Journey Digital Strategies LLC TERMS OF USE
THESE TERMS AND CONDITIONS (THE
“TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND Journey Digital Strategies LLC (“Digital Kadi”, “WE” OR
“US”). THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE AS WELL AS
ALL ASSOCIATED SITES PROVIDED BY Digital Kadi, ITS SUBSIDIARIES, AND
AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY USING THIS SITE OR
REGISTERING TO USE THE SERVICES OFFERED THROUGH THE SITE (“SERVICES”), YOU ARE
AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT
ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES OR ANY INFORMATION CONTAINED ON
THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE
RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT
AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE
WITH Digital Kadi. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION
AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Changes
Digital Kadi may make
changes to the content and Services offered on or through the Site at any
time. Digital Kadi can change, update, or add or remove provisions of
these Terms, at any time by posting the updated Terms on this Site and, if you
are a current Subscriber (as defined below), emailing you at the email address
associated with your registered account. By using this Site after Digital
Kadi has updated the Terms, you are agreeing to all the updated Terms; if
you do not agree with any of the updated Terms, you must stop using the Site
and Services.
General Use
By using this Site and/or Services, you
represent, acknowledge and agree that you are at least 18 years of age, or if
you are under 18 years you may not use the Site or Services at any time or in
any manner or submit any information to Digital Kadi or the Site.
Digital Kadi provides
content on the Site and through the Services that is the copyrighted and/or
trademarked work of Digital Kadi, Digital Kadi’s third-party
licensors and suppliers, or other users of the Site (collectively, the
“Materials”). Materials may include logos, graphics, videos, images, software,
and other content.
Subject to your compliance with these
Terms, Digital Kadi hereby grants you a limited, personal,
non-exclusive, and non-transferable license to use and to display the Materials
and to use this Site and Services solely for your personal use. Except for the
foregoing license, you have no other rights in the Site
or any Materials and you may not modify, edit, copy, reproduce, create
derivative works of, reverse engineer, alter, enhance, or in any way exploit
any of the Site, Services or Materials in any manner.
If you breach any of these Terms, the above
license will terminate automatically and you must
immediately destroy any downloaded or printed Materials.
Using the Site and the Services
on the Site
You need not register
with Digital Kadi to simply visit and view the Site. However, in order
to access certain password-restricted areas of the Site and to use the Services
and certain Materials offered on and through the Site, you must register
with Digital Kadi for an account and receive a password.
Restricted Areas of this Site
Digital Kadi administrator
shall have the right to approve or reject the requested registration, in the
Company’s sole discretion. If your account is approved by Digital Kadi’s
administrator, you will be notified and provided with Access Details such as
username and password. The Access Details are for your own personal use only.
You are responsible for maintaining the confidentiality of your Access Details
and you are responsible for all activities that occur using your Access
Details.
All the information that you
provide when registering for an account and otherwise through the Site must be
accurate, complete, and up to date.
Subscriptions
By registering for an account with Digital
Kadi and subscribing to use the Services, you become a “Subscriber” with access
to certain password-restricted Services, Materials, and areas of the Site (a
“Subscription”). Subscriptions and the rights and privileges provided to a
Subscriber are personal and non-transferable.
Discontinued Services
Certain Services sold by Digital
Kadi may require Digital Kadi to host certain elements of such
Services and to provide ongoing support services. Digital Kadi reserves
the right, in its sole discretion, to discontinue hosting, support and all
other activities related to such Services at any time following 12 months from
your initial purchase of such Services. Prior to such discontinuance, Digital
Kadi will provide you with at least 30 days prior notice. Such notice will
be sent to the email address associated with your account, so it is your
responsibility to update as necessary the email address associated with your
account. Notwithstanding the foregoing, Digital Kadi shall only be
required to provide such notice to users that have logged into the accounts
associated with the Service to be discontinued within the period of 90 days
prior to the date of notice of discontinuation. Upon discontinuation of a
Service, Digital Kadi may delete all databases associated with your
use of the Service.
Refunds
ALL PURCHASES OF SUBSCRIPTIONS,
SERVICES AND OTHER PRODUCTS FROM Digital Kadi ARE FINAL AND NO
REFUNDS ARE AVAILABLE, UNLESS OTHERWISE EXPRESSLY PROVIDED FOR ON OUR WEBSITE
OR IF Digital Kadi CANCELS YOUR ORDER.
While Digital Kadi attempts
to create the highest quality Services, the actual benefits realized by
customers may vary depending upon a number of
variables, including customer efforts and initiative. You agree not to initiate
any charge-back on fees you have paid to Digital Kadi, unless you did not
actually receive the Services that your ordered.
Cancellations
If you cancel your account or Service at
any time, you will not receive any refund. However, even if Digital Kadi's
policy for a certain service allows for a refund, if Digital Kadi determines
that your purchase was initiated with the intent of benefiting from the
purchase and then requesting a refund (which might be indicated by multiple
refund requests), then Digital Kadi may refuse to grant you a refund
under such circumstances.
Electronic and Other
Communications
By using the Site and/or the
Services, you consent to receiving electronic and telephone communications from
or on behalf of Digital Kadi. These electronic communications may include
notices about applicable fees and charges, transactional information and other
information concerning or related to the Site and/or Services (including offers
and information about new Services). These electronic communications are part
of your relationship with Digital Kadi. You agree that any notices,
agreements, disclosures or other communications that we send you electronically
will satisfy any legal communication requirements, including that such
communications be in writing.
Third Party Content
Certain Materials may be
provided by third party licensors and suppliers to Digital Kadi (“Third
Party Content”). Such Third Party Content is, in each
case, the copyrighted work of the creator/licensor. Unless you have permission
from the owner of the Third Party Content, you agree
to use such Third Party Content pursuant to the applicable licenses of such
Third Party Content. You acknowledge and agree that you have no right to
download, cache, reproduce, modify, display (except as set forth in this
paragraph), edit, alter or enhance any of the Third Party
Content in any manner unless you have permission from the owner of the Third
Party Content.
Digital Kadi DISCLAIMS ALL
EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD
PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Links to Third Party Sites
This Site and/or the Services
may be linked to other web sites that are not Digital Kadi sites
(collectively, “Third Party Sites”). In certain situations, you may be
transferred to a Third Party Site through a link but
it may appear that you are still on the Site or using the Services. In any
case, you acknowledge and agree that the Third Party
Sites may have different privacy policies, terms and conditions and/or user
guides and business practices than Digital Kadi, and you further
acknowledge and agree that your use of such Third Party Sites is governed by
the applicable Third Party Web Site privacy policy, terms and conditions and/or
user guides. You hereby agree to comply with any and all terms and conditions,
users guides and privacy policies of any of Third Party
Sites. Digital Kadi is providing links to the Third
Party Sites to you as a convenience, and Digital Kadi does not
verify, make any representations or take responsibility for such Third Party
Sites, including, without limitation, the truthfulness, accuracy, quality or
completeness of the content, services, links displayed and/or any other
activities conducted on or through such Third Party Sites. Unless expressly
stated on the Site or in the Services, links to Third Party Sites should in no
way be considered as or interpreted to be Digital Kadi’s endorsement of
such Third Party Site or any product or service
offered through it. YOU AGREE THAT Digital Kadi WILL NOT, UNDER ANY
CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS,
SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY
THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY
HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED
BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS
PRACTICES OF ANY THIRD PARTY.
Unauthorized Activities
When using this Site and/or the Services,
you agree to abide by common standards of etiquette and act in accordance with
the law. For example, you agree not to not to:
Defame, abuse, harass, stalk,
threaten, or otherwise violate the legal rights (such as rights of privacy and
publicity) of others.
