Terms of Service
Digierts welcomes you, the Customer. The following agreement, along with the order form you have entered into with Digierts (collectively referred to as the “Agreement”), outlines the terms and conditions governing your use of the services. These services are provided exclusively for your business’s use. By accessing or utilizing the services, you acknowledge and agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or another legal entity, you confirm that you possess the authority to legally bind such entity and its affiliates to the terms of this Agreement. In such a case, the term “Customer” shall encompass the referred entity and its affiliates. If the legal entity you represent does not consent to the terms of this Agreement, you should refrain from accepting this Agreement and/or utilizing the services.
- Affiliate: Refers to an entity that is controlled by, controls, or is under common control with the Customer. For the purpose of this definition, “control” signifies the authority to manage or direct the affairs of the mentioned person or entity, whether through ownership of voting securities, contractual agreements, or other means.
- Authorized Users: Encompasses Customer’s employees, agents, representatives, and contractors who are granted access to the Services and SaaS Product by Digierts.
- Digierts Websites: Denotes Digierts proprietary websites, which are owned and operated by Digierts.
- Confidential Information: Encompasses any proprietary or trade secret information disclosed by one party to the other, which can be reasonably regarded as confidential under the given circumstances. However, this definition excludes information that: (i) is currently or subsequently becomes publicly available in the public domain without any fault or breach on the part of the Receiving Party; (ii) the Receiving Party can demonstrate to have rightfully possessed prior to the disclosure of the Confidential Information by the Disclosing Party; (iii) the Receiving Party rightfully acquires from a third party with the legal right to transfer or disclose it, without violating this Agreement; (iv) the Receiving Party can prove to have independently developed without breaching this Agreement or making any use of or reference to the Confidential Information.
- Customer Sites: Refers to the websites or mobile applications for which the Services are to be provided, as mutually agreed upon by Digierts and the Customer.
- Disclosing Party: Signifies the party that discloses Confidential Information.
- Documentation: Encompasses Digierts written instructions and technical documentation provided to the Customer.
- Intellectual Property Rights or IPR: Includes all worldwide rights, whether registered or not, consisting of (a) patents, patent applications, and patent rights; (b) rights associated with creative works, such as copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications, and mask work registrations; (c) rights related to the protection of trade secrets and Confidential Information; (d) trademarks, trade names, service marks, logos, trade dress, goodwill, and domains (referred to as “Trademarks”); (e) rights analogous to those stated herein and any other proprietary rights concerning intangible property; and (f) divisions, continuations, renewals, reissues, and extensions of the above (where applicable), whether currently existing or obtained in the future.
- Order or Order Form: Denotes Digierts order form, which is entered into between the Customer and Digierts.
- Receiving Party: Designates the party receiving Confidential Information.
- Service(s): Encompasses (i) the Digierts proprietary software as a service (SaaS); (ii) any software and/or services delivered to the Customer under the Order on behalf of Digierts; and (iii) the Documentation.
2.1 In accordance with the terms and conditions established in this Agreement, Digierts will furnish the Customer with the Services.
2.2 Throughout the Term and contingent upon the Customer’s adherence to the stipulations of this Agreement, Digierts extends to the Customer a non-exclusive, non-transferable, non-sublicensable, limited, and revocable privilege. This privilege permits the Customer and its Authorized Users to access the Services, solely for the Customer’s internal business use, on the Customer Sites, in accordance with the Digierts Documentation.
2.3 Additionally, Digierts may, if included in the Order Form, separately offer professional consulting services to assist the Customer and provide training for Customer personnel during the configuration phase and functionality. It is essential to note that these services fall outside the scope of this Agreement and the Order Form unless expressly incorporated into the Order Form and fully compensated for. Digierts may grant access to subject matter experts to assist with onboarding and initial configuration, but such professional services are treated as project-based assignments and are presented as part of a distinct scope of work (“SOW”), which will be appended as an integral component of the Order Form.
3. Customer Obligations and Restrictions
In order to retain the privileges granted under this Agreement, the Customer must refrain from the following actions, and must not authorize or allow any third party to perform any of the following actions with regard to either the Services or Digierts Websites:
(a) Attempt to reverse engineer, decompile, decode, decrypt, disassemble, or make any effort to deduce any source code (unless any such restriction is prohibited by applicable law).
