Eligibility and Assent to Terms
Welcome to DCatalog! The following Terms of Service for the DCatalog.com website, software applications made available by DCatalog from the website or via a third party (“Software”), and any application programming interface (“API”) or other technology or Services made available by DCatalog via the website or Software (collectively, the “DCatalog Service”) is a legal contract between you, either an individual of at least 18 years of age or a single entity (“You” or, collectively, “Users”), and DCatalog regarding your use of the DCatalog Service (“Terms”). The DCatalog Service is not available to persons under the age of 18 or to any users previously removed from the DCatalog Service by DCatalog.
These Terms provide that all disputes between you and DCatalog will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the “Arbitration Agreement” section below for the details regarding your agreement to arbitrate any disputes with DCatalog.
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE DCatalog SERVICE.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH DCatalog ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION” ) THEN YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS AND AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION. BY CLICKING THE “I AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY PORTION OF THE DCatalog SERVICE, YOU ASSENT TO AND AGREE TO BE BOUND BY THESE TERMS AND REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY REMOVED FROM THE DCatalog SERVICE.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such the modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose. We may change or discontinue any or all of the Service Offerings or change or remove functionality of any or all of the Service Offerings from time to time.
2. Additional Terms
Your use of the DCatalog Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the DCatalog Service or certain features of the DCatalog Service that we may post on or link to on the DCatalog Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the DCatalog Service, subject to Section 1. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
3. Fees and Payment
1. Some portions of the DCatalog Service may have fees associated with them (each, a “Paid Service”). You will have the opportunity to review and accept the fees that you will be charged before using a Paid Service. We may change fees for any portion of the DCatalog Service at any time. Unless otherwise stated, all fees are quoted in U.S. Dollars.
2. You are solely responsible for paying all fees and applicable taxes associated with your DCatalog Service account in a timely manner with a valid payment method. By electing to purchase or otherwise use a Paid Service, you authorize DCatalog or its third party payment processors to charge the credit card or other payment method identified by you ( “Payment Method“ ), which you represent and warrant that you are authorized to use, all applicable fees for that Paid Service, including all applicable taxes. For purchases of one-time Paid Services (e.g., not subscriptions), your Payment Method will be billed for that Paid Service on the date that you make the purchase.
3. For purchases of subscriptions to Paid Services:
i. Your “Subscription Billing Date” is the date when you purchase your first subscription to a Paid Service. For example, if you purchase your first subscription to a Paid Service on January 10th: (1) your Subscription Billing Date for your first monthly subscription and all other monthly subscriptions you purchase is the 10th of each month, (2) your Subscription Billing Date for your first annual subscription is January 10th of each year, and (3) your Subscription Billing Date for all subsequent purchases of annual subscriptions will be the next soonest 10th monthly calendar day after your date of purchase. Your Payment Method will be charged automatically on the Subscription Billing Date all applicable fees for the next month or year, as applicable.
ii. For any subscription to a Paid Service that you purchase after your Subscription Billing Date is established, your Payment Method will first be charged a pro-rata amount of the subscription fee for the number of days between the purchase date and the applicable Subscription Billing Date. Your Payment Method will then be charged the full periodic subscription fee for the next month or year, as applicable, on each Subscription Billing Date thereafter (or on the last day of the calendar month, if the last day of the calendar month occurs before the Subscription Billing Date for that month).
iii. All subscription payments for Paid Services are due in total upfront. Unless varied in a Proposal document, DCATALOG INC’s payment for feature enhancements or functionalities, development methods, resources, communications, training, is up-front. Unless varied in a Proposal document, for milestone projects and custom development, terms are: a fixed fee agreed up-front, 50% payment up-front; with the final 50% payable upon completion.
iv. All subscription packages are on annual basis only. You must use the entire package by end of your Subscription date. No editions can be credited to carry forward. You may upgrade or downgrade your package for the next subscription package based on your annual publishing needs.
4. For any subscription to a Paid Service, that subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next period’s (i.e., month’s or year’s) subscription fees to your Payment Method. We will bill the periodic subscription fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).
