This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "You"), and Digioh, LLC ("Digioh") - providers of the Digioh website located at digioh.com ("Digioh Site").
Digioh provides software programs ("Software") that enable merchants to build online stores through which they can sell their products and services online. Digioh also provides merchants services, including hosting of the online store, email services, marketing services, and other related services as may be offered from time to time (collectively, "Services").
This Agreement is effective upon Your acceptance in registration. By accepting this Agreement and subject to the terms and conditions of this Agreement, including Terms of Service for the Digioh Site that are incorporated herein by reference and may be accessed through links in this Agreement, Digioh will provide You with a limited license to use the Software and receive the Services. Please note that underlined words and phrases in this Agreement are links to pages on the Digioh Site, or other relevant sites. In the event any terms provided in this Agreement conflict with the Terms of Service the terms provided in this Agreement will govern.
By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference.
You authorize Digioh to process any and all of Your Digioh account transactions initiated through the use of the password and/or passphrase that You establish through registration on the Digioh Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.
Notwithstanding anything contained in the foregoing, this Agreement will not bind Digioh unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind such entity to this Agreement. Digioh may use techniques to confirm the accuracy of the information You provide when You register on the Digioh Site. If for any reason, Digioh, in its discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
You acknowledge and agree that, as between You and Digioh, all Software and any other content provided by Digioh, and all worldwide intellectual property rights therein, are the exclusive property of Digioh. All rights in and to the Software not expressly granted to You in this Agreement are reserved by Digioh.
Subject to the terms and conditions of this Agreement, Digioh grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Digioh ("Digioh Servers") through the Digioh Site solely for the purpose of building and maintaining an interactive store hosted by the Digioh Servers on which You offer Your or a third party's products or services ("Your Store").
You acknowledge that the Software and its structure, organization, and source code constitute valuable intellectual property of Digioh. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (d) transfer Your interest in and to Your Store to any third party.
Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for certain features of the Software, Digioh grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to You by Digioh under this Agreement ("Digioh Marks"), solely for display on those locations on Your Store's web pages as designated by Digioh in its sole discretion, and that Digioh may periodically change from time to time. Digioh grants no rights in the Digioh Marks other than those expressly granted in this Section 2.4. You acknowledge Digioh's exclusive ownership of the Digioh Marks and that all use of Digioh Marks inures to Digioh benefit. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Digioh Marks or in such a way as to create combination marks with the Digioh Marks. At Digioh's request (in its discretion), You will immediately discontinue all use and display of the Digioh Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the Digioh Marks, no licenses are granted by Digioh to any other trademarks, service marks, or trade names owned by Digioh, its parent, or affiliates.
You agree that the nature and quality of all goods and services rendered that You provide in connection with the Digioh Marks and all related advertising, promotional and other uses of the Digioh Marks by You shall be of a high standard so as to protect and enhance the Digioh Marks and the goodwill pertaining thereto. You further agree that all materials bearing the Digioh Marks shall conform to the guidelines that Digioh may establish from time to time and that You shall obtain Digioh's approval prior to using the Digioh Marks in any manner that is inconsistent with Digioh's guidelines.
Certain additional features that Digioh may make available to You may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, Digioh may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions ("Additional Services"). You agree that You will not use such Additional Software or Additional Services unless You have agreed to the applicable terms and conditions, including Your payment of additional fees as required.
Upon activation of Your account and subject to the payment of applicable fees, Digioh will provide You during the term of this Agreement with the hosting, support and other miscellaneous Services as provided on the pricing page of the Digioh Site and for the Software licensed to You under this Agreement. Your Store will be hosted on an Digioh's Server on which several merchants may share the resources and network capacity.
Digioh reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from Digioh in regards to the Software, Services, Your account, policy changes and system updates. If You do not agree to such changes, then You may terminate use of the Services. Digioh will not refund any fees or payments in the event of such termination.
Downgrading your Service may cause the loss of content, features, or capacity of Your account. Digioh does not accept any liability for such loss.