Use racially, ethnically, or
otherwise offensive language.
Discuss or incite illegal
activity.
Use explicit/obscene language
or solicit/post sexually explicit images (actual or simulated).
Post anything that exploits
children or minors or that depicts cruelty to animals.
Post any copyrighted or
trademarked materials without the express permission from the owner.
Disseminate any unsolicited or
unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain
letters’, ‘pyramid schemes’, or any other form of such solicitation.
Use any robot, spider, scraper
or other automated means to access the Site.
Take any action that imposes an
unreasonable or disproportionately large load on our infrastructure.
Alter the opinions or comments
posted by others on this Site.
Post anything contrary to our
public image, goodwill or reputation.
This list of prohibitions
provides examples and is not complete or exclusive. Digital Kadi reserves
the right to terminate access to your account, your ability to post to this
Site (or use the Services) with or without cause and with or without notice,
for any reason or no reason, or for any action that Digital Kadi determines
is inappropriate or disruptive to the Site or Services, or to any other user of
the Site and/or Services. Digital Kadi may report to law enforcement
authorities any actions that may be illegal, and any reports it receives of
such conduct. When legally required or at Digital Kadi’s discretion, Digital
Kadi will cooperate with law enforcement agencies in any investigation of
alleged illegal activity on the Site, the Services, or on the Internet.
You agree to indemnify and hold Digital
Kadi and its officers, directors, employees, affiliates, agents,
licensors, and business partners harmless from and against any and all costs,
damages, liabilities, and expenses (including attorneys’ fees and costs of
defense) Digital Kadi or any other indemnified party suffers in
relation to, arising from, or for the purpose of avoiding, any claim or demand
from a third-party that your use of this Site or Services violates any
applicable law or regulation, or the copyrights, trademark rights or other
rights of any third-party.
Proprietary Rights
Digital Kadi and third party trademarks and service marks may or may not be designated
as such from time-to-time through the SM, TM or ® symbols. All rights not
expressly granted herein are reserved. Except as otherwise required or limited
by applicable law, any reproduction, distribution, modification,
re-transmission, or publication of any copyrighted material is strictly
prohibited without the express written consent of the copyright owner or
license.
Intellectual Property
Infringement
Digital Kadi respects the
intellectual property rights of others, and we ask you to do the same. Digital
Kadi may, in appropriate circumstances and at our discretion, terminate
service and/or access to this Site for users who infringe the intellectual
property rights of others. If you believe that your work is the subject of
copyright infringement and/or trademark infringement and appears on our Site or
in the Services, please provide Digital Kadi’s designated agent the
following information:
A physical or electronic
signature of a person authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed.
Identification of the
copyrighted and/or trademarked work claimed to have been infringed, or, if
multiple works at a single online site are covered by a single notification, a
representative list of such works at that site.
Identification of the material that is
claimed to be infringing or to be the subject of infringing activity and that
is to be removed or access to which is to be disabled at the Site, and
information reasonably sufficient to permit Digital Kadi to locate
the material.
Information reasonably sufficient to
permit Digital Kadi to contact you as the complaining party, such as
an address, telephone number, and, if available, an electronic mail address at
which you may be contacted.
A statement that you have a
good faith belief that use of the material in the manner complained of is not
authorized by the copyright and/or trademark owner, its agent, or the law.
A statement that the information in the
notification is accurate, and under penalty of perjury, that you are authorized
to act on behalf of the owner of an exclusive right that is allegedly
infringed.
Digital Kadi’s agent for notice
of claims of copyright or trademark infringement can be reached as follows:
[Your Email]
Please also note that for
copyright infringements under Section 512(f) of the Copyright Act, any person
who knowingly materially misrepresents that material or activity is infringing
may be subject to liability.
Submitting a Digital Millennium
Copyright Act (“DMCA”) Counter-Notification
We will
notify you that we have removed or disabled access to copyright-protected
material that you provided, if such removal is pursuant to a valid DMCA
take-down notice that we have received. If you receive such notice from us, you
may provide us with a counter-notification in writing to Digital Kadi designated
agent that includes all of the following information:
1. Your
physical or electronic signature;
2.
Identification of the material that has been removed or to which access has
been disabled, and the location at which the material appeared before it was
removed or access to it was disabled;
3. A
statement from you under the penalty of perjury, that you have a good faith
belief that the material was removed or disabled as a result of a mistake or
misidentification of the material to be removed or disabled; and
4. Your
name, physical address and telephone number, and a statement that you consent
to the jurisdiction of a court for the judicial district in which your physical
address is located, or if your physical address is outside of the United
States, for any judicial district in which Digital Kadi may be
located, and that you will accept service of process from the person who
provided notification of allegedly infringing material or an agent of such
person.
Termination of Repeat Infringers
Digital Kadi reserves the
right, in its sole discretion, to terminate the account or access of any user
of our Site and/or Services who is the subject or repeated DMCA or other
infringement notifications.
Disclaimer of Warranties
Your use of the Site and
Services is at your own risk. The Materials have not been verified or
authenticated in whole or in part by Digital Kadi, and they may include
inaccuracies or typographical or other errors. Digital Kadi does not
warrant the accuracy of timeliness of the Materials contained on this Site or
obtained through the Services. Digital Kadi has no liability for any
errors or omissions in the Materials, whether provided by Digital Kadi,
our licensors or suppliers or other users.
Digital Kadi, FOR ITSELF AND
ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS,
WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY
MATERIALS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED. UNLESS
OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THIS SITE, THE SERVICES, AND MATERIALS AND ANY INFORMATION OR MATERIAL
CONTAINED OR PRESENTED ON THIS SITE OR THROUGH THE SERVICES IS PROVIDED TO YOU
ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. Digital Kadi DOES NOT PROVIDE
ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON
YOUR COMPUTER.
YOU ARE SOLELY RESPONSIBLE FOR
ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND
SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A
RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE. YOU UNDERSTAND THAT Digital
Kadi DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE
SITE OR SERVICES. Digital Kadi MAKES NO REPRESENTATIONS OR WARRANTIES
AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH
ANY CURRENT OR FUTURE USERS OF SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE
PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE
OR SERVICES AND WITH OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR
INTERACT AS A RESULT OF YOUR USE OF THE SITE OR ANY SERVICE, PARTICULARLY IF
YOU DECIDE TO MEET OR CONDUCT BUSINESS OFFLINE OR IN PERSON.
Limitation of Liability
Digital Kadi SHALL NOT BE
LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR
DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE OR THE SERVICES. IN NO EVENT
SHALL Digital Kadi BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING
LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER
ARISING, EVEN IF Digital Kadi KNOWS THERE IS A POSSIBILITY OF SUCH
DAMAGE.
Local Laws. Digital Kadi accept
Subscribers internationally. You are responsible to adhere to your applicable
local laws where you live.
Feedback
If you send or transmit any
communications, comments, questions, suggestions, or related materials to Digital
Kadi , whether by letter, email, telephone, or
otherwise (collectively, “Feedback”), suggesting or recommending changes to the
Site, any Services or Materials, including, without limitation, new features or
functionality relating thereto, all such Feedback is, and will be treated as,
non-confidential and non-proprietary. You hereby assign all right, title, and
interest in, and Digital Kadi is free to use, without any attribution
or compensation to you, any ideas, know-how, concepts, techniques, or other
intellectual property and proprietary rights contained in the Feedback, whether
or not patentable, for any purpose whatsoever, including but not limited to,
developing, manufacturing, having manufactured, licensing, marketing, and
selling, directly or indirectly, products and services using such Feedback. You
understand and agree that Digital Kadi is not obligated to use,
display, reproduce, or distribute any such ideas, know-how, concepts, or
techniques contained in the Feedback, and you have no right to compel such use,
display, reproduction, or distribution.
