SOFTWARE AS A SERVICE AGREEMENT
NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE WEB OR MOBILE BASED SOFTWARE SERVICE DESCRIBED HEREIN, WHICH USE IS LIMITED TO THOSE AUTHORIZED USERS IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS.
This Software as a Service Agreement (“Agreement”) is made and entered into by and between Diligent Media, Inc., a Florida corporation (“DMI,” “we,” “our,” “us”) and the organization accepting this Agreement and identified on the DMI website Registration page connected to this Agreement (“Subscriber,” “you,” “your.”)
The term of this Agreement will commence once you agree to the terms and conditions of this Agreement by clicking the “Accept” button (the “Effective Date”). BY CLICKING THE “ACCEPT” BUTTON, YOU AGREE YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE DMI ONLINE SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Definitions. As used herein, the following terms shall have the respective meanings set forth below:
“Administrator” means the individual(s) appointed by you to oversee identifications, shared log-ins, passwords, access and use of the Platform, as identified during Registration.
“Application” means the web and/or mobile application established by DMI through the Platform and which includes Subscriber’s brands and Subscriber Data.
“Customer” means your customer interacting with the Application; Customers are not DMI’s customers.
“Customer Data” means the data included by your Customers or you as part of Queries or other interaction with the Application.
“IP Rights” means all inventions (whether patentable or not), discoveries, ideas, methods, procedures, materials, formulae, software, algorithms, tools, techniques, designs, routines, data, technical drawings or diagrams, prototypes, deliverables and the data contained therein, and results from datamining, including all patent, copyright, trademark, trade secrets and other intellectual property rights therein, and the right to secure registrations, renewals, reissues, and extensions thereof, that are developed or held by or for DMI or its affiliates.
“Platform” means DMI’s proprietary hosted technology platform known as “NetSheet Calculator” that allows a Subscriber’s Customers to estimate real estate transaction closing costs via a web based or mobile application. The scope of Subscriber’s Platform access may be set forth in the Registration form that is supplied by Subscriber to DMI during the online Registration process and accepted by DMI, which Registration is incorporated herein
“Queries” means the interaction by your Customer with the Application, including Customer Data submitted to the Application.
“Registration” means Subscriber’s engagement of DMI’s technology services via a registration form provided by DMI or located at DMI’s website, www.netsheetcalc.com, and which includes scope of Platform access and pricing.
“Subscriber” means the Subscriber identified above and Subscriber’s employees, contractors, agents, and representatives who are authorized to access the Platform and have been supplied user identifications, shared log-ins, and passwords by Subscriber (or by DMI at Subscriber’s request).
“Subscriber Data” means all electronic data or information submitted by Subscriber to DMI, including content or information supporting cost calculations and formulas, such as fees, taxes, premiums, and associated rates, for use in creating the Application on the Platform.
Subscription-Based Access to Platform.
- Provision of Platform. Subject to the terms, conditions, and restrictions set forth in this Agreement (including, but not limited to, the restrictions in Sections 2.2 and 2.3), as well as Subscriber’s timely advance payment of the monthly or annual subscription fees established during Registration or as otherwise invoiced to Subscriber by DMI, DMI hereby grants to Subscriber, for the term of this Agreement, and subject to all IP Rights owned or otherwise assertable by DMI, a non-exclusive, non-transferable, limited and restricted right to remotely access and use the Application on the Platform for Subscriber’s internal business purposes only. DMI will provide Subscriber with one or more unique identifications, shared log-ins, and passwords so that the Subscriber will be able to access and use the Subscriber Application as provided in this Agreement. Subscriber will be responsible for maintaining the confidentiality of Subscriber’s assigned identifications, shared log-ins, and passwords and for all activities and charges resulting from their use, including, but not limited to, unauthorized use. There is no distribution of software and code under this Agreement. All mobile forms of the Application, as may be available, will be exclusively under DMI’s developer account with the corresponding mobile platform operator (e.g., Apple).