5. You acknowledge and agree that any credit card and related billing and payment information that you provide to DCatalog may be shared by DCatalog with companies who work on DCatalog’s behalf, such as payment processors or credit agencies, solely for the purpose of checking credit, effecting payment to DCatalog and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or related charges. Check with your bank and credit card issuers for details. If your Payment Method for any Paid Service fails or your account is past due, (i) you agree to pay all amounts due on your DCatalog account upon demand, (ii) DCatalog may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (iii) DCatalog reserves the right to either suspend or terminate your access to one or more DCatalog Services or your account with DCatalog. Upon any such termination, you will remain obligated to pay all outstanding fees and charges relating to your account and your use of the DCatalog Service before termination.
6. Any fees charged to your account are non-refundable except as expressly stated in these Terms. You agree to submit any dispute regarding any charge to your account in writing to DCatalog within thirty (30) days of the charge, otherwise that dispute will be waived and the charge will be final and not subject to challenge. Refunds (if any) made pursuant to a dispute, are at the discretion of DCatalog.
7. You are responsible for paying any governmental taxes imposed on your use of the DCatalog Services, including sales, use, or value added taxes. If requested, you will promptly furnish to DCatalog the applicable receipts or certificates regarding such remittances as soon as reasonably practicable. To the extent that DCatalog is obligated to collect such taxes, DCatalog will charge your Payment Method or otherwise add the applicable to your billing account.
4. User Accounts
You may browse the DCatalog.com website without creating an account, subject to these Terms. In order to use the full features of the DCatalog Service, you must register for an account or log into the DCatalog Service using your Facebook login or login to another third party social media platform that we support (“Integrated Service”). Your use of any account with an Integrated Service is subject to any terms, conditions, and policies, including privacy policies, of that Integrated Service. When you use the DCatalog Service to upload, download, or purchase content or any products, Services, or information from DCatalog, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to DCatalog on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify DCatalog. You are solely liable for the losses incurred by DCatalog or others due to any unauthorized use of your DCatalog Service account
5. Service Commitment
DCatalog Inc will use commercially reasonable efforts to make the service available with the applicable Uptime Percentage during any yearly cycle (the “Service Commitment”). In the event DCatalog Service does not meet the Service Commitment, you will be eligible to receive a Service Credit no more than 5% from your active subscription plan with us.
The Service Commitment does not apply to any unavailability, suspension or termination of DCatalog Services, or any other DCatalog performance issues: (i) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of DCatalog; (ii) that result from any actions or inactions of you or any third party; (iii) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control).
6. Digital Millennium Copyright Act
It is DCatalog’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to DCatalog’s DMCA Notification Guidelines. DCatalog will promptly terminate without notice any User’s access to the DCatalog Service if that User is determined by DCatalog to be a “repeat infringer.” A repeat infringer is a User who has been notified by DCatalog of infringing activity violations more than twice or who has had an User Submission or any other user-submitted content removed from the DCatalog Service more than twice. “User Submission” as used in these Terms means the upload and distribution of authorized digital content by a User of the DCatalog Service
7. Permission to Use DCatalog Service
1. Subject to your compliance with the terms and conditions set out in these Terms, DCatalog hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to: (i) use the DCatalog Service to view, use and access User Submissions and other content made available via the DCatalog Service; (ii) participate in any other programs, Services, or features of the DCatalog Service now or hereafter made available by DCatalog, including uploading of your User Submissions; (iii) download and install Software on the mobile device for which the Software was created to exercise the rights granted in Sections 6(i) and 6(ii); and (iv) implement any API made available by DCatalog solely in accordance with that API’s documentation. Your use of the DCatalog Service must be for personal, non-commercial use only, excePt (A) Users that are commercial entities may use the DCatalog Service to make their User Submissions available on the DCatalog Service as contemplated in these Terms or to integrate the DCatalog Service with the User’s website; and (B) Users may participate in programs made available by DCatalog to receive financial remuneration related to their User Submissions. For the avoidance of doubt, you are not entitled to any compensation from DCatalog for any User Submissions for any reason unless otherwise specifically agreed in writing by DCatalog.
2. You agree not to use or launch any automated system, including without limitation “robots,” “spiders,” and “offline readers,” that accesses the DCatalog Service in a manner that sends more request messages to the DCatalog Service in a given period of time than a human can reasonably produce in the same period by using a conventional web browser or otherwise use the DCatalog Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the DCatalog Site.
3. You also agree that for any API made available by DCatalog: (i) DCatalog makes no representations or warranties whatsoever regarding any API or any quality of Service available via any API; (ii) DCatalog may restrict usage limits; (iii) you will not modify any content accessed via that API; (iv) DCatalog may terminate or deprecate any Service or functionality available via an API at any time without notice or liability; and (v) use of some APIs may require obtaining an API key from DCatalog, and DCatalog may disable any key at any time without notice or liability.