Dispute Resolution and Arbitration;
Class Action Waiver
Please read this carefully. It
affects your rights.
Most customer concerns can be
resolved quickly and to a customer’s satisfaction by contacting us via Your
Email. This Provision facilitates the prompt and efficient resolution of any
disputes that may arise between you and Digital Kadi. Arbitration is a
form of private dispute resolution in which persons with a dispute waive their
rights to file a lawsuit, to proceed in court and to a jury trial, and instead
submit their disputes to a neutral third person (or arbitrator) for a binding
decision. You have the right to opt-out of this Provision (as explained below),
which means you would retain your right to litigate your disputes in a court,
either before a judge or jury.
Please read this Provision carefully. It
provides that all Disputes between you and Digital Kadi shall be
resolved by binding arbitration. Arbitration replaces the right to go to court.
In the absence of this arbitration agreement, you may otherwise have a right or
opportunity to bring claims in a court, before a judge or jury, and/or to
participate in or be represented in a case filed in court by others (including,
but not limited to, class actions). Except as otherwise provided, entering into
this agreement constitutes a waiver of your right to litigate claims and all
opportunity to be heard by a judge or jury. There is no judge or jury in
arbitration, and court review of an arbitration award is limited. The
arbitrator must follow this agreement and can award the same damages and relief
as a court (including attorney’s fees).
For the purpose of this Provision, “THE
COMPANY” means Digital Kadi and its parents, subsidiaries, and
affiliate companies, and each of their respective officers, directors, employees,
and agents. The term “Dispute” means any dispute, claim, or controversy between
you and THE COMPANY regarding any aspect of your relationship with THE COMPANY,
whether based in contract, statute, regulation, ordinance, tort (including, but
not limited to, fraud, misrepresentation, fraudulent inducement, or
negligence), or any other legal or equitable theory, and includes the validity,
enforceability or scope of this Provision (with the exception of the
enforceability of the Class Action Waiver clause below). “Dispute” is to be
given the broadest possible meaning that will be enforced,
and shall include any claims against other parties relating to services
or products provided or billed to you (such as THE COMPANY’s licensors,
suppliers, dealers or third-party vendors) whenever you also assert claims
against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS
PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN
EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN
ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court
or arbitration, you must first give THE COMPANY an opportunity to resolve the
Dispute. You must commence this process by mailing written notification to Your
Email. That written notification must include (1) your name, (2) your address,
(3) a written description of your Claim, and (4) a description of the specific
relief you seek. If THE COMPANY does not resolve the Dispute within 45 days
after it receives your written notification, you may pursue your Dispute in
arbitration. You may pursue your Dispute in court only under the circumstances
described below.
Exclusions from
Arbitration/Right to Opt Out
Notwithstanding the above, you or THE
COMPANY may choose to pursue a Dispute in court and not by arbitration if (a)
the Dispute qualifies, it may be initiated in small claims court; or (b) YOU
OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU
FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of
this Provision by sending a written notification to Your Email. Your written
notification must include (1) your name, (2) your address, and (3) a clear
statement that you do not wish to resolve disputes with THE COMPANY through
arbitration. Your decision to opt out of this Arbitration Provision will have
no adverse effect on your relationship with THE COMPANY. Any opt-out request
received after the Opt-Out Deadline will not be valid and you must pursue your
Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute
is not resolved as provided above (Pre-Arbitration Claim Resolution) either you
or THE COMPANY may initiate arbitration proceedings. The American Arbitration
Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all
Disputes, and the arbitration will be conducted before a single arbitrator. The
arbitration shall be commenced as an individual arbitration,
and shall in no event be commenced as a class arbitration. All issues
shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of
less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related
Disputes will apply; for Disputes involving $75,000 or more, the AAA’s
Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional
Rules For Emergency Measures Of Protection shall
apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules &
Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules
are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision
governs in the event it conflicts with the applicable arbitration rules. Under
no circumstances will class action procedures or rules apply to the
arbitration.
Because the Site, Services and
these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”)
governs the arbitrability of all Disputes. However, the arbitrator will apply
applicable substantive law consistent with the FAA and the applicable statute
of limitations or condition precedent to suit.
Arbitration Award – The
arbitrator may award on an individual basis any relief that would be available
pursuant to applicable law, and will not have the
power to award relief to, against or for the benefit of any person who is not a
party to the proceeding. The arbitrator will make any award in writing but need
not provide a statement of reasons unless requested by a party. Such award will
be final and binding on the parties, except for any right of appeal provided by
the FAA, and may be entered in any court having jurisdiction over the parties
for purposes of enforcement.
Location
of Arbitration – You or THE COMPANY may initiate arbitration in either the
State of Alabama or the federal judicial district that includes your billing
address. In the event that you select the federal
judicial district that includes your billing address, THE COMPANY may transfer
the arbitration to Alabama in the event that it agrees to pay any additional
fees or costs you incur as a result of the transfer, as determined by the
arbitrator.
Payment of Arbitration Fees and
Costs – THE COMPANY will pay all arbitration filing fees and arbitrator’s costs
and expenses upon your written request given prior to the commencement of the
arbitration. You are responsible for all additional fees and costs that you
incur in the arbitration, including, but not limited to, attorneys or expert
witnesses. Fees and costs may be awarded as provided pursuant to applicable
law. In addition to any rights to recover fees and costs under applicable law,
if you provide notice and negotiate in good faith with THE COMPANY as provided
in the section above titled “Pre-Arbitration Claim Resolution” and the
arbitrator concludes that you are the prevailing party in the arbitration, you
will be entitled to recover reasonable attorney’s fees and costs as determined
by the arbitrator.
Class Action Waiver
Except as otherwise provided in this
Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a
class or representative proceeding or claims (such as a class action,
consolidated action or private attorney general action) unless both you and THE
COMPANY specifically agree to do so following initiation of the arbitration. If
you choose to pursue your Dispute in court by opting out of the Arbitration
Provision, as specified above, this Class Action Waiver will not apply to you.
Neither you, nor any other user of the Site or Services can be a class
representative, class member, or otherwise participate in a class,
consolidated, or representative proceeding without having complied with the
opt-out requirements above.
Jury Waiver
You understand and agree that by entering
into this Agreement you and THE COMPANY are each waiving the right to a jury
trial or a trial before a judge in a public court. In the absence of this
Provision, you and THE COMPANY might otherwise have had a right or opportunity
to bring Disputes in a court, before a judge or jury, and/or to participate or
be represented in a case filed in court by others (including class actions).
Except as otherwise provided below, those rights are waived. Other rights that
you would have if you went to court, such as the right to appeal and to certain
types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other
than the Class Action Waiver clause above) is found to be illegal or
unenforceable, that clause will be severed from this Provision, and the
remainder of this Provision will be given full force and effect. If the Class
Action Waiver clause is found to be illegal or unenforceable, this entire
Provision will be unenforceable and the Dispute will
be decided by a court.
Continuation
This Provision shall survive the
termination of your service with Digital Kadi or its affiliates.
Notwithstanding any provision in this Agreement to the contrary, we agree that
if Digital Kadi makes any change to this Provision (other than a
change to the Notice Address), you may reject any such change and require Digital
Kadi to adhere to the language in this Provision if a dispute between us
arises.
General
Digital Kadi prefers to
advise you if we feel you are not complying with these Terms and to recommend
any necessary corrective action. However, certain violations of these Terms, as
determined by Digital Kadi, may result in immediate termination of your
access to the Site and/or Services without prior notice to you. The Federal
Arbitration Act, Alabama state law and applicable U.S. federal law, without
regard to the choice or conflicts of law provisions, will govern these Terms.