- No Implied License. Subscriber acknowledges and agrees that this Agreement shall in no way be construed to provide to Subscriber any express or implied license:
- to copy, reproduce, modify, change, alter, translate, improve, prepare derivative works based on, decompile, disassemble, reverse engineer, sell, rent, lease, distribute, sublicense, publish, or otherwise transfer its right to access and use the Platform or Application; or
- to use the Application in any outsourcing, time sharing, service bureau, or other similar enterprise; or
(iii) to integrate the Application with any third-party web-based service, except as authorized by DMI including integration with DMI’s other web-based services to which Subscriber may subscribe; or
(iv) to use the Application other than as set forth in Section 2.1;
and Subscriber expressly agrees not to take any of the foregoing actions. All rights not expressly granted under this Agreement are reserved to DMI.
- Platform Fees and Payment. In consideration of Subscriber’s use of the Platform, Subscriber agrees to pay in advance all applicable monthly or annual fees in the amounts set forth on the Registration or as otherwise invoiced to Subscriber by DMI. All such payments will be made by credit card, ACH or other payment method agreed to by DMI. You hereby authorize DMI to charge Subscriber’s credit card on file or other payment instrument, or issue an ACH transaction for all fees due and owing to DMI. Fees for any new technology feature or service will be effective upon making such feature or service available to Subscriber for its use. DMI may increase or add new fees for any existing technology service, including access to the Platform, by giving Subscriber 30 days’ advance notice. Such notice will be included in an email notification to Subscriber, or posted on the DMI website on the service detail page for the affected technology services, or reflected in any invoicing to Subscriber. DMI may modify the manner in which Subscriber will pay any fees, and any such payment shall be subject to our general accounts receivable policies then in effect. All amounts payable by Subscriber under this Agreement will be paid without setoff or counterclaim and without deduction or withholding.
- Platform Responsibilities and Limitations.
- DMI Responsibilities. DMI shall: (i) maintain reasonable administrative, physical and technical safeguards for the Platform in accordance with DMI security policies; (ii) provide telephone and/or online support to Subscriber during normal business hours in DMI’s time zone; and (iii) use commercially reasonable efforts to make the Platform generally available 24 hours a day, 7 days a week, except for: (a) planned downtime of which DMI shall endeavor to give at least 24 hours’ notice via e-mail to Subscriber’s designated Administrator and which DMI shall schedule to the extent reasonably practicable during non-peak hours as determined by DMI; and (b) any unavailability caused by circumstances beyond DMI’s control, including but not limited to, acts of God, acts of government, epidemic, pandemic, flood, fire, earthquake, weather, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software, or power systems not within DMI’s possession or control, and network intrusions or denial of service attacks.
- Subscriber Responsibilities. Subscriber will be responsible for procuring and maintaining, at its own expense, all hardware, software, communication equipment, access service, access lines, and Internet connectivity necessary for Subscriber to access and use the Platform, as well as browser software that supports protocols used by DMI to deliver the Platform. Third-party carrier data rates may apply to Subscriber’s use of the Subscriber Application. Subscriber is responsible for all activities that occur resulting from Subscriber or its Customer’s use of the Application. Subscriber shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Subscriber Data; (ii) procure in advance and maintain all necessary consents and authorizations from all individuals whose names and/or other personal data are to be submitted to and processed through the Platform and report to DMI all de-authorizations by such individuals affecting Customer Data residing on the Platform, recognizing that Subscriber retains at all times the role of data controller; and (iii) comply with all applicable United States or foreign federal, state, local, or other laws, rules, regulations, treaties, and conventions in connection with its use of the Platform, such as the Federal Trade Commission Act (15 U.S.C. § 41 et seq.), Financial Platforms Modernization Act (15 U.S.C. § 6801 et seq.), and General Data Protection Act (Regulation EU 2016/679).
