Terms of Service

Effective Date: March 1, 2019
  1. ACCEPTANCE OF OUR TERMS

1.1       These Terms of Service (“Terms”) constitute a binding contract between you and DGTL Holdings USA, Inc. via our affiliates Y&L Consulting, Inc., SPS DGTL, SocialPath Solutions, and/or DGTL Local (“us,” “our,” “we,” or “DGTLSuite”) governing the use of and access to the Services, as defined below, that we offer to you and any authorized individuals engaged by you to use the DGTLSuite Platform and any related Services (“the Service” or “Service) on your behalf (each, an “Authorized User,” and collectively, “Authorized Users”). By using or accessing the Services, or authorizing or permitting any Authorized User to use or access the Services, you accept and agree to be bound by these Terms. For purposes of Sections 16 through 18, inclusive, “we,” “us,” “our,” and “DGTLSuite” shall include DGTL Holding USA, Inc., Y&L Consulting, Inc., SPS DGTL, SocialPath Solutions, and/or DGTL Local, together with their shareholders, officers, directors, employees, agents, successors, and assignees.

1.2       If you are entering into these Terms on behalf of a company, organization, or other legal entity (“Entity”), you agree to these Terms for that Entity and represent to us that you have the authority to bind such Entity and its affiliates to these Terms. In such case, “you” or “Customer” shall refer to such Entity and its affiliates. If you are a Customer’s Authorized User, then these Terms will apply to you to the extent they are applicable to Authorized Users. If you do not have the authority to bind the Entity to these Terms or do not agree to these Terms, do not accept these Terms or use or access the Services.

1.3       You represent and warrant that the information you provide in registering for the Services is accurate, complete, and rightfully yours to use.

1.4       BY USING THE SERVICES, YOU ARE AGREEING, ON BEHALF OF YOURSELF AND THOSE YOU REPRESENT, TO COMPLY WITH AND BE LEGALLY BOUND BY THESE TERMS AS WELL AS OUR PRIVACY POLICY AND ALL APPLICABLE LAWS. IF YOU, FOR YOURSELF OR ON BEHALF OF THOSE YOU REPRESENT, DO NOT AGREE TO ANY PROVISION OF THESE TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY REGISTERED, CANCEL YOUR ACCOUNT.

  1. DEFINITIONS

2.1       “Administrator” shall mean a Subscriber with authority to designate additional Authorized Users and/or Administrators as designated by you on the Website.

2.2       “Authorized User” shall have the meaning ascribed to it in Section 1.1 and includes you.

2.3       "Billing Period" shall mean the period for which you agree to prepay fees under a an on-line Registration Form or, under separate cover, as part of a Purchase Order, Statement of Work, or other purchase mechanism.

2.4       “Content” shall mean text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services.

2.5       “Customer Content” means any Content that you and your Authorized Users provide to be made available through the Services.

2.6       "Registration" or "Registration Form" means the online registration process through the Website by which you agree to subscribe to the Services or otherwise the initial configuration by our team or approved 3rd party.

2.7       “Service(s)” shall mean any software or services that you have subscribed to or that we otherwise make available to you, and are developed, operated, and maintained by us and any ancillary products and services that we provide to you.

2.8       “Subscriber” shall refer to the purchaser of the Services provided by us as indicated above and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on the Subscriber’s behalf.

2.9       “Subscription Fee” shall mean the amount you agreed to pay for the Services.

2.10       “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) our provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.

2.11       “SPS DGTL Content” shall mean Content created or licensed by us, including, without limitation, Content created for you or with your input.

2.12       “Website” shall mean the website accessible via spsdgtl.com or local.spsdgtl.com.

  1. DESCRIPTION OF SERVICES

3.1       We deliver the Services through our Website.

3.2       Our Services aim to provide you with both a team and the technology to improve your digital presence and customer experience. The Subscription Plans may include the following features: digital customer care, chatbots, taskbots, custom integrations, social profile optimization, review responses, custom posts to social media, branded email campaigns, and/or reporting and insights. The exact features available to you are dependent upon the Services purchased. Certain Subscription Plans will also require you to review and approve all Content before it is posted, published or otherwise disseminated through the Services.

