These Terms and Conditions (“Terms”) govern transactions entered into between Customer (as defined below) and Digitalift.
These Terms together with the pricing terms mutually agreed by the parties and set forth in Customer’s account constitute the “Agreement” by and between Digitalift and Customer. The parties agree as follows:
- “Authorized Users” means Customer employees, Customer’s contractors, and any other individual, in each case, for whom Customer has paid all applicable fees to permit them to access the Digitalift Reputation Platform.
- “Customer Personal Information” means Personal Information of Customers clients that is provided by Customer to Digitalift, uploaded by Customer to the Digitalift Reputation Platform, or collected by or on behalf of Customer from Customer’s clients using the Digitalift Reputation Platform under this Agreement.
- “Documentation” means any online help files or instructions published by Digitalift that describe the installation, operation, use, or technical specifications of the Digitalift Reputation Platform.
- “Digitalift Reputation Platform” means access to the web-based software platform which enables businesses to get online customer reviews, including any updates or enhancements thereto that Digitalift may provide to Customer from time to time.
- “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, household, or device, or as otherwise defined under applicable law, whichever is more restrictive.
- “Scope Limitations” means any limitations on Customer’s use of the Digitalift Reputation Platform specified in the applicable Subscription Plan.
- “Subscription Plan” means the recurring payment plan agreed to by Customer and set forth in Customer’s Digitalift account specifying the details of access to the Digitalift Reputation Platform to be provided, pricing, and payment terms.
- “Subscription Term” means the duration of time the Customer’s Subscription Plan is in effect.
Use of the Digitalift Reputation Platform and Documentation.
- Access to the Digitalift Reputation Platform. Subject to the terms and conditions of these Terms and Customer’s payment of all fees, Digitalift grants to Customer a limited right during the applicable Subscription Term, to access and use the Digitalift Reputation Platform by and through its Authorized Users solely in connection with Customer’s internal business operations in the manner described by any accompanying Documentation and Scope Limitations.
- Documentation. Subject to and conditioned upon Customer’s strict compliance with the Agreement and payment of all applicable fees, Digitalift grants to Customer a personal, non-transferable, non-sublicensable, non-exclusive, limited license during the applicable Subscription Term to, solely by and through its Authorized Users, make a reasonable number of copies of the Documentation and internally use that Documentation (including any copies), in each case, solely in support of its authorized use of the Digitalift Reputation Platform in accordance with the Agreement.
- Technical Support. For so long as Customer is current with its payment of all fees, Digitalift will use commercially reasonable efforts to provide technical support services relating to use of the Digitalift Reputation Platform via the channels and during the hours specified by Digitalift.
- Restrictions. Except and solely to the extent permitted by the Agreement or by applicable law, Customer will not (and will not permit or authorize any third party to): (a) use the Digitalift Reputation Platform or Documentation except as expressly permitted under the Agreement; (b) reverse engineer, decompile, disassemble, modify, merge, or translate the Digitalift Reputation Platform or Documentation, or create derivative works of the Digitalift Reputation Platform or Documentation; (c) install or otherwise use the Digitalift Reputation Platform or Documentation in any way that would permit or authorize the Digitalift Reputation Platform or Documentation to be used in violation of the Scope Limitations or otherwise in violation of the Agreement; (d) transfer, assign, sublicense, sell, or otherwise convey any of Customer’s rights to the Digitalift Reputation Platform or Documentation; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property rights notices provided on or with the Digitalift Reputation Platform or Documentation; (f) use the Digitalift Reputation Platform or Documentation after the applicable Subscription Plan, even if the ability to use the Digitalift Reputation Platform or Documentation does not automatically become disabled; (g) transmit any software or other materials that contain any virus, worm, time bomb, trojan horse, or other harmful or disruptive component; (h) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Digitalift Reputation Platform or Documentation; (i) probe, scan or test the vulnerability of any system or network or breach any security or authentication measures; (j) harvest or collect information about other users without their prior written consent; (k) engage in any activity that could damage, disable, overburden, or impair Digitalift’ servers or networks, or interfere with any other party’s use and enjoyment of the Digitalift Reputation Platform; (l) use the Digitalift Reputation Platform or Documentation for any illegal, inappropriate, and/or unauthorized purpose; or (m) use the Digitalift Reputation Platform to compete with Digitalift business in any way.