You will be solely responsible for the development, promotion, back-up, operation and maintenance of Your Store, including the operation of Your Store, accepting, processing and filling customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that Digioh has no obligation to back-up any data related to Your Store's operations and You should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Store, including all descriptions of the products and services You offer to customers of Your Store and user-generated content on and related to Your Store. As a conduit, Digioh will give You discretion over Your content provided it is compatible and interoperable with the Software and Services provided by Digioh under this Agreement and Your content and use of the Services, Software and Digioh Site comply with all applicable laws and the terms of this Agreement. You retain all right, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by Digioh. Notwithstanding anything contained in the foregoing, if You breach any of the terms of this Agreement, Digioh is entitled to suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with Section 12 of this Agreement.
You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, Digioh and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. Digioh has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Digioh believes in its discretion that Your Store or any products, services, content or other materials in the Store or on Digioh Servers may create liability for Digioh or harm other users of Digioh's websites or services, then You agree that Digioh may take any actions with respect to the content or materials or Your Store that Digioh believes are prudent or necessary to minimize or eliminate Digioh's potential liability or to protect other users of Digioh's websites or services.
During the period that Digioh provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to Digioh and its subcontractors a non-exclusive, irrevocable, sublicenseable, royalty-free, transferable worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content and trademarks solely to host your Store, run the Software, provide You with the Services and to otherwise promote and manage the Digioh Site. You understand and agree that copies of Your Store may continue to be stored on Servers after You terminate Your account. Digioh agrees not to use Your content after You terminate Your account except as required to comply with legal requests or requirements.
You covenant that any products, services, or content published and distributed on Your Store and Your related activities shall not violate the Digioh's Terms of Service as it may be amended from time to time, or any of the following:
You agree not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Your Store:
You further agree not to publish, offer for sale, sell or otherwise distribute any of the following items on through or connected with Your Store, except as permitted by, and in full compliance with, all applicable federal, state, local and other laws:
Digital files that you do not own or have all necessary rights or license to store, display, perform, copy and distribute;
The Digioh Site is intended solely for the distribution of digital files that You own, have all necessary rights or licenses to, or that are in the public domain. You agree not to store, offer for sale, sell or otherwise distribute any content or material that is infringing or otherwise violates the law, including: music; movies; eBooks; games; videos; photographs and software.
You shall pay the fees set forth on the Pricing page for the Software license and Services purchased by You. Digioh may change the fees for its Services from time to time. If You do not accept a change in the fees, then You may terminate Your account. You agree not to disguise, hide or otherwise misrepresent the number of products that you offer on or through Your Store through use of any features of the Services or Software or otherwise.
You have 30 days from the day of signup to receive a full refund. Only the first 30 days of a new Digioh account are refundable. Digioh will invoice You via PayPal or another electronic payment vendor and You agree to pay for non-refundable monthly or yearly subscription, in advance, including fees for the license of Software and Services to be rendered to You by or on behalf of Digioh in the following month.
The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
Upon non-payment Digioh in its discretion may re-attempt to collect the amount due up to 5 times before suspending or terminating Your account or immediately suspend or terminate Your account.
All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Digioh's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.
DIGIOH, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES, ON AN "AS IS" AND "AS AVAILABLE" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Digioh, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
IN NO EVENT SHALL Digioh, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, SERVICES, ANY ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). Digioh, ITS SUPPLIERS, AND SERVICE PROVIDERS, CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAID TO Digioh FOR THE SOFTWARE LICENSE AND THE SERVICES IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE. Some States do not allow the exclusion or limitation of certain damages, so the above limitation or exclusion may not apply to You.
You agree to indemnify and hold Digioh, its suppliers, and service providers, and their officers, members, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any content provided, stored, sold or otherwise distributed by You or generated by users of Your Store, (b) any claims arising from the sale or license of goods or services in Your Store, or (c) any breach of this Agreement or the documents it incorporates by reference. Digioh's, its suppliers' and service providers' indemnity rights shall not be limited or offset by any contributory negligence by Digioh. Digioh reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Digioh's defense of such claim.
Without limiting other remedies, Digioh may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement; (b) You breach this Agreement or the documents it incorporates by reference in any other manner; (c) Digioh is unable to verify or authenticate any information You provide to Digioh; or (d) Digioh believes that Your actions may harm, cause financial loss or legal liability for You, Your Store customers, Digioh or Digioh's users or affiliates.
At the discretion of Digioh, Digioh may suspend Your account or any part of Your account by deactivating any access by You or by Your customers to any information contained on the Digioh Servers related to Your account while maintaining the information and data related to Your account upon the Digioh Servers. Suspension may include the disabling of Your Store and/or any access to information or data related to Your account. In the event of any such suspension, You will be notified and given ten (10) days to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.
