Digital Cheetah's Terms of Service
The following agreement is between Digital Cheetah (herewith also known as: “D.C.”) and “you” (herewith also known as: “Customer”, “user”, “You” or “CLIENT”) who is:
1. the person, persons or the legal entity opening an account for Digital Cheetah services or purchasing products or services, under this Agreement (the “Customer”); or, as the case may be
2. the person or persons using or accessing Digital Cheetah services or installing Digital Cheetah Software (“User”).
You agree to adhere to and be bound by these Terms of Service by; copying, installing or using Digital Cheetah Software or using or accessing Digital Cheetah Services. Please carefully review and read these Terms of Service (“Agreement”) prior to using, installing or accessing Digital Cheetah Services or Software. In addition, please keep a copy for your own records.
Please note for any “Users” who are not “Customers”: Credit Card Authorization (Section 7) and Indemnity (Section 20) do not apply to you. In the case where your employer is the Customer with a current written agreement with D.C. (the “Written Agreement”), that Written Agreement will govern (and will supersede) any applicable terms of this Agreement, solely to the extent of conflict(s) that exist between the Written Agreement and this Agreement.
1. Definitions – All terms that are CAPITALIZED, or otherwise specified, when defined in this Agreement, have their meanings set forth herein.
“Affiliated Entities” designates D.C. and any suppliers and licensors who provide any part of the Services and/or Software; and all agents, consultants, employees, officers, affiliates and subsidiaries of any of the foregoing.
“Content” refers to all computer programs, sounds, images, text, data and all other information in addition to, without limitation, everything that has or will be uploaded for or by you that relates to your use of Digital Cheetah Services. This includes, without limitation, video clips, logos, trademarks, audio clips, articles, icons, designs, illustrations, caricatures and photographs.
“Services” refers to Digital Cheetah Services that have been obtained by a Customer, as described in the related order for those Services that has been accepted by D.C.
“Site” refers to any website that has been created for you by D.C., for the purpose of accessing D.C. Services, or any website that is associated with or used by Digital Cheetah as part of their business operations.
“Software” refers to the software and all of its associated documentation to include any other materials that have been provided to you by D.C. for accessing the Services.
“Term” refers to this Agreement’s duration that commences with the earliest: (i) the date that D.C. accepts an order from you for Services or (ii) the first time that you use or access the Services or (iii) that you have installed the Software, and continues until the applicable Service period’s end, as designated by D.C., subject to an earlier termination that has been made in accordance with this Agreement.
2. Software License – D.C. grants you, upon your full compliance with this Agreement’s terms and conditions, a (non-exclusive) license during the Term: (i) to perform an installation of D.C.-provided Software (only in the form of executable and object code) and (ii) to use the installed Software solely for the purpose(s) of using and accessing the Services.
3. Access to Services; Suspension and Termination – D.C. grants you, upon your full compliance with this Agreement’s terms and conditions, a (non-exclusive and revocable) right to use and access the Services for the period associated with the Term. D.C. reserves the right to discontinue, or suspend, (without notice) all or part of the Services (or to terminate this Agreement), at any time, if D.C. has reason to believe that you are, or have been, in breach of this Agreement or may be a source of harm to D.C., or anyone else. Upon the expiration or cancellation of this Agreement, all rights and access relating to D.C. Services will cease and be cancelled. Should the CLIENT elect to terminate Digital Cheetah Service(s), the CLIENT will be responsible for payment of the Service(s) and, in addition, this Agreement will stay in effect until the end of the current Digital Cheetah-determined monthly billing cycle. Any and all prepaid fees are to be non-refundable. You are also prohibited from either reselling or acting as a service agent for any D.C. services or any individual component thereof.
4. Ownership of Software, Services, and Marks – It is recognized that the Digital Cheetah Services and Software are licensed, and not sold, and they are solely to be used under the terms of this Agreement. With the exception of that which is specifically set forth herein, D.C. and other Affiliated Entities will retain all titles, rights and interests, which include the intellectual property rights that relate to or embody that which is contained in the Services and Software. This includes, but is not limited to, the software, technology and copies that relate to the Services and Software. All logos, graphics, trade names and service marks, along with product names, third-party names and brand names (collectively designated as the “Marks”), which relate to the services and Software are trademarks of D.C. or other Affiliated Entities. As such, you are prohibited from the use of any Marks, without first obtaining the written permission of D.C. or applicable Affiliated Entities.
5. – Restrictions – You agree not to decompile, recompile, reverse engineer, translate, disassemble or, in any way, attempt to attempt to gain knowledge of the source code of D.C. Services or Software. Unless expressly set forth herein, you are forbidden to use, modify, distribute, create derivative works of, assign, sell, sub-license, pledge, loan, lease, timeshare, rent, deliver or otherwise, in any way, directly or indirectly, D.C. Software (either in part or in whole) or any of the rights pertaining to DC. Services. In addition, you may not remove, alter or add from or to Services or Software, any Marks, proprietary rights markings or copyright markings.