- Responsibility for Use of Digitalift Reputation Platform and Documentation. Customer is responsible and liable for all actions, and inactions with respect to the Digitalift Reputation Platform and Documentation by its Authorized Users or by any other person or entity to whom Customer or an Authorized User may, directly or indirectly, provide access to or permit to use the Digitalift Reputation Platform or Documentation, as if they were an action or inaction of Customer.
- Reservation of Rights. Digitalift grants to Customer only those rights relating to the Digitalift Reputation Platform and Documentation expressly described in this Agreement. Digitalift reserves to itself all rights in and to the Digitalift Reputation Platform and Documentation not expressly granted to Customer in accordance with the Agreement.
- Feedback. If Customer provides any feedback to Digitalift concerning the functionality and performance of the Service (including identifying potential errors and improvements), Customer hereby assigns to Digitalift all right, title, and interest in and to the feedback, and Digitalift is free to use the feedback without payment or restriction.
- Customer Data. Digitalift is not responsible for performing, and is not liable for any failure to perform, any back-up of any data provided, processed, or stored by Customer in or through the Digitalift Reputation Platform (“Customer Data”). Customer hereby grants to Digitalift a non-exclusive, irrevocable, worldwide, fully paid-up, royalty-free, license to use, copy, modify, publish, distribute, display, publicly perform, and make derivative works of Customer Data solely for the purpose of providing the Digitalift Reputation Platform. Customer represents and warrants that Customer Data: (i) does not infringe any intellectual property rights or privacy rights of any third party and that Customer has all rights and legally required consents necessary to use Customer Data as contemplated by this Section 2(H); (ii) is not unlawful, defamatory, obscene, or offensive; and (iii) does not contain any viruses or other harmful or malicious code. Notwithstanding anything to the contrary herein, Digitalift has the right to monitor Customer’s use of the Digitalift Reputation Platform and to create and analyze (in some cases with the help of third party software tools) aggregations and summaries of such usage data, provided that no such aggregation or summary directly or indirectly identifies Customer, or includes any data or information that is directly traceable to Customer. Customer acknowledges and agrees that Digitalift has the unrestricted, royalty-free right to use, disclose, and distribute such aggregations and summaries throughout the world, in any form or media, for any purpose.
- Compliance with Laws. Customer represents and warrants that Customer will comply with all applicable laws, rules, and regulations in connection with Customer’s activities under the Agreement, including but not limited to, the Telephone Consumer Protection Act, 47 U.S.C. § 227 and its implementing regulations (“TCPA“), the Telemarketing Sales Rule, 16 C.F.R. Part 310 (“TSR“), the Controlling the Assault of Non-Solicited Pornography And Marketing Act (“CAN-SPAM”), the General Data Protection Regulation (“GDPR”), Canada’s Anti-Spam Legislation (“CASL”), and the California Consumer Privacy Act (“CCPA”).
- TCPA, TSR and CAN-SPAM. Customer is solely responsible for complying with the TCPA, the TSR, and CAN-SPAM with respect to Customer’s use of the Digitalift Reputation Platform to contact Customer’s clients. Customer is responsible for obtaining prior express written consent(s) from any and all third parties (including Customer’s clients) to send and receive SMS text messages using the Digitalift Reputation Platform.
- CCPA. For purposes of the CCPA with respect to Customer Personal Information, Customer agrees that it is a Business and Digitalift is a Service Provider as those terms are defined in the CCPA. Digitalift will not: (a) sell the Customer Personal Information; (b) retain, use, or disclose the Customer Personal Information for any purpose other than for the specific purpose of performing the Services or as otherwise permitted by CCPA and its implementing regulations; (c) retain, use, or disclose the Customer Personal Information for a commercial purpose other than providing the Services; or (d) retain, use, or disclose the Customer Personal Information outside of the direct business relationship between Digitalift and Customer. Digitalift certifies that it understands these restrictions and will comply with them.
- License to Marks. If Customer would like to apply its branding to the Digitalift Reputation Platform, Customer’s trademarks or logos (collectively, the “Marks”), Customer hereby grants to Digitalift a non-exclusive, royalty-free, non-transferable, worldwide right and license, during the applicable Subscription Term to copy, reproduce, use, display, publicly perform, modify (at Customer’s direction), and resize the Marks in order to provide the services as described under the Subscription Plan. As between the parties, Customer owns all right, title, and interest in and to the Marks and any and all goodwill that is created by or that results from Digitalift use of the Marks under the Agreement will inure solely to Customer. Customer represents and warrants that Digitalift is the sole and exclusive owner of the Marks, and that Customer has the right to grant the licenses agreed to in this Section.