This Agreement may be terminated by Digioh either (a) immediately if you breach any provision of this Agreement, or (b) after a period of suspension as set forth in Section 12.1 of this Agreement. You may terminate this Agreement via the Digioh Site or via the PayPal site or other electronic payment vendor site.
In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall stop using the Site, Services and Software and destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as otherwise agreed to in writing by Digioh and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Digioh to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses' cost or other costs of any kind under this Agreement. The provisions of this Agreement that by their nature are ongoing, or as explicitly provided, will survive termination or expiration of this Agreement for any reason.
This Agreement shall be governed in all respects by the laws of the State of Wisconsin without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. You agree that any cause of action that may arise under this Agreement or in connection with Your use of the Software or Services will be commenced and heard only in the appropriate court having jurisdiction over Waukesha, WI. You hereby consent to the exclusive jurisdiction of and venue in such courts.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Store.
You and Digioh are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorist act, governmental act or order, act of God, failures in electric power or telecommunications services, or any other event beyond the control of the party.
Except as explicitly stated otherwise, any notices shall be given via email to Digioh, LLC at support (at) digioh.com or to the email address You provide to Digioh during the registration process (in Your case). Notice shall be deemed given twenty four (24) hours after email is sent, unless Digioh is notified that the email address is invalid. Alternatively, Digioh may give You notice by certified mail, postage prepaid and return receipt requested, to the address, if any, provided to Digioh during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision will be null and void. You agree that this Agreement may be assigned by Digioh, in Digioh's discretion without Your consent.
You acknowledge and agree that nothing herein, express or implied, is intended to or will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Digioh's failure to act with respect to a breach by You or others does not waive Digioh's right to act with respect to subsequent or similar breaches.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term "including" means "including but not limited to," and "discretion" means the sole discretion of the applicable party unless expressly stated to the contrary.
The services hereunder are offered by Digioh, LLC.
This Agreement, together with the agreements and policies that are incorporated herein by reference, sets forth the entire understanding and agreement between You and Digioh with respect to the subject matter hereof.
Effective Date: July 14, 2011
This Terms of Service Agreement (the "Agreement") governs Your use of digioh.com (the "Site") and any services made available to You by Digioh, LLC (hereinafter, "Digioh", "We", "Us" or "Our") on or through the Site (the "Services"). For purposes of this Agreement, "You" means the person using the Site or the Services or, if You are using the Site or Services on behalf of Your company (or another entity), then "You" means Your company (or such other entity), its officers, members, agents, successors and assigns.
Effective Date: July 14, 2011
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SITE OR THE SERVICES. YOUR USE OF THE SITE OR THE SERVICES CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THE SITE OR THE SERVICES. IF YOU ORDER ANY PRODUCT OR SERVICE PROVIDED BY Digioh THROUGH THE SITE, THEN ACCEPTANCE BY DIGIOH IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO THIS AGREEMENT.
Digioh is always looking for ways to improve the Site and the Services and, as a result, may amend this Agreement at any time by posting an amended Agreement on the Site. Any amended Agreement shall automatically be effective on the date that it is initially posted on the Site. By using the Site or the Services, You agree to be bound by the current form of this Agreement. It is Your responsibility to return to this Agreement from time to time to review the most current Agreement. Digioh does not and will not assume any obligation to notify You of changes to this Agreement. The current Agreement will supersede any prior communications or agreement with respect to the Site or the Services, unless such agreement expressly states that it is not superseded by this Agreement.
Users of the Site, who simply browse the Site ("Guests"), may be able to view products and information, request information and engage in certain services on the Site. Users of digioh.com, who enter into a separate Merchant User Agreement with Us ("Merchants"), may be able to (a) use Digioh's systems and networks to create and customize an online store ("Store") that permits Merchants to post information about their products and offer such products for sale through the Store; (b) receive hosting services from Us, and (c) engage in certain other services on or through digioh.com. Guests and Merchants may be collectively referred to herein as "Users".
Except as expressly provided in a separate Merchant User Agreement between You and Digioh, Digioh reserves the right, for any reason, in its sole discretion, to terminate, change, upgrade, suspend or discontinue any aspect of the Site or the Services, including, but not limited to, content, features, hours of availability or equipment required for access. We may also impose limits on certain features of the Site or Services, or restrict Your access to part or all of the Site or Services without notice to You or penalty to Us.