Foreign laws do not apply. The United Nations on Contracts for the
International Sale of Goods and any laws based on the Uniform Computer
Information Transactions Act (UCITA) shall not apply to this Agreement. Except
for Disputes subject to arbitration as described above, any disputes relating
to these Terms or this Site will be heard in the
courts located in the city and State of Alabama. If any of these Terms is found
to be inconsistent with applicable law, then such term shall be interpreted to
reflect the intentions of the parties, and no other terms will be
modified. Digital Kadi’s failure to enforce any of these Terms is not a
waiver of such term. These Terms are the entire agreement between you and Digital
Kadi and supersede all prior or contemporaneous negotiations, discussions
or agreements between you and Digital Kadi about the Site and
Services. The proprietary rights, disclaimer of warranties, representations
made by you, indemnities, limitations of liability and general provisions shall
survive any termination of these Terms.
Contact Us
If you have any questions about these Terms
or otherwise need to contact Digital Kadi for any reason, please
contact via Your Email
Privacy Policy
IN THIS PRIVACY POLICY (THE
“Policy”) IS A LEGAL CONTRACT BETWEEN YOU AND Journey Digital Strategies LLC.
(“Digital Kadi”, “WE” OR “US”). THE Policy EXPLAINS HOW YOU ARE PERMITTED TO
USE THE WEBSITE AS WELL AS ALL ASSOCIATED SITES PROVIDED BY Digital Kadi, ITS
SUBSIDIARIES, AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY USING
THIS SITE OR REGISTERING TO USE THE SERVICES OFFERED THROUGH THE SITE
(“SERVICES”), YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY
OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES OR ANY
INFORMATION CONTAINED ON THIS SITE.
Digital Kadi (“Digital Kadi”,
“WE” OR “US”) value your privacy. In this Privacy Policy (“Policy”), we
describe how we collect, use, and disclose information that we obtain about
visitors to our website AS WELL AS ALL ASSOCIATED SITES PROVIDED BY Digital
Kadi, ITS SUBSIDIARIES, AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”).
By visiting the Site, or using any of our
services, you agree that your personal information will be handled as described
in this Policy. Your use of our Site or Services, and any dispute over privacy,
is subject to this Policy and our Terms of Use, available HERE, including its
applicable limitations on damages and the resolution of disputes. Digital Kadi’s
Terms of Use are incorporated by reference into this Policy.
The Information We Collect
We may collect information about you
directly from you and from third parties (such as those that sell our
products), as well as automatically through your use of our Site or Services.
Information We Collect Directly From You
Certain
areas and features of our Site and Services may require registration. To
register you must provide your name and email. If you purchase something, we
will also request your credit, debit, and/or financial account data, as well as
billing information, including your billing address. In addition, we may
collect information from you through surveys, contests, and questionnaires that
we may invite you to participate in. We may also collect information such as
your phone number or other contact information, though you are not required to
provide this.
Information We Collect
Automatically
We may automatically collect
the following information about your use of our Site or Services through
cookies and other technologies: your domain name; your browser type and
operating system; web pages you view; links you click; your IP address; the
length of time you visit our Site and or use our Services; and the referring
URL, or the webpage that led you to our Site. We may combine this information with
other personal information that we have collected from you. Please see the
section Our Use of Cookies and Other Tracking Mechanisms below for more
information about our use of cookies and other tracking mechanisms.
How We Use the Information We
Collect
We use the information that we
gather about you for the following purposes:
To provide
our Services to you, to communicate with you about your use of our Services, to
respond to your inquiries, to fulfill your orders, and for other customer
service purposes.
To tailor the content and information that
we may send or display to you, to offer location customization, and
personalized help and instructions, and to otherwise personalize your
experiences while using the Site or our Services.
To send you news and newsletters, special
offers, and promotions; to otherwise contact you about products or information
we think may interest you; and for other marketing and promotional purposes.
To better understand how users
access and use our Site and Services, both on an aggregated and individualized
basis, in order to improve our Site and Services and respond to user desires
and preferences, and for other research and analytical purposes.
How We Share the Information We
Collect
We may share the information
that we collect about you, including personally identifiable information, as
follows:
Affiliates. We may disclose the
information we collect from you to our affiliated companies or subsidiaries;
however, if we do so, their use and disclosure of your personally identifiable
information will be subject to this Policy.
Service Providers. We may
disclose the information we collect from you to third-party vendors, service
providers, contractors or agents who perform functions on our behalf. If we do
so, their use and disclosure of your personally identifiable information will
be subject to this Policy.
Business Transfers. If we are
acquired by or merged with another company, if substantially all
of our assets are transferred to another company, or as part of a
bankruptcy proceeding, we may transfer the information we have collected from
you to the other company.
In Response to Legal Process.
We also may disclose the information we collect from you in order to comply
with the law, a judicial proceeding, court order, or other legal processes,
such as in response to a court order or a subpoena.
To Protect Us and Others. We also
may disclose the information we collect from you where we believe it is
necessary to investigate, prevent or take action
regarding illegal activities, suspected fraud, situations involving potential
threats to the safety of any person, violations of our Terms of Use or this
Policy, or as evidence in litigation in which Digital Kadi is
involved.
Aggregate and De-Identified Information. We
may share aggregate or de-identified information about users with third parties
for marketing, research or similar purposes.
Our Use of Cookies and Other
Tracking Mechanisms
We use cookies and other
tracking mechanisms to track information about your use of our Site or
Services. We may combine this information with other personal information we
collect from you.
Cookies. Cookies are
alphanumeric identifiers that we transfer to your computer’s hard drive through
your web browser for record-keeping purposes. We use cookies to allow our
systems to uniquely identify you during a session or while you are logged into
the Site, in order to help us to process your online transactions and requests,
verify your identity, track aggregate and statistical information about user
activity, and display advertising both on our Site and App and on third-party
sites. Most web browsers automatically accept cookies, but if you prefer, you
can edit your browser options to block them in the future. The Help portion of
the toolbar on most browsers will tell you how to prevent your computer from
accepting new cookies, how to have the browser notify you when you receive a
new cookie, or how to disable cookies altogether. Visitors to our Site who
disable cookies will be able to browse certain areas of the Site, but some
features may not function.
Clear GIFs. Clear GIFs (a.k.a.
web beacons, web bugs or pixel tags) are tiny graphics with a unique
identifier, similar in function to cookies. In contrast to cookies, which are
stored on your computer’s hard drive, clear GIFs are embedded invisibly on web
pages. We may use clear GIFs, in connection with our Site to, among other
things, track the activities of Site visitors and App users, help us manage
content, and compile statistics about usage. We and our third
party service providers also use clear GIFs in HTML e-mails to our
customers, to help us track e-mail response rates, identify when our e-mails
are viewed, and track whether our e-mails are forwarded.
Third Party Analytics and
Tracking. We use automated devices and applications, such as Google Analytics,
to evaluate usage of our Site and, to the extent permitted, our Application. We also may use other analytic means to
evaluate our Services. We use these tools to help us improve our Services,
performance and user experiences, not to track users across our Site and third party sites. These entities may use cookies and other
tracking technologies to perform their services. We do not share your personal
information with these third parties.
Notice for Users. These cookies
collect information about how visitors use a website, for instance which pages
visitors go to most often, and if they get error messages from web pages. These
cookies don’t collect information that identifies a visitor. All information
these cookies collect is aggregated and therefore anonymous. It is only used to
improve how a website works. By using our online service, you agree that we can
place these types of cookies on your device.