Subscriber shall at all times be solely responsible for maintaining and securing its systems, including Subscriber’s information technology infrastructure, computers, software, databases, and networks, whether operated directly by Subscriber or through the use of third-party services. Without limiting the foregoing, Subscriber will remain solely responsible for legal compliance of any integrated use of the Platform to Subscriber’s systems, including the security of Subscriber’s data transmission portals for any reports issued to or from the Platform, as well as all access credentials associated with third-party use of Subscriber’s systems. Subscriber will solely control the content and use of Subscriber’s systems. Subscriber will be responsible for entering into binding end-user agreements, as applicable and which comply in all respects with, and are at least as restrictive as, this Agreement. Subscriber assumes sole liability as to its systems’ interactions with all end users.
Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, protection, security, and appropriateness of all Subscriber Data. Subscriber represents and warrants that its use of the Platform will be for the purpose of promoting or fulfilling sales of legally-compliant goods or services, recognizing that DMI is not undertaking any independent verification or validation of Subscriber Data or otherwise assessing Subscriber’s legal compliance, and that the Platform includes no such verification service. Subscriber acknowledges that the Platform is designed to render estimated values only, based on Subscriber Data, and should not be relied on to support a final transaction without independent verification of data. Neither the Platform nor the Application should be construed as the rendering of legal advice nor a sufficient basis for underwriting any insurance policy. Subscriber is solely responsible for communicating all necessary conditions, instructions, disclaimers, and warnings for Customers regarding Customers’ use of the Application as a tool for estimating closing costs. Subscriber retains all risk of loss or damage caused by inaccurate or unlawful Subscriber Data. Subscriber remains solely responsible for any guarantees issued by Subscriber to Customers.
Subscriber knowingly and voluntarily agrees to defend, indemnify, and hold harmless DMI, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, judgments, and costs (including reasonable attorneys’ fees) arising out of Subscriber’s failure to comply with this Section 3.2 or any applicable United States or foreign federal, state, local, or other laws, rules, regulations, treaties, and conventions.
- Use Guidelines. Subscriber shall use the Platform solely for its internal business purposes as contemplated by this Agreement and shall not: (i) send, upload, or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy or intellectual property rights; (ii) send, upload, or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iii) interfere with or disrupt, damage, or impair the integrity or performance of the Platform or the data contained therein; (iv) remove, delete, obscure, or alter any trademarks, disclaimers, or proprietary notices from any materials included with the Platform; (v) access or use the Platform to conduct any competitive analysis of the Platform or develop a competing product or service or otherwise to DMI’s commercial disadvantage; (vi) use the Platform to send unsolicited bulk mail, junk mail, spam or other forms of duplicative or unsolicited messages or other fraudulent activity; (vii) use the Platform to store or upload any personally identifiable information for which Subscriber does not hold the requisite legal authority, or personal health information, as that term is defined by the Health Insurance Portability and Accountability Act; (viii) bypass or breach any security device or protection used by the Platform or attempt to gain unauthorized access to the Platform or its related systems or networks; or (ix) share, disclose, disseminate, or publish any information or reports obtained from the Platform to third parties unless Subscriber obtains the prior express written consent from DMI.
Subscriber will not use the Platform to make any phone call or send any email or text message that does not comply with CAN-SPAM, the Telephone Consumer Protection Act, or any other applicable federal or state law. Subscriber is solely responsible for ensuring that telephone calls made or email or text messages sent using information obtained from the Platform are in compliance with CAN-SPAM, the Telephone Consumer Protection Act, or all other applicable federal or state laws.
The Platform incorporates no accessibility features such as display customization or audio screen reading for blind and low vision users. DMI makes no guaranty regarding compliance with WCAG 2.0 standards or any other technology accessibility standards required by local, state, or federal law. Subscriber is hereby advised to assess Subscriber’s needs for any such accessibility in the use of the Platform. Subscriber remains solely responsible for legal compliance of Subscriber’s services to Customers, including accessibility of Subscriber’s service via the Application.