4. DCatalog reserves all rights not expressly granted in these Terms. You acknowledge that DCatalog may automatically issue upgraded versions of the software and systems comprising the DCatalog Service and, accordingly, may upgrade the version of the DCatalog Service that you are using. DCatalog reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the DCatalog Service, including technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
8. User Submissions
1. By uploading User Submissions to the DCatalog Service, you hereby grant to DCatalog a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, and otherwise exploit your User Submissions, in any media forms or formats, and through any media channels, now known or hereafter devised, including without limitation, RSS feeds, embeddable functionality, and syndication arrangements in order to distribute, promote or advertise your User Submissions through the DCatalog Service. This license includes the right for DCatalog to convert your User Submissions to DCatalog’s proprietary format, or such other file formats as may be used by DCatalog, and to display and make your User Submissions available, in whole or in part (including excerpts), on the DCatalog Service in association with other User Submissions, content or advertising. Subject to the license grant to other Users below, the license granted by you to DCatalog in this paragraph terminates as to a specific User Submission once you remove or delete such User Submission from the DCatalog Service.
2. Users may have the option of specifying access settings for User Submissions. If you select access settings for your User Submissions, by uploading User Submissions to the DCatalog Service, you hereby grant to each User that is authorized to access your User Submissions a non-exclusive license to access and use your User Submissions under the terms selected by you. If you did not specify access settings for your User Submissions, you hereby grant to each User that is authorized to access your User Submissions a non-exclusive, perpetual, irrevocable, license to access and use such User Submission through the DCatalog Service, and to use, reproduce, publish, prepare derivative works of, display and perform those User Submissions as enabled by the functionality of the DCatalog Service. The foregoing license granted by you is modified to reflect your preferences, or terminated, as to a specific User Submission, once you modify the access settings or any other such options pertaining such User Submission, or remove or delete such User Submission from the DCatalog Service. The foregoing is subject to the right of Users who have downloaded a User Submission to retain the downloaded or printed copy or copies. Such User will retain any rights originally granted upon that download of the User Submission. Please be aware that while DCatalog uses commercially reasonable efforts to respect the access settings specified by you, DCatalog does not guarantee any confidentiality or privacy with respect to any User Submission.
3. You are solely responsible for all of your User Submissions and you hereby recognize and affirm that the DCatalog Service is merely providing you the means to make available your User Submissions. Accordingly, you shall be solely responsible for each of your User Submissions and the consequences of posting or publishing them. By uploading your User Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize DCatalog and DCatalog’s Users to use and distribute your User Submissions as necessary to exercise the licenses granted by you in this section and in the manner contemplated by DCatalog and these Terms; (2) your User Submissions do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (ii) your User Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the DCatalog Service. Violators of these third-party rights may be subject to criminal and civil liability. DCatalog reserves all rights and remedies against any Users who violate these Terms.
4. Although DCatalog has no obligation to screen, edit, or monitor any User Submissions, DCatalog reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Submission at any time and for any reason without notice.
5. Further, you understand that when using the DCatalog Service you will be exposed to User Submissions from a variety of sources, and that DCatalog is not responsible for the accuracy, content, usefulness, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against DCatalog with respect thereto. DCatalog does not endorse any User Submissions or any opinion, recommendation or advice expressed in any User Submission, and DCatalog expressly disclaims any and all liability in connection with User Submissions. If notified by a User or a content owner of an User Submission that allegedly does not conform to these Terms, DCatalog may investigate the allegation and determine in its sole discretion whether to remove the User Submission, which it reserves the right to do at any time and without notice. For clarity, DCatalog does not permit copyright infringing activities on the DCatalog Service.
