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Terms Of Service

 

Digital Elephant (“Digital Elephant”, “Us” or “We”) provides Digital Elephant products, services and websites (collectively the “Digital Elephant Service”), as well as app technology and other installable software (“Digital Elephant Software”), to you, our customer, and to all other persons authorized by you to use, install or access the Digital Elephant Service and Digital Elephant Software on your behalf (collectively “you”), subject to your compliance with all terms, conditions and notices contained or referenced in this document (the “Terms”).

IMPORTANT NOTE: These Terms do not apply if you have formally executed an Digital Elephant Enterprise Agreement or an Digital Elephant Vendor Agreement with us.

Please read these Terms carefully. By using the Digital Elephant Service and Digital Elephant Software, you are stating that you have read, understood, and agree to be bound by these Terms. If you do not agree to these Terms, you are not permitted to use the Digital Elephant Service or install Digital Elephant Software.  If you require an Enterprise or Vendor level agreement, please contact us to request this option.

Ownership and Responsibility

(a) Digital Elephant solely owns, or licenses from third parties (as the case may be), all intellectual property and other rights, howsoever arising in and to the Digital Elephant Service and Digital Elephant Software, and reserves all rights therein not expressly and explicitly granted under these Terms. If new features, improvements or derivative works of the Digital Elephant Service or Digital Elephant Software are prepared by or on behalf of Digital Elephant based on suggestions or requests by you, Digital Elephant will solely own such modifications.

(b) Digital Elephant does not claim ownership of any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials you create, submit or make available (your “App Data“) for inclusion on or through the Digital Elephant Service or Digital Elephant Software. As between Digital Elephant and you, you own all rights to your App Data. Digital Elephant does not review apps that you create and you agree that you are solely responsible for all of your App Data.

No Resale of the Digital Elephant Service or Digital Elephant Software

You agree not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any portion (except for your App Data, to which Digital Elephant agrees you retain all rights), use of, or access to the Digital Elephant Service or Digital Elephant Software.  If you wish to pursue resale of the Digital Elephant Service or Digital Elephant Software, contact our support team to discuss our Vendor options.

Fees and Billing

(a) User License Fees.  Each user that is registered on the Digital Elephant Service or Digital Elephant Software is subject to a recurring user licence fee. User license fees are charged at the rates shown in the Billing area of the Digital Elephant website.

(b) Subscription and Service Fees. Any additional subscriptions and/or services that you select are provided at the rates and terms set forth in the Billing area of the Digital Elephant website.

(c) Invoicing and Automatic Renewal.  All Digital Elephant licenses, subscriptions and services shall automatically renew on the first day of each billing period (monthly or annually, as applicable) until cancelled by you.  You may, at any time, cancel individual services, licenses and subscriptions through the options provided in our Billing area or by emailing our support team.  You accept that pre-paid fees are non-refundable and that any outstanding invoices issued by Digital Elephant prior to receipt of your notice of cancellation must still be paid in full.  You will remove applicable Digital Elephant Software if previously received under the terminated service, subscription or licenses to ensure compliance with these Terms.

(d) Value Added Tax, Sales Tax and Other Amounts. Unless otherwise expressly stated, all fees are exclusive of local value added tax, sales tax, other taxes, duties and charges imposed or levied in connection with these Terms (“Taxes”). Digital Elephant will add any such applicable Taxes to your invoices as required by prevailing legislation. Without limiting the foregoing, you will be liable for any new Taxes imposed or levied in any relevant jurisdiction subsequent to commencing your Digital Elephant Service account.

(e) Fee Review.  Digital Elephant may periodically review fees, at which point Digital Elephant may increase or amend any such fee.  Such reviews will occur no more than once within a continuous 12 month period. Where there is any net increase in the fees payable, Digital Elephant shall give no less than 30 days written notice to you of such increase.

