info@digsfact.com
+1 312-945-8228
IMPORTANT: THESE TERMS OF USE FOR ACCESS TO OR USE OF ANY SERVICES PROVIDED BY DIGSFACT (“TERMS OF USE”) ARE AN AGREEMENT BETWEEN DIGSFACT, INC. (“DIGSFACT”) AND YOU (“you” or “your”) FOR THE CREATION OF A DIGSFACT ACCOUNT AND/OR ACCESS TO OR USE OF THE DIGSFACT WEBSITE, AND/OR MOBILE DEVICE APPLICATION(S) FOR DIGSFACT (THE “SITE”) AND/OR THE CONTENT THEREIN WHETHER OR NOT YOU CREATE A DIGSFACT ACCOUNT.
BY VISITING THE SITE, OR ANY PAGE OF THE SITE, AND/OR BY USING ANY DIGSFACT SERVICE (AS DEFINED BELOW) YOU DEMONSTRATE THAT (I) YOU HAVE READ THESE TERMS OF USE, (II) YOU UNDERSTAND THEM AND (III) YOU AGREE AND ACKNOWLEDGE THAT THESE TERMS OF USE CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND DIGSFACT AND YOU WILL COMPLY WITH AND BE BOUND BY THESE TERMS OF USE, WHETHER OR NOT YOU CREATE A DIGSFACT ACCOUNT. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE THE SITE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE, YOU MAY NOT CREATE A DIGSFACT ACCOUNT OR ACCESS OR USE ANY SITE OR ANY PART OF THE DIGSFACT SERVICE.
DIGSFACT RESERVES THE RIGHT, AT ITS DISCRETION, TO UPDATE OR REVISE THESE TERMS OF USE. PLEASE CHECK THESE TERMS OF USE AND THE PRIVACY STATEMENT PERIODICALLY FOR REVISIONS AND UPDATES. YOUR CONTINUED USE OF ANY SITE AFTER THE POSTING OF CHANGES TO THE TERMS OF USE CONSTITUTES ACCEPTANCE OF THOSE CHANGES.
1. General.
(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.
(b) The Account. You may be required to create an account in order to use some features of the Site or the Services. To create a DIGSFACT account, you must use a valid email address registered to you. You may not impersonate any person or entity, or otherwise mislead as to the origin of the content you share with DIGSFACT when you register. You may not use the terms DIGSFACT, DF VTOUR 3D, DF LENS, DF MEASURE or any derivatives or such terms as part of your screen name or username. Except as specifically set forth in Section 19, communications between DIGSFACT and you will be sent and received electronically. You agree that all agreements, notices, disclosures and other communications exchanged between you and DIGSFACT electronically shall satisfy any legal requirements that such communications be in writing. By creating an account, you represent and warrant to DIGSFACT that (i) you are over the age of eighteen (18) and have the power and authority to enter into and perform the obligations under these Terms of Use, (ii) all information provided by you to DIGSFACT through the Site is accurate and complete. You are solely responsible for maintaining the confidentiality of any password you use to access your account.
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.
(b) Right to Access and Use the DIGSFACT Service. You are hereby granted a limited, revocable, non-exclusive and non-transferable license to access and use the DIGSFACT Service in the United States solely for your personal use and only in accordance with these Terms of Use.