9. Prohibited Conduct
YOU AGREE NOT TO COMMIT ANY ACT OF THE FOLLOWING PROHIBITED CONDUCT:
1. Use the DCatalog Service for any purpose other than to disseminate or receive original or appropriately licensed content and to access the DCatalog Service as such Services are offered by DCatalog;
2. Delete the copyright or other proprietary rights markings on the DCatalog Service or User Submissions;
3. Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the DCatalog Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
4. Use the DCatalog Service in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy or post, upload, or distribute any defamatory, libelous, or inaccurate User Submissions or other content;
5. Defame, harass, abuse, threaten or defraud Users of the DCatalog Service, or post, upload, or distribute any User Submissions or other content that is unlawful or otherwise inappropriate, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the DCatalog Service for any commercial use, it being understood that the content available on the DCatalog Service is for personal, non-commercial use only;
6. Loan, sell, resell, lease, rent, sublicense, distribute or otherwise transfer the licenses granted in these Terms or any Materials (as defined below);
7. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the DCatalog Service accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the DCatalog Service, or perform any other similar fraudulent activity;
8. Hack, remove, circumvent, disable, damage or otherwise interfere with security-related features of the DCatalog Service or User Submissions, features that prevent or restrict use or copying of any content accessible through the DCatalog Service, or features that enforce limitations on the use of the DCatalog Service or User Submissions, or intentionally interfere with or damage operation of the DCatalog Service or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
9. Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the DCatalog Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
10. modify, adapt, translate or create derivative works based upon the DCatalog Service or any part thereof, excePt and only to the extent that such activity is expressly permitted by these Terms or applicable law notwithstanding this limitation; or
11. remove, obscure, block, hide or otherwise alter the display of any advertising (or any parts or aspects thereof), DCatalog brand elements, including logos, trademarks, Service marks or other Materials displayed by DCatalog in connection with the DCatalog Service in any manner whatsoever, regardless of your use of the embedding functionality of the DCatalog Service to display authorized content on your or other third party sites.
10. Document Promotion
1. DCatalog may provide you the opportunity to promote your User Submissions (“Promoted Documents”). A “Promotion” is a User Submission consisting of information about a Promoted Document created in part by you and in part by automated means. Each Promotion consists of a title, body text, and a thumbnail. The thumbnail is automatically created from the Promoted Document. The title and body text is entered by you. DCatalog reserves the right to change how Promotions are created without notice.
2. Your Promotion will automatically be placed based upon the targeting parameters and maximum auction bid price specified by you, but DCatalog does not make any rePresentation, warranty, or other commitment of any kind regarding Promotions, including placement or bid price. If you wish to promote a User Submission with an adult theme, you must use the targeting options to limit the availability of that Promotion to persons who are at least 18 years of age.
3. In addition to the rePresentations and warranties you make above with respect to your Promoted Documents as User Submissions, you also represent and warrant with respect to each of your Promotions that:
i. Your Promotions adhere to community standards of decency and good taste, and comply with the United States Federal Trade Commission’s “Guidelines Concerning the Use of Endorsements and Testimonials in Advertising,” 16 CFR Part 255;
ii. All statements contained in your Promotions are true, accurate and non-misleading;
iii. You will disclose clearly and conspicuously that you have been paid or provided benefits with your Promotions and Promoted Documents if that is the case;
iv. Your Promotions and Promoted Documents do not include any personally identifiable information of third parties without such party’s permission;
v. Neither the title nor body text in any Promotion contain a URL;
vi. The title and body text in your Promotions accurately describe or indicate the content in the Promoted Document;
vii. Your Promotions do not contain content that infringes upon the rights of any third party, including its copyrights, trademarks, privacy, or publicity rights;
viii. The title and body text in your Promotions do not reference DCatalog and do not utilize any logos or trademarks of DCatalog;
ix. The title and body text in your Promotions do not contain false, misleading, fraudulent, deceptive, inaccurate or unsubstantiated claims;
x. Your Promotions comply with any and all codes, laws, and regulations regarding advertising or promotion in your locality;
xi. Your Promotions do not insult, threaten or harass any person; and
xii. Your Promotions do not contain: (A) offensive, profane, obscene, vulgar or inappropriate language, including language describing in a negative way or attacking persons (either as a group or individually) on the basis of their race, nationality, religion, gender, or sexual orientation or any other hate speech or terroristic speech; (B) obscene, defamatory or libelous content; (C) unlawful content, including content that encourages unlawful activity; (D) sexually explicit or sexually suggestive content, including pornographic material, “adult friend finders” or dating sites with a sexual emphasis, “adult” toys or sexually explicit videos; or (E) advertisements for any of the following: alcoholic beverages, contests, raffles, or sweepstakes (please obtain written permission from DCatalog before promoting contents, raffles, or sweepstakes on DCatalog), firearms (including “bb” guns and paintball guns) or related products, including ammunition for such firearms, gambling websites, including online casinos and sports “books”, surveillance equipment, including “spy” cameras and “bugging” devices, tobacco products, or weapons of any kind.
