User Account. If you upgrade your Subscription from a free to a paid Subscription, or to a higher tier of paid Subscription, you will immediately (i) have access to the benefits of the upgraded Subscription, and (ii) be charged for the difference in Fees. If you cancel a paid Subscription, or downgrade such Subscription to free Subscription or lesser tier of paid Subscription, before the end of the then-current Subscription term: (i) your access to the Subscription will continue through the remainder of such term and will default to the free or downgraded Subscription at the beginning of the following Subscription term, and only the number of QR codes associated with the free or downgraded Subscription will remain active; all remaining codes will be archived and redirected to a url of your designation, if any. Analytics will not be available for archived codes.
- Effect of Termination. Except in the case of termination pursuant for Digiphy’s uncured breach of the Agreement pursuant to Section 4.b, above, expiration or termination of this Agreement or an ordering document will not relieve Partner from its obligation to pay Digiphy any Fees stated in an ordering document and will not result in the proration of any Fees payable to Digiphy. All licenses granted herein will cease upon expiration of termination of this agreement. Digiphy shall have the right to delete any and all Partner-Provided Materials and Partner User Accounts upon expiration or termination of this Agreement and shall, at the request of the Client, delete any Confidential Information of Partner to the extent permitted by law. The remaining provisions of these Terms of Service that by their nature extend beyond the termination thereof will survive termination, including without limitation the parties’ obligations with respect to Confidentiality and Indemnification.
5. PARTNER CONTENT
Partner is responsible for providing Digiphy with the information necessary for Digiphy to provide the Services, including without limitation all necessary licenses to access and use such information. Partner retains all intellectual property rights subsisting in any information, brand assets, content, data or materials submitted, uploaded, or otherwise provided by Partner or its Partner User(s), or on Partner’s behalf or request, to Digiphy (“Partner-Provided Materials”), in connection with the Services, except for the limited rights for Digiphy to use and display such Partner-Provided Materials solely as necessary for Digiphy to perform the Services and/or otherwise perform under this Agreement. For the avoidance of doubt, Partner-Provided Materials includes any materials or data related to Partner uploaded or ingested to the Services via any third-party service integration selected by Partner. Further, Partner grants to Digiphy a limited license on a non-exclusive, royalty-free, sublicensable, transferable, perpetual basis, to use and display Partner’s name, logo, and similar indicia (“Partner Marks”) on any Digiphy Technologies (as defined below) and/or in Digiphy’s marketing collateral identifying Partner as a Partner of Digiphy. Digiphy obtains no rights in the Partner Marks except for the limited right described in the preceding sentence, and Partner retains all right, title and interest in the Partner Marks. All use of the Partner Marks by Digiphy will inure to Partner.
Partner shall be solely responsible for all Partner-Provided Materials that it and/or its Partner User(s) submit, upload, post, or otherwise transmit to or through the Services, and Partner assumes all risks associated with sharing Partner-Provided Materials through the Services.
In addition, with respect to any Partner-Provided Materials to us, Partner represents and warrants to Digiphy that such Partner-Provided Materials are accurate and complete, is the Partner’s original creation (where applicable), and that the Partner has the rights necessary to grant the license to the Partner-Provided Materials under this section. Partner further represents and warrants that the Partner-Provided Materials and their use by Digiphy do not and will not infringe or misappropriate the publicity, intellectual property, or moral rights of any person or entity or contain any libelous, defamatory, or obscene material.
6. OUR PROPRIETARY RIGHTS; RESTRICTIONS; CONFIDENTIALITY
- Ownership. Our Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Service, we (or our licensors) exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. The content on the Services, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, and interactive features ("Content"), is provided to you as is for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Digiphy and any other respective owners. Digiphy reserves all rights not expressly granted in and to the Services and the Content. You acknowledge and agree that any feedback, comments or suggestions you may provide regarding the Services will be the sole and exclusive property of Digiphy.it Corporation, and you hereby irrevocably assign to us all of your right, title and interest in and to the foregoing.