Fees and Payment.
- Fees. Customer will pay Digitalift the fees and any other amounts owing under this Agreement, as specified in the applicable Subscription Plan.
- Payment Terms. Unless otherwise specified in a Subscription Plan, all charges are monthly recurring payments due monthly in advance. All fees are in U.S. dollars and are non-refundable. If Digitalift changes any fees that apply to the Subscription Plan, including by adding additional fees or charges, Digitalift will provide advance notice of those changes and the changes will not take effect until the next billing period. If Customer does not accept the changes, Customer’s sole remedy is to terminate the Subscription Plan as set forth in Section 4 below. Customer authorizes Digitalift to automatically charge on a going-forward basis until cancellation of Customer’s Subscription Plan as permitted herein, all sums as described in these Terms for the Subscription Plan Customer selects on or before the payment due date for the applicable sums to the payment method Customer specifies at the time of purchase of the Subscription Plan, unless otherwise agreed by the parties. If Customer pays any fees with a credit card, Digitalift may seek pre-authorization of the credit card account to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase. If Customer updates payment information, it may take up to 5 business days for the update or cancellation to take effect. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Digitalift to collect any amount that is not paid when due.
- Taxes. Other than federal and state net income taxes imposed on Digitalift, Customer will bear all taxes, duties, and other governmental charges resulting from the Agreement.
Term and Termination.
- Term of the Agreement. The term of the Agreement will commence on the date Customer first agrees to these Terms (“Effective Date”) and will continue until terminated as set forth herein (the “Term”). If no Subscription Plan is in effect, either party may terminate these Terms for any reason upon written notice to the other party. Unless otherwise agreed by the parties, Subscription Plans are month-to-month or annual, and either party may terminate a Subscription Plan by providing written notice of termination to the other party which will take effect at the end of then-current month. There are no refunds after the first 30 days for any Subscription Plan.
- Notice of Material Breach or Default. Digitalift may terminate this Agreement and any Subscription Plan immediately upon notice if Customer materially breaches the Agreement. Without limiting the foregoing, any failure by Customer to timely pay to Digitalift any amounts owing under a Subscription Plan will constitute a material breach.
- Termination for Insolvency. Digitalift may terminate the Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Effect of Termination. Upon the termination of the Agreement or a Subscription Plan: (i) all rights and licenses granted by Digitalift to Customer under the Agreement or the applicable terminated a Subscription Plan will terminate; (ii) Customer will pay to Digitalift any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination; (iii) Digitalift will have no obligation to perform under the terminated Subscription Plan, as applicable, after the effective date of termination; and (iv) the parties’ respective rights and obligations under Sections 2(D) – 2(I), 4(D), 5(B), 6, 7, and 8 of the Agreement will survive. If a certain Subscription Plan is terminated, the Agreement and any other Subscription Plans will remain in effect. If the Agreement is terminated, all other Subscription Plans will automatically terminate as well.
- Marketing and Communication. Upon signing up to a Subscription Plan: (i) Customer agrees to receive transactional and marketing emails as well short message service (SMS) from Digitalift.
Warranties and Disclaimer.
- Mutual Warranties. Each party represents and warrants to the other that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of the Agreement by the executing party; and (c) the execution, delivery, and performance of the Agreement by the executing party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
- Disclaimer. Except for the limited warranties described in section 5(a), the Digitalift Reputation Platform is provided “AS IS”, and Digitalift specifically disclaims all warranties, whether express, implied, or statutory with respect to the Digitalift Reputation Platform, Documentation, Support Services, including the implied warranties of non-infringement of third party rights, merchantability, satisfactory quality, and fitness for a particular purpose as well as any warranties arising from a course of dealing, usage or trade practice. In addition, Digitalift does not warrant that the Digitalift Reputation Platform, Documentation or Support Services will satisfy Customer’s requirements, is without defect or error, or that the operation of the Digitalift Reputation Platform will be uninterrupted or secure. No oral or written information given by Digitalift, its agents, or employees will create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Digitalift by a corporate officer. This exclusion also applies to any of Digitalift subcontractors, suppliers, authorized service providers, and program developers. Some jurisdictions do not allow the exclusion or limitation of warranties, so that limitation or exclusion may not apply to Customer.
