BEFORE YOU CHECK “I ACCEPT”, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING “I ACCEPT” OR USING THE WEBSITE IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OUR SERVICES. WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT IN THE FUTURE AND ANY CHANGES WILL APPLY TO YOUR USE OF THE WEBSITE AFTER THE DATE OF SUCH CHANGE.
1. ACCEPTANCE OF TERMS
We further reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Materials and/or Services (or any part thereof) with or without notice. You agree that, unless we have agreed otherwise in writing, we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Materials and/or Services (or any part thereof).
2. DEFINED TERMS FOR SITE CONTENT; LICENSE TO DIGSPLUS FOR USER CONTENT
All user-supplied content, information, materials, files, communications, text, videos and images (including user listings and reviews) are referred to collectively as “User Content.” “Our Content” or “Company Content” means all materials provided by us. The Site and App accommodate two categories of users: (1) users utilizing the Site and App to list their properties, products and services, and (2) users utilizing the Site and App to search for, locate and rent or buy properties, products or services. The terms and conditions expressed in this agreement apply to all users and visitors of this Site and users of the App, and we may refer to all Site and App users as “you” or “your/s” in this Agreement.
The Site and App accommodate User Content. By submitting User Content to any area of the Site or App you grant us the following type of license: a perpetual, worldwide, royalty-free, non-exclusive license to modify and reproduce such User Content. You also grant us the right to distribute and publicly display and perform such User Content on the Site for the purpose for which such User Content was submitted to the Site or App. You also grant us a worldwide, perpetual, royalty-free, non-exclusive license to modify, compile, reproduce, sell, license and distribute such User Content without compensation to you. You understand that we will have the right to use, reproduce, sell, sublicense and generally monetize the User Content you upload to the Site or App, and you expressly agree to such use by us.
3. USER ACCOUNTS
In order to utilize our listing Services you will need to register and create a user account (an “Account”). You also agree:
i. that you will not use an Account that is created by another user;
ii. that you will supply only complete and accurate information in registering for and in utilizing an Account;
iii. that you are solely responsible for the activity that occurs on and through your Account, that you will keep your Account password secure at all times, and that we will not be liable for your losses caused by any unauthorized use of your Account; and
iv. that if your Account has been compromised for any reason, you will immediately notify us of the security breach or unauthorized use of your Account.
4. INTELLECTUAL PROPERTY; LIMITED LICENSE
In addition to the Materials and Services offered by us, this Site and the App also make available web-tools, materials, information, products and/or services provided by other companies and local other users, including listed properties, products and services, and web-tools, such as Google Maps, Skype features, WhatsApp features, Facebook features, and Twitter features (collectively, the “Third Party Products and Services”). We offer no guarantees and assume no responsibility or liability of any type with respect to the Third Party Products and Services. You understand and agree that we merely provide you with a platform through which to list and search for properties, products and services. We do not represent any of the users featured on our Site or the App and take no responsibility for the quality or safety of their properties, products and services. You agree that you will not hold us responsible or liable with respect to property you rent or buy from users of the Site or App or seek to do so. You further understand and agree that all dealings with Site and App users is at your own risk. We are not a party to any transactions between you and another Site or App user.
Except as expressly indicated to the contrary elsewhere on this Site, you may use, view, and download Our Content and User Content available on this Site and App subject to the following conditions:
1. Our Content and User Content may be used solely for personal purposes. You may not commercially exploit any of the Site content without express permission from us.
2. You may not remove any copyright or other proprietary notices contained in Our Content or User Content.
3. We reserve the right to revoke the authorization to view, use and download Our Content and User Content available on this Site and App or any portion of them at any time, and any such use shall be discontinued immediately upon notice from us.
4. The rights granted to you constitute a license and not a transfer of title.
The rights specified above to view, use and download Our Content and User Content available on this Site and App are not applicable to the design or layout of this Site and the App. Elements of this Site and the App are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
5. TRADEMARK INFORMATION
The trademarks, logos, and service marks, including the “DigsPlus” trademark, (the “Marks”) displayed on this Site and the App are the property of the Company or other third parties. You are not permitted to use the Marks without the prior written consent of the Company or such third party that may own the Marks.
You understand and agree that certain services offered through the Site and App, such as the ability to list properties, are subject to service fees as outlined in detail on the Site. You agree to make the payments as provided on the Site for the selected service package or subscription. By subscribing or otherwise selecting a paid-for service you expressly authorize us and our partners to charge your credit card (and to otherwise accept payment by other means) in accordance with our service prices and other applicable policies on our Site or on the App.
7. MANAGING USER CONDUCT
8. PROHIBITED COMMUNICATIONS
More specifically, you understand that you are entirely responsible for the content of, and any harm resulting from, your postings to or transmissions through the Site and App. When you create or make available your User Content, you thereby represent and warrant that:
(a) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your User Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights of any third party;
(b) you have fully complied with any third-party licenses relating to your User Content, and have done all things necessary to successfully pass through to viewers any required terms;
(c) your User Content does not contain any viruses, malicious code or other harmful or destructive content;
(d) your User Content is not obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, libelous or slanderous, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
(e) your User Content does not contain material that solicits personal information from anyone under the age of majority in the user’s jurisdiction or place of residence. Further, that your User Content does not otherwise exploit people under the age of majority in the user’s jurisdiction or place of residence in a sexual or violent manner, and does not violate any applicable child pornography law or otherwise intended to protect the health or wellbeing of minors;
(f) your User Content does not violate any applicable law designed to regulate electronic advertising;
(g) your User Content does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code designed to enable you or others to gather information about or monitor the online or other activities of another party on or through the Site or App;
(h) your User Content, including your reviews of parties listing on the Site, does not contain any defamatory material; and
9. DIGITAL MILLENNIUM COPYRIGHT ACT
Our Site is committed to complying with U.S. copyright laws. The Digital Millennium Copyright Act (“DMCA”) provides a recourse for owners of copyrighted material who believe that their rights under U.S. copyright laws have been infringed on the Internet. Under the DMCA, copyright owners may contact the authorized agent of an Internet service provider to report alleged infringements of their protected works appearing on web pages hosted by the service provider. Upon receipt of a properly filed complaint satisfying the requirements of the DMCA, our Site will remove or block access to the allegedly infringing material, and may terminate the user’s Account as provided in this Agreement. If a person believes in good faith that a notice of copyright infringement has been wrongly filed, such person may submit a counter-notice to us. In any event, we shall not be made a party to disputes over alleged copyright infringement. Our policy is to terminate Accounts that repeatedly engage in infringing activities.