IF YOU ARE NOT AN INDEPENDENT CONTRACTOR, EMPLOYEE OR INVITEE OF A CUSTOMER/CLIENT, YOU ARE NOT AUTHORIZED TO INSTALL/USE DIGITAL CHEETAH SERVICES OR SOFTWARE.
7. – Credit Card Authorization and Use Under Your Account –
If you order Digital Cheetah Software or Services, and you elect to pay by credit card, D.C. will only accept those credit cards that are deemed valid and acceptable to D.C. for the purposes of making such payment. Any and all refunds will be credited by D.C. to the same card that was used for payment. Until any and all amounts due to D.C. as well as throughout the Term, You hereby authorize D.C. to charge, for any and all amounts due under this Agreement, any credit card that you have provided, without limitation for; additional fees, taxes and all other payments. Should your supplied credit card is deemed by D.C. to be invalid or unverifiable, Services may be suspended, cancelled or deferred by D.C. without notice and D.C. may generate and send invoices requesting any payment that has not been made. Any and all invoices, which are generated by D.C., are net payable within thirty (30) days. You also agree to update any credit card information, pertaining to you, so as to keep this information current, at all times. D.C. may also submit processing charges, even in situations in which your card appears to have expired. All D.C. prices, that are given, and to be paid, are in U.S. dollars. All D.C. prices, that are presented, exclude; duties, taxes and other similar charges, which are to be charged to and paid for by you or the legal entity which represents you. The maximum interest that is permitted by law or 1.5% per month will be charged, at the discretion of D.C., on any balance(s) that are unpaid after a period of thirty (30) days. Should the CLIENT request termination of their Services, D.C. will bill the CLIENT for any D.C. Services that are charged, through the end of the current (monthly) billing cycle, in which the termination of Services has been requested. Additionally, you will cause any individual or entity that access D.C. Services, through your active account, including Service Users, to be in compliance with the Agreement terms and conditions. The CLIENT will also be responsible for any payment of fees, amounts due or any activity in their account that has been incurred at any User(s) direction.
8. – Electronic Communications – Digital Cheetah Services are electronically conducted. As such, the CLIENT authorizes D.C. electronic communication for any matters that relate to D.C. Software and Services. This is to include; incentive and rewards program offerings, training opportunities, educational information and notifications regarding updates to D.C. products.
9. – Updates for Applicable Terms and Authorization for Auto Updates – D.C. may provide, in accordance to this Agreement, and at its dole discretion, all supplements, updates, features, add-on components, other functionalities and/or messages related to D.C. Software and Services. These include, but are not limited to; features, functionality alterations, security, storage, content, availability or any other information that is related to D.C. Services or Software (which are, collectively, known as “Updates”). Digital Cheetah may provide, or make available, Updates to its CLIENTS/Customers, after the Services commencement date and subject to any other conditions and terms provided by D.C., which are applicable to any of the Software or Services Updates. You hereby authorize D.C. to, in accordance with D.C’s standard Software and Services operating procedures, in good faith and automatically; access, transmit, provide or install Updates to the D.C. Services and Software, without notice or CLIENT consent. In addition, nothing in this Agreement may be interpreted to indicate that D.C. is obligated or required to provide, create or install any Updates.
12. You Retain Ownership of Content – Digital Cheetah does not claim to have ownership of any Content. The CLIENT hereby grants to D.C. a worldwide, non-exclusive, fully-paid for, royalty-free and transferable license to cache, host, copy, record and display Content, exclusively for the purpose(s) of providing D.C. Services and Software usability. With the exception of that which is licensed in this Agreement, between you and D.C., the CLIENT will retain all titles, rights and applicable interest to and in the Content.
14. Representations and Warranties Regarding Content – You warrant and represent that you: (i) are the authorized licensee or owner of all and any Content and (ii) will not post, publish, record, upload or otherwise transmit or distribute Content that: (a) would infringe or infringes any patent, copyright, trade secret, trademark or any other proprietary information or right of any other party or publicity rights; (b) is in violation of any statute, law, regulation or ordinance (to include, but not limited to, the regulations and laws that govern export control, anti-discrimination, unfair competition or false advertising); (c) is profane, inappropriate, obscene, libelous, harassing, threatening or otherwise unlawful; (d) is pornographic or, in any way, harmful to minors; (e) contains malware, Trojan horses, viruses, “time bombs”, worms, corrupted files, bots or any similar data, software or any programs that may detrimentally interfere with, damage, expropriate or surreptitiously intercept, from any system; data, property of another or personal information; or (f) is misleading, materially false or is inaccurate.
15. Submissions – You may submit comments or questions to D.C. from time-to-time (http://www.digitalcheetah.com/contact ). D.C., at its discretion, reserves the right to post and edit such comments or questions along with any replies. All such comments, communications, suggestions, feedback and any other ideas and/or submissions, which are related to D.C. Services and/or Software, that have been submitted to D.C. (collectively entitled “Submissions”), are and will remain the property of D.C. As such, all worldwide title(s), right(s) and copyrights interest, along with any other intellectual property found in any and all Submissions, are hereby assigned or deemed to be designed (now and in the future) by you to D.C.