Third-Party Ad Networks
We may use third parties, such as network
advertisers, to display advertisements on our Site, as well as to display ads
on third-party websites. This enables us and these third parties to target
advertisements by displaying ads for products and services in which you might
be interested. Third-party ad networks and related services may use cookies,
JavaScript, web beacons (including clear GIFs), Flash LSOs, and other
technologies to measure the effectiveness of their ads and to personalize
advertising content to you. These third-party cookies and other technologies
are governed by each third party’s specific privacy policy, not this one. We
may provide these third-party advertisers with information about your usage of
our Site and our Services. We do not share your name, email address or other
personal information with these third parties, and we do not permit these third
parties to use cookies and other tracking technologies placed on our Site to
automatically collect your personal information.
What about Do-Not-Track options?
Currently, our Site does not honor browser
requests not to be tracked. You may, however, opt out of many website third-party ad networks, including those operated by
members of the Network Advertising Initiative (“NAI”) and the Digital
Advertising Alliance (“DAA”). For more information regarding this practice by
NAI members and DAA members, and your choices regarding having this information
used by these companies, including how to opt out of third-party ad networks
operated by NAI and DAA members, please visit their respective websites:
www.networkadvertising.org/optout_nonppii.asp (NAI) and
www.aboutads.info/choices (DAA).
Opting out of one or more NAI
member or DAA member networks (many of which will be the same) only means that
those members no longer will deliver targeted content or ads to you. It does
not mean you will no longer receive any targeted content or ads on our Site or
other websites. You may continue to receive advertisements, for example, based
on the particular website that you are viewing. Also,
if your browsers are configured to reject cookies when you visit this opt-out
page, or you subsequently erase your cookies, use a different computer or
change web browsers, your opt-out may no longer be
effective. Additional information is available on the NAI and DAA websites
accessible by the above links.
Your Choices about
Communications and Marketing
We may
send alerts and notifications, as well as periodic promotional informational or
other marketing emails to you. You may opt out of marketing-related emails by
following the opt-out instructions contained in any marketing e-mail we send
you. Please note that it may take up to 10 business days for us to process
opt-out requests. If you opt out of receiving marketing emails, we may still
send you alerts, notifications and other e-mails about your account or any
services you have requested or received from us.
International Transfers
Digital Kadi has
affiliates internationally. Your information may be stored and processed in the
United States or any other country where Digital Kadi and/or it’s affiliates are located; by submitting your information
though our website, you agree to such transfers.
Security
We have implemented commercially reasonable
precautions to protect the information we collect from loss, misuse, and
unauthorized access, disclosure, alteration, and destruction. Please be aware
that despite our best efforts, no data security measures can guarantee 100%
security. You should take steps to protect against unauthorized access to your
password, phone, and computer by, among other things, signing off after using a
shared computer, choosing a robust password that nobody else knows or can
easily guess, and keeping your log-in and password private. We are not
responsible for any lost, stolen, or compromised passwords or for any activity
on your account via unauthorized password activity.
Changes to this Policy
This Policy is effective as of the
Effective Date above and is subject to change. Any changes to this Policy will
be posted on our Privacy Policy page on this website.
Website accessibility solution
User License Agreement
THIS END USER LICENSE AGREEMENT
("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL,
COMPANY OR OTHER LEGAL ENTITY ("You") and Digital Kadi]. AND ITS
AFFILIATES AND ITS TECHNOLOGY PARTNERS (THE "COMPANY"PLEASE READ THIS
AGREEMENT CAREFULLY BEFORE INSTALLING AND/OR USING COMPANY’S SOFTWARE. ANY USE
OF THE COMPANY’S SOFTWARE INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS,
UPDATES AND/OR UPGRADES THERETO ("SOFTWARE", AS FURTHER DEFINED
BELOW) SUPPLIED BY COMPANY AND/OR ITS AUTHORIZED RESELLERS, ARE AND SHALL BE
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNLESS YOU AND
COMPANY HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH YOU AND
COMPANY WHICH EXPRESSLY SUPERSEDES THIS AGREEMENT. COMPANY AND YOU SHALL EACH
BE REFERRED TO AS A "PARTY" AND, JOINTLY, AS THE "PARTIES".
BY DOWNLOADING AND/OR INSTALLING AND/OR
OPERATING AND/OR OTHERWISE USING THE SOFTWARE, YOU ARE EXPRESSLY AND EXPLICITLY
ACCEPTING THIS AGREEMENT AND AGREEING TO BE FULLY BOUND BY ALL OF ITS TERMS AND
CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT WILLING TO BE
BOUND BY IT, DO NOT DOWNLOAD, INSTALL, OPERATE AND/OR OTHERWISE USE THE
SOFTWARE AND YOU MUST PROMPTLY UNINSTALL THE SOFTWARE, AND ANY PART THEREOF,
FROM YOUR SYSTEM.
The Company offers a variety of
plans under its services. For the purpose of this Agreement, the plans shall be
divided into 2 types: (i) free plans (collectively-
the "Free Plan"); and (ii) premium plans, including the enterprise
plan (the "Premium Plans" and the "Enterprise Plan",
respectively); Each plan has its own features and qualifications, all as
further detailed in this Agreement.
1.LICENSE GRANT AND RESTRICTIONS
1.1 The Software. The
commercial software products licensed to you hereunder are set forth in one of
the following means: (a) in accordance with this Agreement; (b) if you
purchased the Enterprise Plan, or any optional feature under any of the Premium
Plans, in accordance with a purchase order executed between you and Company; or
(c) if you purchased the Enterprise Plan, or any optional feature under any of
the Premium Plans, in accordance with a purchase order executed between
Company's authorized reseller (the "Reseller") and you (both purchase
orders are collectively referred herein as the "Purchase Order").
Such software products, including any revisions, modifications, enhancements,
updates and/or upgrades thereto (the "Software") are provided to you
solely for the regular and standard purposes the Software is designed for, all
in accordance with the terms set forth in this Agreement and the Purchase Order.
The term "Software" also includes code, compilation of data, or
visual display resulting from the operation of the Software, and any associated
materials, equipment, systems, specifications and Documentation (as defined
below).
1.2 License. Subject to the
terms and conditions of this Agreement and the payment of fees set forth in
this this Agreement or the Purchase Order, as the case may be
("Fees"), the Company hereby grants you (and your Affiliates, if
applicable), and you accept, the following license
1.2.1. Subscription License:
during the term specified in this Agreement, the Price List, or in the Purchase
Order, a limited, non-exclusive, non-sublicensable, non-transferable and fully
revocable license to install, operate and use the Software solely for your
internal business purposes and for the number of facilities and/or domains that
were set forth in your order form and/or in the relevant Purchase Order
("Subscription License").
1.2.2. The Software will be
installed and used in accordance with the terms and conditions contained in
this Agreement and in accordance with the Software's documentation and manuals
for installation provided by the Company or its Reseller (the
"Documentation"). All other rights in the Software are expressly reserved
by the Company.
1.3. Prohibited Uses. Except as
explicitly provided herein, without the prior written consent of the Company,
you may not, nor permit anyone else to, directly or indirectly: (i) use, modify, revise, enhance, incorporate into or with
other software, or create a derivative work of any part of the Software; (ii)
sell, resell, license (or sub-license), lease, assign, transfer, pledge, or
share your rights under this Agreement with or to anyone else; (iii) copy,
distribute, publish or reproduce the Software; (iv) use or permit the Software
to be use to perform services for third parties, whether on a service bureau or
time sharing basis or otherwise; (v) disclose, publish or otherwise make
publicly available the results of any benchmarking of the Software, or use such
results for your own competing software development activities; (vi)
disassemble, decompile, reverse engineer, or attempt to reconstruct or discover
any source code or underlying ideas or algorithms of the Software, except to
the extent otherwise permitted under applicable law in the jurisdiction of use,
notwithstanding this prohibition; (vii) remove or otherwise alter any of the
Company's trademarks, logos, copyrights or other proprietary notices or
indicia, if any, fixed or attached to the Software as delivered to you; (viii)
ship, transfer or export the Software into any country, make available or use
the Software in any manner which is in violation of applicable export control
laws, restrictions or regulations; (ix) disclose, provide or otherwise make
available trade secrets contained within the Software in any form to any third
party; and/or (x) use the Software in violation of applicable laws, or in a
manner which infringes third party rights (including without limitation,
intellectual property or privacy rights).