The Site, all the content (including, for example, audio, photographs, illustrations, graphics, video and software), code, data, works of authorship and materials thereon, the look and feel, design and organization of the Site, and the compilation of the material on the Site (collectively, the "Content") are protected by U.S. and international copyright, trademark and other laws. Digioh and its licensors own, solely and exclusively, all rights, title and interest in and to the Site, the Content, including, but not limited to, all intellectual property and proprietary rights therein. Your use of the Site and/or the Content does not grant to You any ownership of any Content You may access on the Site.
The trademarks, logos, service marks and trade names (collectively, the "Trademarks") displayed on the Site or in connection with the Content made available through the Site are registered and unregistered Trademarks of Digioh and its licensors and may not be used except with written permission of the respective Trademark owner. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of Digioh or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Site or on or through any of the Site's services is strictly prohibited.
Digioh grants You a limited, revocable, nonexclusive, non-transferable, personal license to access, display and copy the Content for personal, non-commercial use only, subject to and conditioned on Your continued compliance with the terms and conditions in this Agreement. This license is granted solely to allow You to visit and display the Site and to use the Services as permitted by this Agreement. You agree not to remove, alter or obscure any proprietary notices provided in or with the Content. All rights not expressly granted in this Agreement are reserved.
Users, who create an account on the Site, agree to the following terms and conditions with regard to their account:
Users, who create or administer an account on the Site for another person or entity, agree to the following terms and conditions with regard to the account:
Digioh reserves the following rights:
You agree that the foregoing are rights of, but not obligations of, Digioh and that Digioh may, but is not obligated to exercise any of these rights.
You may use the Site and the Services only for lawful purposes. You may not transmit, post, store, distribute, display or present any information, software, data, file or material in violation of any applicable law or regulation. You may not use the Site or the Services to facilitate, or otherwise assist others in, the violation of any law or regulation.
You are solely responsible for ensuring that materials transmitted, posted, stored, distributed, displayed or presented using the Site or the Services comply with this Agreement and all applicable laws and regulations. Digioh does not review, edit, censor or take responsibility for any information that You, or other Users, may create, transmit, post, store, distribute, display or present using the Site or the Services.
You may not use the Site or the Services to:
You may not do any of the following without Digioh's written permission:
In addition to any remedies that Digioh may have at law or in equity, if Digioh reasonably determines that You have violated or are likely to violate the foregoing prohibitions, Digioh may take any action it reasonably deems necessary to cure or prevent the violation, including, without limitation, the immediate removal of materials that violate the foregoing prohibitions from the Site. Digioh may cooperate with any law enforcement authorities or court order or subpoena or third party requesting or directing Digioh to disclose the identity of anyone posting such materials.
Users should be aware some payments may be processed through PayPal or other electronic payment vendors. These vendors may not process payments for certain activities. You should not use the Site or these vendors to conduct any illegal or other prohibited activities. If You have a question as to whether a payment will be accepted, then we encourage You to check the policies of the applicable vendor.
Your relationship with the electronic payment vendors is separate from Your relationship with Digioh and is governed by the terms and conditions contained in such vendor's agreement. Such terms and conditions are available at the respective vendor's website.
In the event that You submit or post any ideas, creative suggestions, photographs, information, advertisements, data or proposals, including ideas for new or improved products, services, features, technologies or promotions, You expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of Digioh without any compensation or credit to You whatsoever. Digioh and its affiliates shall have no obligations with respect to such submissions or posts and may use the ideas contained in such submissions or posts for any purpose in any medium in perpetuity, including, but not limited to, developing, manufacturing and marketing products and services using such ideas.
The Site may provide certain areas for Users to communicate with other Users, including through blogs, chat rooms, online communities and the like (the "Forums"). Digioh does not endorse the content in the Forums and specifically disclaims any responsibility or liability to any person or entity for any loss, damage, injury, claim, liability or other cause of any kind or character based upon or resulting from any material, content or other communication provided through a Forum. Digioh reserves the right, but is not obligated, to review messages in the Forums and is not responsible for the content of any such messages. Digioh also reserves the right, but is not obligated, to delete, edit or remove a message, in whole or in part, posted to a Forum for any reason and to exclude any User from using a Forum. Please be aware that when You post to a Forum, You may be disclosing certain information to others. To protect Your safety, please use Your best judgment when using the Forums and carefully consider the information that You disclose in the Forums. Digioh reserves the right to cooperate with any law enforcement, court, third party or government investigation or order requesting or directing Digioh to disclose information posted to a Forum, or if Digioh decides that such disclosure is in its' or its customers' best interests.