Subscriber will not send or upload to the Platform any information that is protected from disclosure by applicable law and for which Subscriber does not have the legal right to use or associate with the Platform. Subscriber will use DMI’s designated data transfer protocols only and will not send Subscriber Data via e-mail or other unauthorized transmissions, except as approved in writing by DMI. Subscriber knowingly and voluntarily agrees to defend, indemnify, and hold harmless DMI, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, violations, judgments, penalties, and costs (including reasonable attorneys’ fees) arising out Subscriber’s obligations under, or violation of, this Section 3.3.
- GDPR Compliance. You hereby agree not to provide any Personal Data regarding residents of the European Union to DMI or through the Platform, except where authorized by or excluded from the restrictions of the General Data Protection Regulation (“GDPR”). “Personal Data” under the GDPR means any information relating to an identified or identifiable natural person (“data subject”). In the event you provide DMI with Personal Data relating to a data subject that is a resident of the European Union (“GDPR data”), you will immediately notify DMI in writing by contacting [email protected]. Subscriber shall be deemed to be the data controller for all such Personal Data at all times. Subscriber knowingly and voluntarily agrees to defend, indemnify, and hold harmless DMI, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, violations, judgments, penalties, and costs (including reasonable attorneys’ fees) arising out data that you provide to DMI and any violation of the GDPR.
- Incorporation of Mobile Platform Terms. Subscriber’s use of the mobile version of the Application is subject to the terms and conditions published by the mobile platform operator, including, without limitation, in the case of Apple, the Apple App Store and Apple Pay, as updated from time to time.
- Export Control. Subscriber will not, unless it has obtained all necessary legal permissions, export or otherwise disclose any technology or software accessed as part of the Platform to any destination that is prohibited by the United States government or to any foreign national that is prohibited by the United States government. Subscriber will not access and use the Platform if Subscriber is located in any jurisdiction or territory in which the provision of the Platform is prohibited under U.S. or other applicable law or treaty. Subscriber warrants that Subscriber is not named on any U.S. government list of persons prohibited from receiving U.S. exports or transacting with a U.S. person, and that Subscriber is not a national of, or a company registered in, any jurisdiction prohibited by U.S. export laws.
- Reservation of Rights. Subscriber acknowledges that in providing the Platform, DMI utilizes (i) the DMI name, the DMI logo, the domain name, the product and service names associated with the Platform, and other trademarks and service marks; (ii) certain audio and visual information, documents, software, and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, widgets, plug-ins, databases, know-how and other trade secrets, techniques, designs, invention, and other tangible or intangible technical material or information (collectively, “DMI Technology”) and that the DMI Technology is covered by IP Rights owned or licensed by DMI (collectively, “DMI IP Rights”). Subscriber acknowledges and agrees that the DMI IP Rights belong to DMI and that other than as expressly set forth in this Agreement, no license or other rights in or to the DMI Technology or DMI IP Rights are granted to Subscriber, and all such licenses and rights are hereby expressly reserved. Subscriber must retain all DMI embedded copyright notices or other indicia of source or ownership included with the Platform, including any “powered by” indicia. Upon expiration or earlier termination of this Agreement, Subscriber shall retain no rights with respect to the Platform, the DMI Technology, or the DMI IP Rights. All rights, title and interest in and to the DMI IP Rights will remain with DMI exclusively at all time.
- Improvements and Resultant Data. DMI shall also own all improvements to and derivatives of the DMI Technology and DMI IP Rights, whether or not arising out of data that Subscriber provides to DMI when using the Platform. DMI shall at all times be the sole and exclusive owner of any and all IP Rights created by DMI for purposes of this engagement including but not limited to creation of all behavioral profiles, databases, integration components, ecosystems and databases, or other technology and platforms created through activities of DMI. DMI may monitor the performance and use of Application and the Platform by all DMI’s clients, aggregating such data for DMI’s business purposes. Subscriber grants to DMI a limited, worldwide license to use, host, store, reproduce, modify, and create derivative works from any Subscriber Data uploaded to the Platform by Subscriber for the purpose of providing the Application.