1.4. Authorized Users. You may
not allow access to the Software by third parties or anyone other than (i) your employees whose duties require such access or use;
and (ii) your authorized consultants and subcontractors (excluding any direct
competitors of the Company) while such access will be permitted only where such
use is required as part of their performance of services on your behalf. You
will ensure that your employees, consultants and subcontractors comply with the
terms of this Agreement and shall bear full responsibility for any harm caused
to the Company for breach of the terms of the license by your consultants or
subcontractors.
2. COMPLIANCE WITH ACCESSIBILITY
STANDARDS; SOFTWARE FEATURES
If you acquired the Enterprise
Plan, which contains full implementation services from the Company, or
purchased such full implementation services in addition to a license to use the
accessibility solution under one of the Plans, then following the completion of
such services by the Company, the following will apply:
2.1 Your website shall comply
with the following accessibility standards: (i) WCAG
2.1 AA, (ii) European standard EN 301549; (iii) US Section 508 standards; and (iiii) Israeli standard IL 5568 at level AA (the
"Standard").
2.2 The following features,
inter alia, shall apply to the Software (the "Features"):
2.2.1. Compatibility with the
following browsers: Edge, Safari, Chrome, and Firefox.
2.2.2. Compatibility with use
on websites constructed in HTML5, and without code errors when checking the
browser console; you must ensure that no code takes control of the keyboard and
that no JS clashes are created on the website.
2.2.3. The Software only
supports HTML tags and files.
2.2.4. CAPTCHA forms on your
website must conform with the Standard and is under your responsibility.
2.2.5. The Software does not
support SVG Flash or Canvas components.
2.2.6. The Software does not
support third-party component services such as Frame set, iframe
virtual service representative, etc.
2.2.7. Only iframe
components operating under the same domain as the website can be made
accessible.
2.2.8. The Software does not
support drag components.
2.2.9. The Company is not
responsible for any HTML code that is not conforming to the Standard or not
written in conformity with the W3C standard.
2.3 Notwithstanding the
foregoing, the Company gives no guarantee that the Software shall at all times comply with the Standard. The Company shall
take commercially reasonable efforts to meet the Standard requirements but
under no circumstances does the Company give any warranty that all Standard
requirements shall be met. Company shall have up to 60 business days to rectify
any regulatory non-compliance issue from the day on which You provide Company
with written notice regarding such non-compliance issue (the "Cure
Period"). Without prejudice to other limitation of liability clauses in
this Agreement, the Company shall not be liable for non-compliance issues which
are resolved within the Cure Period, or which relate to matters which are in your of responsibility as set forth in Sec. 3.2 below. You
are required to promptly notify the Company in writing of any non-compliance
issues that You are made aware of.
For the avoidance of doubt, if
you acquired the Free Plan and/or the Premium Plan and have not purchased such
full implementation services in addition to a license to use the accessibility
solution under one of the Plans, the Company does not commit that your website
shall comply with the aforementioned Standards and
Features.
3. SERVICES RELATED TO THE
SOFTWARE
3.1 Unless indicated explicitly
in a Purchase Order, this Agreement and/or its appendixes, the Company has no
obligation to provide the following services: Software support and maintenance,
Software delivery and installation, Software training or other professional
services. The Purchase Order will indicate which services are provided by the
Company or its Resellers.
3.2 If you acquired the
Enterprise Plan and/or purchased services (such as implementation services) in
addition to a license to use the accessibility solution under one of the Plans,
then such services shall be provided to your designated website by the Company
or by the relevant Reseller, as the case may be, subject
to the following:
3.2.1. The website should be
made to meet accessibility requirements in accordance with the website’s
existing templates, and in accordance with relevant accessibility regulations.
You will be notified of the completion of the process of making the website
accessible by the appearance of a mark on the administration interface,
pertaining to the website’s pages/templates made accessible.
3.2.2. Publishing an
accessibility declaration and your organization’s accessibility arrangements is
your sole responsibility, in accordance with relevant accessibility
requirements.
3.2.3. Upon completion of the
accessibility implementation work, you may obtain additional accessibility
services works from Company or Reseller, as the case may be,
for an extra charge for any addition of and/or update to templates
and/or use of new technologies and/or change to the code and/or tags and/or
selectors on which the website’s system is based (the "Changes to the
Website"). You shall be solely responsible for the accessibility of any
Changes to the Website, unless you acquired implementation services pertaining
to such Changes to the Website.
3.2.4. You shall be, at all
times, solely responsible for all the materials and content displayed on the
website, including in matters concerning copyrights in and the accessibility of
the content, documents and media displayed on the website and listed in
Appendix B ( "the Contents"). You hereby
expressly acknowledges that Company or Reseller (if
applicable) shall not be responsible for checking the Contents and/or their
compliance with the law and/or for checking any accessibility certificates
required for your website.
3.2.5. You may engage the
services of an accessibility consultant or licensed service accessibility
expert. Any accessibility reports by external consultants shall be handled for
an additional charge.
4. CONSIDERATION
4.1 The Fees and payment terms
for the license granted under each Plan and/or any related services are
specified in the Purchase Order.
5. TITLE AND OWNERSHIP
5.1 The Software and the
Documentation are licensed and not sold. The Company and its licensors (if
applicable) are and shall retain all right, interest and ownership in and to the
Software and the Documentation, including without limitation in and to any and all intellectual property rights (including, without
limitation, copyrights, trade secrets, trademarks, improvements, revisions,
derivative works and etc.) evidenced by or embodied in and/or
attached/connected/related to the Software. This Agreement does not convey to
you an interest in or to the Software but only a limited revocable right to use
the Software, during the applicable license term, in accordance with the terms
of this Agreement. Nothing in this Agreement constitutes a waiver of the
Company's intellectual property rights under any law. If you contact the
Company or its Reseller with feedback data (e.g., questions, comments,
suggestions or the like) regarding the Software (collectively,
"Feedback"), such Feedback shall be deemed non-confidential, and the
Company shall have a non-exclusive, worldwide royalty-free and perpetual
license to use or incorporate such Feedback into the Software and/or other
current or future products or services of the Company (without your approval
and without further compensation).
5.2 Without derogating from the
generality of the foregoing, the Software and all its parts and contents,
including applications developed by Company or at Company's request, are the
Company's sole property, even if any changes and adjustments are made for you,
with or without consideration, and all the copyrights are reserved to Company.
It is clarified that the license to operate and use the software for your website
does not confer upon you any right in the software’s source code and/or grant
it any access to the software application or grant it any access to the open or
closed software code.
