ITI DIGITAL’S DXP SaaS Terms of Service
Last Updated: June 9, 2022
ITI Digital provides a DXP Platform for identifying relevant content for combination and display on customer websites and applications (hereinafter referred to as “Services” or “Service”) offered to customers (hereinafter referred to as “Users” or “you”) at iti-digital.com (hereinafter referred to as the “DXP Platform”). The Services include Software, APIs, Dashboard Access, and other proprietary materials as described on the DXP Platform, collectively referred to herein as the “DXP Platform”. The Service is owned and operated by ITI Marketing Inc. (hereinafter referred to as the “Company” or “us”).
Your use of the Service is subject to the terms and conditions set forth in this Terms of Service (hereinafter referred to as the “Terms”).
PLEASE READ THE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, EXIT THIS PAGE AND DO NOT ACCESS OR USE THE SERVICE. USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS OF SERVICE.
1.0 Updates to Terms of Service; Integration.
We may translate these Terms of Service into other languages for your convenience. Nevertheless, the English version governs your relationship with Company, and any inconsistencies among the different versions will be resolved in favor of the English version.
3.0 Service Availability.
The Service may be modified, updated, interrupted, suspended or discontinued at any time, in the sole discretion of the Company, without notice or liability. The Service may be unavailable at certain periods, including but not limited to systems failures, anticipated or unanticipated maintenance work, upgrades or force majeure events.
The Company reserves the right, at any time, in its sole discretion to modify, temporarily or permanently block access to, suspend, or discontinue the Service, in whole or in part, with or without notice and effective immediately to any User.
The Company will have no liability whatsoever for any losses, liabilities or damages you may incur as the result of any modification, suspension, or discontinuation of the Service or any part thereof.
For DXP Module of Instagram User-Generated Content (app.imgoingtravel.com):
What data do we collect and process:
In the ITI Digital application, when the user logs in with Facebook, in the domain app.imgoingtravel.com, the user agrees to allow our system to see the connected Instagram Business Accounts associated with your Facebook profile. The user data is anonymized to us, and Facebook solely manages users’ email address details.
a) The Facebook Platform Data that we receive through our application is not shared with another person or business.
b) We do not use the Facebook Platform Data for activities related to surveillance.
c) We do not share the Facebook Platform Data to make decisions about housing, employment, insurance, education opportunities, credit, government benefits, or immigration status.
d) We do not use the Facebook Platform Data to make decisions based on people’s race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, a medical or genetic condition.
The purpose of collecting and processing that data:
The purpose of accessing the connected Instagram Business Accounts is to populate public Instagram media into our users’ dashboard (app.imgoingtravel.com), as per the approved access of Facebook Developer API permissions, such as Instagram Public Content Access.
How users may request deletion of their personal data:
For any requests to delete personal data, or to report security vulnerabilities, users can submit an email to the publicly available Support Client Portal: email@example.com.
How we delete data:
a) Whenever Facebook Platform Data is no longer necessary to provide an app experience or service to users, deleted it within 30-60 days.
b) When a user deletes their Facebook account associated with your app, data is deleted immediately.
c) When requested by a user, we delete the data manually, immediately.
d) When requested by Facebook, we delete the data manually, immediately
e) When requested by Law & Regulation, we delete the data manually, immediately upon receipt of notification.
For DXP Modules of Events, Places, Itineraries & Trip Planner (imgoingcalendar.com):
What data do we collect and process:
Events / Places – App users
We temporarily store the email address of Event Planners through the event/place submission form. However, that field is not required for the submission and users have the choice to consent to this process, in the form interface.
Trip Planner & Itineraries – App users
When you log in with Google or Facebook, you agree to allow our system to save your trip preferences. We place a cookie to know how each user uses our site and which items you saved on your trip. The data is anonymized to ITI Digital, and Google or Facebook solely manages your email details.
Users may choose to not allow email addresses and cookies collection in the application’s interface. Additionally, users who wish to request deletion of their data may do so at any time, by submitting a support email request to firstname.lastname@example.org. Data will be deleted within 24 hours of the received message.
5.0 Additional Terms.
6.0 Age. The Service is meant for those at least eighteen (18) or the age of majority where you reside, whichever is younger. Use of the Service by anyone under this age is a violation of these Terms.