3.3       We reserve the right to modify features and functionality of our Services from time to time in our sole discretion. We will determine in our sole discretion whether any new features require additional fees. We may decide to add new features to the Services and make them generally available at no cost to Customers. We may or may not provide notice to you of changes to the Services. We will not be liable to you or to any third party for any modifications, price increases, or discontinuations of our Services.

3.4       Any additional product add-ons, including but not limited to listening, analytics, bots, or customer service, or the addition of users, profiles, groups, brand keywords, and other features or functionality you later add to an existing Subscription Plan (the “Add-Ons”) during your subscription term shall be subject to these Terms.

  1. MODIFICATION OF TERMS

4.1       We reserve the right, at our sole discretion, to modify or replace the Terms at any time. If the alterations constitute a material change to the Terms, we will notify you by posting an announcement on the website and, if you are a Subscriber, by sending you an email to the current email address including in your user profile. What constitutes a material change will be determined by us in our sole discretion. You are responsible for reviewing and becoming familiar with any such modifications. Using any Service or visiting the webpage constitutes your acceptance of the Terms as modified.

4.2       In addition, when using features of the Services, you are subject to any posted guidelines, terms or rules applicable to such features.

  1. LIMITED RIGHTS AND USE OF THE SERVICE

5.1       You are granted a non-exclusive, non-transferable, non-assignable limited license to access and use the Services for your internal business purposes and subject to these Terms.

5.2       If you add Users to your account, you must bind each of the Users to these Terms. You are responsible for Customer Content that you or your Users post or otherwise transmit via the Services. You acknowledge and agree that a login may only be used by one (1) person, and that you will not share a single login among multiple people. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under or in connection with your login or account. You agree that you will not trade, transfer, or sell access to your login or account to another party unless otherwise agreed to in writing by us.

5.3       You represent and warrant that you and your Authorized Users are: (i) 18 years or older, (ii) not prohibited or restricted from having a social media account, and (iii) not a competitor of or using the Services for purposes that are competitive with us.

5.4       You agree to use reasonable efforts to prevent unauthorized use of the Services and notify us immediately if you discover any unauthorized use through your account. You will take all necessary steps to terminate the unauthorized use and agree to cooperate with us in preventing or terminating such unauthorized use of the Services.

5.5       You and your Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the Code, HTML, Cascading Style Sheet (“CSS”) or any visual design elements without our express written permission.

5.6       You and your Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website to falsely imply that it is associated with the Service, us, or any other software or service provided by us.

5.7       You and your Authorized Users agree to not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement. Authorized Users warrant and represent to us that they own all rights to the Content or, alternatively, that they have the right to grant us the rights and licenses to use the Content pursuant to the terms and conditions of this Agreement.

5.8       You and your Authorized Users agree to not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam,” short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.

5.9       You and your Authorized Users who configure the Service to share or make available certain Customer Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). We reserve the right, at any time, in our sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.

5.10       We reserve the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that we shall provide Subscriber with 30-days’ notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

5.11       We reserve the right to suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days’ notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by us. Further, we shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but we reserve the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, we will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.

5.12       We store all Content on redundant storage servers located in the United States. Although our Services may be accessible worldwide, we make no representation that the Services are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal, is prohibited. Authorized Users who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws, including obtaining any necessary permissions for Content sourced from other persons that may contain personal data or personally-identifiable information. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.

  1. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

6.1       We do not claim any ownership rights in any Customer Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Customer Content. Subject to the foregoing, we and our licensors exclusively own all right, title and interest in and to the Services and SPS DGTL Content, including all associated intellectual property rights. You acknowledge that the Services and SPS DGTL Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

6.2       By making any Customer Content available through Services you hereby grant to us a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your Customer Content in connection with operating and providing the Services and Content to you and to other account holders. You are solely responsible for all your Customer Content. We do not review or pre-screen the Customer Content uploaded or posted to the Service by Authorized Users. You represent and warrant that you own all your Customer Content or you have all rights that are necessary to grant us the license rights in your Customer Content under these Terms. You also represent and warrant that neither your Customer Content, nor your use and provision of your Customer Content to be made available through the Services, nor any use of your Customer Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You assume all risks associated with your Content, including anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in your Content that makes you personally identifiable. You can remove your Customer Content by contacting us and requesting that it be deleted. However, in certain instances, some of your Customer Content (including, without limitation, posts or comments that have been made) may not be completely removed and copies of your Customer Content may continue to exist on the Services or Third-Party Services in archive or backup form. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Content.

