(a) The Services. Services consist of the Site, any content on the Site and/or all products and services offered by DIGSFACT, including without limitation, DF Lens, DF Measure and any other product or service offered by DIGSFACT by your or other users on or through the Site (collectively, “Submissions”) regardless of the manner form or medium in which the content is delivered to you, stored by you or delivered by you. All Services are owned and operated by DIGSFACT. DIGSFACT has the right at any time to change or discontinue any aspect or feature of any Service, including, without limitation, the content and availability of the Service or the equipment required to access or use the Service. Please review DIGSFACT’s Privacy Statement (available at, http://www.digsfact.com/privacyStatement), which applies to the information collected by DIGSFACT during your visit and use of any Service, to get a better understanding of DIGSFACT policies and procedures regarding the collection and use of personal information.
2. DIGSFACT Service.
(a) Description. The DIGSFACT Service is a personal home information management service that allows you to consolidate and track information about your home. The DIGSFACT Service may also provide information to you relating to third party products or services, such as coupons, discounts and special offers (“Third Party Offers”). The DIGSFACT Service is intended to help you organize and manage information about your home. It is not intended to provide legal, tax or financial advice.
4. Ownership. You acknowledge that all Services contain copyrighted material, trademarks, and other proprietary information. The Services, including the content and the organization, layout, arrangement and design elements of the Site and each individual page of the Site, and all intellectual property relating either directly or indirectly to the Services, including but not limited to patents, design rights, copyrights, trademarks, service marks, database rights (including, but not limited to information provided by you), trade secrets, know-how and all derivative works thereof (collectively, “Intellectual Property”), are and will remain the property of DIGSFACT or its affiliates and are protected by United States and international copyright, trademark and other applicable intellectual property laws. You shall not in any manner attempt to obtain any right, title, or interest, by registration, patent, copyright or otherwise in or to such Intellectual Property or any derivative thereof. You shall not take any action that jeopardizes, limits or interferes with DIGSFACT or its affiliates’ ownership of and/or right to use the Intellectual Property.
5. Trademarks and Patents. All trademarks and service marks of DIGSFACT and its affiliates displayed in connection with any Service are subject to state, federal, and/or international trademark protection. Unless expressly authorized by DIGSFACT, you may not use any trademarks or service marks that you access through any Service with any product or service that is not provided by DIGSFACT, or in any manner that is likely to cause confusion among customers, or that might disparage or discredit DIGSFACT and its affiliates. All other
trademarks appearing in the Services are the property of their respective owners, including third- party providers of products and services with links to and from the Services.
7. Submissions by you. You may provide Submissions through the Site so long as the Submission is not illegal or in violation of any applicable laws or regulations (including, without limitation, any home advertising laws), obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You are solely responsible for all your Submissions to the Site. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the Submission.
You understand and agree that if your Submission contains any ratings or reviews, the entity that you rate or review may respond to your ratings or review, and DIGSFACT does not control, nor has any obligation to review, delete or edit, such response submitted by the entity. DIGSFACT takes no responsibility and assumes no liability for any Submission posted, stored or uploaded by you or any third party or any response thereto, or for any loss or damage thereto or caused thereby, nor is DIGSFACT liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. The Services are provided “AS IS” and “AS AVAILABLE”. DIGSFACT does not guarantee the accuracy, integrity, or quality of any ratings, reviews or any other content (user generated or otherwise) on the Site. Under no circumstances will DIGSFACT be liable in any way for any such content, including, but not limited to, any errors or omissions in any ratings, reviews or any other content, or any loss or damage of any kind incurred as a result of the use of or any Submissions or other content. DIGSFACT DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT, INFORMATION, SERVICE, OR MATERIALS PROVIDED THROUGH THE SITE. As a provider of interactive services, DIGSFACT is not liable for any statements, representations or information provided by its users in any public forum or the Site. Although DIGSFACT has no obligation to screen, edit or monitor any of the information posted to or distributed through the Site, DIGSFACT reserves the right, and has absolute discretion, to remove, screen or edit without notice any information posted or stored on the Site at any time and for any reason.