6. REPRESENTATIONS AND
WARRANTIES, EXCLUSIONS AND DISCLAIMERS
6.1 Company's Representations.
If you acquired the Enterprise Plan, the Company hereby represents to you as
follows: (i) it has the full right, power and
authority to grant the rights and licenses granted herein; (ii) it implements
industry standard measures to ascertain that the Software does not contain any
viruses, harmful components, illicit code, time-bombs, worms, Trojan horses,
protect codes, data destruct keys, or other programming devices or code that
might, or might be used to, access, modify, delete, damage, deactivate or
disable any deliverables or other software, computer hardware, or data; (iii)
all implementation and maintenance services will be performed in a professional
and workmanlike manner and in compliance with all applicable laws and (iv) the
Company shall take commercially reasonable efforts to meet the requirements and
specifications stated in the Documentation. For the avoidance of any doubt, if
you acquired the Free Plan and/or the Premium Plan, such representations shall
not and will not apply to you in any manner.
6.2 Specific Exclusions.
Without derogating from any general and/or specific exclusions of warranty set
forth in this Agreement, no warranty and no liability shall be borne by Company
in the following: (i) repair, maintenance or
modification of the Software by persons other than authorized entities; (ii)
accident, negligence, abnormal physical or electrical stress, abnormal
environmental conditions, abuse or misuse of the Software (in each case, unless
caused by Company or its agents or representatives); (iii) use of the Software
other than in accordance with the Software's manuals, specifications,
Documentation and/or purpose; (iv) the combination of the Software with
equipment and/or software not authorized or provided by the Company or
otherwise approved by the Company in the Software's Documentation; (v) the
Software being licensed for beta evaluation, testing or demonstration purposes;
(vi) if you do not follow the general guidelines set forth in Appendix B
(which, for clarity purposes, are solely your responsibility and do not
constitute any legal and/or other counsel).
6.3 DISCLAIMERS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN "AS IS"
BASIS AND THE COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR
PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND
WITHOUT PREJUDICE TO THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 2.3
ABOVE: (A) THE COMPANY OR ITS SUPPLIERS AND/OR LICENSORS AND/OR RESELLERS SHALL
NOT BE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO YOU OR ANY THIRD
PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR
DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA
OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITH
AND/OR CONNECTED TO THE INSTALLATION OF THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM
SUPPLIED BY THE COMPANY OR ITS RESELLERS AND/OR ANY USE OF OR INABILITY TO USE
THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY OR ITS
RESELLERS, EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL
THEORIES OF LIABILITY, EXCEED THE AGGREGATED AMOUNT OF (10) US DOLLARS (UNLESS
YOU HAVE PURCHASED THE ENTERPRISE PLAN OR ANOTHER PREMIUM PLAN WITH WARRANTY,
IN SUCH CASE THE LIABILITY CAP SHALL BE AS SET FORTH IN THE COMPANY'S PRICE
LIST HERE) . (THE "LIABILITY CAP"). FOR CLARITY THIS LIMITATION OF
LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8. THIRD PARTY SOFTWARE
The Software is based on
software which is developed and owned by the Company and/or its licensors. The
Software may use or include third party software, files and components that are
subject to open source and third party license terms
("Third Party Components"). Your right to use such Third
Party Components as part of, or in connection with the Software is subject
to any applicable acknowledgements and license terms accompanying such Third
Party Components contained therein or related thereto. If there is a conflict
between the licensing terms of such Third Party
Components and this Agreement, the licensing terms of the Third Party
Components shall prevail in connection with the related Third Party Components.
Such Third Party Components are provided on an
"AS IS" basis without any warranty of any kind and shall be subject
to any and all limitations and conditions required by such third parties. You
hereby agree to such terms associated with the Third Party
Components. Under no circumstances shall the Software or any portion thereof
(except for the Third Party Components contained
therein) be deemed "open source" or "publicly available"
software.
9. CUSTOMER DATA
You hereby acknowledge that the
Software may collect, use, store and transmit to Company technical and related
information of your systems and computers including IP address, file hashes,
browser type, operating system, application usage (including but not limited to
successful installation and/or removal), software usage and peripheral
hardware, that may be gathered periodically to facilitate the provision of the
Software, Software updates, Software's support and other services provided to
you, including online services.
10. INDEMNIFICATION
10.1 You agree, in accordance
with final non-appealable court judgement, to defend, indemnify and hold
harmless the Company, its officers, directors, employees and agents, from and
against any and all claims, damages, obligations, losses, liabilities, costs,
debts, and expenses (including but not limited to reasonable attorney's fees)
arising from your unauthorized use of the Software and/or breach of the
provisions of this Agreement and/or any Purchase Order. Company shall promptly
notify you of any such claim, complaint or lawsuit. You shall have the right,
in your sole discretion, to defend any claim, complaint, or lawsuit and to
settle any claim, complaint, or lawsuit at your own expense and by your own
counsel. Any settlement agreement must be reasonably approved in advance by the
Company. The Company is obligated to cooperate fully in the investigation and
defense of any such claim, complaint or lawsuit. In addition, this
indemnification does not apply to any loss, damage, cost or expense to the
extent such Losses are caused by the gross negligence or willful misconduct or
the Company or any of the Company’s employees, subcontractors, agents,
representatives or assigns.
10.2 Only if you acquired the
Enterprise Plan or other Premium Plan with warranty services, then the Company,
in accordance with final non-appealable court judgement, agrees to defend,
indemnify and hold harmless You, your officers, directors, employees and
agents, from and against any and all claims, damages, obligations, losses,
liabilities, costs, debts, and expenses (including but not limited to
reasonable attorney's fees) arising out of or incurred in connection with any
third party claim, action, suit or proceeding (including, without limitation,
any governmental or similar authority investigation, inquiry or action), to the
extent it is based on a claim that the Software or Documentation or any of the
services provided here under infringes any patent, trademark, copyright or
trade secret of a third party, provided, however, that such claim is found to
be true by a competent court in a final, non-appealable court ruling.
10.3 Only if you acquired the
Enterprise Plan or other Premium Plan with warranty services, then the Company,
in accordance with final non-appealable court judgement, further agrees to
defend, indemnify and hold harmless You, your officers, directors, employees
and agents, from and against any and all claims, damages, obligations, losses,
liabilities, costs, debts, and expenses (including but not limited to
reasonable attorney's fees) arising out of or incurred in connection with any
third party claim, action, suit or proceeding (including, without limitation,
any governmental or similar authority investigation, inquiry or action), to the
extent it is based on breach of Sec. 2.1 and 2.2 above, which is not cured
within the Cure Period set forth in Sec. 2.3 above, and to the extent that such
doesn't derive from or relate to matters which are in Your responsibility as
set forth in Sec. 3.2 above.
10.4 You agree that: (i) you shall, as soon as reasonably practicable, notify the
Company in writing of any claim for which it intends to seek indemnification
hereunder promptly after becoming aware of such claim; (ii) you shall not make
any admission as to liability or compromise or agree to any settlement of any
such claim without the prior written consent of the Company which consent shall
not be unreasonably withheld or delayed; and (iii) the Company shall, at its
own expense, be entitled to have the conduct of or settle all negotiations and
litigation arising from any such claim and you shall, at Company's request and
expense, give the Company all reasonable assistance in connection with those negotiations
and such litigation.
10.5 The indemnification
obligations set forth above shall be at all times limited to the Liability Cap.
10.6 For the avoidance of any
doubt, please note that if you acquired the Free Plan and/or a Premium Plan
with no warranty, the Company shall have no obligation to indemnify you
pursuant to Sections 10.2 and 10.3.
11. TERM AND TERMINATION
11.1 Agreement Term. This
Agreement is effective upon the first download, installation, operation and/or
use of the Software and will remain in force during the Term (as defined
below), unless earlier terminated in accordance with this Agreement.
Subscription Licenses are period-based licenses that may be renewed for
subsequent periods. The order form and/or the Purchase Order will indicate the
term of your applicable license, as well as the parties' rights to terminate
the license and services (the "Term").