6.3       To the extent you request that we photograph, film and/or record you, we may do so and any such photos, videos or recordings will be considered SPS DGTL Content and will be owned exclusively by us. To the extent such photos, videos or recordings contain any third party’s name, image, likeness or voice, you represent and warrant that you will obtain all necessary permissions and releases from such third party. In the event you wish to use such photos, videos or recordings in connection with your business outside of the Services, upon your request, we may choose to grant you a non-exclusive, non-transferable, non-sublicensable, worldwide license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and display certain of those photos, videos, or recordings subject to the payment of a fee.

6.4       Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the SPS DGTL Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

6.5       In accessing or using the Services, you may be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. We do not endorse such Content and cannot vouch for its accuracy.

6.6       Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at info@spsdgtl.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

6.7       Statistical Data. You acknowledge and agree that we have a right to own and complete statistical analyses on your data and information resulting from your or your Users’ use of the Platform (other than any personally identifiable data). When we extract, compile, synthesize, or analyze this data, we will only use it in anonymized, aggregated form without specifying the source of the data. We collect such data for any lawful purpose and without a duty of accounting to you.

  1. SUBSCRIPTION TYPE TERMS

7.1       We offer two main types of subscriptions (“Subscription Plan(s)”): (a) 1 Monthly via local.spsdgtl.com, (b) Enterprise Annual).

  1. ACCESS TO SERVICE

8.1       Only Authorized Users are permitted to access and use the Service. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service. Each Authorized User will be provided a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.

8.2       The initial Administrator shall be the Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User. Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.

8.3       All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

  1. THIRD-PARTY SERVICES AND ACCESS RIGHTS

9.1       Our Services contains links to or allow you to connect and use certain external third-party products, services, or software in conjunction with your use of our Services (“Third Party Services,” and each, a “Third Party Service”), including certain social media networks and other integration partners. To take advantage of these features, you may be required to sign up or log into such Third-Party Service on their respective websites or applications. By enabling the Service to access such Third-Party Service, you are permitting us to pass on your login information to the Third-Party Service and granting the Third-Party Service permission to access or otherwise process your data. You hereby grant us the right to (1) create, access and manage the Third-Party Services in your name using SPS DGTL Content, Customer Content and publicly available information; (2) post, at our discretion, Customer Content or SPS DGTL Content to the Third-Party Services in your name, including but not limited to Content that mentions, discusses, or promotes third parties; (3) access, collect, read, analyze, and otherwise use on your behalf the information available on the Third-Party Services; (4) host, using our resources or affiliates, the Third-Party Services, to the extent necessary to provide the Services; and (5) use and store Third-Party Logins to accomplish any of the foregoing. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE ARE CREATING, ACCESSING AND MANAGING THE THIRD-PARTY SERVICES, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT MAINTAINS THE THIRD-PARTY SERVICES.

9.2       You acknowledge that your use of such Third-Party Service is governed solely by the terms and conditions and privacy policy of such Third-Party Service, and that we do not endorse, are not liable for, and make no representations as to the Third-Party Service, its content, or the way such Third-Party Service uses, stores, or processes your data. We are not liable for any damage or loss arising from or in connection with your enablement of such Third-Party Service and your reliance on the policies, privacy practices, and data security processes of such Third-Party Service. We are not responsible or liable for any changes to or deletion of your data by the Third-Party Service. Certain features of our Platform may depend on the availability of these Third-Party Services and the features and functionality they make available to us. We do not control Third Party Service features and functionality, and they may change without any notice to us. If any Third-Party Service stops providing access to some or all of the features or functionality currently or historically available to us, or stops providing access to such features and functionality on reasonable terms, as determined by us in our sole discretion, we may stop providing access to certain features and functionality of our Platform. We will not be liable to you for any refunds or any damage or loss arising from or in connection with any such change made by the Third-Party Service or any resulting change to our Platform. You irrevocably waive any claim against us with respect to such Third-Party Services.