Any information or content expressed or made available by third parties, including other participants on the Site, are those of the respective author(s) or distributor(s) and not of DIGSFACT. The inclusion of such information or content does not imply endorsement of content or information by DIGSFACT or any association with the provider of the content or information.
9. Information Collected by DIGSFACT. DIGSFACT will collect all information that you provide through Submissions or otherwise provide to DIGSFACT, including without limitation, the registration information and/or user profile information. DIGSFACT may collect usage information, such as information regarding the number times you have visited the Site, date last visited, number of Submissions, number of tags, “likes” received, name and location, a listing of
all of your Submissions and any other activity or interactions by you on the Site (collectively, “Usage Information”).
10. Information Publicly Available on the Site. DIGSFACT may make available any and all Submissions that you post or upload to any Service, as well as any and all Usage Information.
11. No Advice. The Services may include tools and information that assist you in evaluating data and making decisions regarding your home. DIGSFACT strongly recommends that you use the Services as one important tool, along with your independent research and investigation, to make a better decision about your home. You assume full responsibility with respect to your decisions and transactions using the Services.
12. Disclaimer. You expressly agree that use of the Services is at your sole risk. DIGSFACT shall not be liable for any loss, liability, cost or damage arising either directly or indirectly from your access to or use of (or inability to access or use) the Site, including any content including, but not limited to, any loss of use, system damage, impairment or interruption, lost data, personal injury or any other pecuniary or financial loss, whether in an action of contract, negligence, equity or other legal theory. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all reviews, opinions, advice, services and other content provided on the Site. None of the DIGSFACT Parties warrant that the Services will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of the Services, or as to the accuracy or reliability of any information, service, or materials provided through the Services. You understand and agree that any alerts provided to you through any Services may be delayed or prevented by a variety of factors. None of the DIGSFACT Parties guarantee the delivery or accuracy of the content of any alert. You also agree that none of the DIGSFACT Parties shall be liable for any delays, failure to deliver or misdirected delivery of any alert, for any errors in the content of an alert or for any actions taken or not taken by you or any third party in reliance on an alert. You acknowledge that the DIGSFACT collects data from public records and other sources for use in the Services and that this data may contain errors and omissions. The DIGSFACT Parties do not guarantee the correctness or completeness of the Services and none of the DIGSFACT Parties will be liable for any loss or injury caused, in whole or part, either by its negligence or circumstances beyond its control in procuring, compiling, collecting, interpreting or making available the Services. You understand that not all information is available for all states and that DIGSFACT does not have access to some information that may be available to other parties. You also understand there may be a period of time between receipt of certain information by DIGSFACT and its inclusion of such information into the Services. The Services are not intended to provide any conclusions regarding the condition of any home and you should use independent research and your own good judgment in making the best decisions about your home. You recognize that DIGSFACT’s sole obligation in the case of erroneous data, when notified in writing by you of such erroneous data, is correction of the record in question.
13. NO WARRANTIES. THE SERVICES, INCLUDING BUT NOT LIMITED TO THE SITE, TOOLS AND CONTENT CONTAINED THEREIN, IS PROVIDED TO YOU “AS IS.” DIGSFACT PARTIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES IN REGARD TO
QUALITY, AVAILABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. ADDITIONALLY, THERE ARE NO WARRANTIES RELATING TO ANY OF THE HOME ABOUT WHICH INFORMATION IS POSTED ON THE SITE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY), NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT DIGSFACT IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. You shall exercise your own independent judgment in determining the applicability, accuracy, reliability and suitability of the Service for your purposes.
