Last Revised: May 27, 2020
Welcome to DigiNinja’s Terms of Service! We are truly excited to have you aboard. Thank you for choosing to use our services
The on-line chat and/or SMS (text messaging) products and services (referred to collectively as the “Services”) made available by DigiNinja, LLC to the automotive dealer (“Dealer”) subscribing to the Services are subject to the terms set forth in this Dealer End User License Agreement (“Agreement”). In order to use the Services, Dealer must first agree to the terms set forth in this Agreement. Dealer may not use the Services if Dealer does not accept the terms of this Agreement. Dealer can accept the terms of this Agreement by enrolling for and/or by using the Services, in which case, Dealer understands and agrees that DigiNinja will treat Dealer’s use of the Services as acceptance of the terms of this Agreement. The definition of Services hereunder shall also include any online access to any enrollment portal, informational web pages, and/or online reporting service (collectively, the “Secure Web Services”) provided by DigiNinja.
DigiNinjal agrees to provide the Services to Dealer in accordance with the terms and conditions of this Agreement. The Services may be provided by one or more third party service providers (“Service Providers”) Dealer or DigiNinja selects to provide all or part of the Services. DigiNinja, in its sole discretion, may change any Service Provider, at any time and for any reason.
Restrictions on Use of Services.
Dealer may use the Services only for purposes that are permitted hereunder and in accordance with applicable laws and regulations (including but not limited to laws and regulations related to spamming, privacy, obscenity, and defamation). Transmission or solicitation of any material that violates United States federal, state or other laws that may apply is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
Dealer will not use these Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted SMS or text messages. Dealer will not improperly engage in activity for which the United States Federal Communications Commission or other government authority has restricted or prohibited. Dealer is personally responsible for all SMS messages originated and sent via the Services. Actions taken using Dealer’s credentials shall be deemed to be actions taken by the Dealer.
DigiNinja may modify the Services to comply with any applicable laws or regulations. Dealer agrees that it will not (a) modify, decompile, disassemble or reverse engineer or attempt to derive any source code, or cause any other party to modify, decompile, disassemble or reverse engineer, or attempt to derive any source code, of any software or technology provided by DSigiNinja as part of the Services, including but not limited to the Secure Web Services, (b) sublicense any intellectual property pertaining to the Services to third parties or sell, resell, rent, sublicense or lease the Services to third parties, (c) use the Services to store or transmit malicious code, (d) interfere with or disrupt the integrity or performance of the Services or third—party data contained therein, (e) attempt to gain unauthorized access to the Services or their related systems or networks, (f) alter, copy, move or delete any tags or code placed as part of the Services except as directed by DigiNInja, or place tags on website pages not pre-approved by DigiNinja in writing. Dealer agrees not to access (or attempt to access) any of the Secure Web Services by any means other than through the interfaces that are made accessible by DigiNinja.
Ownership of Content and Services.
Dealer acknowledges and agrees that DigiNinja and/or their licensors own all legal right, title and interest in and to the Services and all information and intellectual property (such as data files, written text, computer software, music, audio files or other sounds, photographs, manuals, documents, illustrations, pricing information, videos or other images) (collectively referred to as “Content”) which Dealer may have access to as part of, or through Dealer’s use of, the Services, including any intellectual property rights in the Services and Content or any intellectual property rights utilized by DigiNinja in providing the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Dealer further acknowledges that the Services may contain information which is designated confidential; Dealer agrees not to disclose such information without DigiNinja’s prior written consent.
Dealer Customer Data
The Dealer’s customer information and data shall continue to be owned by the Dealer. DigiNinja will not use the Dealer’s customer data or other customer information for any other purposes than those intended with the Services. Nothing in this Agreement shall obligate DigiNinja to retain Dealer’s customer data or information. The Dealer’s customer information and data may be accessible by DigiNinja and/or Manufacturer’s compliance departments, but will otherwise not be shared with any third parties unless compelled by law or with Dealer’s consent.
Provided Dealer is not in default of any obligation under the Agreement, and provided Dealer has paid all applicable fees, subject to the terms and conditions of the Agreement, DigiNinjal grants Dealer a personal, worldwide, royalty- free, non- assignable and non-exclusive license to use the Content provided to Dealer by DigiNinja or the Service Provider as part of the Services provided to Dealer. This license is for the sole purpose of enabling Dealer to use and enjoy the benefit of the Services in the manner permitted by this Agreement. Dealer retains copyright and any other rights Dealer already holds in content which Dealer submits, posts or displays on or through, the Services (“Dealer Content”). By submitting, posting or displaying the Dealer Content, Dealer gives DigiNinja, and each Service Provider to which DigiNinja provides the Dealer Content for the purposes of providing the Services, a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute in order to provide the Services.
Access to Dealer’s Web Site.
In the event the performance of the Services requires DigiNinja to access Dealer’s computer systems to collect data or perform the Services, Dealer specifically requests and authorizes such access and will provide, and has all rights and authorizations required to provide, such access.
Modification to Services.
DigiNinja reserves the right to modify or change the Services provided hereunder by modifying current features, deleting features and/or adding features, upon sixty (60) days prior written notice to Dealer. Some modifications or changes may result in a fee increase or decrease for such Services. Dealer’s continued use of the Services hereunder after the notification will constitute Dealer’s acceptance of the change in the Services and Dealer’s agreement to pay the fees associated with such change in Services.
Payment of Fees and Billing.