9.3       Upon termination of your use of our Services, you retain the right to access and control the Third-Party Services not hosted by us or our affiliates, as well as Customer Content. At any time, including upon termination of your use of Services, we may delete, disable, alter, remove, retain, or otherwise dispose of the Third-Party Services, if any, hosted by us or our affiliates. We may continue to access, collect, read, analyze, and otherwise use the Third-Party Services for the purpose of data collection until you inform us otherwise.

  1. SECURITY AND ACCESS

10.1       We are responsible for providing a secure method of authentication and accessing its Service. We will provide mechanisms that (a) allow for user password management, (b) transmit passwords in a secure format, and (c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.

10.2       Subscriber will be responsible for protecting the security of usernames and passwords of any Authorized Users, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service. Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords and will promptly notify us upon suspicion that a username and password has been lost, stolen, compromised, or misused.

10.3       We shall report to Subscriber, with all relevant details, any event that we reasonably believe represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). We shall make such report within 48 hours after learning of the Security Breach. In the event of a Security Breach, we shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.

  1. LEGAL COMPLIANCE

11.1       We maintain that its primary duty is to protect the Content to the extent the law allows. We reserve the right to provide any Content to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.

11.2       If we are required by law to make any disclosure of Content that is prohibited or otherwise constrained by these Terms, then we will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, we may furnish that portion (and only that portion) of the Content that it is legally compelled or otherwise legally required to disclose.

  1. PAYMENT, REFUNDS, RENEWALS, AND SUBSCRIPTION CHANGES

12.1       The Subscription Fee will be based on the Subscription Plan selected during your Registration unless you: (i) exceed your applicable limits set forth in the Registration Form, (ii) upgrade your Subscription Plan, or (iii) subscribe to additional features or products. All Subscription Fees are exclusive of all federal, state, provincial, municipal or other taxes which Subscribers agree to pay based on where the Subscriber is primarily domiciled. In addition to any fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.

12.2       You will be charged in advance for the. If you authorize payment via ACH or Credit Card, 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. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your account page within the Website. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. You agree to pay us all reasonable attorney's fees and costs incurred by us to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount.

12.3       No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.

12.4       There are no charges for canceling a Subscription Plan and paying Subscription Plans cancelled prior to the end of the current Billing Period will not be charged again in the following cycle.

12.5       The amount charged on the next Billing Period will be automatically updated to reflect any changes to the Subscription Plan, including upgrades or downgrades, if applicable. Subscription Plan changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.

12.6       We may change the Subscription Fees for the Subscription Plan at any time or impose additional fees or charges. Such changes will be effective as of the first Billing Period that occurs more than thirty (30) days after notice of our new Subscription Fees, provided that if you upgrade or downgrade to a new Subscription Plan, whether at your election or pursuant to this Agreement, you will be charged at the then-current Subscription Fee for such Subscription Plan.

