IMPORTANT: BY USING THE SERVICES (AS DEFINED BELOW) YOU INDICATE YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN PLEASE DO NOT USE THE SERVICES.
All the Intellectual Property Rights (as defined below) evidenced by or embodied in and/or contained and/or subsisting in and/or attached/connected/related to the Services, including, without limitation, any underlying software (including the Implementation Code and the DigitalFlare Software), platforms, algorithms, technology, website design, any information, services, texts, files, sound, music, videos, content (other than the Submitted Information and Materials), various applications, social graphs, organization, structure, specifications, website "look and feel", features, and related content that may be created in connection with the use of or registration to the Services, including the selection and arrangement of any of the foregoing, any modifications, enhancements, improvements and derivatives thereof and all Intellectual Property Rights related thereto (collectively, the "DigitalFlare IPR") are the property of DigitalFlare and/or its respective affiliates which retain all right, title and interest in connection therewith. No transfer or grant of any rights is made or is to be implied by any provision of these Terms or by any other provision contained in the Services with respect to the DigitalFlare IPR or otherwise. In the event that by operation of law any of the DigitalFlare IPR is not owned in its entirety by DigitalFlare automatically upon its creation, then you hereby irrevocably assign, transfer, and convey to DigitalFlare the ownership of such DigitalFlare IPR, including all right, title, and interest in connection therewith, free of any charge. You agree to assist DigitalFlare, at DigitalFlare's expense, to obtain for DigitalFlare and enforce any Intellectual Property Rights for DigitalFlare IPR worldwide. You will execute any documents that DigitalFlare may reasonably request for use in obtaining or enforcing such DigitalFlare IPR and other legal protections. "Intellectual Property Rights" means worldwide (a) rights associated with works of authorship, designs and photography, including copyrights; (b) trademarks, service marks, domain names, logos, trade names, trade dress and goodwill rights whether or not registered; (c) patents, patent applications and industrial designs; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
We appreciate hearing from our users and welcome your comments regarding the Services. Notwithstanding anything to the contrary herein, please be advised, however, that if you send us ideas, suggestions, inventions, or materials regarding the Services ("Feedback"), we shall: (i) own all right, title, and interest, including all Intellectual Property Rights, to the Feedback; (ii) not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Feedback; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, without compensation to you or any other person.
In consideration for the use of the Services, you shall make payments of amounts set forth in the Order Form. AppendAd shall invoice you in respect of amounts payable hereunder at the end of each calendar month, and you shall make payment of all such amounts within 14 days of receipt of the applicable invoice. Amounts due hereunder are exclusive of VAT and applicable taxes. Fees paid hereunder are non-refundable. You shall make payments hereunder free and clear, and without deduction or withholding, except as required by law. If you are required by law to make any deduction or withholding, you shall make payment of such additional amounts as is necessary such that DigitalFlare shall receive the amounts due hereunder without any such deduction or withholding. Late payments shall bear interest at the rate of 18% per annum or, if lower, the maximum amounts permitted under applicable law.
YOU AGREE THAT YOUR USE OF THE SERVICES AND/OR DigitalFlare IPR SHALL BE AT YOUR OWN RISK. THE SERVICES, INCLUDING, WITHOUT LIMITATION THE DigitalFlare IPR, ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DigitalFlare DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. DigitalFlare DOES NOT WARRANT THAT THE DigitalFlare IPR AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THESE SERVICES OR THE SERVER(S) THAT MAKES THESE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DigitalFlare DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING, THE DigitalFlare IPR AND/OR SERVICES OR ANY GOODS OR SERVICES OBTAINED THROUGH THE USE OF THE SERVICES AND/OR THE DigitalFlare IPR, OR THE USE OR THE RESULTS OF THE USE OF DigitalFlare IPR AND/OR SERVICES OR ANY GOODS OR SERVICES OBTAINED THROUGH THE USE OF THE SERVICES AND/OR DigitalFlare IPR, INCLUDING, WITHOUT LIMITATION, THEIR CORRECTNESS, SECURITY, COMPLETENESS, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS NECESSARY OR ADVISABLE TO PROTECT YOURSELF AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF OR RELIANCE UPON THE SERVICES AND/OR ANY OF THE DigitalFlare IPR AND/OR ANY GOOD OR SERVICE OBTAINED THROUGH THE USE OF THE SERVICES AND/OR DigitalFlare IPR AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY SUCH CLAIM, DAMAGE, LOSS, OR HAZARD. DigitalFlare EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT, THE SERVICES AND/OR DigitalFlare IPR WILL MEET YOUR REQUIREMENTS, YOUR USE OF THE DigitalFlare IPR AND/OR SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE, ANY INFORMATION OR MATERIALS OBTAINED THROUGH OR FROM THE DigitalFlare IPR AND/OR THE SERVICES WILL BE ACCURATE OR RELIABLE, ANY DATA OR SOFTWARE ERRORS WILL BE CORRECTED, AND THAT DigitalFlare WILL CONTINUE TO SUPPORT ANY PARTICULAR FEATURE OF THE SERVICES. DigitalFlare DOES NOT REPRESENT OR GUARANTEE THAT THE DigitalFlare IPR AND/OR SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND DigitalFlare DISCLAIMS ANY LIABILITY RELATING