(b) Modify, adapt, or generate derivative works.
(c) Distribute, sell, rent, license, sublicense, lease, transfer, or otherwise provide access to third parties, except as explicitly permitted in this Agreement.
(d) Utilize automated software or hardware for any form of access or monitoring.
(e) Disrupt, circumvent, manipulate, overload, impair, or interfere with the operation or functionality of the Service.
(f) Employ robots, crawlers, or similar applications to scrape, harvest, collect, or compile content from or through the Service.
(g) Override or attempt to override the authentication process.
(h) Engage in any activity that constitutes a criminal offense, is offensive, gives rise to civil liability, or otherwise violates any applicable law.
(i) Offer the Services as a service to unrelated third parties, including but not limited to service bureau, SaaS, or time-sharing arrangements.
(j) Disassemble any component.
(k) Utilize the Documentation for any purpose other than supporting the Customer’s authorized use thereof.
(l) Allow or authorize a competitor of Digierts to use or access the SaaS Product, Services, or Documentation, or to offer management, hosting, support, or similar services in connection therewith, without prior written consent from Digierts.
(m) Engage, in any capacity (consultant, employee, service provider, director, shareholder, etc.), in a business that competes with the Services.
(n) Use, copy, or mimic parts or content to develop a competing service or product.
(o) Perform any security vulnerability scanning of the Service.
(p) Transfer, export, or use the Services or any component thereof in any manner prohibited by law, including, but not limited to, selling, distributing, exporting, or downloading Services to (or to a national or resident of) countries such as Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon, or Syria, or in any other manner that violates the laws or regulations of the U.S., Israel, or any foreign agency or authority. The Customer confirms its compliance with this provision and warrants that it is not situated in, under the control of, or a national or resident of any prohibited country or listed on any prohibited party list.
(q) Dispute Digierts Intellectual Property Rights (IPR) status.
(r) Publish disparaging, harmful, offensive, or fraudulent content that is publicly accessible and could harm Digierts, the Services, or Digierts Websites.
(s) Attempt to hack, access, or obtain login credentials, accounts, or the content of customers, individuals, or organizations.
(t) Endeavor to upload or transmit any harmful code, such as viruses or Trojans, that may disrupt, interfere with, alter, or compromise the performance or integrity of the Services and/or Digierts Websites.
The Customer is obligated to exert commercially reasonable efforts to prevent unauthorized access to or use of any Digierts Websites and/or the Services and promptly inform Digierts of any such unauthorized access or use. The Customer is exclusively responsible for defining (configuring) any settings related to the use and access of the Services.
4. Customer Use
The Customer hereby commits to the following:
4.1 Furnish Digierts with information that is reasonably requested by Digierts and deemed necessary by the Services for each Customer Site. Furthermore, the Customer agrees to keep this information up-to-date in relation to each Customer Site. In the event that the Customer fails to provide any information that Digierts reasonably requests within seven (7) days of receiving such a written request, and this information is essential for the provision of Services in connection with the Customer Site, Digierts reserves the right to terminate the Services associated with that particular Customer Site. It’s important to note that no fees shall be charged to the Customer for that Customer Site after such termination.
4.2 Employ the Services in compliance with all relevant laws and regulations, including but not limited to applicable data security and privacy laws. Each party affirms and guarantees that no third-party agreement hinders the Customer from using the Services as envisaged herein.
4.3 Take responsibility for managing and securing all login credentials utilized by Authorized Users in connection with their usage of the Services. These credentials should be safeguarded against unauthorized use or disclosure, following industry-standard security practices.
4.4 The Customer will designate Authorized Users, including creating usernames and passwords for them. The Customer bears sole responsibility for maintaining the status of its Authorized Users and for overseeing all their activities and use of the Services. The Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and account information under their control. Digierts shall not be held liable for any unauthorized access to the Services. In the event that the Customer has reasonable grounds to believe that there has been unauthorized use or access to the Services or Digierts Websites, or that they have been compromised in any way, including unauthorized access, use, or disclosure of account information or any other breach of security related to passwords, usernames, or access information, the Customer will promptly contact Digierts.