- Suggestions. Throughout the term of this Agreement, Subscriber may communicate to DMI modifications, changes, or improvements to the Platform suggested by Subscriber or any person or entity to Subscriber, and all significant errors or incompatibilities experienced by Subscriber while using the Platform. Subscriber agrees that any and all information, inventions, discoveries, or other matters communicated to DMI under this Section 4.3 shall be deemed to be the property of DMI, and Subscriber agrees to execute and deliver to DMI, at DMI’s request, any documentation necessary to effectuate DMI’s ownership of such information, inventions, or discoveries.
- Customer Data. As between DMI and Subscriber, Subscriber is and will remain owner of all right, title, and interest in and to all Customer Data, subject to Subscriber’s grant hereby of all such rights and permission in or relating to the Customer Data as are necessary or useful to DMI’s operation of the Platform and performance of this Agreement. The provision of Platform services do not replace the need for Subscriber to maintain regular data backups or redundant data archives. DMI has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of Customer Data caused by Subscriber or by third-parties over whom DMI exercises no control. The Platform is not a disaster recovery service.
- Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, Subscriber grants to DMI a limited, royalty free, non-exclusive, revocable, non-sublicensable, and non-transferable license to use such Subscriber names, logos, trademarks, and/or service marks (the “Subscriber Trademark(s)”) to identify Subscriber as a user of the Platform in DMI’s marketing and sales materials. Following termination of access to the Platform, DMI’s right to use any Subscriber Trademark will terminate and any and all uses of a Subscriber Trademark by DMI must cease immediately. DMI will not manufacture, sell, distribute (for free or otherwise) or license the manufacture and/or sale of, any promotional or other merchandise that bears Subscriber Trademarks. DMI agrees that it will not own, nor claim any ownership in or to the Subscriber Trademarks. DMI recognizes the great value of the publicity and goodwill associated with the Subscriber Trademarks and, in such connection, acknowledges that such goodwill belongs exclusively to Subscriber. Subscriber warrants and represents that it has the authority to grant the license above and that DMI’s use of Subscriber Trademarks in compliance with this Agreement will not infringe upon any third-party rights. Subscriber knowingly and voluntarily agrees to defend, indemnify, and hold harmless DMI, its members, managers, directors, officers, employees, agents, successors and assigns from and against all claims, losses, damages, judgments, and costs (including reasonable attorneys’ fees) arising out of claims of infringement by a third party, as such claim relates to Subscriber Trademarks.
- Warranties & Disclaimers.
- Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. DMI represents and warrants that (i) it owns or otherwise has sufficient rights to permit Subscriber to access and use the Platform; and (ii) the Platform does not infringe the intellectual property rights of any third party. In addition to other warranties by Subscriber as stated in this Agreement, Subscriber represents and warrants it holds the necessary legal rights to accept this subscription for use of the Platform and to send or upload Subscriber Data to the Platform, without misappropriation or violation of the privacy or other rights of third parties. Without limiting the foregoing, Subscriber represents and warrants that it holds, and will maintain throughout the Term hereof, all necessary licenses, permits or certifications required by any government agency to conduct its Subscriber business.
- Disclaimer. The representations and warranties made by DMI in this Agreement are made solely to Subscriber. Except as otherwise provided in this Agreement, DMI provides, and Subscriber accepts, the Platform and Application in “AS-IS” CONDITION AND “WITH ALL FAULTS”. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, DMI, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE DMI WEBSITE, THE PLATFORM, THE APPLICATION, AND SUBSCRIBER’S USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, DMI MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM, THE APPLICATION, THE DESIGN, FUNCTIONALITY, OR CAPACITY OF THE APPLICATION, THE DMI WEBSITE OR ACCESSIBILITY THEREOF OR THE APPLICATION, OR THE CONTENT OF ANY WEBSITES LINKED TO THE PLATFORM AND ITS ACCESSIBILITY, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR OR YOUR CUSTOMERS’ ACCESS TO AND USE OF THE APPLICATION, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM OR SUBSCRIBER APPLICATION, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE DMI WEBSITE OR PLATFORM.