7.0 Intellectual Property.
“Intellectual Property” means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.
You acknowledge that all the intellectual property rights in the Service, including, but not limited to, copyrights, patents, trademarks, and trade secrets, the DXP Platform design, application design, graphics, text, sounds, pictures, service marks, trade names, domain names, slogans, logos, other files and the selection and arrangement thereof, and other indicia of origin that appear on or in connection with any aspect of the Service (collectively the “Materials”) are either the property of the Company, its affiliates or licensors and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners.
Subject to these Terms, the Company grants you a limited non-transferable, non-exclusive, revocable, non-sublicensable licence to use and access the Service solely for your own personal or internal business purposes. You will not obtain any ownership interest therein through this Terms of Service or otherwise.
Except as otherwise expressly permitted in these Terms, Users will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to Company; (g) remove or obscure any proprietary, attribution to Company (including any links thereto) or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing
Some of the company and product names, logos, brands, and other trademarks featured or referred to within the Service may not be owned by us and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse the Service.
8.0 Confidential Information, Non-Disclosure.
Confidential Information. “Confidential Information” shall mean any and all information, proprietary and/or maintained in confidence by Company, including without limitation, any information relating to the Company’s ideas, concepts, techniques, inventions, know how (including patents, copyrights, and trade secrets), sketches, drawings, models, processes, materials, operations, algorithms, software programs, source code, experimental work, research and development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, vendor lists, contact lists, business forecasts, sales and merchandising, marketing plans, and information, disclosed by Company or obtained by User either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations which is designated or described by the Company as “Confidential,” “Proprietary” or some similar designation, and/or which should reasonably be understood by the User, or any of User’s employees, directors, representatives, shareholders, or agents (collectively the “User Representatives”) because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the Company, regardless of whether obtained before, on or after the date of this agreement. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to the User on behalf of the Company. pursuant or otherwise relating to this Agreement.
Non-disclosure and Non-use. User agrees to use the Confidential Information for the sole purpose contemplated by these Terms. User agrees that it shall not use for User’s own benefit or in any way disclose any Confidential Information to any person, firm or business, except for the sole purpose set forth in these Terms or for any other purpose the Company may hereafter authorize in writing. User shall treat all Confidential Information with the same degree of care as User accords to User’s own Confidential Information, but in no case less than reasonable care. User shall immediately give notice to the Company of any unauthorized use or disclosure of Confidential Information. User agrees to assist the Company in remedying any such unauthorized use or disclosure of Confidential Information.
Users acknowledge and agree that as part of the Service, Company information has been or may be made available to Users including, without limitation, information relating in any way to any products, services, methods, computer/software or any other similar or related matters or items developed, enhanced or modified by the Company (hereinafter referred to as the “Confidential Information”).
Users agree that the Confidential Information: a) is the sole and exclusive property of the Company; b) is absolutely confidential to the Company; and c) except as expressly permitted in writing by the Company, may not be disseminated, or disclosed to others. During your use of the DXP Platform, and in the event of the termination of your access, whether voluntary or involuntary, you agree not to use, disclose, transfer or exploit the Confidential Information at any time and in any manner whatsoever for a period of five (5) years, except to the extent that the Company has disclosed information to User that constitutes a trade secret under law, the User shall protect that trade secret for as long as the information qualifies as a trade secret.
Exceptions. The obligations and restrictions in this Section do not apply to that part of the Confidential Information the User demonstrates; a) was or becomes generally publicly available other than as a result of a disclosure by User in violation of this agreement; b) is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. In such an event, User shall; a) provide the Company with prompt notice of these requests or requirements before making a disclosure so that the Company may seek an appropriate protective order or other appropriate remedy; b) provide reasonable assistance to the Company in obtaining a protective order.
User hereby acknowledges and agrees that the Company’s remedy at law for any breach of any of User’s obligations under this section would be inadequate, and User agrees and consents that temporary and permanent injunctive relief may be granted in any proceeding which may be brought to enforce any provision of this section, without the necessity of proof of actual damages, it being acknowledged by User that any such breach would cause irreparable injury to the Company.
