Terms and Conditions of Service
Last Modified: June 1, 2023
These Terms and Conditions of Service (the "Agreement") constitute a binding contract between you (the "Customer," "you," or "your") and DigitalOwl, Inc. ("DigitalOwl," "we," or "us"). This Agreement governs your access to and use of our services (the "Services").
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). By clicking on the "I ACCEPT" button below or by accessing or using the Services, you:
Acknowledge that you have read and understand this Agreement;
Represent and warrant that you have the right, power, and authority to enter into this Agreement and, if entering into this Agreement for an organization, that you have the legal authority to bind that organization; and
Accept this Agreement and agree that you are legally bound by its terms.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
(a) "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(b) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services.
(c) "Documentation" means DigitalOwl's user manuals and guides relating to the Services provided by DigitalOwl to Customer either electronically or in hard copy form, made available at DigitalOwl's website.
(d) "DigitalOwl IP" means the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, DigitalOwl IP includes Aggregated Statistics and any information, data, or other content derived from Customer's use of the Services, but does not include Customer Data.
(e) "Services" means the services provided by DigitalOwl under this Agreement that are detailed at DigitalOwl's website here: www.digitalowl.com
(f) "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.
2. Access and Use
(a) Provision of Access. Subject to the terms and conditions of this Agreement, DigitalOwl hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services solely for your internal business operations in the United States by Authorized Users. DigitalOwl may provide you with the necessary access credentials to allow you to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, DigitalOwl hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with the use of the Services.
(c) Third Party Software Required. Service reports or other deliverables are delivered in PDF format. To access and use such deliverables, you will need to have a PDF reader (e.g., Adobe Acrobat) installed on your computer or mobile device. We do not license or provide such third-party software to you.
(d) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Services, any software component of the Services, or Documentation for purposes beyond the scope of the access granted in this Agreement. You shall not, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted under this Agreement;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;
(iv) remove any proprietary notices from the Services or Documentation; or
(v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, DigitalOwl may monitor Customer's use of the Services and collect and compile data and information related to Customer's use of the Services to be used by DigitalOwl in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between DigitalOwl and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DigitalOwl. You acknowledge that DigitalOwl may compile Aggregated Statistics based on Customer Data input into the Services. You agree that DigitalOwl may use and disclose Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
(f) Reservation of Rights. DigitalOwl reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DigitalOwl IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, DigitalOwl may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Services if:
(i) DigitalOwl reasonably determines that (A) there is a threat or attack on any of the DigitalOwl IP; (B) Customer's or any other Authorized User's use of the DigitalOwl IP disrupts or poses a security risk to the DigitalOwl IP or to any other customer or vendor of DigitalOwl; (C) Customer or any other Authorized User is using the DigitalOwl IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) DigitalOwl's provision of the Services to Customer or any other Authorized User is prohibited by applicable law; or
(ii) any vendor of DigitalOwl has suspended or terminated DigitalOwl's access to or use of any third-party services or products required to enable Customer to access the Services, a "Service Suspension". DigitalOwl shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. DigitalOwl shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. DigitalOwl will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities
(a) Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Customer Data. You hereby grant to DigitalOwl a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for DigitalOwl to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(c) Passwords and Access Credentials. If you become a registered user with account credentials, you will be responsible for keeping your passwords and access credentials associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
4. Fees and Payment
In consideration for the Services, you shall pay DigitalOwl the applicable fees for the Services selected and agreed to by you during the Service ordering process (the "Fees") within thirty (30) days from the invoice date without offset or deduction. You shall make all payments in US dollars on or before the due date. If you fail to make any payment when due, without limiting DigitalOwl's other rights and remedies:
(i) DigitalOwl may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;
(ii) you shall reimburse DigitalOwl for all reasonable costs incurred by DigitalOwl in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(iii) if such failure continues for ten (10) days or more, DigitalOwl may, in accordance with Section 2(g), suspend your and all other Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by customer hereunder, other than any taxes imposed on DigitalOwl's income.
5. Confidential Information
From time to time during the Term, DigitalOwl and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, thirdparty confidential information, and other sensitive or proprietary information, whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is:
(a) in the public domain;
(b) known to the receiving party;
(c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or
(d) independently developed by the receiving party.
The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement.
Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership: Feedback
As between you and us,
(a) we own all right, title, and interest, including all intellectual property rights, in and to the Services and
(b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data.
If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback.
All Feedback is and will be treated as nonconfidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer
(a) DigitalOwl Warranty. DigitalOwl warrants that it provides Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND DIGITALOWL STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Services will be in compliance with this Agreement.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a). THE SERVICES ARE PROVIDED "AS IS" AND DIGITALOWL SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DIGITALOWL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DIGITALOWL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) DigitalOwl Indemnification. DigitalOwl shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"). incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, provided that Customer promptly notifies DigitalOwl in writing of the Third-Party Claim, cooperates with DigitalOwl, and allows DigitalOwl sole authority to control the defense and settlement of such Third-Party Claim. This Section B(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at DigitalOwl's option, defend DigitalOwl and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or based on Customer's or any Authorized User's negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against DigitalOwl unless DigitalOwl consents to such settlement, and further provided that DigitalOwl will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability
IN NO EVENT WILL DIGITALOWL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DIGITALOWL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DIGITALOWL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY. INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DIGITALOWL UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 9 do not apply to the parties' obligations under 38.
(a) Term. The term of this Agreement begins on the Effective Date and continues until we complete the Services by delivering the Service deliverables to you (the "Term"). If you wish to purchase additional Services thereafter, you may do so by placing a new Services order, which will be governed by the Services Terms and Conditions applicable at the time you place the order.
(b) 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.
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
12. Export Regulation
The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
13. Governing Law and Jurisdiction
This agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Except as otherwise set forth herein, any legal suit, action, or proceeding arising out of or related to) this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to DigitalOwl at the address set forth below and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us.
Attn: Legal Department
1230 6th Ave, 16th Floor, New York, NY 10020
You hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of our obligations hereunder.