16. Confidentiality – You agree to not disclose (to any and all third parties), use and will hold in the strictest of confidence, any information that is designated by D.C. as proprietary, confidential or which, by the information’s nature, would reasonably be deemed proprietary or confidential. This includes, without limitation, access keys, passwords to D.C. Services. You agree that all access key and password use will be ascribed to the CLIENT/Customer, even if the CLIENT/Customer had not, in actuality, authorized usage. This includes any usage that will (or has) incur/incurred any additional fees.
17. Links to Third Party Sites – There may be links, within the Site, that allow you to leave the Site, for the purposes of visiting websites that are not under the control of Digital Cheetah. No responsibility is claimed from either D.C., or any of its Affiliate Entities, for any content appearing on any website that is linked in this fashion. The CLIENT understands that links are only provided as a CLIENT convenience. As such, they do not imply any D.C., any Affiliated Entity endorsement.
18. Compliance with Applicable Law – You agree (i) to not use D.C. Services or Software for any purposes that are illegal and (ii) to remain in compliance with all applicable state, local, international and national regulations and laws, including and without limitation to laws that relate to privacy, conversations, public displays, data protection and/or performances. This is to include United States export regulations and laws, which apply to technical data transmission that is exported from the United States via D.C. Services and Software. You also agree that this Agreement, or any other D.C. remedy or right, will require D.C. (or any of its Affiliated Entities) to exercise any remedy or right in order to protect or benefit anyone. However D.C., at its sole discretion, reserves the right to do so.
19. Use Restrictions – You agree not to:
a) use the D.C. Services in association with distribution list usage that involves anyone who has not provided their explicit permission to be involved in such processes (non-commercial or commercial);
b) collect or harvest an individual’s information, to include their email addresses, prior to receiving their explicit consent;
c) download, use, copy or provide (either free of charge or for a paid fee) any D.C. user directory information or any other form/type of user information, either whole or in part, other than within the context of D.C. Services use, which is permitted by the Agreement;
d) create an interference with any individual’s enjoyment and use of the D.C. Services, nor use the D.C. Services in a manner that might disable, damage, impair, overburden or otherwise disrupt or interfere with the D.C. Services or Site or networks that are connected to the D.C. Services;
e) attempt to obtain an unauthorized entry or access to the D.C. Services, computer systems, other accounts or any networks that are connected to the Services, through the use of password mining or by any other methods or means;
f) lease, rent or, transfer any rights or grant/provide a security interest in the usage of the D.C. Services that are under this Agreement;
g) modify, reverse-engineer, disassemble, decompile, translate or, through any other method or means, attempt to view or derive any part of the D.C. Services or Software source code;
h) threaten, stalk, harass, abuse, defame, defraud, or in any way, violate or infringe upon the legal rights of any other individual;
i) make available or upload files that contain; software, photographs, images or any other material that is under protection by intellectual property laws. This includes, but not limited to, trademark laws, intellectual property laws (or by rights of publicity or privacy), unless you control or own those rights thereto or have been granted the legal right, through consent, to do so;
j) upload any file that contains; malware, Trojan horses, viruses, “time bombs”, worms, corrupted files, bots or any similar data, software or any programs that may damage or interfere with another individual’s property, computer or information;
k) delete or falsify copyright management data to include; proprietary designations, proper notices (legal or otherwise), author attributions or labels pertaining to the source or origin of any software, or material, that is contained in any uploaded file.
20. Indemnity – If you are a CLIENT/Customer, you hereby agree to indemnify, defend and/or hold harmless any of the D.C. Affiliated Entities against and from all; liabilities, claims, costs and/or damages (to include, but are not limited to; costs, fees, expert witness and any attorney expenses) that may be related to, or arise from, D.C. Services and Software. This includes, with no limitation to, anyone who accesses the D.C. Services, through the use of your access key or password, any alleged or actual applicable law or Agreement violation or infringement of any privacy, intellectual property or any other right of any entity or person, by you or (to include, without limitation) anyone accessing the D.C. Services by using your access key or password) or any individual who accesses the D.C. Services, through the use of your access key or password.
21. Disclaimer of Warranties – All D.C. Services and Software are provided and sold “with all faults” and “as is”, without warranty. Each Affiliated Entity also hereby disclaims any and all conditions, warranties and (if any) duties, of any kind, that are implied, statutory or express. This includes, without limitation, any of the fitness or merchant-ability for any purpose pertaining to accuracy, compatibility, system integration, lack of negligence or workman-like effort. It is understood that the foregoing disclaimer(s) includes (without limitation); any duty, warranty or any condition that the Services or Software will be; reliable, uninterrupted, secure, available at any designated or particular time, virus-free, error-free or corresponding to any condition in which; any requests or messages shall be delivered; that any real and/or alleged defects will be fixed or corrected; or that Services or Software, systems, content, servers and any utilized or contained information in or by the Services and/or Software will not contain any harmful aspects. In addition, there is no warranty, real or implied, of Title, or the prevention of any individual’s enjoyment of the Services or Software or against any incidence of infringement.