 

Payment of Digital Elephant Fees

The default option for paying your Digital Elephant fees is by credit card. When paying by credit card, you warrant that the credit card information you provide is correct and you shall promptly update your credit card information if this changes. If you cannot pay by credit card, contact our support team to request special dispensation to pay your fees by electronic funds transfer (EFT) or international money transfer (IMT). You agree that if your payment is not received by the invoice due date, for any reason, Digital Elephant may suspend or cancel your Digital Elephant subscription.

 

Making changes to your account

If you choose to downgrade, upgrade or otherwise change your Digital Elephant users, services or subscriptions, this may cause the loss of features or capacity on your account. To the extent permitted by applicable law, Digital Elephant does not accept any liability for such losses. Changes you make will usually only take effect from your next billing date.

 

Restrictions

Unless expressly permitted under these Terms, you must not (as applicable):

(a) Use the Digital Elephant Service or Digital Elephant Software in any way that could damage Digital Elephant’s reputation, or the goodwill or other rights associated with the Digital Elephant Service or Digital Elephant Software;

(b) Permit any third party to access, install or use the Digital Elephant Service or Digital Elephant Software other than in accordance with these Terms;

(c) Disable, tamper with or otherwise attempt to circumvent any billing mechanism that meters the use of the Digital Elephant Service or Digital Elephant Software;

(d) Reproduce, make error corrections to, modify, decompile, disassemble or otherwise reverse engineer the Digital Elephant Service or Digital Elephant Software, or permit or facilitate any third party to do so;

(e) Copy Digital Elephant Software, except such copies as necessary for reasonable and customary back-up and disaster recovery purposes.

(f) When accessing, installing and using the Digital Elephant Service and Digital Elephant Software:

(i) Attempt to undermine the security or integrity of Digital Elephant computing systems or networks or, where the Digital Elephant Service or Digital Elephant Software is hosted or operated by a third party, the third party’s computing systems and networks;

(ii) Use, or misuse, the Digital Elephant Service or Digital Elephant Software in any way which may impair its functionality, or the functionality of any other system used to deliver the Digital Elephant Service or Digital Elephant Software, or impair the ability of any third party to lawfully use the Digital Elephant Service or Digital Elephant Software;

(iii) Attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer systems on which the Digital Elephant Service or Digital Elephant Software is hosted or stored;

(iv) Transmit, or input into the Digital Elephant Service or Digital Elephant Software any information, data, files or other material that may damage any other person’s computing devices or software, or which is in violation of any law or regulation (including material protected by copyright or trade secrets which are not granted rights of use);

(v) Use the Digital Elephant Service or Digital Elephant Software in connection with unsolicited emails, or to deceptively or without proper authority obtain payment or sensitive information (including, but not limited to, credit card details, social security numbers, user login credentials) from other persons.

(vi) Remove or modify any program markings or any notice of proprietary rights, including those of any third party, other than those that are permitted and able to be changed or altered as part of any branding services permitted under these

 

Terms.

European and United Kingdom Data Collection

If you collect personal data in or from any person resident (or normally resident) in Europe or the United Kingdom, your actions occur under the prevailing EU data protection and privacy regulations and you are likely considered to be a “data controller”. You agree to ensure that your use of the Digital Elephant Service and Digital Elephant Software is compliant with prevailing EU data protection regulations. Should you qualify as a data controller under prevailing EU data protection and privacy regulations, you also acknowledge and agree to the Digital Elephant Data Processing Addendum, and as updated from time to time.

Security

We maintain appropriate technical and operational measures, internal controls, and data security routines intended to protect your data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction. We are not responsible for the security of any data stored on any mobile device owned or controlled by you, your customers or any other Service users.

Privacy and Data Processing

By using the Digital Elephant Service or Digital Elephant Software you indicate acceptance of these terms and agree to our Privacy Policy. You agree that Digital Elephant shall process data on your behalf as necessary to provide you with the Digital Elephant Service and Digital Elephant Software, in accordance with our Privacy Policy, applicable data protection and privacy laws and, where applicable, the Digital Elephant Data Processing Addendum.