- INDEMNIFICATION. SUBSCRIBER AGREES TO DEFEND, INDEMNIFY AND HOLD DMI, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE MANAGERS AND MEMBERS, OFFICERS, DIRECTORS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM AND AGAINST, ANY LOSS, DAMAGE, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF SUBSCRIBER’S USE OF THE PLATFORM OR THE APPLICATION, AND/OR ARISING FROM A BREACH OF THIS AGREEMENT AND/OR ANY BREACH OF SUBSCRIBER’S REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN. NOTWITHSTANDING THE FOREGOING, DMI RESERVES THE RIGHT, AT SUBSCRIBER’S EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH SUBSCRIBER IS REQUIRED TO INDEMNIFY DMI, AND SUBSCRIBER AGREES TO COOPERATE, AT SUBSCRIBER’S EXPENSE, WITH DMI’S DEFENSE OF SUCH CLAIMS. DMI WILL USE REASONABLE EFFORTS TO NOTIFY SUBSCRIBER OF ANY CLAIM, ACTION, OR PROCEEDING WHICH IS SUBJECT TO THIS INDEMNIFICATION UPON BECOMING AWARE OF IT.
Limitation of Liability.
- Limitation of Liability. IN NO EVENT SHALL DMI OR ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER DAMAGES ARISING FROM SUBSCRIBER’S USE OF THE PLATFORM OR APPLICATION, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF DMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DMI’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY SUBSCRIBER TO DMI FOR THE PLATFORM SUBSCRIPTION DURING THE PERIOD OF THIRTY DAYS PRIOR TO ANY CAUSE OF ACTION ARISING.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT AN ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF DMI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. DMI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE RIGHTS TO ACCESS AND USE THE PLATFORM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAW APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. HOWEVER, IN SUCH JURISDICTIONS, DMI’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU 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.”
- Limitation of Action. Except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
- Term & Termination. This Agreement will commence on the Effective Date. Either Party may terminate this Agreement without cause, at any time by providing thirty (30) days prior written notice of the intent to terminate to the other Party. Upon termination of this Agreement for any reason, Subscriber will be liable to DMI for any fees incurred prior to the effective date of termination, and DMI will determine any refund for unearned advance fees paid; Subscriber otherwise acknowledges that all fees paid are non-refundable.
Either Party may terminate this Agreement on written notice to the other Party if the other Party (i) is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice, or (ii) becomes insolvent, makes an assignment for the benefit of creditors, becomes the subject of any bankruptcy, reorganization, or arrangement proceeding, or defaults in any obligation, which default would foreclose such Party from exercising its right or prevent it from paying its obligations hereunder, then such action will be a default hereunder and this Agreement may be terminated immediately by written notice to the defaulting Party.
DMI reserves the right to, in its sole discretion and without notice or liability, deny access to and use of the Platform or Application, to any person for cause, including without limitation for breach of any representation, warranty or covenant contained in this Agreement or of any applicable law, and, in such event, DMI may terminate Subscriber’s use or participation in the Platform, delete the Application and other profile information, if DMI determines that Subscriber has accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement published by DMI, or if DMI determines that Subscriber is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Platform. This section does not limit any of DMI’s other rights or remedies, whether at law, in equity or under this Agreement. In order to protect the integrity of the Platform, DMI reserves the right at any time in its sole discretion to block certain IP addresses from accessing the Platform or DMI’s website.
If DMI terminates or suspends Subscriber’s account for any reason, Subscriber is prohibited from registering and creating a new account under its name, a fake, fictitious, or borrowed name, or the name of any third party, even if Subscriber may be acting on behalf of the third party. DMI reserves the right to assess a charge for any reactivation of a previously suspended account. Upon termination, the Application may be permanently removed from any mobile operator platform. In no event will DMI be responsible for integrating the Application with another or successor application, or otherwise transferring data upon termination of this Agreement for any reason. In addition to terminating or suspending Subscriber’s account, DMI reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
9.1 DMI reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) for all subscribers, with or without notice. You agree that DMI shall not be liable to you or any third party for any such modification, suspension or discontinuance.