Indemnification. Customer is responsible for its and its Authorized Users’ use of the Digitalift Reputation Platform, and Customer will defend and indemnify Digitalift and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) Customer’s breach of this Agreement or any applicable law or regulation; or (b) any dispute or issue between Customer and any third party. Digitalift reserves the right, at Digitalift’s own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting your indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with Digitalift’ defense of that claim.
- Limitations of Liability.
- Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in the agreement, Digitalift will not, under any circumstances, be liable to Customer for consequential, incidental, special, or exemplary damages arising out of or related to the Agreement, including but not limited to lost profits or loss of business, even if Digitalift is apprised of the likelihood of such damages occurring.
- Cap on Liability. Under no circumstances will Digitalift’ total liability of all kinds arising out of or related to the Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by Customer to Digitalift during the 3 months immediately preceding the claim (determined as of the date of any final judgment in an action).
- Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the parties. This allocation is reflected in the pricing offered by Digitalift to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of the Agreement. The limitations in this section 7 will apply notwithstanding the failure of essential purpose of any limited remedy in the Agreement.
- Export. Customer will comply with all applicable laws, rules and regulations in connection with Customer’s activities under the Agreement, including but not limited to export and import laws. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export the Digitalift Reputation Platform. The Digitalift Reputation Platform, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Digitalift Reputation Platform is not being and will not be acquired for, shipped, transferred, or reexported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
- Governing Law. The Agreement will be governed by the laws of the United States and the State of California without regard to the conflict of laws provisions of any state or jurisdiction that would result in the application of the laws of another jurisdiction. Any litigation arising from the Agreement will be brought exclusively in the state or federal courts located in Orange County, California. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
- Assignment. Customer may not assign or otherwise transfer any of Customer’s obligations or performance, the Agreement or any licenses granted or obligations set forth in the Agreement, in each case whether voluntarily, involuntarily, by operation of law, merger, a sale of all or substantially all of Customer’s assets, business reorganization or otherwise, without Digitalift’ prior written consent and any attempted assignment by Customer is void. Digitalift may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under the Agreement without Customer’s consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Severability. In the event that any provision of the Agreement is found to be unenforceable, that provision will be deemed modified to the extent necessary to allow enforceability of the provision as so limited, being intended that Digitalift will receive the benefit contemplated herein to the fullest extent permitted by law, and the validity and enforceability of the remaining provisions will not be affected thereby. If any material limitation or restriction on the use of the Digitalift Reputation Platform or Documentation under the Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Digitalift Reputation Platform or Documentation will immediately terminate.
- Waiver. Failure of either party to require performance by the other party of any provision hereof will not affect the full right to require that performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- Entire Agreement. The Agreement, including all Subscription Plans, is the final and complete expression of the agreement between the parties regarding the subject matter hereof. The Agreement supersedes, and the terms of the Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into the Agreement, except that the Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to the Agreement being executed. No employee, agent, or other representative of Digitalift or any vendor, reseller, or other person has any authority to bind Digitalift with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in the Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. The Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Digitalift will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to the Agreement (whether or not it would materially alter the Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Digitalift specifically agrees to that provision in writing and signed by an authorized agent of Digitalift.
- Relationship. Digitalift will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of the Agreement. The Agreement will not be interpreted or construed as: (i) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (ii) imposing any partnership or franchise obligation or liability on either party; or (iii) prohibiting or restricting Digitalift’ performance of any services for any third party or the provision of products to any third party. Customer must not represent to anyone that Customer is an agent of Digitalift or is otherwise authorized to bind or commit Digitalift in any way without Digitalift’ prior authorization.
- Subcontractors. Digitalift may use a subcontractor or other third party to perform its duties under the Agreement so long as
Digitalift remains responsible for all of its obligations under the Agreement.
- Notices. Any notice required or permitted to be given in accordance with the Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the applicable Subscription Plan and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in writing (which may include email). Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. Digitalift will not be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond Digitalift’s reasonable control, so long as Digitalift uses all commercially reasonable efforts to avoid or remove those causes of non-performance.
Interpretation. Section headings are used in the Agreement for convenience of reference only and will not affect the meaning of any provision of the Agreement. For purposes of the Agreement, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; and (iii) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive. No ambiguity will be construed against any party based on a claim that the party drafted the language.