We may, from time to time, include contests, promotions, sweepstakes or other activities ("Promotions") that require You to submit material or information concerning Yourself. Please note that all Promotions may be governed by separate rules that may contain certain eligibility requirements, such as restrictions as to age or geographic location. You are responsible to read all Promotions rules to determine whether or not You are eligible to participate. If You enter any Promotion, You agree to abide by and to comply with all Promotions rules.
Additional terms and conditions may apply to purchases of goods or services on or through the Site, which terms and conditions are made a part of this Agreement by this reference.
In addition to the above, all permission-based communications sent using Digioh's Services must include the following (and You are required to take the corresponding actions set forth below):
You are solely responsible for the transmission of all such permission-based communications related to Your Store and Your use of the Services. Digioh reserves the right to suspend or terminate Services to You and Your Store in the event Digioh receives, in its sole and exclusive discretion, an excessive number of complaints related to Your permission-based communications, whether such complaints are made by parties whom "opt-in" or otherwise.
Digioh respects the intellectual property rights of others and expects Users to do so as well. If You believe that Your copyrighted work has been copied or posted on or through the Site or Services in a way that constitutes copyright infringement, then You may send a written notice to our Designated Agent that contains the following:
If You receive a copyright notice from Us that You believe is incorrect, then You may send a counter notice to Our Designated Agent. After receiving a counter notice, We may reinstate the content in question under Sections 512(g)(2) and (3) of the Copyright Act. A counter notice must include:
Our Designated Agent for copyright notice claims can be reached at:
Attn: Digioh Designated Agent
2431 Mission St.
San Francisco, CA 94110
trademarks (at) digioh.com
Digioh also takes trademark rights seriously and will investigate reasonable trademark issues that are brought to its attention. Please keep in mind, however, that trademark rights are territorial and more than one party can own a trademark in different territories. More than one party may also use a trademark on sufficiently different goods or services. If You believe that a trademark that You own has been infringed on or through the Site or the Services, then You may send a notice to our Designated Agent that includes the following:
You may be liable for damages if You materially misrepresent that Your intellectual property rights have been violated, for instance if the alleged infringement is a fair use of Your copyright or trademark. Therefore, if You are not sure whether or not Your intellectual property rights have been infringed, please contact an attorney before contacting Digioh.
Digioh may provide a copy of Your notice or counter notice to the other parties concerned and may also provide it to third parties, including posting any communications in place of the disabled content.
Digioh will not act as an arbiter of disputes, but it reserves the right to remove any material or to disable access of anyone who violates this Agreement.
YOUR USE OF THE SITE OR SERVICES MAY NOT VIOLATE ANY OF THE PROVISIONS IN THIS AGREEMENT. Digioh MAY SUSPEND OR TERMINATE YOUR ACCOUNT OR SERVICES AND/OR REMOVE (TO THE EXTENT POSSIBLE) ANY MATERIALS, IF IT DETERMINES, IN ITS SOLE AND EXCLUSIVE DISCRETION, THAT YOU HAVE ENGAGED IN ANY ACTIVITY THAT VIOLATES THIS AGREEMENT.
Except as set forth in Section K Digioh will not intervene or become involved in any disputes between You and a third party, including, but not limited to, end users of Your Store. Consequently, Digioh reserves the right, in its sole and exclusive discretion, to suspend or terminate Services to You upon receipt of any third party complaint that You have engaged in any activity that violates this Agreement, that may otherwise subject Digioh to liability for any reason, or that may cause Digioh to incur legal fees or other expenses.
Subject to the terms and conditions of the Merchant User Agreement, Digioh may suspend and terminate Your use of the Site or Services without notice to You and end users of Your Store for breach of this Agreement. Digioh may also report Your activities to federal and/or state law enforcement agencies.