12.7       IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, ALL SERVICES ARE OFFERED ON AUTOMATIC RENEWAL. EXCEPT FOR REASONS DESCRIBED BELOW IN THIS SECTION, AUTOMATIC RENEWAL AUTOMATICALLY RENEWS THE APPLICABLE SERVICE UPON EXPIRATION OF THE THEN CURRENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. FOR EXAMPLE, IF YOUR LAST SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL TYPICALLY BE FOR ONE YEAR. HOWEVER, IN THE EVENT RENEWAL WITH THE PAYMENT METHOD ON FILE FAILS, WE MAY ATTEMPT TO RENEW THE APPLICABLE SERVICE FOR A PERIOD LESS THAN THE ORIGINAL SUBSCRIPTION PERIOD TO THE EXTENT NECESSARY FOR THE TRANSACTION TO SUCCEED. UNLESS YOU DISABLE THE AUTOMATIC RENEWAL OPTION WITHIN TWO BUSINESS DAYS BEFORE YOUR NEXT BILLING DATE, WE WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM ANY PAYMENT METHOD YOU HAVE ON FILE WITH US AT OUR THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. IF YOU DO NOT WISH FOR ANY SERVICE TO AUTOMATICALLY RENEW, YOU MAY ELECT TO CANCEL RENEWAL, IN WHICH CASE, YOUR SERVICES WILL TERMINATE UPON EXPIRATION OF THE THEN CURRENT TERM, UNLESS YOU MANUALLY RENEW YOUR SERVICES PRIOR TO THAT DATE (IN WHICH CASE THE SERVICES WILL AGAIN BE SET TO AUTOMATIC RENEWAL). IN OTHER WORDS, SHOULD YOU ELECT TO CANCEL YOUR PRODUCT AND FAIL TO MANUALLY RENEW YOUR SERVICES BEFORE THEY EXPIRE, YOU MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.

  1. CANCELLATION AND TERMINATION

13.1       Administrators are solely responsible for canceling Subscription Plans. An Administrator may cancel a Subscription Plan at any time through their account page on the Website.

13.2       We, in our sole discretion, have the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of these Terms or (b) create a Security Emergency.

13.3       If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) we provide Subscriber with commercially reasonable notice of this violation; (iii) we use commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to our reasonable satisfaction within thirty (30) days of such notice, then we reserves the right to suspend access to the Service.

13.4       Upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than thirty (30) days from the cancellation or termination of a subscription, all Content associated with such subscription may be irrevocably deleted from the Service.

  1. YOUR USE OF THE SERVICES

14.1       You agree not to, nor authorize or permit any Authorized User or third party to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) circumvent or disable any security or other technological features or measures of the Services; (c) reverse engineer any element of the Services, or use the Services to compete with the Services, (d) modify, adapt or present the Services to falsely imply any sponsorship or association with us; (e) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (f) use the Services to post, upload, link to, send or store any Content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, (g) use the Services to post, upload, link to, send, distribute, or store any Content that contains any viruses, malware, Trojan horses, ransomware, or any other similar harmful software; (g) use the Services to post, upload, link to, send, distribute, or store any Content that is material protected by copyright, trademark, or any other proprietary right without first having obtained all rights, permissions, and consents necessary to make such Content available on or through the Services and to grant us the limited right to use Content as set forth in these Terms, (h) attempt to use any method to gain unauthorized access to any paid or restricted features of the Sites or to the Services and its related systems or networks, (i) use automated scripts to collect information from or otherwise interact with Third-Party Services or the Services; (j) deep-link to the Sites (other than our home page) for any purpose, unless expressly authorized in writing by us; (j) impersonate any other user of the Services; or (l) use the Services in violation of applicable law or any acceptable use policy, terms of use, or any similar policy or terms of Third-Party Services.

14.2       Channel Restrictions. You agree to, and will require your Authorized Users to, comply with the following restrictions when accessing and using the Services: (a) use only permission-based lists and only send communications to end-users who have granted permission to receive communications from you by providing legally required scope of consent; (b) if legally required based on the type of communication, include “unsubscribe” or “opt-out” mechanisms in each communication that allows the recipient to opt out from your mailing list or receiving further communications; (c) maintain, publish, and comply with a privacy policy that meets all applicable legal requirements, whether or not your organization controls the sending of the communications; (d) If legally required based on the type of communication, include a link to your then-current privacy policy either in the communication or in the applicable channel; (e) if legally required based on the type of communication, include in each communication Customer’s valid physical mailing address or a link to that information; (f) do not send communication that result in an unacceptable number of spam or similar complaints (even if the communication themselves are not actually spam); (g) do not use the Services to generate, send, distribute, publish or facilitate SPAM, junk-messages or unsolicited messages, promotions, advertisings or other solicitations.