9.0 Use of the Service, General
You may be required to create an account to use the Service and/or take advantage of certain features, in which case you agree to:
(i) provide true, accurate, current and complete information about yourself, and your company if applicable, as prompted by the Service;
(ii) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or Company has reasonable grounds to suspect that such information is false, inaccurate or outdated, Company has the right to suspend or terminate your account and prohibit all current or future use of the Service by you; and
(iii) that your account is for your personal and/or business use. You may not resell the Service.
(iv) by creating an account, you agree to receive certain communications in connection with the Service.
You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your account. Your account is meant to be private and you shall not share your account for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Service, including charges resulting from unauthorized use of your account.
You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts.
You agree to use the Service only for lawful purposes and that you are responsible for your use of and communications and content you may post via the Service. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or otherwise violates any applicable law. You agree not to solicit personal information from minors. You agree not to use the Service in any manner that interferes with its normal operation or with any other User’s use of the Service.
You may not do any of the following while accessing or using the Service:
(i) access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
(ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
(iii) access or search or attempt to access or search the Service by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us;
(iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or
(v) disrupt or interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or otherwise creating an undue burden on the Service.
You may not use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Service. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of the Service.
You further agree that you will not access the Service by any means except through the interface provided by Company for access to the Service. Creating or maintaining any link from another application to any page at the Service without the prior authorization of Company is prohibited. Running or displaying the Service, or any information or material displayed via the Service in frames or through similar means on another website or application without the prior authorization of Company is prohibited. Any permitted links to the Service must comply with all applicable laws, rule and regulations.
Furthermore, you herein agree not to make use of the Services for:
(i) uploading, posting, emailing, transmitting, or otherwise making available any content that shall be deemed unlawful, harmful, threatening, abusive, harassing, tortious, vulgar, obscene, libelous, or invasive of another’s privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable;
(ii) causing harm to any minor in any manner whatsoever;
(iii) impersonating any individual or entity, including, but not limited to, any company, group or forum leaders, or hosts or falsely stating or otherwise misrepresenting any affiliation with an individual or entity;
(iv) forging captions, headings or titles or otherwise offering any content that you personally have no right to pursuant to any law nor having any contractual or fiduciary relationship with;
(v) uploading, posting, emailing, transmitting or otherwise offering any such content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any other party;
(vi) uploading, posting, emailing, transmitting or otherwise offering any content that you do not personally have any right to offer pursuant to any law or in accordance with any contractual or fiduciary relationship;
(vii) uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, “junk mail,” “spam,” or any other form of solicitation, except in any such areas that may have been designated for such purpose;
(viii) uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
(ix) disrupting the normal flow of communication, or otherwise acting in any manner that would negatively affect other Users’ ability to participate in any real-time interactions;
(x) interfering with or disrupting any of the Services, servers and/or networks that may be connected or related to our DXP Platform, including, but not limited to, the use of any software and/or routine to bypass the robot exclusion headers;
(xi) intentionally or unintentionally violating any local, state, federal, national or international law, including, but not limited to any securities rules, regulations or laws of any nation or other securities exchange, and any regulations having the force of law;
(xii) providing informational support or resources, concealing and/or disguising the character, location, and or source to any organization delegated by the United States government as a “foreign terrorist organization” in accordance to Section 219 of the Nationality Act;
(xiii) stalking or with the intent to otherwise harass another individual; and/or,
(xiv) collecting or storing of any personal data relating to any other User in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
Your use of the Service is at your own risk, including the risk that you might be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
Company makes no representation that Materials contained, described or offered via the Service are accurate, appropriate or available for use in any particular jurisdiction or that these Terms of Service comply with the laws of any specific country. Visitors who use the Service do so on their own initiative and are responsible for compliance with all applicable law. You agree that you will not access the Service from any territory where its Material or other company posted content (hereinafter referred to as “Content”), or User Content (as defied below) is illegal, and that you, and not the Company Parties (as defined below), are responsible for compliance with applicable law.