- Limited License to Partners. Once onboarded, and during the term stated in the ordering document and/or Service Agreement, Digiphy grants Partner permission, and a limited, non-exclusive, non-transferable license to access and use, during the term of this Agreement, the Digiphy Site, the Services, and related Digiphy technologies (collectively, “Digiphy Technologies”), as well as any work product, materials, or Digiphy Page developed by Digiphy and/or delivered to Partner by Digiphy under this Agreement (“Digiphy Work Product”), as necessary to participate in and make reasonable use of the Services, provided that Partner does not alter, modify, copy, distribute, or reverse engineer the Digiphy Technologies and/or the Digiphy Work Product in whole or in part. Digiphy reserves the right to make any changes to the Digiphy Technologies that it deems necessary and useful to (a) maintain or enhance the quality, performance, delivery, or competitiveness of such technologies, or (b) comply with applicable laws. Digiphy reserves all rights not expressly granted in and to the Digiphy Technologies and Digiphy Work Product. Further, Digiphy grants to Partner a limited license on a non-exclusive, royalty-free, sublicensable, transferable, perpetual basis, to use and display Digiphy’s name, logo, and similar indicia (“Digiphy Marks”) solely for the purpose of and as necessary to perform under this Agreement and make reasonable use of the Services. Partner obtains no rights in the Digiphy Marks except for the limited right described in the preceding sentence, and Digiphy retains all right, title and interest in the Digiphy Marks. All use of the Digiphy Marks by Partner will inure to Digiphy. No right, title or interest in any intellectual property right of Digiphy transfers to Partner, except for the limited rights stated in the Agreement.
- Restrictions. You may not (a) copy, modify or distribute the Services, including without limitation any Content, in whole or in part, for any purpose; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Services to any third party; (c) decompile, reverse-engineer, disassemble, or create derivative works of the Services, or otherwise attempt to discover the source code of the Services; or (d) use the Services in any unlawful manner, for any unlawful or illegal purpose, or in any manner inconsistent with these Terms of Service. You further agree not to (i) interfere with, damage, impair, or disable the Services' operation, by any means (whether through automated means or otherwise), including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code; (ii) use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express consent or bypass our robot exclusion headers or similar measures; (iii) remove, circumvent, disable, damage or otherwise interfere with the Services' security-related features, features that prevent or restrict the use or copying of any part of the Services, or features that enforce Services limitations; (iv) attempt to gain unauthorized access to the Services, other user accounts, computer systems or networks connected to the Services through hacking, password mining, or any other means; (v) reformat or frame any portion of the Services; or (vi) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive traffic demands of the Services.
- Confidentiality. “Confidential Information” means all non-public, proprietary, and confidential information disclosed or made available by Digiphy or Partner (as the “Disclosing Party”) to the other Party (as the “Receiving Party”), that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or, if disclosed orally, is identified as confidential when disclosed and within 10 days thereafter, is summarized in writing and confirmed as confidential. For clarity, Confidential Information also includes Digiphy’s pricing, the non-public portions of the Services, its user interface, design, layout, and any non-public specifications, documentation, or technical information that Digiphy provides to Partner and/or Partner Users. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; (d) was or is independently developed by Receiving Party without using any Confidential Information; or (e) is or becomes anonymized such that no individual or entity is identifiable, to the extent the Confidential Information designation is based on identification of an individual or entity.
The Receiving Party will: (i) use Confidential Information only in connection with the Services; (ii) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (iii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; (iv) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement; and (v) except for the purpose of anonymization, not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, unless authorized in writing by discloser.
7. THIRD PARTY CONTENT AND SERVICES
The Services may contain links, information, and references to third party content, products, services, and websites which we do not control or maintain ("Third Party Sites"). Access to and use of any Third Party Sites is at your own risk and we are not responsible for (a) the accuracy or reliability of information on Third Party Sites, (b) the acts or omissions of the operators of Third Party Sites (or their partners or affiliates), (c) any loss or damage incurred in connection with the use of any Third Party Site, (d) any transaction you consummate in connection with your use or access of any Third Party Site, or (e) any personal information you share with or provide to any Third Party Site. We provide these links merely as a convenience, and the inclusion of such links does not imply an endorsement. You should review any applicable terms and policies of such Third Party Sites, including without limitation the privacy policies, since their terms and policies, not ours, apply to your interactions with them. In addition, Digiphy will not and cannot censor or edit the content of any Third-Party Site. You expressly relieve and release Digiphy from any and all liability arising from your use of any Third-Party Site.
8. DISCLAIMER OF WARRANTIES
- Warranty Disclaimer. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, DIGIPHY.IT CORPORATION, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (TOGETHER, THE “DIGIPHY PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE DIGIPHY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS AS TO (A) THE SERVICES; (B) ANY DIGIPHY, PARTNER, USER, AND/OR THIRD-PARTY CONTENT ON OR AVAILABLE THROUGH THE SERVICES; OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO DIGIPHY CORPORATION OR VIA THE SERVICES.
- No Technical Warranties. THE DIGIPHY PARTIES DO NOT REPRESENT OR WARRANT THAT (A) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, (B) DEFECTS WILL BE CORRECTED, (C) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES, OR (D) THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICES IS ACCURATE, COMPLETE, OR USEFUL.