4. DCatalog may reject, refuse to publish, or remove from the DCatalog Service any Promotion or Promoted Document at any time for any reason , including failure to comply with these Terms or if, in DCatalog’s sole discretion, DCatalog determines that the business model, business practice, or Service promoted by the Promotion or the Promoted Document is inappropriate or contrary to the letter or spirit of these Terms. Such prohibited business practices include chain letters, fraudulent or bad-faith “get-rich-quick” or “work from home” schemes, fraudulent or bad-faith web-based colleges or universities, fraudulent or misleading subscription Services, pharmaceutical products, pyramid schemes, and sites that install malware, spyware or other software on users’ computers without their permission.
11. Integrated Services and Linked Sites
DCatalog may provide tools through the DCatalog Service that enable you to export information to Integrated Services, including through features that allow you to link your DCatalog account with an account on the Integrated Service, such as Facebook or Twitter, or through implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer that information to the applicable Integrated Service. In addition, the DCatalog Service may include links or references to other websites or Services solely as a convenience to Users ( “Linked Sites” ). DCatalog does not endorse any such Integrated Services or Linked Sites or the information, materials, products, or Services contained on or accessible through any of them. Such third party sites and Services are not under DCatalog’s control, and DCatalog is not responsible for their use of exported information. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the DCatalog Service are also solely between you and such advertiser. Access and use of Integrated Services and Linked Sites, including the information, materials, products, and Services on or available through them, is solely at your own risk.
12. Special Terms Regarding Apple
If you download Software from Apple, Inc.’s App Store, your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. You acknowledge that these Terms are entered into solely between you and DCatalog. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date that you accePt the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that:
1. if any third party claims that your possession or use of the Software infringes a third party’s intellectual property rights, DCatalog is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
2. Apple has no responsibility for addressing any claims relating to the Software, including: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; and
3. Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
13. Termination; Violations.
1. You agree that DCatalog, in its sole discretion, and without penalty, may terminate or suspend any account hosted by, or your use of, the DCatalog Service and remove and discard all or any part of your account, User profile, and any User Submission, for any reason at any time. DCatalog may also in its sole discretion and at any time discontinue providing access to the DCatalog Service, or any part thereof, with or without notice. You agree that any termination of your access to the DCatalog Service or any account you may have or portion thereof may be effected without prior notice, and you agree that DCatalog will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies DCatalog may have at law or in equity. Upon termination for any reason, you agree to immediately stop using the DCatalog Service, any accompanying documentation, and all other associated materials. Your only remedy with respect to any dissatisfaction with (i) the DCatalog Service, (ii) any term of these Terms, (iii) any policy or practice of DCatalog in operating the DCatalog Service, or (iv) any content or information transmitted through the DCatalog Service, is to terminate this Terms of Service and your account.
2. You may cancel a Paid Service at any time by navigating to your account settings within the DCatalog Service and selecting the option to cancel that Paid Service. Unused fees are non-refundable and DCatalog reserves the right to charge you subscription fees through the end of the subscription term that you elected. If DCatalog charges you fees for the full subscription term, you will continue to have access to the cancelled Paid Service through the end of your subscription term, and these Terms will continue to apply to your use of that Paid Service.
3. You may terminate your DCatalog Service account and these Terms at any time by navigating to your account settings within the DCatalog Service and selection the option to terminate your account. If DCatalog terminates your account for your breach of these Terms, DCatalog reserves the right to charge you fees through the end of your subscription term for any Paid Service you purchased prior to termination. If DCatalog terminates your use of any part or all of the DCatalog Service prior to the completion of your subscription period (except if such termination is a result of your breach of these Terms, in which case DCatalog may terminate without liability as described in the paragraph above), your sole remedy is a pro-rata refund of the purchase price paid for any terminated Paid Service.
14. Privacy; Consent to Electronic Communications
15. Ownership; Proprietary Rights.
The DCatalog Service is owned and operated by DCatalog. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, Services, and all other elements of the DCatalog Service provided by DCatalog (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Submissions that are provided and owned by Users, all Materials contained on the DCatalog Service are the property of DCatalog or its subsidiaries or affiliated companies or third-party licensors. All trademarks, Service marks, and trade names are proprietary to DCatalog or its affiliates or third-party licensors. ExcePt as expressly authorized by DCatalog, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. DCatalog reserves all rights not expressly granted in these Terms
You agree to indemnify DCatalog, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the DCatalog Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you in these Terms. DCatalog reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify DCatalog, and you agree to cooperate with DCatalog’s defense of these claims. Upon notice of any impending claim, action or proceeding, DCatalog will use reasonable efforts to notify of any indemnification obligation.