10.0 Third-Party Operators and Websites.
In the event we include links via the Service to third-party operators and/or websites (hereinafter referred to as “Third Party Provider”), including advertisements, which may include products, goods, services or information offered therein, these links are provided only as a convenience. If you clickthrough using these links to other websites, you may leave our DXP Platform. We do not control nor endorse any such Third-Party Provider. You agree that the Company Parties will not be responsible or liable for any content, products, goods, services or information provided or made available by a Third-Party Provider, including related websites, or for your use or inability to use the services of a Third-Party Provider.
You will use such links at your own risk. You are advised that other websites on the Internet, including Third-Party Provider websites linked from our DXP Platform, might contain material or information:
(i) that some people may find offensive or inappropriate;
(ii) that is inaccurate, untrue, misleading or deceptive; or,
(iii) that is defamatory, libelous, infringing of others’ rights or otherwise unlawful.
We expressly disclaim any responsibility for the content, legality, decency or accuracy of any information, and for any content, products, goods, services or information, that appear on any Third-Party Provider website or in advertisements or content that a Third-Party Provider may have listed or offered on our DXP Platform.
Your interactions with a Third-Party Provider found on or through the Service, including payment and delivery of goods or services, if any, conditions, warranties or representations associated with such matters are solely between you and the Third-Party Provider, except as may be otherwise stated herein. You acknowledge and agree that we are not a party to any transactions you may enter into, except as may be stated herein, using the Service and we shall not under any circumstances be liable for any damages of any kind arising out of, or in connection with, or relating to, the content, products, goods, services or information of a Thirty-Party Provider.
11.0 User Content
“User Content” means any and all information and content that a User uploads, submits to, or uses with the Services. You may choose to enter this information manually or, where available, synchronize with a third-party website, provided to User via The Company’s DXP Platform. The Company does not verify the accuracy or completeness of User Content, and these may therefore be subject to errors.
Company shall provide rights to data that is delivered to Users via the Service. Such rights arise from the following sources:
11.2 Instagram User-Generated Content / Media – we are an approved Facebook Developer and adhere to such guidelines as further detailed here – https://developers.facebook.com/docs/instagram-api/guides/content-publishing/
Other content delivered to Users shall have the same or similar rights for use.
Nevertheless, you are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate any of the Terms of Service.
Company does not and is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content.
We may, at our discretion, but shall have no obligation to, pre-screen User Content submissions and may choose to remove User Content at any time we see fit. You agree that the Company is not responsible for any financial loss, liability or damage of any kind that you may incur as a result of our removing or refusing to publish User Content.
By posting User Content to the DXP Platform, you agree that we: (i) we are under no obligation of confidentiality, express or implied, with respect to the User Content, (ii) we may have something similar to the User Content already under consideration or in development, and (iv) you irrevocably waive, and cause to be waived, against the Company Parties and its Users any claims and assertions of any moral rights contained in such User Content.
12.0 Suggestions and Improvements.
By sending us any ideas, suggestions, documents or proposals (hereinafter referred to as “Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (v) you irrevocably waive, and cause to be waived, against the Company Parties and its Users any claims and assertions of any moral rights contained in such Feedback.
You expressly acknowledge, represent, warrant, and agree that you understand:
The information contained herein is for informational purposes only and is not intended nor should be construed as advice or recommendations and are not guaranteed to produce results.
Company does not warrant or guarantee the suitability or availability of any Material or Content, including without limitation any, data, products, or services, found through the Service.
Company does not screen the authenticity or quality of any material or content or any provider of material or content, including, data, products, or services found through the Service.
You are of legal age to form a binding contract and are at least eighteen (18) years of age or you have the authority of such legal entity to form a binding contract; all information you provide to us is accurate and truthful; you will maintain the accuracy of such information; and you are legally permitted to use and access the Service and take full responsibility for the selection and use of and access to the Service.
You agree to indemnify, defend and hold harmless the Company, its parents, subsidiaries and other affiliated companies, and their respective officers, directors, employees, agents and other representatives (collectively, the “Company Parties”) against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the Service, any activity related to your account by you or any other person permitted by you, any Content that you submit to, post on or transmit through the Service, your breach of this Terms of Service, your infringement or violation of any rights of another, or termination of your access to the Service. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
You hereby release and forever discharge the Company Parties from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service, including any interactions with, or act or omission of, other Service Users or any Third-Party sites, including but not limited to: (i) your use of the Service, (ii) any activity related to your accounts by you or any other person, (iii) your violation of this Terms; (iv) your infringement or violation of any rights of another, (v) your violation of applicable laws or regulations, or (vi) your User Content.
Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15.0 Warranties, Disclaimers and Limitations of Liability.
You expressly understand and agree that:
Your use of the Service is at your sole risk. The Service and the associated Materials and Content are provided on an “as is” and “as available” basis. The Company Parties expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a purpose and non-infringement. Without limiting the generality of the foregoing, the Company Parties make no warranty that: (i) the Service will meet your requirements; (ii) the Service will be uninterrupted, timely, secure, or error-free; (iii) information that may be obtained via the Service will be accurate or reliable; (iv) the quality of any and all products, services, information or other Materials, including all merchandise, products, goods or services, obtained or purchased by you directly or indirectly through the company Service will meet your expectations or needs; and (v) any errors in the Service will be corrected.
The Company Parties shall not under any circumstances be liable for any damages of any kind arising out of, in connection with or relating to the use of or inability to use the Service, including any liability: (i) as a publisher of information; (ii) for any incorrect or inaccurate information or any ‘bug’ of the Service; (iii) for any unauthorized access to or disclosure of your transmissions or data; (iv) for statements or conduct of any third party on or via the Service; (v) for any disputes between Users of the Service or between a User of the Service and a Third Party; or (vi) for any other matter relating to the Service or any Third Party. This is a comprehensive limitation of liability that applies to all damages of any kind, including any direct, indirect, special, incidental or consequential damages, whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if an individual advises the Company Parties of the possibility of such damages. The limitations of liability set forth herein are fundamental elements of the basis of the bargain between Company and you. The products, information and services offered on and through the Service would not be provided to you without such limitations.
The Company Parties shall not under any circumstances be liable for any damages of any kind arising out of, or in connection with or relating to the actions and activities of any third-party contractors and suppliers of services we may engage to provide services to you.
Notwithstanding the foregoing, the sole and entire maximum liability of the Company Parties for any reason, and your sole and exclusive remedy for any cause or claim whatsoever, shall be limited to the charges paid by you directly to company via the Service, if any, for Services provided solely and directly by Company to you during the three (3) months since the cause of action arose.
You agree that regardless of any statute or law to the contrary, any claim you may bring must be filed within one (1) year after the cause of action occurred or it will be permanently barred.
Some jurisdictions do not allow the disclaimer of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above disclaimers and limitations may not apply to you.
If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”
16.0 Purchases and Payments
16.1 Purchase of Services. Your purchase of products or services is completed once you confirm your purchase and performance of your SaaS Terms begins as soon as the purchase is complete. Your purchase of products or services, including the length of your service agreement shall be as stated when you choose your SaaS Terms. Any conflict between the SaaS Terms and these Terms as it may be related to pricing shall be resolved in favor of the SaaS Terms. Otherwise, these Terms shall control.
16.2 Payment Processing Methods. Company may make available various payment processing methods to facilitate the purchase of the Service. You must abide by any relevant terms and conditions or other legal agreements with third party payment processors, that govern your use of a given payment processing method. Company may add or remove payment processing methods at its sole discretion and without notice to you. Once your purchase is complete, Company or the payment processor may charge your credit card or other payment method that you provide us for any Services purchased, along with any additional applicable amounts (including any taxes). You are solely responsible for all amounts payable associated with purchases you make via the Service.
17.0 Term and Termination
Term. Unless earlier terminated pursuant to this Section, the SaaS Terms shall begin on the date of Purchase of the Services and continue for one (1) year (the “Initial Term”), after which, the SaaS Terms will auto-renew for additional one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”).
Termination for Cause. SaaS Terms may be terminated by a party on thirty (30) days’ written notice to the non-terminating party if the non-terminating party commits a material breach of this Agreement, and upon the expiration of the thirty days, the non-terminating party fails to cure the material breach. For purposes of these Terms a material breach by the Company shall be limited to the failure to deliver the Services in a manner that prevent the User from utilizing the DXP Platform substantially as intended in accordance with the description of the Services on the Company DXP Platform.