Dealer agrees to pay the fees for the Services in the amounts set forth in the online registration process or, if an order form was used, on the order form. The fees for the Services shall be billed to Dealer and Dealer agrees to pay the fees for the Services. Services and fees are paid prior to the start of the service, and any cancellations that occur for the specific term for which the dealer has paid, after the start of the services will not be refunded. Reductions in package values made by a dealer will take effect as of the first day of the following term’s service start date. Except as set forth otherwise herein, all charges under this Agreement will be due and payable as specified on and consistent with the payment terms of the agreement between Dealer and DigiNinja. DigiNInja may increase fees by giving Dealer one week’s notice prior to the effective date of the price increase. If Dealer fails to pay for the Services timely, Dealer agrees to pay to DigiNInja, in addition to the fees for the Services: (i) a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, and (ii) all costs incurred in connection with collection of past due amounts (including collection agency fees and reasonable attorney fees).
All fees stated hereunder are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. Dealer assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for taxes based on the net income of DigiNinja.
Dealer Warranties; No Infringement; Compliance with Laws.
DEALER HEREBY REPRESENT AND WARRANTS THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON DEALER’S WEBSITE WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS. DEALER HEREBY AGREES THAT DEALER CONTENT WILL COMPLY WITH ALL STATE AND FEDERAL LAWS AND REGULATIONS.
Dealer may cancel the Services online through its account if online cancellation functionality is available, or, if not available, with not less than 15 days prior written notice to DigiNinja. The cancellation may be subject to Policies or the ability to re-schedule reserved inventory or cancel Advertisements already in production. Cancelled Advertisements may be published despite cancellation if cancellation of the Advertisements occurs after any applicable commitment date as set forth in advance by DigiNinja or the Service Provider, in which case Dealer must pay for those Advertisements. Upon cancellation or expiration of this Agreement, Dealer will be responsible for any Advertisements already run. If DigiNinja materially defaults in its performance under this Agreement and fails either substantially to cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults that cannot reasonably be cured within thirty (30) days, promptly to commence curing such default and thereafter proceed with all due diligence substantially to cure the default, then Dealer may terminate this Agreement by written notice to DigiNinja. DigiNinja may, at any time and for any reason, terminate this Agreement immediately upon notice to Dealer. This Agreement will automatically terminate without requirement of notice by either party effective on the date of the expiration or termination of Dealer’s agreement.
DEALER EXPRESSLY UNDERSTAND AND AGREE THAT DEALER’S USE OF THE SERVICES AND THE CONTENT IS AT DEALER’S SOLE RISK AND ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, DIGININJA, THE SERVICE PROVIDER(S) AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO DEALER THAT:
(A) DEALER’S USE OF THE SERVICES OR THE CONTENT WILL MEET DEALER’S REQUIREMENTS, OR
(B) DEALER’S USE OF THE SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING ANY CONTENT, IS DONE AT DEALER’S OWN DISCRETION AND RISK AND THAT DEALER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO DEALER’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEALER FROM DIGININJA OR
ANY SERVICE PROVIDER OR THROUGH OR FROM THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY. DIGININJAL AND EACH SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON— INFRINGEMENT.
Limitation of Liability.
SUBJECT TO APPLICABLE LAW, DEALER EXPRESSLY UNDERSTAND AND AGREE THAT DIGININJA, ITS AFFILIATES, AND ITS LICENSORS AND ANY SERVICE PROVIDER SHALL NOT BE LIABLE TO DEALER FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY DEALER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEALER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY CHANGES WHICH DIGININJA OR ANY SERVICE PROVIDER MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEALER’S USE OF THE SERVICES;
(III) DEALER’S FAILURE TO PROVIDE DIGININJA OR THE SERVICE PROVIDER WITH ACCURATE ACCOUNT INFORMATION;
(IV) DEALER’S FAILURE TO KEEP DEALER’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. DIGINJA’S AND ANY SERVICE PROVIDER’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY DEALER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED.
DEALER WILL DEFEND, INDEMNIFY AND HOLD DIGININJA, THE SERVICE PROVIDER, AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES AND AFFILIATES HARMLESS FROM AND AGAINST ALL LOSS, CLAIMS, DEMANDS, CAUSES OF ACTIONS, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, WHETHER BROUGHT BY DEALER OR ANY THIRD PARTY, AND INCLUDING COSTS, ATTORNEYS’ FEES AND EXPENSES RELATING TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR THE DEALER’S CONTENT, AND/OR DEALER USE OF THE SERVICES, AND/OR ARISING FROM OR RELATED TO A BREACH THIS AGREEEMENT OR ANY REPRESENTATION OR WARRANTY OF DEALER UNDERTHIS AGREEMENT, BUT EXCLUDING CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON OR ENTITY SEEKING INDEMNIFICATION.
Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non—availability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any date data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
Relationship of Parties.
DigiNinja and the Service Provider are independent contractors, and no agency, partnership, joint venture, employer- employee or other similar relationship is intended or created between Dealer and either DigiNinja or Service Provider under this Agreement.
Any notice to be provided under this Agreement shall be in writing and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail or personal delivery.
This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. The parties agree that there is no oral or other agreement relating to such subject matter between the parties which has not been incorporated into this agreement.
Amendment of Agreement.
This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Headings used in this Agreement are for reference purposes only and are not a part of this Agreement.
Dealer may not assign this Agreement without the prior written approval of DigiNinja, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with Dealer. This Agreement may be assigned by DigiNinja. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns.
This Agreement shall be governed by the laws of the State of Georgia without regard to its conflict of laws provisions.
Dealer and DigiNinja agree to submit to the exclusive jurisdiction of the courts located within the county of Coffee, Georgia to resolve any legal matter arising from the Terms. Notwithstanding the foregoing, a party may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any appropriate jurisdiction.