DigitalOcto Customer Terms of Service
Last update: September 17th, 2018
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (DigitalOcto). It describes the Services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document, but we have tried to make it as comprehensible as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Service, you are agreeing to these terms. If you register for a free trial of our service, these terms will also govern that free trial.
We periodically update these terms. If you have an active DigitalOcto subscription, we will let you know when we do via an email or in-app notification.
Acceptance of Terms
- Octo Labs Ltd (“DigitalOcto”, “We” or “Our”) provides its Service (as defined below) to You through its web site located at digitalocto.io and app.digitalocto.io (the “Site” or “Service”), subject to these Terms.
- By accepting the Terms, or by accessing or using the Service or Site, you represent and acknowledge that you have read, understood, and agree to be bound by these Terms, and that the information you provide in registering to the Service is accurate, complete, and is yours or within your right to use. If you are entering into these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
- You acknowledge that these Terms constitute a contract between you and DigitalOcto, even though it is electronic and is not physically signed by you and us. You further acknowledge that these Terms govern your use of the Service and, except for written addendums signed by the parties that specifically modify these Terms, these Terms supersede any other agreements between you and DigitalOcto.
- The “Effective Date” of this Agreement is the date when you get initial access to any Service (as defined below) through any online provisioning, registration or Order Form.
- “Paid Users” means those types of Users for which we charge fees as set forth in our Pricing page.
- “Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as the Subscription Term. For example, if you subscribe to the Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- “Order” or “Order Form” means the DigitalOcto-approved form or online subscription process by which you agree to subscribe to the Service.
- “Customer Data” means all information that you submit via the Service.
- “Customer Materials” means all materials that you provide or post, upload, input or submit through the Service.
- “Free Services” means the Service or other products or features made available by us to you on an unpaid trial or free basis.
- “DigitalOcto Content” means all information, data, text, messages, software, photographs, graphics, and images, that we incorporate into the Service.
- “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
- “Subscription Fee” means the amount you pay for the Service.
- “Service” means all of our web-based applications, tools and platforms that you have subscribed to that are developed, operated, and maintained by us, accessible via https://digitalocto.io
- “Subscription Term” means the initial term of your subscription to the applicable Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
- “Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service for your benefit and have unique user identifications and passwords for the Service.
- “Third-party Services” means the connection and use of certain third party products, services or software under separate terms and conditions in conjunction with Our Service.
- “You”, “your” or “Customer” means the person or entity using the Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
- Description of Service. We provide a suite of social media management and design tools through our Site at https://digitalocto.io. The Service includes (a) the Site, and (d) the other services provided to you through the Site based on the plan purchased, including all software, data, text, images, sounds, videos, and other content made available through the Site. Any new features added to or augmenting the Service are also subject to these Terms. Certain new features made generally available at no cost to all subscribing customers will be made available to you at no additional charge. However, the availability of some new features may require the payment of additional fees, and we will determine at our sole discretion whether access to any other such new features will require an additional fee.From time to time, we may change, modify, or upgrade the functionality or appearance of DigitalOcto, which may include the removal of functionality, content, or integrations.
- Third Party Services (Integration). The Service may contain features that enable various Third- party Services (such as social media services like Facebook and Twitter) to be directly integrated into your DigitalOcto account. To take advantage of these features, you will be required to register for or log into such Third-party Services on their respective websites. By enabling third party services within the Service, you are allowing us to pass your log-in information to these Third-party Services for this If you decide to integrate such Third-party Services, be advised that your use of such Third-party Services is governed solely by the terms and conditions of such Third-party Services, and we do not endorse, are not responsible for, and make no representations as to such Third-party Services, their content or the manner in which they handle your data. DigitalOcto is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third-party Services, or your reliance on the privacy practices or other policies of such Third-party Services.
- Facebook Terms of Service. In order to use DigitalOcto, you need to comply with Facebook terms and services. In particular, you shall use your real identity in your Facebook account and shall not create multiple “fake” accounts. If you use DigitalOcto using a Facebook account not being your real identity, your account will be disabled without further notice. All Facebook terms of service you should comply with are accessible here: https://www.facebook.com/legal/terms
- Twitter Terms of Service. In order to use DigitalOcto, you need to comply with Twitter terms and services. All Twitter terms of service you should comply with are accessible here: https://twitter.com/en/tos
- LinkedIn Terms of Service. In order to use DigitalOcto, you need to comply with LinkedIn terms and services. All LinkedIn terms of service you should comply with are accessible here: https://www.linkedin.com/legal/user-agreement
- Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). We may also provide you access to use our Free Services at any time by activating them in your DigitalOcto account.