Without limiting its other remedies, Digioh may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate this Agreement and Your access to the Site or the Services and Your account(s) if You fail to comply with any term or condition of this Agreement. Digioh may take such actions without providing You prior notice and at its sole discretion. Upon the occurrence of such a violation, You agree to terminate access to the Site and Services. Upon termination, those provisions of this Agreement that expressly or by their nature survive will continue in full force and effect.
United States export control laws govern Your use of Digioh's Services. These laws apply to You and Your use of Digioh's Services regardless of whether You actually reside in the United States.
You may not use the Site or the Services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the United States, but illegal to export. You may not use the Site or the Services to offer or provide services through Your Store to end users with whom United States citizens may not do business.
Additional information about United States export laws may be obtained from the United States government's portal to exporting and trade services at http://www.export.gov/exportcontrols.html.
We control and operate the Site from our offices in the United States of America. We do not represent that Content on the Site or the Services are applicable, appropriate or available for use in locations outside the United States. Persons who choose to access the Site from locations outside of the United States do so on their own initiative, and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
You may link to the Site as long as you (a) link to the full version of an HTML formatted page of the Site; (b) not link directly to any image hosted on the Site, such as using an "in-line" linking method to cause the image hosted by us to be displayed on another website; and (c) not link from any other website to the Site in any manner such that the Site, or any page of the Site, is "framed," surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Site be discontinued, and to revoke Your right to link to the Site from any other website at any time.
To the maximum extent permitted by law, You agree to indemnify and hold harmless Digioh, its affiliates, members, officers, directors, employees, agents, and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees), arising out of or related in any way to (1) Your use of the Site and Services, (2) Your submission, posting, transmittal, display, storage, distribution, removal or any other use of any User Information, Content and/or any other materials or content, (3) Your violation of this Agreement, (4) Your violation of any law or regulation, or violation of any proprietary or privacy right, (5) Your violation of any third party intellectual property right, including, without limitation, copyright, patent, trademark or trade secret; or (6) any claim that Your User Information or submission of any other information or content by You caused damage to a third party. This indemnification obligation will survive this Agreement and Your use of the Site and Services. Digioh reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Digioh's defense of such claim.
You may be able to link from the Site to third party webSite and third party webSite may link to the Site ("Linked Site"). You acknowledge and agree that Digioh has no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Site, even if they are owned or run by Our affiliates. Links to Linked Site do not constitute an endorsement or sponsorship by Us of such webSite or the information, content, products, services, advertising, code or other materials presented on or through such webSite. Digioh disclaims any liability for links (1) from another website to the Site and (2) to another website from the Site. Digioh cannot guarantee the standards of any website to which links are provided on the Site and Digioh will not be held responsible for the contents of such webSite, or any subsequent links. Digioh does not represent or warrant that the contents of any third party website are accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Digioh is not responsible for any transmission received from any Linked Site. Any reliance on the contents of a third party website is done at Your own risk and You assume all responsibilities and consequences resulting from such reliance.
YOU AGREE TO ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE, THE SERVICES AND THE CONTENT. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER Digioh NOR ITS OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS, LICENSORS OR LICENSEES ("RELATED PARTIES") MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE SITE, THE SERVICES OR THE CONTENT. NEITHER Digioh NOR ANY RELATED PARTIES ENDORSE OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THE SITE, THE SERVICES OR ANY CONTENT OR THAT THE SITE, THE SERVICES OR ANY CONTENT IS NON-DEFAMATORY, NON-INFRINGING OR OTHERWISE LAWFUL. NEITHER Digioh NOR ANY RELATED PARTIES WARRANT THAT THE FUNCTIONS PERFORMED BY THE SITE, THE SERVICES OR THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS IN THE SITE, THE SERVICES OR THE CONTENT WILL BE CORRECTED. NEITHER Digioh NOR ANY RELATED PARTIES GUARANTEE OR WARRANT THAT THE FILES AVAILABLE FOR DOWNLOADING WILL BE FREE FROM INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES OR PROGRAMS. THE SITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN "AS IS," "WHERE IS, " "WHERE AVAILABLE" AND "AS AVAILABLE" BASIS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON OR USE OF THE SITE, THE SERVICES AND THE CONTENT IS AT YOUR SOLE RISK.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to You.