- Certain Jurisdictions. THE DIGIPHY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE DIGIPHY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF SERVICE. BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.
9. LIMITATIONS ON LIABILITY
- No Liability for Losses or Damages. UNDER NO CIRCUMSTANCES WILL THE DIGIPHY PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SERVICES AND ITS OPERATION; (B) ANY DIGIPHY, PARTNER, USER, OR THIRD PARTY CONTENT AVAILABLE ON THE SERVICES, OR ANY PARTNER-PROVIDED MATERIALS; (C) YOUR INABILITY TO ACCESS OR USE THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE DIGIPHY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICES; (E) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY; OR (F) LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, DEATH, PERSONAL INJURY, OR COMPUTER FAILURE OR MALFUNCTION. THE DIGIPHY PARTIES SHALL NOT BE LIABLE FOR THE FOREGOING LOSSES OR DAMAGES (X) EVEN IF FORESEEABLE OR EVEN IF DIGIPHY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (Y) WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICES).
- State Requirements. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- Monetary Limitation. IN NO EVENT WILL THE DIGIPHY PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100.00) OR THE AMOUNT YOU HAVE PAID DIGIPHY IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
- No Injunctions. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE ACTS OR OMISSIONS OF THE DIGIPHY PARTIES, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OF ANY KIND.
- Waiver of California Civil Code Section 1542. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "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."
- Acts or Omissions of Third Parties; No Endorsement. DIGIPHY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE THE DIGIPHY PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. NONE OF THE DIGIPHY PARTIES ENDORSE ANY PARTNER OR PRODUCT OF ANY PARTNER, AND YOU AGREE THAT NONE OF THE DIGIPHY PARTIES HAS ANY RESPONSIBILITY OR LIABILITY TO YOU WITH RESPECT TO ANY TRANSACTION, COMMUNICATION, OR INTERACTION ARISING OR RESULTING FROM YOUR USE OF THE SERVICES.
Partner agrees to defend (at our request), indemnify and hold harmless the Digiphy Parties (as defined in Section 8(a), above) from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with any of the following (including as a result of Partner’s direct activities on the Services or those conducted on its behalf): (i) access to or use of the Services by Partner or any Partner User; (ii) Partner-Provided Materials; (iii) breach or alleged breach of these Terms of Service by Partner or any Partner User; (iv) Partner’s or any Partner User’s violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (v) Partner’s or any Partner User’s violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (vi) any misrepresentation made by Partner or any Partner User. Partner will cooperate as fully required by Digiphy in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by Partner, and Partner will not in any event settle any claim without our prior written consent. This defense and indemnification obligation will survive these Terms of Service and Partner’s and/or its Partner Users’ use of the Services.
- Data Processing. If either Digiphy or Partner possesses Personal Information, defined as information about an individual that (either by itself or when combined with information from other available sources) allows that individual to be identified, on behalf of the other pursuant to this Agreement, then each party will: (a) process the Personal Information only as necessary to provide or make reasonable use of the Services contemplated by the Agreement; (b) maintain the confidentiality of the Personal Information and not disclose such Personal Information to third parties, except as provided in the parties’ respective Privacy Policies, unless the other party or the subject of the Personal Information specifically authorizes the disclosure, or as required by law; (c) implement reasonable security measures to protect the integrity and confidentiality of the Personal Information and to safeguard the Personal Information from unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental destruction or loss, damage, theft, alteration, or disclosure; (d) promptly notify the other party in the event of any loss, destruction, and/or unauthorized or unlawful processing or disclosure of the Personal Information, and provide reasonable assistance to investigate and respond to any such loss, destruction, and/or unauthorized or unlawful processing or disclosure; and (e) permit the other party reasonable access and assistance as necessary to audit compliance with this Section 11. To the extent Partner uploads or otherwise provides to Digiphy for data processing any Personal Information that is subject to the General Data Protection Regulation (EU Regulation 2106/679) or any amending or superseding legislation, the parties will enter into an appropriate data processing agreement, the terms of which will be incorporated into this Agreement, with respect to such Personal Information.