- Access. You may access and use the Service solely for your own benefit and in accordance with the terms and conditions of this Agreement, and any scope of use restrictions designated in the applicable Order Form. During the Subscription Term, we will provide you access to use the Service as described in this Agreement and the applicable Order. User IDs are granted to individual, named persons and may not be shared. If you are accessing the Service using credentials provided by a third party (e.g., Facebook), then you will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. You will be responsible for any and all actions taken using your accounts and passwords.
- Trial Subscriptions. If you receive free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then you may use the Service in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by DigitalOcto (the “Trial Period”). Trial Subscriptions are permitted solely for you to determine whether to purchase a paid subscription to the Service. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If you do not enter into a paid Subscription Term, this Agreement and your right to access and use the Service will terminate at the end of the Trial Period. DigitalOcto has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DIGITALOCTO WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
- Tools. You may subscribe to all tools provided or to any of them individually. By placing an Order within your DigitalOcto account (if this option is made available by us.). This Agreement will apply to all initial and additional Order(s) that you activate from within your DigitalOcto account.
- Availability. You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance and upgrades. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites, including, but not limited to, Facebook, Twitter, etc., that will affect your use of the Service and that are beyond our control to prevent or correct. Interruptions in the Service that are beyond our control shall not serve as a basis to terminate your subscription or demand a full or partial refund of any prepaid fees.
- Subscription Term, Fees & Payment
- Subscription Term and Renewals. Your initial subscription period will be specified in your Order, and your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, you need to use the Cancel button next to your subscription on the subscription page at https://app.digitalocto.io/user/subscriptions or write to us at [email protected].
- Fees: All fees are as set forth in the applicable Order Form and will remain fixed during the Subscription Term unless you: upgrade products or subscribe to additional products
- Payment Via Credit Card. If you are purchasing the Service via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
- Recurring Billing Authorization. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You authorize us to automatically charge your Credit Card on the same date of each calendar month/year (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
- Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, you remain responsible for any amounts not remitted to DigitalOcto and DigitalOcto may, in its sole discretion, either (i) continue billing the Credit Card once it has been updated by you (if applicable) or (ii) terminate this Agreement.
- Changing Credit Card Information. At any time, you may change your Credit Card information by entering updated Credit Card information via the “Billing Information” page located at https://app.digitalocto.io/user/billing.
- Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, you may terminate the Subscription Term by clicking on the Cancel button on the subscription page at https://app.digitalocto.io/user/subscriptions. If you do not enter into a paid Subscription Term following a Trial Period, this Agreement and your right to access and use the Service will terminate at the end of the Trial Period and your Credit Card will not be charged.
- Sales Tax. All fees are exclusive of taxes, which we will charge as applicable.
- Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your “My Details” and “Billing Information” pages within your DigitalOcto account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
- Subscription Term, Termination, Suspension
- Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
- No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the DigitalOcto subscription during your Subscription Term.
- Termination for Cause. Either party may terminate this Agreement for cause, as to any or all
Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Suspension for Prohibited Acts. We may suspend any User’s access to any or all Services without notice for: (i) use of the Service in a way that violates any applicable laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
- Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Services. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
- Suspension for Present Harm. If your website, or use of, the Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic notice to you, suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.
- Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
- Effect of Termination or Expiration. If your paid subscription is terminated or expires, your access to the Service will be immediately ceased and your data might be deleted. In some cases, we may choose to continue to make available to you our Free Services, and you will continue to be subject to this Agreement for as long as you have access to a DigitalOcto account. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
- Use and Limitations of Use
- User Restrictions. You may not allow others to: (a) sell, rent, lease, license, sublicense, or assign use of DigitalOcto to others; (b) reverse engineer, decompile, disassemble, or otherwise derive the source code from DigitalOcto; (c) alter, modify, adapt, reconfigure, or prepare derivative works of DigitalOcto; (d) copy, extract, summarize, distribute, or otherwise use DigitalOcto in any manner which competes with or substitutes for our distribution of DigitalOcto to our customers; (e) use DigitalOcto to violate the SPAM regulations or the laws of any applicable jurisdiction; (f) use DigitalOcto to abuse, defame, harass, threaten, or post illegal content; (g) use DigitalOcto to transmit a virus, Trojan horse, worm, hack, or any harmful content; (h) use DigitalOcto to gain unauthorized access to DigitalOcto or social media platforms; (i) use DigitalOcto to post content that infringes upon the copyright, trademark, trade secret, publicity rights, trademarks, or other intellectual property interests of any other person or property; or (j) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement. You will promptly notify us if your DigitalOcto account has been subject to a security breach, including disclosure of your username or password, or if you have had a security breach to any of your integrated social media accounts (like Facebook or Twitter) by writing to us at [email protected].