18.0 Digital Millennium Copyright Act (“DMCA”) NOTICE
The Company respects the intellectual property rights of others. Per the DMCA, we will respond expeditiously to claims of copyright infringement on the DXP Platform if submitted to our Copyright Agent as described below. Upon receipt of a notice alleging copyright infringement, the Company will take whatever action it deems appropriate within its sole discretion, including removal of the allegedly infringing materials and termination of access for repeat infringers of copyright protected content.
Procedure for Notifying the Company of Copyright Infringement. If you believe that your intellectual property rights have been violated by us or by a third party who has uploaded materials to our DXP Platform, please provide the following information to the designated Copyright Agent listed below:
(i) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(ii) A description of where the material that you claim is infringing is located on the DXP Platform;
(iii) An address, telephone number, and email address where we can contact you and, if different, an email address where the alleged infringing party, if not us, can contact you;
(iv) A statement that you have a good-faith belief that the use is not authorized by the copyright owner or other intellectual property rights owner, by its agent, or by law;
(v) A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf;
(vi) Your electronic or physical signature.
We may request additional information before removing any allegedly infringing material. In the event we remove the allegedly infringing materials, we will immediately notify the person responsible for posting such materials that we removed or disabled access to the materials. We may also provide the responsible person with your email address so that the person may respond to your allegations.
Pursuant to 17 U.S.C. 512(c). the Company’s designated Copyright Agent is:
Franci C. Edgerly
19.0 Dispute Resolution.
Arbitration. Any dispute, controversy or claim arising out of or related in any way to these Terms, or any Services performed hereunder which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. The arbitration shall be conducted before a single arbitrator in or near Chatham County, Georgia, except that the meeting of the parties and the arbitrator may be conducted virtually in accordance with the instructions of the arbitrator. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. This Section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms, except as may be otherwise stated herein.
Applicable Law, Venue. This Agreement shall be governed by the laws of the State of Georgia, without reference to conflict of law principles. The parties agree that the United Nations Convention on Agreements for the International Sale of Goods shall not apply to this Agreement. The parties agree that the venue for any matter arising out of or pertaining to enforcement of an arbitration decision or other matter not related to arbitration, as related to this Agreement shall be held in the state and federal courts located in the State of Georgia. IN NO EVENT SHALL ANY CLAIM, ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.
WAIVER OF JURY TRIAL. THE PARTIES EACH IRREVOCABLY WAIVE TRIAL BY JURY IN AN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATED TO THESE TERMS.
Attorney Fees. In the event that any dispute between the parties should result in litigation or arbitration, the prevailing party in such dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation, reasonable attorneys’ fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. For the purposes of this Section: (a) attorney fees shall include, without limitation, fees incurred in the following: (1) post judgment motions, (2) contempt proceedings, (3) garnishment, levy, and debtor and third-party examinations, (4) discovery, and (5) bankruptcy litigation; and (b) “Prevailing Party” shall mean the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.
(i) This Terms of Service constitute the entire agreement between Company and each User of the Service with respect to the subject matter of these Terms of Service.
(ii) If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.
(iii) The failure of the Company Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service. You may not assign your obligations or rights hereunder to another entity or individual. We may transfer, assign or delegate these Terms of Service and its rights and obligations without your consent, upon providing thirty (30) days’ advance notice.
(iv) We shall have no liability to you hereunder if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of us or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
(v)Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that Provider may assign this Agreement or an affiliate or in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which substantially all of the equity or assets of the business unit of Provider responsible for the performance of this Agreement are transferred.
(vi) The relationship of the parties established by these Terms is solely that of independent contractors, and nothing contained in this Agreement shall be construed to (a) give any party the power to direct and control the day-to-day activities of the other; or (b) constitute such parties as, co-owners or otherwise as participants in a joint or common undertaking; or (c) make either party an agent of the other for any purpose whatsoever. Neither party, nor their agents or employees, shall be deemed representatives of the other for any purpose, nor shall either party have the power or authority to act as agent or employee to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other.
21.0 Customer Service. If you have any comments or questions regarding these Terms of Service or wish to report any violation of these Terms of Service, you may contact us at email@example.com.