14. LIMITATION OF LIABILITY. IN NO EVENT WILL ANY OF THE DIGSFACT PARTIES BE LIABLE IN CONTRACT, IN TORT (INCLUDING FOR ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF USE, OR SIMILAR ECONOMIC LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE ANY SERVICE; THE ACCESS, USE OR OPERATION OF ANY SERVICE; OR ANY DEFECTS OR ERRORS OF ANY KIND IN ANY SERVICE. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL USE OF THE SERVICES. IF APPLICABLE LAW IN YOUR STATE DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE DIGSFACT PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING ANY SERVICES.
17. Dispute Resolution; Governing Law; Jurisdiction and Venue.
(a) MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS
iii. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to DIGSFACT, by certified mail, a written notice of your claim that (a) describes the nature and basis of the claim or dispute; (b) sets forth the specific relief sought and (c) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: Digsfact, 3209 E. Crystal Lake Avenue, Crystal Lake, Illinois 60014 (“Notice Address”). If DIGSFACT and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or DIGSFACT may commence an arbitration proceeding or file a claim in small claims court. You may download or copy a form to initiate arbitration at www.adr.org.
v. If your claim totals less than US$25,000, DIGSFACT will pay for all filing, administrative and arbitration fees, including the arbitrator’s compensation, and will reimburse you for any filing, administrative and arbitration fees that you incur. If your claim exceeds US$25,000, you will be responsible for the filing fees and the parties will pay equal shares of any administrative and arbitration fees, including the arbitrator’s compensation, except for such fees that the AAA Consumer Arbitration Rules require DIGSFACT to pay in full. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at any arbitration hearing.
vi. If your claim is for US$25,000 or less, you and DIGSFACT agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator.
vii. You and DIGSFACT agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. You shall not join or consolidate claims or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 19(a) shall be null and void.
viii. Any arbitration will be confidential. Neither you, DIGSFACT, the AAA nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by law or for purposes of enforcing or challenging the arbitration award.
part of this Section 19(c) is found to be unenforceable, the remainder of Section 19 and this Section 19(c) shall still be given full force and effect.
19. Viruses. You will not send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files, spyware, traps, protecting codes or trap door devices, or other computer programming routines that are designed or intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any of the Services or any data contained therein or that otherwise jeopardizes the security or integrity of the Services or interferes with the Services functioning as intended by DIGSFACT. The DIGSFACT Parties assume no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Service or your downloading of any materials, data, text, images, video, or audio from the Service.
20. Export Control. Software and other materials from or in connection with any Service may be subject to United States Export Control. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from or in connection with any Service may be downloaded or exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) anyone on the Unites States Treasury Department’s list of Specially Designated Nationals or the US Commerce Department’s Table of Deny Orders. DIGSFACT does not authorize the downloading or exportation of any software or technical data from or in connection with the Service to any jurisdiction prohibited by the United States Export Laws.
23. Digital Millennium Copyright Act Notice. It is the policy of DIGSFACT to respect the intellectual property of others. If you are alleging that material available on or through a DIGSFACT website infringes upon your copyright, please submit a written notification pursuant
to the Digital Millennium Copyright Act (‘DMCA’). The notice must include the following to be effective:
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, or, if multiple copyrighted works at a single Site are covered by a single notification, a representative list of such works at that Site
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit DIGSFACT to locate the material
d. Information reasonably sufficient to permit DIGSFACT to contact you, such as an address, telephone number, and, if available, an email address
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In the event that DIGSFACT removes material from a Site (or access to the material is disabled) and you believe that such material is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to law, please submit a written counter notification pursuant to the DMCA. The counter notification must include the following to be effective:
i. Your physical or electronic signature
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled
iii. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification
iv. Your name, address, telephone number, and, if available, an email address, and a statement that you consent to the jurisdiction of the U.S. District Court for the Northern District of Illinois that you will accept service of process from the person who provided notification of the alleged infringement.
All written notices should be sent to the following:
3209 E. Crystal Lake Avenue Crystal Lake, Illinois 60014 (312) 945-8228 firstname.lastname@example.org