14.3       Email Restrictions. You agree to, and will require your Authorized Users to, comply with the following restrictions when accessing and using the Services: (a) comply with all requests from recipients to be removed from your mailing list within 10 days of receipt of the request or the appropriate deadline under applicable law; (b) do not send to addresses obtained from purchased or rented marketing lists; (c) do not use third party message addresses, domain names, or mail servers without proper permission; (d) do not routinely send email communications to non-specific addresses (e.g., webmaster@domain.com or info@domain.com); (e) do not disguise the origin, or subject matter of, any communication or falsify or manipulate the originating message address, subject line, header, or transmission path information for any communication; (f) do not send offers for the purpose of obtaining personal information or generating leads for third parties; (g) do not send “chain letters,” “pyramid schemes,” or other types of messages that encourage the recipient to forward the content to strangers; (h) do not send to lists of addresses that are programmatically generated or scraped from the Internet; and (i) do not employ sending practices, or have overall message delivery rates, which negative impact the Service or other users of the Service.

14.4       Short Messaging Service (SMS) Restrictions. You agree to, and will require your Authorized Users to, comply with all applicable laws, industry codes, and industry standards that govern the use of SMS. We reserve the right to null-route any IP address/subnet that is under a DoS or DDoS attack that is deemed disruptive to other customers.

14.5       Using the Services for surveillance purposes or gathering intelligence is prohibited, including but not limited to: (i) investigating or tracking individual social media users or their content, or to obtain information on social media users or their content, in a manner that would require a subpoena, court order, or other valid legal process; (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (iii) conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual on social media for any unlawful or discriminatory purpose or in a manner that would be inconsistent with the individual users’ reasonable expectations of privacy; (iv) in violation of the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr/), including, without limitation, Articles 12, 18, or 19; or (v) targeting, segmenting, or profiling individuals based on health (including pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law.

14.6       We have the right to terminate your account or suspend your access to the Services, if we reasonably suspect that you have violated any of the restrictions in this Section.

14.7       By accessing or using the Services, you represent and warrant that your activities are lawful in every jurisdiction where you access or use the Services. Our Services is not intended to hold any Sensitive Information. You represent and warrant that you will not use our Services to transmit, upload, collect, manage, or otherwise process any Sensitive Information. WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY RESULT FROM YOUR USE OF OUR SERVICES IN TRANSMITTING, COLLECTING, MANAGING, OR PROCESSING ANY SENSITIVE INFORMATION. “Sensitive Information” means any passwords, credit card or debit card information, personal financial account information, personal health information, social security numbers, passport numbers, driver’s license numbers, employment records, physical or mental health condition or information, any information that would classify as “Special Categories of Information” under data protection laws, or any other information that would be subject to Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information.

14.8       Although we do not monitor content published through our Services and are not responsible for any content published through our Services, we reserve the right to delete, edit, or move messages or materials that we deem necessary to be removed, including, but not limited to, public postings, advertisements, and messages.

14.9       Twitter Custom Profile. By associating a custom profile image and/or name with a specific Twitter profile, you acknowledge and agree that (i) if an individual is depicted, you have consent from such individual to display their name and/or likeness in the custom profile, (ii) you will indicate in the field provided for the individual’s name (e.g., through use of the term “bot”), or in the initial message sent to each Twitter user that the individual is not participating in the conversation; and (iii) you will comply with all Twitter Terms of Service and other applicable acceptable use policy, terms of use, or any similar policy or terms.

  1. DATA PRIVACY

15.1       We access your data to enable us to respond to your service requests and as necessary to provide you with the Application and Services. We share your data with third parties if required by law, permitted by you, or pursuant to our Privacy Policy (“Privacy Policy”), which is available here and incorporated into these Terms. You agree to all actions that are taken with respect to your data that are consistent with our Privacy Policy. Before sharing your data, we will take steps designed to ensure that any third-party service provider maintains commercially reasonable data practices for maintaining the confidentiality and security of your data and for preventing unauthorized access to such data. We do not share your data with third parties for their own marketing purposes.