THERETO. DigitalFlare DOES NOT GUARANTEE THAT THE REPORTS WILL BE COMPLETELY ACCURATE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL DigitalFlare AND/OR ITS AFFILIATES AND/OR THEIR RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND/OR SUPPLIERS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES, BUSINESS INTERUPTION, LOSS OF REVENUE, INCOME, GOODWILL, USE, DATA (OR CORRUPTION OF DATA), OR OTHER INTANGIBLE LOSSES, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR PERSONAL INJURY OR PROPERTY DAMAGE, THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE SERVICES AND/OR DigitalFlare IPR, AND/OR RELIANCE ON THE SERVICES AND/OR THE DigitalFlare IPR AND/OR YOUR INABILITY TO ACCESS AND/OR USE THE SERVICES AND/OR DigitalFlare IPR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY DigitalFlare AND/OR TO ANY OTHER MATTER RELATING TO THE SERVICES AND/OR DigitalFlare IPR. DigitalFlare AND/OR ITS AFFILIATES AND/OR THEIR RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND/OR SUPPLIERS SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND DigitalFlare'S REASONABLE CONTROL. IN NO EVENT SHALL DigitalFlare'S AND ITS AFFILIATES' TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES AND/OR DigitalFlare'S IPR FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE HUNDRED U.S. DOLLARS (US $100). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU HAVE ALL RESPONSIBILITY FOR ANY DECISIONS MADE AS A RESULT OF ANY REPORTS OR OTHER DATA OR INFORMATION PROVIDED BY DigitalFlare. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE MATERIAL BARGAINED FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOU TO ENTER INTO THESE TERMS.
You agree to defend, indemnify and hold DigitalFlare and its affiliates, and their respective partners, officers, directors, employees, shareholders, agents, licensors, subcontractors and suppliers harmless from and against any losses, demands, expenses, liabilities, costs, claims, damages (including attorneys' fees, expert fees' and other costs of litigation) arising from, incurred as a result of, or in any manner related to: (i) any use of your account and/or your use of the Services; (ii) any misrepresentation made by you to any third party, (iii) your violation of any third party right, including, without limitation, any intellectual property, property, or privacy right; and (iv) your breach of these Terms.
In the event that you believe that any content included in the Services violates your Intellectual Property Rights, right to privacy or is defamatory or otherwise illegal, please file a detailed notice of complaint to DigitalFlare in the following email support@DigitalFlare.com, identifying such content and detailing the factual basis of your complaint and we will make reasonable efforts to remove the content.
We may terminate these Terms and/or suspend your right to access or use any portion or all of the Services and/or the DigitalFlare IPR immediately (including, without limitation, the license set forth in Section 3.1 above), at our sole discretion at anytime and for any reason, including, but not limited to, technical difficulties or violation of these Terms . Upon termination, you shall immediately cease using the Services, pay DigitalFlare any applicable fees and payments due as of termination and the following Sections shall survive: 1, 2, 3.2, 4-15. Termination of your access to the Services shall also include removal of the historical Reports' data which shall no longer be available to you unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination. You agree that We shall not be liable to you or any third party for any termination/suspension of Your access to any of the Services. DigitalFlare may generally cease offering or deny access to the Services and/or the DigitalFlare IPR or any portion thereof, at any time and for any or no reason.
(i) These Terms shall be governed by and construed in accordance with the laws of Israel, without regard to the principles of conflict of law therein. The parties consent to the exclusive jurisdiction of the competent courts of Tel-Aviv with regard to all claims arising out of, in connection with, or in any way relating to, these Terms. The application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded; (ii) if any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of these Terms and shall not cause the invalidity or unenforceability of the remainder of these Terms; (iii) You acknowledge and agree that DigitalFlare has the right, at any time and for any reason (or no reason), to discontinue the Services or any part thereof, or to redesign or modify the DigitalFlare IPR and other elements of the Services or any part thereof; (iv) this is the entire agreement between you and DigitalFlare regarding the subject matter herein; (v) DigitalFlare may assign these Terms, in whole or in part, in its sole discretion. You are not entitled to assign or otherwise transfer the Terms, or any of your rights or obligations hereunder, to any third party without the prior written consent of DigitalFlare. Any unauthorized assignment will be void and of no force or effect; (vi) unless otherwise expressly provided, no provisions of these Terms are intended or shall be construed to confer upon or give to any person or entity other than you and DigitalFlare any rights, remedies or other benefits under or by reason of these Terms; (vii) the failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches; (viii) all waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion; (ix) YOU AND DigitalFlare AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND YOU SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM YOU MAY HAVE IN RESPECT THEREOF.
If you have any further questions or require further clarification, please contact us by sending an e-mail to: support@DigitalFlare.com
Last updated: November 25, 2015