The following terms and conditions (the “Agreement”) govern all use of the www.digitalmain.com website (the “Site”) and, unless otherwise subject to a separate written agreement with DigitalMain, Inc, (“DigitalMain”), will also govern use of the products and services available at the Site (taken together with the Site, the “Service”). The Service is owned and operated by DigitalMain. The Service is offered subject to your (and the organization you represent) (together, “User”) acceptance without modification of all terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by DigitalMain. BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN; IF YOU DO NOT AGREE, DO NOT USE OR ACCESS THE SERVICE.
DigitalMain reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is User’s responsibility to check this Agreement periodically for changes. User’s continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
Subject to the terms and conditions of this Agreement, the Service is solely for User’s personal use.
DigitalMain may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. DigitalMain may also impose limits on certain features and services or restrict User’s access to parts or all of the Services without notice or liability.
User certifies to DigitalMain that if User is an individual (i.e. not a corporation), User is at least 18 years of age. User also certifies that it is legally permitted to use the Service, and takes full responsibility for the selection and use of the the Service. This Agreement is void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.
User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Service, including, without limitation, modems, hardware, software, and long distance or local telephone service. User shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.
User shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for timesharing or service bureau purposes; or (iv) remove or obscure any proprietary notices on the Service. As between the parties, DigitalMain shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof.
User shall not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service. DigitalMain reserves the right to bar any such activity.
User shall not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any DigitalMain server, or to any of the services offered on or through the Service, by hacking, password “mining”, or any other illegitimate means.
User shall not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.
User shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or DigitalMain’s systems or networks, or any systems or networks connected to the Service or to DigitalMain.
User shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service.
User shall not use the Service or any Content for any purpose that is unlawful or prohibited by this Agreement.
Certain features and/or functions of the Service may be subject to fees. User will be responsible for, and will pay, all such fees as described on the Site.
As a condition to using certain products and services of the Service, User may be required to register with DigitalMain and select a password and User name (“DigitalMain User ID”). User shall provide DigitalMain with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User’s account. User may not (i) select or use as a DigitalMain User ID a name of another person with the intent to impersonate that person; or (ii) use as a DigitalMain User ID a name subject to any rights of a person other than User without appropriate authorization. DigitalMain reserves the right to refuse registration of, or cancel a DigitalMain User ID in its discretion. User shall be responsible for maintaining the confidentiality of User’s DigitalMain password and other account information.
User agrees that all content and materials (collectively, “Content”) delivered via the Service or otherwise made available by DigitalMain at the Site are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by DigitalMain in writing, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content. However, User may print or download a reasonable number of copies of the materials or content at this Site for User’s own informational purposes; provided, that User retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any content, materials or design elements on the Site for any other purpose is strictly prohibited without the express prior written permission of DigitalMain.
User is responsible for all of its activity in connection with the Service. User shall defend, indemnify, and hold harmless DigitalMain, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from (i) User’s use or misuse of the Service; (ii) User’s access to any part of the Service, (iv) and content, information or materials used by User in connection with the Service, or (iv) User’s violation of this Agreement.
User Warranties to DigitalMain. User represents and warrants that: (i) with respect to all information it provides to DigitalMain, User has the full right and authority to make such provision and to allow DigitalMain to use such information to provide the Service (including, without limitation, for DigitalMain to provide such information to its data providers), (ii) none of the content (e.g. emails) transmitted, uploaded or otherwise distributed by it (or its partners or any third party) through use of the Service will infringe or otherwise conflict with the rights of any third party, and (iii) it will use the Service only in compliance with all applicable and regulations laws.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DIGITALMAIN MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET USER’S REQUIREMENTS.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL DIGITALMAIN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100.00 (U.S.) (PROVIDED THAT, IF USER HAS PAID FEES TO DIGITALMAIN, SUCH AMOUNT WILL BE EQUAL TO THE FEES PAID BY USER TO DIGITALMAIN DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTIONS ACCRUES). In addition, DIGITALMAIN shall not be liable for any loss or liability resulting, directly or indirectly, from User’s inability to access or otherwise use the Site (including, without limitation, any delays or interruptions due to electronic or mechanical equipment failures, denial of service attacks, date data processing failures, telecommunications or Internet problems or utility failures. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
DigitalMain may terminate this Agreement at any time, upon notice to User (which may be via email). User may terminate this Agreement at any time by cancelling User’s DigitalMain account online or sending request to email@example.com. Upon termination notice from DigitalMain, User will no longer access (or attempt to access) the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers and limitations of liability.
11. EXPORT AND TRADE CONTROLS
User agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Service or any information provided on or pursuant to the Service except in full compliance with all United States, foreign and other applicable laws and regulations.
All content included on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of DigitalMain or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of DigitalMain and protected by U.S. and international copyright laws. All software used on (or provided through) the Site is the property of DigitalMain or its software suppliers and protected by United States and international copyright laws.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. DigitalMain shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond DigitalMain’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with DigitalMain’s prior written consent. DigitalMain may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, as if made within Delaware between two residents thereof, and the parties submit to the exclusive jurisdiction and venue of the state and Federal courts located in Delaware. Both parties agree that, to the extent that the parties are already party to a validly existing contract as at the date of this Agreement (“Pre-Existing Agreement”), then the terms of the Pre-Existing Agreement shall take precedence over this Agreement in the event of a conflict. However, if no Pre-Existing Agreement exists, then both parties agree that this Agreement constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind DigitalMain in any respect whatsoever.