Terms and Conditions
Effective from May 23, 2023 :Version 1
Please read these Terms of Service (“Terms”) carefully because they govern your use of the website DiGGrowth.com (the “Site”), a product by Growth Natives, and the content, services and products avaIlable at or through the Site.
If you do not agree to these terms, DO NOT USE the Company’s Services. By accepting the terms below or by using the Company’s Services, you, the entity you represent and any affiliate of such entity (collectively referred to as “Customer”) agree that you have read and agree to be bound by these terms to the exclusion of all other terms. This Agreement is entered into as of the date you accept these terms or use the Services (“Effective Date”).
2. Responsibilities of Customer
- Customer Account. Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that DiGGrowth may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify DiGGrowth promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. DiGGrowth and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
- Use Restrictions. Customer agrees not to use the DiGGrowth Technology (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws; (iii) use the Service or DiGGrowth Technology in violation of applicable law (iv) store or transmit any content that infringes upon any third party’s intellectual property rights; (v) interfere with or disrupt the integrity or performance of the Services and their components; (vi) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (viii) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.
- In addition, Customer will not: (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare or otherwise commercially exploit or make the DiGGrowth Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (x) modify, adapt, or hack the DiGGrowth Technology or otherwise gain or attempt to gain unauthorized access to the DiGGrowth Technology, its related systems or networks; (xi) falsely imply any sponsorship or association with DiGGrowth; (xii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of DiGGrowth Technology.
3. Intellectual Property
- Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and DiGGrowth obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. DiGGrowth and its licensors retain all right, title, and interest in and to DiGGrowth Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. DiGGrowth may freely use and incorporate into DiGGrowth’ products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to DiGGrowth products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by DiGGrowth in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
- Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or about Customer’s use of the Services, Software, DiGGrowth’ websites, DiGGrowth’ APIs, or the DiGGrowth marketplace (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, DiGGrowth may collect and use Usage Data to develop, improve, support, and operate its products and services. DiGGrowth may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 7 (Confidentiality) of this Agreement. DiGGrowth may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified. Customer may request that Customer Data be excluded for such purposes by submitting such an email request to info@DiGGrowth.com
- Updates. DiGGrowth may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by DiGGrowth with respect to future functionality or features.
- Other Services. Third Party Services may integrate with the Services and are not licensed by DiGGrowth pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept. DiGGrowth does not warrant or support Third Party Services, unless expressly provided otherwise in an Order form or SOW. DiGGrowth is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party. The Service may contain features designed to interoperate with Third Party Services. DiGGrowth cannot guarantee the continued availability of such Third Party Service features, and may cease supporting them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third Party Service provider ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to DiGGrowth.
4. Data Privacy and Information Security
- Except to the extent specified above, the Company shall process any Personal Data forming part of all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Services by the Customer through its Account in connection with its use of the Services (“Customer Data”) as a processor and subject to the terms of the Data Processing Agreement.
- Customer Data Deletion – Company provides the Customer with access to Customer Data and the ability to delete Customer Data upon request. Upon cessation or termination of Company’s relationship with Customer, either by the Company or the Customer, the Company has no obligation to maintain or provide any Customer Data and will delete or destroy Customer Data in its possession within a period of ninety (90) days from the date of termination.
- When integrating the services from third party application(s) or service(s) integrating with the Services through APIs or otherwise and which requires the Customer to have its own accounts with such third-party application(s) or service(s) in order to utilize them (“Third-party Service Providers”), the Customer shall be responsible for providing the required notices to, obtaining the consent or required approvals, as required by applicable laws from the person or entity other than the Customer or its Users with whom the Customer interacts using the Services (“End-Users”). By integrating the Services with such Third-party Service Providers, the Customer assumes all risks associated with it, including anyone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights.
- The Customer represents and warrants to the Company that the Customer owns or has the necessary rights to transmit Customer Data to the Services and that doing so does not conflict with any other rights the Customer has been granted.