IN NO EVENT WILL Digioh OR ANY RELATED PARTY BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITE, ANY WEBSITE LINKED TO THE SITE, OR THE CONTENT OR SERVICES CONTAINED OR ACCESSED THROUGH SUCH SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT Digioh OR A RELATED PARTY IS AWARE OF OR OF ADVISED THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES OR THE CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITE, THE SERVICES OR THE CONTENT.
YOU SPECIFICALLY AGREE THAT Digioh WILL NOT BE LIABLE FOR ANY USERS' CONTENT OR DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT YOU ASSUME THE FULL RISK OF HARM OR DAMAGE FROM THE FOREGOING.
Some jurisdictions do not allow the limitation of liability for certain damages so the above limitation of liability may not apply to You.
This Agreement and the relationship between You and Digioh shall be governed by the laws of the State of California, without regard to its conflict of law provisions. You agree that any cause of action that may arise under this Agreement or in connection with Your use of the Site will be commenced and be heard only in the appropriate court having jurisdiction over San Francisco, CA. You hereby consent to the exclusive personal jurisdiction of and venue in such courts. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
By using the Site, the Services or the Content You represent and warrant that:
Any cause of action You may have with respect to Your use of the Site or the Services must be commenced within one (1) year after the claim or cause of action arises.
This Agreement together with all policies and agreements referenced herein constitutes the entire agreement between Digioh and You with respect to the Site, the Services and the Content, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between You and Digioh with respect to the Site, the Services and the Content, unless an agreement specifically provides that it is not superseded by this Agreement. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
You may not assign this Agreement or any part of this Agreement without the express written consent of Digioh. You agree that Digioh may assign this Agreement or any part of this Agreement at any time and for any reason without Your consent.
The Site and the Services are not intended for use by children. If You are under 18 years of age, You may use the Site or the Services only with the involvement and permission of Your parent or guardian.
This notice is for California users of the Site: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (914) 445-1254 or (800) 952-5210.
Effective Date: July 14, 2011
If you choose to use the Site or the Services, we may require you to provide contact and identity information, billing information, and other Personal Information as indicated on the Site. Once you register on the Site, you are no longer anonymous to us. The information that we gather from you through the Site enables us to provide, maintain and improve the Site and the Services, personalize your experience, process your requests, and process the requests of others, and includes the following information:
We may use your Personal Information to:
During the course of our business, we may use your Personal Information to deliver information to you that is targeted to your interests. Upon receipt of the first communication of this type, you will have the opportunity to opt-out of future communications by clicking on unsubscribe link or by following unsubscribe instructions described within the communication. If you do not want to receive email or other communications from us, you can also contact us at support (at) digioh.com. However, as part of your registration for the Services, you may receive certain communications from Digioh, such as administrative announcements and customer service messages regarding the Services and products, and you will not be able to opt out of receiving such communications.
From time to time, we may implement solutions designed to more efficiently capture your communications preferences. In any such event, we will strive to reflect any previously stated communicated preferences within such solutions.
We do not sell or rent your Personal Information to third parties for their marketing purposes without your explicit consent. We may share and you hereby consent to our sharing of personal information with the following:
If you enter into a separate Merchant User Agreement with us, then you must abide by the terms provided therein with regard to customer information.
If you are registered to receive Digioh Services, you can access, review and modify your personal information at any time by logging into your account on the Site. Please note, however, that we may maintain a copy of the unmodified information in our records.
If You post messages using the Site's community discussion boards or other message areas that may be made available on the Site, it will not be possible to later edit or delete those messages.
You may contact us at support (at) digioh.com to review any Personal Information we store about you that is not available on the Site. There may be a charge associated with such requests.
We may delete Personal Information when we no longer need it for the purposes we described earlier. However, any information that you have made public may continue to be displayed unless you remove it. Additionally, We retain Personal Information as permitted by law to resolve disputes, enforce our policies, and help prevent bad guys from coming back.
Digioh is concerned about the safety and privacy of children who use the Internet. Consistent with the Children's Online Privacy Protection Act of 1998, we will never knowingly request Personal Information from anyone less than 13 years of age without prior verifiable parental consent. If you become aware that your child under 13 years of age has provided us with Personal Information without prior verifiable parental consent, please contact us at support (at) digioh.com and we will use our best efforts to promptly remove such information from our files.
If you have any questions or concerns regarding privacy at the Site, please send a detailed message to support (at) digioh.com. We will make every effort to resolve your concerns.