3. Restrictions on Access and Use. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit any of the Service(s) or any content therein, in whole or in part; provided, that you may use the “share” feature that DIGSFACT may make available on any Service to share a link to such Service (i) on your Facebook, Twitter or Google Plus page, or (ii) with e-mail recipients. Except as otherwise expressly permitted under these Terms of Use or copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of Services will be permitted without the express written permission of DIGSFACT or the copyright owner. In the event of any permitted copying, redistribution, or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend, or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading or printing the copyrighted material, or by using the Site and/or any Service. YOU MAY NOT MAKE USE OF ANY ROBOTS, SPIDERS, OR SIMILAR DATA MINING, DATA GATHERING OR EXTRACTION TOOLS OR MANUAL PROCESSES TO COLLECT, GATHER OR COPY ANY CONTENT OR INFORMATION FROM ANY SERVICES. DIGSFACT offers you access to the Service(s) solely for your own personal and non-commercial use. You may not resell or make any commercial use of any Service(s). You SHALL NOT (i) cause, permit or authorize the decompilation, modification, disassembly or reverse engineering of any Service, or create derivative works thereof; (ii) allow unauthorized parties to view, access or use any Service; (iii) sell, assign, rent, transfer, distribute, act as a service bureau, sublicense or otherwise grant rights in any Services to any other person or entity; (iv) engage in the practice of “screen scraping,”
“database scraping” or any other practice or activity the purpose of which is to obtain lists of home, portions of a database or other lists or information in or from any Services; (v) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including, without limitation, images, text, page layout, or form) of any DIGSFACT Parties without prior express written consent; (vii) use meta tags or any other “hidden text” utilizing DIGSFACT Parties’ name or trademarks without the express written consent of DIGSFACT; (viii) use, or allow the use of, any Services in contravention of these Terms of Use or any federal, state, local, foreign or other applicable laws, rules or regulations; (ix) introduce into any Service any virus or other code or routine intended to disrupt, delete, damage or alter the Service. Systematic retrieval or use of the Service or any data from the Site to create or compile, directly or indirectly, in whole or in part, a collection, compilation, database or directory without the express written permission of DIGSFACT is strictly prohibited. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site or any Service or interfere with any other person’s use and enjoyment of the Site or any Service.
The foregoing provisions of this Section are for the benefit of DIGSFACT and the DIGSFACT Parties, and each shall have the right to assert and enforce such provisions directly or on its own behalf. Illegal and/or unauthorized uses of any Service, including, without limitation, any activities or use of the any Service that are fraudulent or otherwise objectionable or inappropriate, or violate (i) these Terms of Use, (ii) the rights of DIGSFACT, any affiliate or licensor, or any other third party, or (iii) any law or regulation, may be investigated. DIGSFACT may take any legal action, as it deems appropriate and necessary, including, without limitation, civil and criminal proceedings, and proceedings for restraining orders and injunctions. You agree that monetary damages may not provide a sufficient remedy and you consent to injunctive or other equitable relief for such violations without the requirement that DIGSFACT post a bond.
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.
6. No Modification of Services. You shall not modify any Service (including, without limitation, the Site) except that you may input and save information related to your home as permitted by DIGSFACT. In the event any modification or improvement to any Service or the Site is developed by you or on your behalf, contrary to these Terms of Use, you agree to and hereby do assign to DIGSFACT all Intellectual Property relating to such modification or improvement and you further agree to execute all documents and undertake all reasonable actions as DIGSFACT requests in order to procure, perfect, maintain or otherwise vest ownership of such Intellectual Property in DIGSFACT.
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.
Unless we indicate otherwise, (a) you grant DIGSFACT and its affiliates a worldwide, nonexclusive, royalty-free, perpetual, irrevocable, transferable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any Submission throughout the world in any media, now known or hereafter devised; (b) grant DIGSFACT and its affiliates and sublicensees the right to use the name that you submit in connection with your Submission, if they choose; and (c) represent and warrant that (i) you own and control all of the rights to the information that you post or otherwise distribute through the Submission, or you otherwise have the lawful right to post and distribute such information to or through any Service; (ii) such Submission is accurate and not misleading; and (iii) use and posting or other transmission of such Submission does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity. You further grant DIGSFACT the right to pursue at law any person or entity that violates your or DIGSFACT’s rights in the Submission by a breach of these Terms of Use. DIGSFACT has the right but not the obligation to monitor and edit or remove any Submission. You assume all risks associated with use of any of your Submissions, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure by you of information that makes you personally identifiable. You may not imply that your Submissions is in any way sponsored or endorsed by DIGSFACT.
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 use of the Site in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect DIGSFACT’s systems and customers, or to ensure the integrity and operation of DIGSFACT business and systems or for any other purpose that DIGSFACT deems appropriate, DIGSFACT may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, email address, etc.), IP address and traffic information, usage history, and posted information.
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.