9.2 Surviving Provisions. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
- State Tax: Unless otherwise stated, DMI’s charges for the Platform subscription do not include any taxes, levies, duties or similar government assessments, including value-added, sales, use or other taxes by any local, state, or foreign jurisdiction. Subscriber will be solely responsible for all such taxes incurred. DMI will not serve as a merchant of record in any transaction between Subscriber and Customers. Subscriber will indemnify and hold DMI harmless for any and all claims involving payment of sales taxes on Subscriber sales via the Application.
- Relationship of the Parties. The parties shall at all times act as independent contractors and service provider/subscriber. Nothing contained in this Agreement shall be deemed to constitute a partnership or joint venture between the parties, nor shall any party be deemed the employee, agent, or representative of the other. Neither party shall have any authority whatsoever, whether express or implied, to assume, create, or incur any obligation or liability whatsoever on behalf or in the name of the other, or to bind the other in any manner whatsoever. Neither party shall hold itself out contrary to the provisions of this Section.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. The Platform, results of the Platform or use of the Platform, and any information furnished to or procured by Subscriber by or through the Platform is solely for the benefit of Subscriber, and no third party is entitled to rely on the same.
- Notices. Any notice or other communication which is required or permitted under this Agreement shall be in writing and shall be deemed to have been given, delivered, or made, as the case may be (notwithstanding lack of actual receipt by the addressee), (i) on the date sent if delivered personally or by e-mail, cable, telecopy, telegram, telex, or facsimile (which is confirmed), or (ii) three (3) business days after having been deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed and prepaid, or (iii) one (1) business day after having been deposited with a nationally recognized overnight courier service (such as by way of example, but not limitation, U.S. Express Mail, Federal Express, or Airborne), to the Parties at the addresses as stated on the Registration (or at such other address for a party as shall be specified by like notice).
- Waiver. No failure or delay on the part of either party in exercising any right or remedy with respect to a breach of this Agreement by the other party shall operate as a waiver thereof or of any prior or subsequent breach of this Agreement by the breaching party, nor shall the exercise of any such right or remedy preclude any other or future exercise thereof or exercise of any other right or remedy in connection with this Agreement. Any waiver must be in writing and signed by the waiving party.
- Severability. If any section, subsection, or provision or the application of such section, subsection, or provision of this Agreement is held invalid, illegal, or unenforceable, the remainder of this Agreement and the obligation of such section, subsection, or provision to persons or circumstances other than those to which it is held invalid, illegal, or unenforceable shall not be affected by such invalidity, illegality, or unenforceability.
- Assignment. Subscriber may not assign any of its rights or delegate any of its duties under this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of DMI. Any attempted assignment in violation of this section shall be void. This Agreement shall inure to the benefit of and be binding upon the parties to this Agreement, and their respective legal representatives, trustees, successors, and permitted assigns.
- Applicable Law; Attorneys’ Fees to Prevailing Party. This Agreement shall be governed in its construction, interpretation, and performance by the laws of the State of Florida and the United States, as applicable, without reference to law pertaining to choice of laws or conflict of laws. In the event of any litigation arising out of or relating to this Agreement or the breach, termination, validity, or enforcement of this Agreement, venue shall be in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, or the Tampa Division of the United States District Court for the Middle District of Florida, as applicable. In the event of any litigation arising out of or relating to this Agreement or the breach, termination, validity, or enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorneys’ fees incurred, including, without limitation, costs and fees incurred in any investigations, trials, bankruptcies, and appeals.
- Dispute Resolution.