Copyright Infringement

Digital Elephant respects the intellectual property rights of others. Accordingly, Digital Elephant has a policy of disabling access to any Digital Elephant customer that violates copyright law, suspending access to the Digital Elephant Service or Digital Elephant Software to any user who uses the Digital Elephant Service or Digital Elephant Software in violation of copyright law, and/or terminating in appropriate circumstances the account of any user or customer who uses the Digital Elephant Service or Digital Elephant Software in violation of copyright law.

 

Trademarks

The phrase “Digital Elephant” and the Digital Elephant logo are registered trademarks of Digital Elephant Pty Ltd. You are not authorized to use any such trademarks unless you have explicit written permission from us. Ownership of all such trademarks and the goodwill associated therewith remains with Digital Elephant.

 

Termination

You agree that Digital Elephant may terminate your Digital Elephant Service membership or suspend your access to all or part of the Digital Elephant Service or Digital Elephant Software, without notice, if Digital Elephant determines, in its sole and absolute discretion, that you have violated these Terms. Further, you agree that Digital Elephant shall not be liable to you or any third party for removing your apps or suspending or terminating your access to the Digital Elephant Service or Digital Elephant Software. You may discontinue your participation in and access to the Digital Elephant Service at any time, in which case any pre-paid payments are non-refundable and any pending payments must be settled with us.

 

Modifications to these Terms

Digital Elephant may, in its sole and absolute discretion, change these Terms from time to time. Digital Elephant will post notice of such changes on the Digital Elephant website. If you object to any such changes, your sole recourse shall be to cease using the Digital Elephant Service and Digital Elephant Software. Continued use of the Digital Elephant Service or Digital Elephant Software following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

Modifications to the Digital Elephant Service and Digital Elephant Software

Digital Elephant reserves the right to modify or discontinue the Digital Elephant Service or Digital Elephant Software with or without notice to you. Digital Elephant shall not be liable to you or any third party should Digital Elephant exercise its right to modify or discontinue the Digital Elephant Service or Digital Elephant Software.

 

Email Communications

By giving your email address to Digital Elephant, you agree to receive administrative, announcements, newsletters, sales, and marketing emails from Digital Elephant. You can opt-out from these emails by clicking on the “unsubscribe” link at the end of the emails.

Links, Content and Resources

Digital Elephant’s provision of a link to Digital Elephant resources and/or any other website or internet resource is for your convenience only and does not signify Digital Elephant endorsement of such other web site or resource or its contents. Digital Elephant shall have no responsibility or liability for any information, software, or materials found at any other website or internet resource.

Delivery of Emails, Notifications and Other Messages

Digital Elephant goes to great lengths to ensure successful delivery of emails, push notifications and other messages generated on or by the Digital Elephant Service, however we do not guarantee successful delivery of these. You agree that Digital Elephant cannot be held responsible for any consequences of such delivery failure. This is because delivery is not solely controlled by Digital Elephant and is subject to a number of points of failure which can prevent delivery. See our support site for more information about why delivery cannot be guaranteed.

 

Service Availability

You agree that access to the Digital Elephant Service is reliant upon various factors outside of Digital Elephant’s control, including, without limitation, your internet service provider, global telecommunications links, our hosting and other service providers, and other factors which may impact upon the availability of the Digital Elephant Service. While we will use all reasonable endeavours to ensure that you have continuous access to the Digital Elephant Service and apps created thereon, we will not be liable to you or any other person for any loss or damage caused by unavailability of the Digital Elephant Service.