- No Sensitive Information. YOU AGREE NOT TO USE THE SERVICE TO UPLOAD, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO UPLOAD OR MANAGE SENSITIVE INFORMATION.
C. GENERAL LEGAL TERMS
- Customer Data
- Aggregate Data. We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
- Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data.
- DigitalOcto’s Proprietary Rights. This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service is protected by intellectual property laws, it belongs to and is the property of us, and we retain all ownership rights to it. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the DigitalOcto Content and the Service in whole or in part, by any means, except as expressly authorized in writing by us.
- Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to use the Customer Materials and Customer Data only as necessary to provide the Service to you and as permitted by this Agreement. If you are using the Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
- Publicity. You grant us the right to add your name and company logo to our customer list and website.
- Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third- party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or
(d) the unauthorized use of the Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
- Disclaimers; Limitations of Liability
- Disclaimer and Limitation of Liability. To the extent allowed by law, Company does not make any warranty regarding DigitalOcto, including, but not limited to, the materials, the software, the content, the support, and/or the documentation, or any services or products provided through or in connection with DigitalOcto, including integration with social media platforms. DigitalOcto is licensed to user “as-is” and “as-available,” without any warranty of any nature, express or implied, and both Company and DigitalOcto expressly disclaim any and all warranties, including, without limitation: (a) any warranties as to the availability, accuracy, or completeness of the materials, software, content, support, documentation, information, products, or services which are part of DigitalOcto; (b) warranties of fitness for a particular purpose, merchantability, or non-infringement, and (c) any warranty that DigitalOcto will always be available, error-free, accessible, timely, or secure. Company disclaims any liability or responsibility for user content or the behavior of social media platforms. In no event will Company, its subsidiaries, affiliates, licensors, employees, agents, or contractors be liable to User for any damages or losses, including without limitation indirect, consequential, special, incidental or punitive damages resulting from or caused by DigitalOcto, the materials, the software, the content, the support, the documentation, or any errors or omissions in DigitalOcto or the integration with social media platforms, even if Company is advised of the possibility of such damages. Any liability of Company, its subsidiaries, affiliates, licensors, employees, agents, or contractors, including without limitation any liability for damages caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, hacking, tampering, unauthorized use, communications line failure, theft, or destruction or unauthorized access to or alteration of DigitalOcto or social media platforms, or use of records, whether for breach of contract, tortious behavior, negligence, or under any other cause of action, claims or damages, including, without limitation, damages for loss of business, business profits, business interruption, business information, data loss or corruption, or any other pecuniary loss arising out of or relating to the use of or the inability to use DigitalOcto or Facebook Platform, shall be strictly limited to the amount paid to Company by or on behalf of user in connection with DigitalOcto in the three (3) months prior to the claimed injury or damage. Company does not represent or endorse the accuracy, currentness, or reliability of any advice, opinion, statement or other information displayed, uploaded, or distributed through DigitalOcto, including but not limited to, the materials, the software, the content, the support, and/or the documentation. User acknowledges that any reliance upon any such opinion, advice, statement, or information shall be at user’s sole risk. Some jurisdictions do not allow for some of the limitations or exclusions as set forth herein. User may have other rights which vary from jurisdiction to jurisdiction.
- Disclaimer of Warranties. We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the Service, data made available from the Service, or DigitalOcto content. To the extent permitted by law, the Service and DigitalOcto content are provided “as is” without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the Service and the consulting services, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
- Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE TO YOU.
- Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://digitalocto.io/terms-of-service and we will let you know via email or in- app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Force Majeure. Neither party will be responsible for failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non- performing party shall be excused from its obligations for the period of the delay and for a commercially reasonable time thereafter.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We will comply with the laws of Republic of Bulgaria (where applicable) in our provision of the Service, and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Service, including any applicable export laws.
- Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of this Agreement shall not in any way be affected or impaired.
- Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt. To Octo Labs Ltd, 4 Solunska str., Sofia 1000, Bulgaria, To you: your address as provided in our DigitalOcto Subscription account information for you. We may give electronic notices by general notice via the Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. You must keep all of your account information current.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- Customer Data