If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): 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 work claimed to have been infringed, or, if multiple copyrighted 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 and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; 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 owner, its agent, or the law; and 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. You may send the notification to firstname.lastname@example.org.
10. WARRANTIES AND DISCLAIMERS
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND US, THIS SITE, AND ALL MATERIALS AND SERVICES ACCESSIBLE THROUGH THIS SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (IV) THE QUALITY OF ANY PROPERTIES, PRODUCTS OR SERVICES OR MATERIALS OBTAINED OR ACCESSIBLE BY YOU THROUGH THE SITE OR SOFTWARE APPLICATIONS WILL MEET YOUR EXPECTATIONS; AND (V) ANY ERRORS IN THE SERVICES OR MATERIALS OBTAINED THROUGH THE SITE OR APP, OR ANY DEFECTS IN THE SITE OR APP, THEIR SERVICES OR MATERIALS, WILL BE CORRECTED.
WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT COMPANY IS NOT AN AGENT OF ANY SITE USER FEATURED ON THE SITE OR APP AND IT MAKES NO REPRESENTATIONS WHATSOEVER ABOUT SUCH PARTIES, THEIR LISTED PROPERTIES, PRODUCTS AND SERVICES, OR SUCH PARTIES’ CREDIBILITY, HONESTY OR SAFETY. YOU UNDERSTAND AND AGREE THAT THE COMPANY MERELY OFFERS A PLATFORM THROUGH WHICH USERS MAY LIST PROPERTIES, PRODUCTS AND SERVICES AND OTHER USERS MAY SEARCH FOR LISTED PROPERTIES, PRODUCTS AND SERVICES. COMPANY MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO THE SITE OR APP USERS, THE PROPERTIES, PRODUCTS AND SERVICES LISTED, AND DESCRIPTION OR PRICES LISTED ON THE SITE OR APP. WE ARE NOT PARTIES TO ANY TRANSACTION BETWEEN USERS AND THEREFORE ARE NOT OBLIGATED TO ENFORCE ANY RIGHTS AS BETWEEN USERS.
IT IS THE RESPONSIBILITY OF USERS OF THE SITE AND APP TO ENSURE THAT LISTING, RENTING AND SELLING/BUYING OF PROPERTY, PRODUCTS AND SERVICES LISTED ON THE SITE OR APP COMPLIES WILL ALL APPLICABLE LAWS AND REGULATIONS. THE COMPANY MAKES NO REPRESENTATIONS WHATSOEVER ABOUT THE LEGALITY OF THE LISTING OR RENTING/PURCHASING OF PROPERTY, PRODUCTS AND SERVICES LISTED AND YOU AGREE TO INDEMNIFY US TO THE EXTENT THAT WE SUFFER A LOSS AS A RESULT OF YOUR VIOLATION OF ANY APPLICABLE LAW OR REGULATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. PERSONAL INFORMATION AND PRIVACY
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR UNDER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SITE OR APP AND ANY OF THE MATERIALS OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY TO YOU FOR THE QUALITY OF THE PROPERTY, PRODUCTS OR SERVICES LISTED, FOR ANY PERSONAL INJURY OR DEATH RESULTING FROM YOUR INTERACTION WITH OTHER SITE USERS, OR FOR DAMAGE TO OR THEFT OF THE PROPERTY OR PRODUCTS. YOU UNDERSTAND THAT THE COMPANY MERELY OFFERS A PLATFORM AND THAT IT TAKES NO RESPONSIBILITY WHATSOEVER WITH RESPECT TO TRANSACTIONS CONDUCTED BY USERS OF THE SITE/APP. YOU AGREE THAT COMPANY WILL NOT BE LIABLE TO YOU FOR ANY ACTION OR OMISSION BY ANY USER OR NON-USER OF THE SITE OR APP, WHETHER OR NOT THE PARTIES’ INTERACTION RESULTED FROM UTILIZATION OF THE SITE OR APP.
OUR TOTAL LIABILITY TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY OF RECOVERY, SHALL NEVER EXCEED THE AMOUNT YOU ACTUALLY PAID TO THE COMPANY IN LISTING AND SUBSCRIPTION FEES.
13. INDEMNITY AND LIABILITY
14. GOVERNING LAW, JURISDICTION
This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. You agree that any dispute, claim or controversy arising out of or relating to your use of the Site or Services, these Terms or the breach, termination, enforcement, interpretation or validity thereof (collectively, “Disputes”) will be settled by binding arbitration between you and Company, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. This “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect. The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration proceedings shall take place in New York, New York.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. FORCE MAJEURE
The parties will be free of liability to each other where a party is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, hurricane, snowstorm, typhoon, flood, fire, violence, acts of terror, regional or state-wide electrical or internet outages, war, coup, government takeover, or any other unforeseen and uncontrollable event where the obligated party has taken all reasonable and appropriate action to mitigate such an event.