TERMS OF SERVICE
Last Updated: March 22, 2021
Digite provides cloud-based Ditto application software service, with features such as similarity, sentiment analysis and auto-fill. These services are used in conjunction with data served from Zendesk(R), a third-party ticketing software system, and help ease the work performed by Zendesk users (agents) in managing service and support tickets in a typical support or helpdesk environment.
The data migration pertains to the agent access and the different custom forms if the agent has selected agent name, id and list of organizations the agent has access to as well as the ticket data. Additionally, we would also require the admin email id, to notify updates and progress, as well as the API token to fetch the agent’s tickets data. In case you uninstall our application from your zendesk account then your data will be deleted from our database within 30 days.
To be eligible to use our application, you must meet the following criteria and represent and warrant that you: (a) are 18 years of age or older; (b) are not currently restricted from accessing our application, or not otherwise prohibited from having an account, (c) are not our competitor, or are not using our application for reasons that are in competition with us; (d) will only maintain one registered account at any given time; (e) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (f) will not violate any of our rights, including intellectual property rights such as patent, copyright, and trademark rights; and (g) agree to provide at your cost all equipment, browser software, and internet access necessary to use our application.
Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-transferable, non-licensable, non-sublicensable license to access and use our application to: access our application and content made available in or otherwise accessible through our application, strictly in accordance with this Agreement.
You will not use, copy, adapt, modify, prepare derivative works based upon our application, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit our application, except as expressly permitted in this Agreement. When using and accessing our application, you need to make sure that your internet connection is adequate. You are solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs, and other fees that might apply.
YOU AGREE THAT WE ARE NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR ACCESS OR USE OF OUR application. WE PROVIDE NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO DIGITE FOR THE ABILITY TO ACCESS OR USE OUR application.
You agree that our application, including but not limited to the application, graphics, trademarks, and editorial content, contains proprietary content, information, and material, which are owned by Digite and/or our licensors, including our customers, brands and agencies, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of our application or in any manner that is inconsistent with the terms contained in this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on our application, in any manner, and you will not exploit our application in any unauthorized way whatsoever, including but not limited to, using our application to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use our application in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using our application.
You acknowledge and agree that our application is provided for your use. Except to the extent necessary to access and use our application, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to our application, whether expressly, by implication, estoppel, or otherwise. Digite and its licensors and service providers reserve and will retain their entire right, title, and interest in and to our application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
As a condition to access our application, you agree to this Agreement and to strictly observe the following:
You understand and agree that you may receive information and push notifications from Digite via email. You hereby consent to receive communications via email.
Push Notification. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of our application.
Our applications are currently provided at a cost specified in the pricing section of the application website. In the event that we change this in the future OR there is a monthly subscription fee for accessing and using our application, we will communicate such modification to you as per the procedure detailed under Section 18.
You agree to indemnify, defend, and hold Digite and our officers, employees, managers, directors, customers, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Digite and our Indemnitees arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
Your access to and use of our application or any content are at your own risk. You understand and agree that our applications are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. We make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of our application or any content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of our application or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by our application; and (iv) whether our application will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through our application, will create any warranty or representation not expressly made herein.
DIGITE DOES NOT REVIEW, VERIFY, REVISE, ENDORSE, OR OTHERWISE APPROVE ANY CONTENT CREATED OR POSTED BY OUR USERS, AND COMMUNICATED TO OTHER USERS OR THIRD PARTIES VIA OUR application, BUT DIGITE WILL REMOVE CONTENT THAT VIOLATES ANY LAWS OR THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL DIGITE BE LIABLE IN ANY WAY FOR ANY CONTENT CREATED OR POSTED BY OUR USERS FOR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF SUCH CONTENT. THE CONTENT IS SOLELY CREATED BY OUR USERS, AND DIGITE SPECIFICALLY DISCLAIMS ANY AND ALL ROLE WHATSOEVER WITH RESPECT TO THE CREATION OR POSTING OF SUCH CONTENT.
You acknowledge and agree that, in no event will Digite be liable to you or any third party for any indirect, punitive, exemplary, incidental, special, or consequential damages whether in contract, tort (including negligence), or otherwise arising out of this Agreement, or the use of, or the inability to use, our application, including, without limitation, any information made available through our application pursuant to this Agreement.
You may terminate this binding legal Agreement with Digite by providing thirty (30) days prior written notice without any termination charge.
All sections, which by their nature and context are intended to survive the termination of this Agreement, will survive.
If you believe that any content on our application violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”)) must be provided to our designated Copyright Agent.
Digite’s Copyright Agent to receive DMCA Takedown Notices is A V Sridhar, [email protected], at Digite, Attn: DMCA Notice, 21060, Homestead Road, Cupertino, California 95051. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Digite in connection with the written notification and allegation of copyright infringement.
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offer our application in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) our application to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by the applicable regulations.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. We will inform you about the modifications via email, on our application by posting a modified version of this page, or by a comparable means within a reasonable time period. Your continued use of our application shall constitute your consent to such changes.
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. The User has no power or authority to bind Digite to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Digite.
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 21.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH DIGITE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(i) Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Digite agree (a) to waive your and Digite’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our application, resolved in a court, and (b) to waive your and Digite’s respective rights to a jury trial. Instead, you and Digite agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
(ii) No Class Arbitrations, Class Actions or Representative Actions
You and Digite agree that any Dispute arising out of or related to these Terms of Service or use or access of our application is personal to you and Digite and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Digite agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Digite agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
(iii) Federal Arbitration Act
You and Digite agree that these Terms of Service affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
(iv) Notice; Informal Dispute Resolution
You and Digite agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Digite shall be sent by certified mail or courier to Digite, Attn: A V Sridhar, 21060, Homestead Road. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Digite account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Digite cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Digite may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND DIGITE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR DIGITE WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND DIGITE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Digite agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
(vi) Authority of Arbitrator
As limited by the FAA, these Terms of Service and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
(vii) Rules of AAA
The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
(ix) Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: DIGITE, RE: OPT-OUT, 21060, HOMESTEAD ROAD, CUPERTINO, CALIFORNIA 95051. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 20.