- Engagement Data. “Engagement Data” shall mean all consumer engagement-related data accessed, processed, or collected by Digiphy via the Digiphy Technologies and/or Digiphy Work Product on behalf of Partner, including without limitation anonymized consumer information, marketing insights, point of sale and inventory management data. Partner and its Partner Users shall have access to and ability to export the Engagement Data. As between Digiphy and Partner, Engagement Data will be the exclusive property of Digiphy, and Digiphy grants to Partner a non-exclusive, non-sublicensable, royalty free, fully paid, worldwide, perpetual license to use and display such Engagement Data as necessary to make reasonable use of the Services. Further, Digiphy shall have the right to collect and analyze aggregated data and other information relating to the provision, use, and performance of various aspects of the Services and related Digiphy Technologies (“Aggregated Data”), and Digiphy shall be free (during and after the term of the Agreement) to (i) use Aggregated Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Digiphy offerings, and (ii) disclose Aggregated Data solely in aggregate or other de-identified form in connection with its business, provided that the Aggregated Data cannot be used in any way to identify Partner, the Partner Data or any of Partner Users. Notwithstanding anything to the contrary, Digiphy shall not acquire any ownership interest in or right to any non-anonymized consumer data, including any personally identifiable information, that any consumer may provide directly to Partner via or as a result of the Digiphy Technologies and/or Digiphy Work Product.
12. DISPUTE RESOLUTION
Mandatory, Bilateral Arbitration. Please read this carefully. It affects your rights. YOU AND DIGIPHY.IT CORPORATION AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE SERVICES SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, except that each party retains the right to bring an individual action in small claims court and 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 party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. This agreement to arbitrate is intended to be broadly interpreted, and expressly includes claims brought under any statute, regulation, or legal or equitable theory.
- Arbitration Rules and Governing Law. Notwithstanding your and Digiphy.it Corporation’s agreement that California law governs interpretation and application of these Terms of Service generally, you and Digiphy.it Corporation further hereby agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. ("FAA"), applies to this agreement to arbitrate, and governs all questions of whether a dispute is subject to arbitration.
Unless you and Digiphy.it Corporation agree otherwise in writing, the arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS"), pursuant to JAMS Streamlined Arbitration Rules and Procedures (JAMS Streamlined Rules"), as modified by this agreement, and consistent with JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness ("JAMS Consumer Fairness Standards"). The arbitrator must honor the terms and limitations in the agreement and can award damages and relief, including any attorneys' fees authorized by law. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND DIGIPHY.IT CORPORATION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding JAMS Streamlined Rule 8(b), you and Digiphy.it Corporation agree that any dispute as to the arbitrability of a claim brought by either you or Digiphy.it Corporation shall be resolved by a court of competent jurisdiction.
THIS AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF THE PROCEDURES OR RULES OF JAMS WOULD. RATHER, YOU AND DIGIPHY.IT CORPORATION ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS. FURTHER, AND UNLESS YOU AND DIGIPHY.IT CORPORATION AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY'S CLAIMS WITH ANY OTHER PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.
- The Arbitrator's Decision. The arbitrator will render an award in accordance with JAMS Streamlined Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Digiphy.it Corporation will not seek, and hereby waives all rights Digiphy.it Corporation may have under applicable law to recover, attorneys' fees and expenses if Digiphy.it Corporation prevails in arbitration, unless you assert a frivolous claim.
The arbitrator's decision and award is final and binding, with some exceptions under the FAA, and judgment on the award may be entered in any court with jurisdiction.
- Location & Fees. Unless you and Digiphy.it Corporation agree otherwise in writing, the arbitration will take place in-person in the county in which you reside.
If you initiate an arbitration for claims arising from this agreement, you will be required to pay $250 of the fee required to initiate the arbitration and Digiphy.it Corporation will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator's services; you will remain responsible for your respective costs relating to counsel, experts, witnesses, and travel to the arbitration.
If Digiphy.it Corporation initiates an arbitration for claims arising from this agreement, Digiphy.it Corporation will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator's services; you will remain responsible for your costs relating to counsel, experts, witnesses, and travel to the arbitration.
Notwithstanding the foregoing, either party may bring an individual action in a small claims court for disputes or claims within the scope of such court's jurisdiction. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Digiphy.it Corporation on your behalf.
- Changes. Notwithstanding the provisions regarding modification of these Terms of Service, if Digiphy.it Corporation changes this "Mandatory, Bilateral Arbitration" section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by providing Digiphy.it Corporation written notice of such rejection by mail or hand delivery to: PO Box #352020, 1270 S. Alfred Street Los Angeles, CA 90035, or by email from the email address associated with your Account to: firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the "Last Updated" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Mandatory, Bilateral Arbitration" section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Digiphy.it Corporation in accordance with the provisions of the Arbitration section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Digiphy welcomes your feedback. Please contact us at email@example.com with any questions or comments regarding these Terms of Service.
All notices of copyright infringement claims should be sent to Digiphy’s designated copyright agent. You can contact our copyright agent by sending an email with “Copyright Notice” in the subject line to firstname.lastname@example.org or by mail at Copyright Agent, c/o Digiphy Corporation, PO Box #352020, 1270 S. Alfred Street Los Angeles, CA 90035.