17. Disclaimer of Warranties
DCatalog, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DCatalog OR THROUGH THE DCatalog SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. YOU EXPRESSLY ACKNOWLEGE THAT THIS DISCLAIMER INCLUDES DCatalog’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS. YOU EXPRESSLY AGREE THAT THE USE OF THE DCatalog SERVICE IS AT YOUR SOLE RISK. THE DCatalog SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER SUBMISSIONS, LINKED SITES, PRODUCTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DCatalog SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. DCatalog, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, OR ANY OTHER PRODUCTS, SERVICES OR APPLICATIONS OFFERED ON OR THROUGH THE DCatalog SERVICE OR ANY LINKED SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. DCatalog, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DCatalog SERVICE OR ANY LINKED SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE DCatalog SERVICE OR ANY LINKED SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
18. Limitation of Liability and Damages
1. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL DCatalog OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE THE DCatalog SERVICE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH DCatalog OR OTHER DCatalog SERVICE USERS, EVEN IF DCatalog OR AN DCatalog AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, DCatalog’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL DCatalog OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE DCatalog SERVICE OR YOUR INTERACTIONS WITH DCatalog OR OTHER DCatalog SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE DCatalog SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN DCatalog AND RECEIVED THROUGH OR ADVERTISED ON THE DCatalog SERVICE OR RECEIVED THROUGH ANY LINKED SITES.
2. YOU ACKNOWLEDGE AND AGREE THAT DCatalog HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DCatalog, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND DCatalog. DCatalog WOULD NOT BE ABLE TO PROVIDE THE DCatalog SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
3. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
19. United States Export Controls
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
20. Arbitration Agreement; Governing Law
1. Generally. In the interest of resolving disputes between you and DCatalog in the most expedient and cost effective manner, you and DCatalog agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and DCatalog are each waiving the right to a trial by jury or to participate in a class action.
2. Exceptions. You and DCatalog agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
3. Arbitration. Any arbitration between you and DCatalog will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org , by calling the AAA at 1-800-778-7879, or by contacting DCatalog.
4. Arbitration Notice; Process . If you elect to seek arbitration, you must first send to DCatalog, by certified mail or FedEx (signature required), a written notice of your claim addressed to: Legal Dept., DCatalog, 2635 N. First Street, San Jose, CA, 95134, USA. If DCatalog elects to seek arbitration, it will send a written notice to the email address you provided to DCatalog for your account. An arbitration notice, whether sent by you or by DCatalog, must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. You and DCatalog each agree to use good faith efforts to directly resolve any claim, but if we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or DCatalog may commence an arbitration proceeding or file a claim in small claims court. During any arbitration, the amount of any settlement offer made by DCatalog or you must not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration at www.adr.org. If our dispute is finally resolved through arbitration in your favor, DCatalog will pay you: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by DCatalog in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000, whichever is highest.
5. Fees . If you commence arbitration in accordance with these Terms, DCatalog will reimburse you for your payment of the filing fee unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in the city of your billing address provided to DCatalog as part of your account registration, or, if no city was provided, in the in AAA office nearest to you, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telePhone hearing; or (iii) by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse DCatalog for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
6. No Class Actions . YOU AND DCatalog AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING . Further, unless both you and DCatalog agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
7. Modifications . If DCatalog makes any future change to this arbitration provision (other than a change to the DCatalog’s address for notice), you may reject the change by sending us written notice within 30 days of DCatalog’s notice to you of the change, in which case your account with DCatalog will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
8. Enforceability . If only Subsection (f) of this arbitration agreement provision, or the entirety of this arbitration agreement provision, is found to be unenforceable, then the entirety of this arbitration agreement provision will be void and, in that case, you and DCatalog both agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
9. Governing Law; Venue . These Terms, whether interpreted in a court of law or in arbitration, will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and DCatalog agree to the personal and exclusive jurisdiction in the state and federal courts in San Francisco, California.
2. YOU AND DCatalog AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DCatalog SERVICE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Services are offered by DCatalog, Inc. (dba DCatalog) 2635 N. First Street, Suite 102, San Jose, CA 95134, USA