Branding Services

Subject to your purchase of applicable subscription(s), Digital Elephant shall provide branding services including creation of branded versions of the Digital Elephant Service and Digital Elephant Software (“Branded Apps”), review and submission of Branded Apps to relevant publishing authorities as required, and maintenance and updates of Branded Apps.  Digital Elephant shall not be responsible or otherwise liable for delays or refusals by relevant publishing authorities or delays due to failure by you to punctually supply required responses, content or information.  In using Digital Elephant branding services, you verify that your nominated brand names, logos and all other such content does not infringe on any local, national or international trademarks or other applicable copyrights.  You will ensure that all users of Branded Apps comply with all terms and conditions of these Terms.  Digital Elephant reserves the right to refuse provision of branding services at its sole discretion, in which instance the applicable subscription fees will be refunded to you in full.

Disclaimer of Warranties

You understand and expressly agree that use of the Digital Elephant Service and Digital Elephant Software is at your sole risk. The Digital Elephant Service and Digital Elephant Software is provided on an “as is” and “as available” basis. Digital Elephant expressly disclaims all warranties of any kind, whether express or implied, with respect to the Digital Elephant Service and Digital Elephant Software (including, but not limited to, the implied warranties of merchantability, fitness for a particular use or purpose, and non-infringement). Digital Elephant makes no warranty that the Digital Elephant Service or Digital Elephant Software will meet your requirements, or that the Digital Elephant Service or Digital Elephant Software will be uninterrupted, timely, secure, or error-free. You understand and agree that any material and/or information downloaded or otherwise obtained through the use of Digital Elephant is done at your own discretion and risk and that you will be solely responsible for any damage or consequential losses arising therefrom. No advice or information, whether oral or written, obtained by you from Digital Elephant or through the Digital Elephant Service or Digital Elephant Software shall create any warranty not expressly made herein.

 

Limitation of Liability

You understand and expressly agree that, to the extent permitted under applicable law, in no event will Digital Elephant or its officers, employees, directors, shareholders, parents, subsidiaries, affiliates, agents, or licensors be liable under any theory of liability (whether in contract, tort, statutory, or otherwise) for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, or other intangible losses (even if such parties were advised of, knew of, or should have known of the possibility of such damages), resulting from your (or anyone using your account’s) use of the Digital Elephant Service or Digital Elephant Software.

Resolution by Arbitration

This agreement requires the use of arbitration on an individual basis to resolve disputes, rather than injunctive legal actions, jury trials or class actions, and also limits the remedies available to you in the event of a dispute.

Exclusions And Limitations

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations and disclaimers in these Terms may not apply to you. To the extent that Digital Elephant may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Digital Elephant liability shall be the minimum permitted under such applicable law. Unless expressly provided otherwise, the limitation of liability shall not exceed the amount of the fees paid by you to use for the provision of the Digital Elephant Service and Digital Elephant Software.

Indemnification

You agree to indemnify, defend, and hold harmless Digital Elephant, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys. fees) that such parties may incur as a result of or arising from (a) any information (including, without limitation, your Submissions or any other content) you (or anyone using your account) submits, posts, or transmits through the Digital Elephant Service or Digital Elephant Software, (b) your (or anyone using your account’s) use of the Digital Elephant Service or Digital Elephant Software, (c) your (or anyone using your account’s) violation of these Terms, and (d) your (or anyone using your account’s) violation of any rights of any other person or entity.

 

Miscellaneous

These Terms constitute the entire and exclusive and final statement of the agreement between you and Digital Elephant with respect to the subject matter hereof and supersede any prior agreements or negotiations between you and Digital Elephant with respect to the subject matter hereof. These Terms and the relationship between you and Digital Elephant shall be governed by the laws of the State of KZN, South Africa as applied to agreements made, entered into, and performed entirely in KZN by South African residents, notwithstanding your actual place of residence. All lawsuits arising from or relating to these Terms or your use of the Digital Elephant Service and Digital Elephant Software shall be brought in the Federal or State courts located in  KZN and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of Digital Elephant to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavour to give effect to the intentions of Digital Elephant and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Digital Elephant Service and Digital Elephant Software or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. All terms, as well as any limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the Digital Elephant Service and Digital Elephant Software.

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