11.2 If you have subscribed to
the Free Plan, the Company may at any time, block your access to the Software
and/or temporarily or permanently limit, suspend or terminate your user's
account, for any reason, at the Company's sole discretion.
11.3 In addition, under any
Plan, the Parties may terminate this Agreement or a specific Purchase Order on
the following grounds: (i) termination by mutual
written consent; (ii) by either Party upon written notice to the other Party if
the other Party commits a material breach of this Agreement and fails to cure
or remedy such breach within thirty (30) days after receiving written notice of
such breach; or (iii) either Party may terminate this Agreement upon written
notice to the other Party in the event that one or more of the following events
occur(s): (a) appointment of a trustee or receiver for all or any part of the
assets of the other Party; (b) insolvency or bankruptcy of the other Party; (c)
a general assignment by the other Party for the benefit of creditor(s); or (d)
dissolution or liquidation of the other Party. notwithstanding the foregoing,
any Fees paid to Company are non-refundable under any circumstances. This means
that if you purchased a License for an extended period of
time, such as for a year or for a three-year period, none of the Fees
paid by you are refundable.
11.4 Effect of Termination.
Upon termination of this Agreement or a Purchase Order: (i)
all Subscription Licenses granted to you and all valid Purchase Orders (in the
event of termination of the Agreement) or those granted under a specific
Purchase Order (in the event of its specific termination), as the case may be,
shall expire, and you shall no longer be permitted to use the Software; and
(ii) any sums and/or Fees paid by you before the date of termination are
non-refundable, and you shall not be relieved of your duty to discharge in full
all due sums owed to the Company under this Agreement, which sums shall become
immediately due and payable on the date of termination of this Agreement or
relevant Purchase Order.
11.5 Survival. Any right,
obligation or required performance of the Parties in this Agreement which, by
its express terms or nature and context is intended to survive termination or
expiration of this Agreement, will survive any such termination or expiration.
12. CONFIDENTIALITY
Each Party may have access to
certain non-public and/or proprietary information of the other Party, in any
form or media, including (without limitation) confidential trade secrets and
other information related to the products, software, technology, data,
know-how, or business of the other Party, whether written or oral, and any
other information that a reasonable person or entity should have reason to
believe is proprietary, confidential, or competitively sensitive (the
"Confidential Information"). Each Party shall take reasonable
measures, at least as protective as those taken to protect its own confidential
information, but in no event less than reasonable care, to protect the other
Party's Confidential Information from disclosure to a third party. Neither
Party shall use or disclose the Confidential Information of the other Party except
as expressly permitted under this Agreement or by applicable law. All right,
title and interest in and to Confidential Information are and shall remain the
sole and exclusive property of the disclosing Party. Neither Party shall have
an obligation under this Agreement to maintain in confidence any information
that (i) is in the public domain at the time of
disclosure, (ii) though originally Confidential Information, subsequently
enters the public domain other than by breach of such Party’s obligations hereunder
or by breach of another person’s or entity’s confidentiality obligations, (iii)
is shown by documentary evidence to have been known by such Party prior to
disclosure to such Party by the discloser; or (iv) is independently developed
by such Party without reference to Confidential Information.
13. REFERENCE CUSTOMER
You agree that the Company may
identify you as a user of the Software and use your trademark and/or logo: (i) in sales presentations, promotional/marketing materials,
and press releases, and (ii) in order to develop a brief customer profile for
use by the Company on its website and other promotional channels for
promotional purposes.
14. RIGHT TO CHANGE THESE TERMS
AND CONDITIONS
The company reserves its right
to change any or all of the provisions of this
Agreement unilaterally. The company shall inform you of any such change in
advance. You are hereby required to periodically review these terms and
conditions. Notwithstanding the foregoing, you are not permitted to
unilaterally change any or all of the provisions of
this Agreement.
15. MISCELLANEOUS
This Agreement shall be
construed and governed in accordance with the laws of the State of Israel (with
no regard to conflict of law provisions) and the competent courts of Tel
Aviv-Jaffa, Israel shall have exclusive jurisdiction in any conflict or dispute
arising out of this Agreement. The application of the United Nations Convention
of Contracts for the International Sale of Goods is expressly excluded. This
Agreement represents the complete agreement concerning the license granted
herein and the subject matter hereof supersedes any prior written or oral
agreements. 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. If any provision of this Agreement is held to be unenforceable, such
provision shall be reformed only to the maximum extent necessary to make it
enforceable. This Agreement shall be binding upon the respective heirs,
beneficiaries, legal or personal representatives, successors and permitted
assigns of the Parties. You may not assign your rights or obligations under
this Agreement without the prior written consent of the Company, and any
attempt by you to so assign, shall be deemed null and void. The Company may
assign its rights and or obligations under this Agreement, without your prior
written consent. Notwithstanding the foregoing, you may transfer or assign any
of your rights and/or obligations under this Agreement without obtaining the
consent of the Company, in connection with any merger (by operation of law or
otherwise), consolidation, reorganization, change in control or sale of all or
substantially all of your assets or similar
transaction of such assigning Party. Neither Party shall be liable for any
failure to perform or delay in performance of any of its obligations under this
Agreement caused by circumstances beyond the reasonable control of a Party to
this Agreement including without limitation act of God, government or local
government, war, fire, flood, earthquake or storm, acts of terrorism,
explosion, civil commotion, bank strike or industrial dispute.
APPENDIX A
MAINTENANCE SERVICES
Only if you acquired the
Enterprise Plan or purchased maintenance services in addition to a license to
use the accessibility solution under one of the Plans, the Company shall
provide the following maintenance services during the term of your valid
license (collectively, the "Maintenance Services"):
Maintenance and support
services during business hours 09:00-17: 00 (GMT+2).
Maintenance services include
telephone assistance, accessibility issues, and malfunctions reporting.
Response is given by telephone and/or email. For this purpose,
"malfunction" – material nonconformity of the Software with the
description thereof contained in its accompanying documentation. The company
shall make commercially reasonable efforts to operate the Software and/or
system services properly and without any technical malfunctions or disruptions.
However, interruptions and malfunctions in the operation of the Software and/or
the system may sometimes exist, which are beyond the control of the Company
and/or caused by improper use of the Software by you. You shall have no claim,
demand or suit against the Company with respect to any such malfunction or
interruption, including for any damage caused, directly or indirectly, by such
interruptions or malfunctions. In addition, updates to the software or updated
versions thereof, including enhancements and additions, shall be provided from
time to time by the Company, at its discretion. The service shall be provided
during Company's regular working hours, excluding holidays.
Software upgrades for the
duration of the license.
Maintenance services include
version updates in accordance with changes in accessibility standards.
Provision of a professional
opinion by an accessibility expert on our behalf in cases of exemption.
Response times for service
call: Up to 7 working days. Response times for a severe service call: 24 hours.
Monitoring system to check the
accessibility of the site for discrepancies and gaps.
Ongoing operation of the
website (after module implementation is complete) is solely your
responsibility. In the case of adding new components/templates to the website,
it is possible to get future accessibility services. Such services may be
subject to additional fees.
Please note that if you
acquired the Free Plan and/or the Premium Plan (other than the Enterprise Plan), and have not purchased maintenance services in addition
to a license to use the accessibility solution under one of the Plans, the
Company has or shall have no obligation to provide you with such Maintenance
Services.
APPENDIX B
GENERAL GUIDELINES FOR CUSTOMERS
TO MEET REGULATORY OBLIGATIONS
Please note: the following
table is provided for your convenience only, and under any circumstances does
not constitute any legal advice and/or otherwise.
Contact Us
If you have questions or
concerns about the privacy aspects of our Services or would like to make a
complaint, please contact by clicking here.