5. Intellectual Property Rights
5.1 All Intellectual Property Rights (IPR) related to the Services, Digierts Websites, Documentation, and any constituent parts, including any derivatives, alterations, and enhancements thereof, are the exclusive property of Digierts.
The Customer agrees to:
(i) refrain from attempting to infiltrate, hack, reverse engineer, decompile, or disassemble the Services, Digierts websites, or any part thereof for any purpose;
(ii) not assert any proprietary interest in the SaaS Product, Services, Documentation, or any part or derivative thereof;
(iii) neither directly nor indirectly take actions that contest or infringe Digierts IPR in any manner;
(iv) Unless explicitly permitted in writing by Digierts, abstain from using Digierts’ name, trademarks, trade names, and logos;
(v) Save as specifically permitted herein, not copy any part or content of the SaaS Product, reports, or Documentation except for the Customer’s internal business needs;
(vi) not replicate any features, functions, or graphics of the SaaS Product or employ them to construct a competing product or service; and
(vii) not remove the copyright, trademark, and other proprietary notices found on or within Digierts Websites, Services, or Documentation. All IPRs pertaining to the Customer Sites are the exclusive property of the Customer or its licensors. The Customer shall not engage in any action, either directly or indirectly, to register Digierts trademarks (or variations thereof), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to Digierts in preventing such activities by third parties.
5.2 The Customer hereby grants Digierts a non-exclusive, royalty-free, perpetual, global license to use, reproduce, and create derivative works based on all data furnished to Digierts in connection with this Agreement. This license allows Digierts to carry out the Services for the Customer as outlined in this Agreement, as well as to analyze anonymized data gathered through the use of the Services and Digierts Websites. This analysis is solely for internal purposes aimed at enhancing the Services, subject to Digierts’ adherence to applicable legal and privacy regulations.
5.3 The Customer is under no obligation to provide Digierts with any suggestions or feedback concerning its products or services (“Feedback”). In cases where the Customer does supply Feedback to Digierts, the Customer assigns ownership of such Feedback to Digierts, and Digierts may employ and modify such Feedback without any restrictions or payments.
The Receiving Party commits to the following:
(i) Non-Disclosure: It shall not disclose the Confidential Information of the Disclosing Party to any third party, except to its Representatives (directors, employees, advisors, or consultants) on a “need to know” basis. These Representatives must also be bound by confidentiality obligations at least as stringent as those detailed herein.
(ii) Restricted Use: It shall not use or replicate any of the Disclosing Party’s Confidential Information for any purpose beyond fulfilling its rights and responsibilities under this Agreement.
(iii) Maintenance of Confidentiality: It shall maintain the Confidential Information of the Disclosing Party with a level of confidentiality at least equivalent to the degree of care it employs to safeguard its own confidential information. This level of care shall not fall below a reasonable standard. However, if the Receiving Party is legally compelled by a legal process or applicable law, rule, or regulation to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide prior notice to the Disclosing Party, provided that this is legally permissible. Such notice will enable the Disclosing Party to seek protective measures or other suitable remedies.
These confidentiality obligations will remain in effect for a period of three (3) years from the date of termination or expiration of this Agreement, superseding any prior confidentiality agreements between the parties.
7. Data Protection and Privacy
The parties acknowledge that the Data Processing Agreement governs the processing of personal data, as defined in relevant laws, regulations, directives, and certifications related to data protection and privacy (collectively referred to as “Data Protection Laws”) under this Agreement.
8. Digierts Representations
Digierts provides the following warranties, representations, and assurances:
(i) Non-Infringement: The Services, as supplied under this Agreement, do not violate the rights of any third party, encompassing but not limited to intellectual property rights and privacy rights.
(ii) Compliance: Digierts has fully adhered to any third-party licenses, permits, and authorizations required in association with such SaaS Products.
(iii) Absence of Harmful Elements: The Services are free from viruses, worms, Trojan horses, or any other harmful or destructive code or content.
(iv) No Hidden Components: The Services do not include concealed components or bundle additional software.
(v) Legal Compliance: Digierts will adhere to all pertinent laws in the execution of this Agreement.