15.2       You hereby represent and warrant that your Content has not been collected, stored, and transferred to us in violation of any law, regulation, or contractual obligation applicable to you. You shall have sole responsibility for the accuracy, quality, and legality of the Content and how you acquired the Content. With respect to your Users and any individuals that interact or engage with your social media pages or profiles (including fans, followers, and other social media audience members), you shall cause each such individual to consent to the processing by us of their Content prior to the collection of such Content in a manner consistent with applicable law including, where required by applicable law, explicit consent for automated decision-making and other kinds of processing that might require explicit consent.

  1. WARRANTY

16.1       THE APPLICATIONS AND PLATFORM ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, GUARANTEES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, DESIGN, TITLE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT AND DO NOT WARRANT THAT THE APPLICATIONS AND PLATFORM WILL BE UNINTERRUPTED, AVAILABLE, ACCESSIBLE, SECURE, TIMELY, ACCURATE, COMPLETE, FREE FROM VIRUSES, OR ERROR-FREE.

16.2       WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, DATA NOT WITHIN OUR REASONABLE CONTROL.

  1. INDEMNIFICATION

17.1       Our Indemnification of You. We agree to defend, indemnify, and hold you harmless from any and all claims, losses, demands, liabilities, damages, settlements, expenses, and costs (including reasonable attorney’s fees and costs) brought by a third party against you alleging your use of any Product infringes or misappropriates any patent, copyright, trade secret, trademark, or intellectual property right of any third party. We will not have any obligation under this section for any infringement or misappropriation if it arises out of or is based upon: (a) any use of the Platform that is in combination with other Platform or services if such infringement or misappropriation would not have arisen but for such combination, (b) use of the Platform by you for purposes not intended, permitted, or outside of the scope of the license granted to you, or (c) any modification of the Platform not made or authorized in writing by us (the “Excluded Claims”). If you are enjoined or otherwise prohibited from using a Product or a portion thereof based on an allegation that the Product violates any third party intellectual property right, or if we reasonably determine that such prohibition is likely, then we will, at our sole expense and option: (a) obtain for you the right to use the allegedly infringing portions of the Platform; (b) modify the allegedly infringing portions of the Platform so as to render them non-infringing without substantially diminishing or impairing their functionality, or (c) replace the allegedly infringing portions of the Platform with non-infringing items of substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, then we may terminate the impacted subscription, or portion thereof, and will promptly provide a prorated refund or credit to you for any prepaid and unused fees.

17.2       Your Indemnification of Us. Your failure to comply with any of your obligations set forth in these Terms shall be considered a breach of these Terms. You agree to defend, indemnify, and hold us harmless, together with our officers, directors, employees, agents, successors, and assigns, from any and all claims, losses, demands, liabilities, damages, settlements, expenses, and costs (including attorney’s fees and costs), arising from, in connection with, or based on allegations of, your or your Users’ breach of these Terms, use of Third-Party Services, or for any action arising from the Excluded Claims.

17.3       Requirements for Indemnification. Either party’s indemnification obligations shall be contingent on: (a) the indemnified party (“Indemnitee”) providing the indemnifying party (“Indemnitor”) prompt written notice of the claim, (b) Indemnitee granting Indemnitor full and complete control over the defense and settlement of the claim, and (c) Indemnitee providing assistance in connection with the defense and settlement of the claim as Indemnitor shall reasonably request.

  1. INDEMNIFICATION

18.1       EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. NEITHER PARTY NOR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

18.2       MONETARY CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF US AND OUR RESPECTIVE AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US UNDER THE APPLICABLE PLAN DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT IN ANY WAY LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 17 ABOVE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE.

18.3       YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

18.4       INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

18.5       STATE PROHIBITION OF LIMITATION OF LIABILITY AND DISCLAIMER OF IMPLIED WARRANTIES. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

  1. TECHNICAL SUPPORT

19.1       For so long as the Subscriber is entitled to receive the Services, we will provide technical support by both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Central time, with the exclusion of federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling (210) 634-0012 or any time by emailing [support@spsdgtl.com]. We will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

  1. MISCELLANEOUS

20.1       Use of Logo. As our customer, you grant us the right to use your company name and logo on our representative customer list on our website and/or marketing materials. If you do not wish to have your name or logo be used in this way or wish to remove your name or logo from such list, please email info@spsdgtl.com

20.2       Updates to Terms. We may revise and update these Terms from time to time, in our sole discretion. Any changes we make to these Terms are effective immediately when we post them. We will provide notice to the account owner designated on the account of any material changes. Continued use of our Platform after we provide you notice of the updated Terms shall constitute acceptance of the updated Terms.