8. Third Party Content or Offers. DIGSFACT does not endorse, warrant or guarantee the products or services available through the Third Party Offers (or any other third-party products or services advertised on or linked from any Services). Any information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of DIGSFACT. The Services may include links to third party web sites, but DIGSFACT does not control or assume any responsibility for such web sites. DIGSFACT does not endorse, and the inclusion of a link does not imply DIGSFACT’s endorsement of such web sites. Any concerns regarding any such third party service or resource, or any link thereto, should be directed to the particular service or resource. In addition, DIGSFACT recommends that you review these sites’ terms of use and privacy policies.
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.
15. Indemnification. You agree to defend, indemnify, and hold harmless DIGSFACT Parties from and against any and all claims, actions, demands, damages, costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising out of (i) your use of any Service or any content therein, (ii) any distribution, publication, refusal to publish, deletion, editing or other use of any Submission you provide, (iii) your violation of these Terms of Use, (iv) your violation or infringement of any third party’s rights, or (v) any actual, prospective or terminated sale or other transaction between you and a third party.
16. Termination. DIGSFACT reserves the right to terminate your access and use of any or all Services upon your violation or breach of any provision of these Terms of Use. DIGSFACT also reserves the right to suspend or terminate any Service, in whole or in part, at any time for any reason or for no reason.
17. Dispute Resolution; Governing Law; Jurisdiction and Venue.
(a) MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS
ACTION WAIVER.
i. You and DIGSFACT both agree that any and all disputes or claims arising out of or relating in any way to any Services, or from any advertising for any such Services, including any question regarding the existence, validity, or termination of these Terms of Use, as well as any issue regarding the interpretation of this Section 19, will be resolved by binding arbitration before a sole arbitrator, rather than in court, except that you may assert claims in small claims court if your claims qualify and DIGSFACT may pursue a collection action against you in court. This also includes any claims that arose before you accepted these Terms of Use, regardless of whether prior versions of the Terms of Use required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.
ii. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms of Use as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
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.
iv. The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between these Terms of Use and the AAA Consumer Arbitration Rules, the Terms of Use will apply.
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.
ix. You may opt out of this dispute resolution procedure by providing written notice to DIGSFACT at the Notice Address no later than 30 calendar days from the date of your purchase of the applicable DIGSFACT Services (or date of first use, in the case of free Services). Such opt out will apply only to any Services that you purchased or used and which you specifically identify in the notice; provided, however, it will not apply either retroactively or prospectively to any other Services. If you purchase or use additional DIGSFACT Services in the future and wish to opt out of this dispute resolution procedure for those Services, you will have to submit a new written notice. Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of these Terms of Use, or your ability to purchase or use Services, in any way.
(b) Governing Law. By establishing a DIGSFACT account or purchasing or using any Services, you agree that the Federal Arbitration Act, applicable federal law, and laws of the Commonwealth of Illinois, without regard to its conflict of laws rules, including, but not limited to, the Uniform Computer Information Transactions Act (“UCITA”), will govern these Terms of Use, as well as any dispute of any sort that might arise between you and DIGSFACT.
(c) Jurisdiction and Venue. If for any reason a claim proceeds in court rather than in arbitration or small claims court, including if you opt out under Section 19(a)(ix), we each waive any right to a jury trial and agree that any such proceeding shall be conducted only on an individual basis and not in a class, representative, consolidated or mass action. Under such circumstances, except for a collection action by DIGSFACT, you and DIGSFACT agree that jurisdiction and venue for all matters relating to these Terms of Use shall be vested exclusively in the state courts in McHenry County, Illinois, or the U.S. District Court for the Northern District of Illinois. If any
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.
18.
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.
21. Modification of Terms of Use. DIGSFACT reserves the right to modify these Terms of Use or any part thereof, or to impose new conditions, including, without limitation, adding fees and charges. Such modifications, additions, or deletions shall be effective immediately upon notice thereof, which may be given by any means including, without limitation, posting of the modified Terms of Use on the Site, or by electronic or conventional mail. Any use of the Site by you after such modification shall be deemed to constitute acceptance of such modifications, additions, or deletions.
22. Miscellaneous. These Terms of Use constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
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
Survival. Sections 1, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 and 21 of these Terms of Use shall survive expiration or termination of the agreement between you and DIGSFACT.
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:
DIGSFACT LLC.
3209 E. Crystal Lake Avenue Crystal Lake, Illinois 60014 (312) 945-8228 info@digsfact.com