5. Fees and Payment
- Fees and Payment. All charges associated with Customer’s Account (“Fees”) are set forth in the applicable Order form, SOW or Website. For credit card payments, the payment is due immediately upon receipt of invoice. Customer hereby authorizes DiGGrowth or our authorized agents, as applicable, to bill your credit card upon subscription to the Service(s) (and any renewal thereof). For payments through other accepted methods, payment is and are due and payable in full within thirty (30) days from the invoice date or as stated in the applicable Order form or SOW. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable Order form, SOW or Website. Unless otherwise set forth in the Order form or SOW, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. During the Term, the Customer shall not reduce their Service Plan or User count.
- Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from DiGGrowth, DiGGrowth may suspend Customer’s access to the DiGGrowth Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
Payment Disputes. DiGGrowth will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
- Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent DiGGrowth is legally required to collect the same, will be itemized on the DiGGrowth invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that the DiGGrowth receives the amount actually quoted and invoiced. If DiGGrowth has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides DiGGrowth with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Orders by Affiliates. Customer’s Affiliates may purchase Services directly from DiGGrowth by executing an Order form or SOW which is governed by the terms of this Agreement. Such Order form or SOW will establish a new and separate agreement between the Customer’s Affiliate and the DiGGrowth entity signing such Order form or SOW. If the Affiliate resides in a different country than Customer, then the Order form or SOW may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
- Purchases from Channel Partners. Customer may procure use of any Services, Software, or Mobile Apps from a third-party authorized reseller of DiGGrowth, including third-party marketplaces (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any Services, Software, or Mobile Apps procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable (including applicable taxes) for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. Customer understands and agrees that, if Customer purchased the Services, Software, or Mobile Apps subscriptions via a Channel Partner, service credits and refunds payable under this Agreement may be payable or applied by Channel Partner acting on behalf of DiGGrowth in proportion to the fees paid by Customer to the Channel Partner, and the discharge by the Channel Partner of such obligations will relieve DiGGrowth of the same under this Agreement.
6. Term, Termination and Suspension
- Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant Order form or SOW (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
- Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term or one year (whichever is shorter). DiGGrowth reserves the right to increase the Fees at the beginning of each Subscription Term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
- Suspension. DiGGrowth may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by DiGGrowth to prevent or address the introduction of Malicious Software (as defined in Section 8.b below), a security incident, or other harm to Customer, DiGGrowth, or DiGGrowth’ other customers. DiGGrowth will notify Customer of any such suspension. DiGGrowth will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or DiGGrowth Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
- Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Free Trial Customers. Upon the expiration of Customer’s free trial, DiGGrowth may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in this Agreement DiGGrowth will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
7. Data Export and Retention
Upon termination or expiration of this Agreement or any Order form or SOW for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other DiGGrowth Technology will terminate. DiGGrowth strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. DiGGrowth will retain Customer agrees, followingData for fourteen (14) days from the effective date of termination or expiration of thisthe Agreement or an unrenewed Subscription Term,(“Data Retention Period”). Provided that Customer Data will be retained or deleted in accordance with the Supplemental Terms, as applicable to Customer, its payment obligations on the effective date of termination Where Customer Data is retained by DiGGrowth and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact DiGGrowth within fourteen (14) days following the effective date of terminationData Retention Period to have DiGGrowth export Customer’s Customer Data. Beyond such Data Retention Period, DiGGrowth reserves the right to delete all Customer Data in the normal course of operation except as necessary to comply with DiGGrowth legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted.
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer of Warranties
- Service Warranty. DiGGrowth warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, DiGGrowth will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if DiGGrowth is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than DiGGrowth or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
- Malware Warranty. DiGGrowth warrants that the Services hosted by DiGGrowth will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of DiGGrowth or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service
- not supplied by Company,
- made in whole or in part in accordance with Customer specifications,
- that are modified after delivery by Company,
- combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
- where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense
- replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality,
- obtain for Customer a license to continue using the Service, or
- if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
- Customer will defend, indemnify and hold harmless the Company, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Services, Customer’s violation of this Agreement, Customer Data, or Customer’s violation of any rights of a third party through use of the Services.
- Governing Law – These terms and conditions shall be governed by and construed in accordance with the internal law of the State of Washington, United States of America. Any dispute arising under these terms and conditions shall be subject to the jurisdiction of the courts of the State of Washington. The Customer agrees to reasonably cooperate with the Company to serve as a reference account upon request.
- Assignment – This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
- Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
- Effect of Termination – The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability.
- Severability – If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Others – No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.