20.3       Assignability. Neither party may assign its right, duties, and obligations under these Terms without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that we may assign these Terms, and the licenses granted to us under these Terms, without your consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of our obligations under these Terms.

20.4       Notices. Except as otherwise specified in these terms, any notices under these Terms must be sent to us by email to legal@spsdgt.com, with a duplicate copy sent via registered mail (return receipt requested) to: SPS DGTL, a division of Y&L Consulting Inc., c/o: Innocenti Jones PLLC, 110 E. Houston St., 8th Floor, San Antonio, Texas 78205. Any notices under these Terms that are sent to you shall be sent via email to the named account owner of your account. You are responsible for maintaining the accuracy of the email address of your named account owner on the “Personal Settings” page within the Application.

20.5       Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses commercially reasonable efforts to avoid or remove the causes of non-performance.

20.6       Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 2080 U.N. Convention on Contracts for the International Sale of Goods.

20.7       Venue. In circumstances where the Agreement to Arbitrate Disputes (Section 18.10) permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflict of law rules. Under such limited circumstances, each party hereby expressly and irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Bexar County, Texas in connection with such an action.

20.8       Agreement to Arbitrate Disputes. You and SPS DGTL agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate our Intellectual Property Rights. Under such limited circumstances, we may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Platform, or intellectual property infringement without first engaging in arbitration or the informal dispute-resolution process described herein. In all other cases, both parties hereby agree to submit to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rule with one (1) arbitrator to be selected by agreement of the parties. If we cannot agree on the arbitrator selection, then the American Arbitration Association shall choose an arbitrator for us from the National Panel of Arbitrators. You agree that an arbitrator cannot award punitive damages to either party and to abide by and perform any award rendered by the arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Bexar County, Texas.

20.9       Waiver and Severability. The waiver by SPS DGTL of any term or condition set out in these Terms shall not be deemed a further or continuing waiver of any other provision of these Terms, and any failure by us to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable, or illegal for any reason, such provision shall be limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

20.10       Entire Agreement. Except for any service order, these Terms are the final and complete expression of the agreement between these parties regarding your use of the Platform and Application. These Terms supersede, and the terms of these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms. We will not be bound by, and specifically object to, any term, condition, or other provision that is different from or in addition to these Terms (whether or not it would materially alter this agreement) that is proffered by you in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of our failure to object to such terms, provisions or conditions.

20.11       Relationship; Independent Contractor. Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.

20.12       Survival. Section 2 (Definitions), Section 5 (Limited Rights and Use of the Service), Section 6 (Ownership and Intellectual Property Rights), Section 9 (Third-Party Services and Access Rights), Section 11 (Legal Compliance), Section 12 (Payment, Refunds, Renewals, and Subscription Changes ), Section 13 (Cancellation and Termination), Section 15 (Data Privacy), Section 16 (Warranty), Sections 17 (Indemnification), Section 18 (Limitation of Liability), and Section 20 (Miscellaneous) will survive any termination of these Terms.

20.13       Headings. The headings of the various Sections herein are for the purpose of convenience of reference only and shall not define or limit any of the terms or provisions hereof.

20.14       Copyright. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that content or material on the Platform or on our website (www.spsdgtl.com) or any of its web properties hosted on the spsdgtl.com domain infringes a copyright owned by you, you (or your agent) may send SPS DGTL DMCA agent a notice requesting that the material be removed, or access to it blocked. This request should be sent to: legal@spsdgtl.com; or, alternatively to: SPS DGTL, c/o: Innocenti Jones PLLC, 110 E. Houston St., 8th Floor, San Antonio, Texas 78205. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.