9.1 Digierts offers the Services and Documentation to the Customer on an “as is” basis, with no warranties or representations of any kind. Digierts explicitly disclaims all warranties, whether statutory, express, implied, or otherwise. This includes but is not limited to, warranties of merchantability, fitness for a particular purpose, or accuracy. Digierts also disclaims any warranty that the operation of the Services will be uninterrupted or error-free.
9.2 The Customer acknowledges that the quality and accuracy of recommendations made by the SaaS Product depend on the accuracy and completeness of the information provided. The Customer further acknowledges that Digierts shall not be liable or responsible for faults, errors, or incorrect recommendations resulting from untimely, incomplete, inaccurate, false, or misleading information provided by the Customer or Authorized Users.
10. Limitation of Liability
Except in cases of willful misconduct or fraud, and to the fullest extent permitted by applicable law, each party’s maximum aggregate liability arising from or related to this Agreement shall not exceed the total amount of fees paid by the Customer to Digierts during the twelve (12) months preceding the date when the liability first arises. To the maximum extent permitted by law, neither party will be liable for lost profits, loss of use, loss of data (including end-user information), the cost of procuring substitute goods or services, or for special, punitive, incidental, indirect, or consequential damages, regardless of the cause, whether it be for breach of contract, tort (including negligence and strict liability), or any other legal theory, and whether or not Digierts has been advised of the possibility of such damages.
11. Term & Termination
11.1 This Agreement will commence on the Effective Date as specified in the Order and will continue for the duration stated in the Order Form unless terminated as per the provisions of this Section 12 (“Term“).
11.2 Either party may terminate this Agreement immediately by providing written notice to the other party if: (i) the other party breaches a material provision of this Agreement and does not remedy the breach within seven (7) days after receiving written notice; (ii) the other party is declared bankrupt or insolvent, makes a general assignment for the benefit of its creditors, or has a trustee or receiver appointed for it; or (iii) any petition by or on behalf of the other party is filed under any bankruptcy or similar laws.
11.3 Upon termination of this Agreement, the Customer must cease using the Services immediately, and any outstanding Fees shall become due and payable. Sections 1, 5.3, 6, 7, 10, 11, 12.3, 13, and 14 will survive the expiration or termination of this Agreement.
All notices or other communications under this Agreement must be in writing and can be delivered in person, sent by registered mail, delivered by an overnight courier service with a receipt to confirm delivery, or transmitted via facsimile or email with written confirmation of receipt. Notices should be sent to the address specified in the Order Form or to any other address that either party designates in accordance with these procedures. Notices and communications delivered in person or by courier are considered received upon delivery. Those sent via facsimile or email are considered received on the business day following transmission. Notices sent by registered mail are considered received three (3) calendar days after posting.
This Agreement constitutes the entire agreement between Digierts and the Customer, and it supersedes any prior agreements or representations, whether oral or written, regarding the subject matter covered in this Agreement. Any terms and conditions in the Customer’s separate purchase order, if any, are explicitly rejected, superseded, and excluded. Digierts may modify these terms periodically, and such changes will be effective when posted on the Digierts Website at [email protected] with the updated terms becoming effective upon the renewal of the Order and Agreement, in accordance with applicable law. By continuing to access or use the Services, the Customer agrees to be bound by the revised terms. The Customer is not allowed to transfer or assign its rights or obligations under this Agreement to any third party except to an Affiliate or in the event of a merger or sale of all or substantially all of the assigning party’s assets. Any attempted assignment in violation of this section will be void.
If any part of this Agreement is declared invalid or unenforceable for any reason, that part will be modified to the extent necessary to make it valid and enforceable, in a manner that most closely reflects the intent of the parties. If it cannot be modified, it will be eliminated, but the validity of the remaining portions will not be affected and will remain in force. A failure by either party to enforce or insist upon the performance of any provision of this Agreement or to exercise any rights or remedies under this Agreement or by law will not be construed as a waiver or relinquishment of any right to assert or rely upon that provision, right, or remedy in that or any other instance.
This Agreement is governed by the laws of the State of Wyoming, without regard to its conflict of laws principles, and any dispute arising from this Agreement will be exclusively brought before the courts of Sheridan.