In the event of any dispute, controversy, or claim arising out of or related to this Agreement or to a breach hereof, whether based in contract, tort, or statute, including its interpretation, scope, formation, performance, or termination (“Dispute”), the Parties shall attempt to settle such Dispute by amicable discussions between two senior executives of DMI and Subscriber having the specific authority to settle the Dispute within fifteen (15) days after one Party giving notice to the other of existence of the Dispute.
If no settlement is reached by this meeting of the Parties, the Parties shall attempt in good faith to resolve the dispute through mediation in Tampa, Florida, or such other place as the Parties may otherwise agree, with the assistance of a mutually agreeable mediator. Such mediation will take place with ninety (90) days after notice of the Dispute.
If no settlement is reached at mediation, then either Party shall be free to commence litigation pursuant to the terms of this Agreement. The provisions of this section shall not apply to Subscriber’s breach of its payment obligations to DMI, or to breaches of Sections 2.2, 2.3, and 6, for which the non-breaching Party may proceed immediately to seek temporary and/or preliminary injunctive relief.
IN THE EVENT ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT, ALL ISSUES OF LAW AND FACT SHALL BE DETERMINED BY THE COURT, AND ANY AND ALL RIGHT TO A JURY TRIAL IS HEREBY EXPRESSLY WAIVED BY THE PARTIES.
- Construction. This Agreement shall not be construed more strictly against any party regardless of who is responsible for its drafting. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular and the singular include the plural. Wherever the context so requires, the masculine shall refer to the feminine, the feminine shall refer to the masculine, the masculine or the feminine shall refer to the neuter, and the neuter shall refer to the masculine or the feminine. The captions of this Agreement are for convenience and ease of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any of its provisions.
- Entire Agreement. This Agreement, along with the Registration (incorporated herein by reference), constitutes the entire agreement between the parties relating to the subject matter hereof. All prior understandings and agreements between the parties relating to the subject matter hereof are merged in this Agreement, which alone and completely expresses their understanding. DMI may modify these terms, and will post notice of the same to its website. Subscriber is responsible for reviewing these terms regularly. If Subscriber does not agree to the modified terms, Subscriber should discontinue using the Platform. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Subscriber purchase order or in any other Subscriber order documentation (whether or not signed by DMI) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, unless DMI executes a written agreement with Subscriber via handwritten signature that specifically identifies this Agreement by title and effective date and expressly states DMI’s intention to supersede the same.
- ELECTRONIC CONTRACTING. SUBSCRIBER ACKNOWLEDGES THAT ITS ELECTRONIC SUBMISSIONS CONSTITUTE ITS AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. SUBSCRIBER’S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS SUBSCRIBER ENTERS INTO RELATING TO THE PLATFORM, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Subscriber’s electronic records, Subscriber may be required to have certain hardware and software, which are Subscriber’s sole responsibility.
- ELECTRONIC SIGNATURES. Subscriber is allowed to transmit and receive valid electronic signatures in the United States under the Electronic Signatures in Global and National Commerce Act (E-Sign Act) of 2000 and the Uniform Electronic Transactions Act (UETA) of 1999 as adopted by individual states. This Agreement and associated Registration may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent, to include selecting an “Accept” button). By selecting such button you are signing this Agreement electronically. You agree that your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting such button, Subscriber consents to be legally bound by this Agreement. Subscriber further agrees that its use of a key pad, touch screen, or other peripheral device to select an item, button, icon or similar act/action, or to otherwise provide DMI in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes signature (hereafter referred to as “E-Signature”), acceptance and agreement as if actually signed by you in writing. Subscriber also agrees that no certification authority or other third party verification is necessary to validate Subscriber’s E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of Subscriber’s E-Signature. Subscriber also represents that the individual accepting this Agreement is authorized to enter into this Agreement for Subscriber and that Subscriber will be bound by the terms of this Agreement. Subscriber has the right to opt out of signing this Agreement electronically with E-Signature by notifying DMI in writing by certified mail.
CONTACT US. In order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform, please contact DMI as set forth as follows:
Diligent Media, Inc.: