TERMS OF SERVICE
READ THESE TERMS OF SERVICE (THIS "AGREEMENT") CAREFULLY BEFORE USING THE SERVICE. BY USING THE SERVICE OR CLICKING THE "ACCEPT" BUTTON WHEN THE OPTION IS MADE AVAILABLE TO YOU, YOU AGREE TO COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ACT FOR AND BIND THAT ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
USE OF SERVICE
Subject to the terms and conditions of this Agreement, you and your Authorized Users shall have the nonexclusive, non-assignable, limited right to access and use the Service, solely for your internal business operations. You may allow Authorized Users to use the Service for this purpose and you are responsible for your Authorized Users’ compliance with this Agreement. As used in this Agreement (a) "Authorized User" means an individual who is authorized by you to use the Service and to whom you have, or Digital Intakes at your request has, supplied User Credentials; and (b) "Service" means the data processing service provided by Digital Intakes, including all features and functionalities, website, and user interfaces, as well as all content and software associated with the Service.
To access and use the Service, you must have an active subscription for the Service (a "Subscription"). You must provide your full legal name and a valid email address to activate your subscription. You must be human to create an account; accounts registered by automated methods are not permitted. Upon the establishment of a Subscription, an administrator user name and password is generated ("Administrator Credentials"). By logging into the Service with such Administrator Credentials, you can create and administer one or more user accounts, each with a unique user name and password ("User Credentials"). Administrator Credentials and User Credentials are jointly referred to as "Credentials." The Credentials are used to authenticate the Authorized User and thereby allow access to the Service, including any of your data stored as part of the Service. You are solely responsible for maintaining the confidentiality of the Credentials. You shall not share Credentials with any third party. You acknowledge that Digital Intakes may rely on the Credentials as the sole test to control whether users accessing and using the Service on your behalf are authorized to do so. You are fully liable for any act or omission of any users that access or use the Service with the Credentials.
You may not:
- remove or modify any program markings or any notice of Digital Intakes’s or its licensors’ proprietary rights;
- make the Service, or any materials relating thereto, available in any manner to any third party for use in the third party’s business operations;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service;
- access or use the Service in order to build or support, or assist a third party in building or supporting, products or services competitive to the Service;
- license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service, or related materials, available to any third party other than as expressly permitted under the terms of this Agreement;
- except as expressly provided herein, copy, reproduce, distribute, republish, download, display, post or transmit the Service, or any portion thereof, in any form or by any means; or
- attempt to gain unauthorized access to the Service or related systems or networks.
- if you elect to use the free version of the Service, download, install, run or otherwise use any ad blocking tool while using the Service.
Protection against Unauthorized Use.
You will use your best efforts to prevent any unauthorized use of the Service and will immediately notify Digital Intakes in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Digital Intakes to prevent or terminate unauthorized use of the Service.
Digital Intakes may, in its sole discretion, upgrade, enhance, change and modify the Service, including by discontinuing a Service or any aspect or feature thereof. Digital Intakes further reserves the right to change and amend this Agreement. You will be notified of such changes and amendments, which may be made in Digital Intakes’s sole and exclusive discretion, and thereafter such change or amendment to this Agreement will be effective as of the 30th day thereafter. If such changes and amendments to this Agreement are not acceptable to you, you may terminate your access to and use of the Service. Continued access or use of the Service by you or your Authorized Users after such 30th day shall be deemed acceptance by you of the amended or changed terms.
The term of this Agreement (the "Term") shall commence on the date you accept this Agreement and shall continue in full force and effect until either party terminates this Agreement pursuant to Section 2.2.
You may terminate this Agreement at any time by canceling your Subscription, and you will continue to have access to the Service through the end of your monthly billing period. TERMINATION OF YOUR SUBSCRIPTION WILL NOT BE EFFECTIVE UNTIL THE LAST DAY OF THE CALENDAR MONTH IN WHICH YOUR SUBSCRIPTION WAS CANCELED. Digital Intakes may, with or without cause, terminate or suspend your account and access to the Service without prior notice. Without limiting the foregoing, the following may lead to a termination or suspension by Digital Intakes of the Service: (a) breach or violation of this Agreement; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions); (d) unexpected technical issues or problems; (e) extended periods of inactivity; or (f) failure to pay any fees owed for the Service. Termination includes removal of access to all offerings within the Service and may also bar you from further use of the Service. Furthermore, you agree that all terminations shall be made in Digital Intakes’s sole discretion and that Digital Intakes shall not be liable to you nor any third-party for any termination of your account or access to the Service.
Effect of Termination.
Upon termination of this Agreement, all rights to access or use the Service terminate. All provisions of this Agreement which by their nature extend beyond termination of this Agreement shall survive termination of this Agreement.
APPROPRIATE USE OF THE SERVICE
You agree not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). You will be responsible to ensure that its Authorized Users do not submit any Objectionable Matter. In addition, Digital Intakes may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Digital Intakes web site; you and your Authorized Users will be bound by any such rules. Digital Intakes reserves the right to remove any data, information or material provided or submitted by you or any Authorized User to Digital Intakes in the course of utilizing the Service ("User Data") that constitutes Objectionable Matter or violates any Digital Intakes rules regarding appropriate use, but is not obligated to do so. You and Authorized Users will comply with all applicable laws regarding User Data and use of the Service. Digital Intakes reserves the right to terminate this Agreement for cause if you or an Authorized User materially breaches the provisions of this Section 9.
Compliance with Laws.
You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service (e.g. privacy and security laws and regulations, CAN-SPAM ACT, copyright laws, international communications, and the transmission of technical or personal data). You agree to provide any notices and obtain any consents related to your use of the Service, including those related to the collection, use, processing, transfer and disclosure of personal information.
Account Information and Use.
You are solely responsible for all activity occurring under your account and will: (a) notify Digital Intakes immediately of any unauthorized use of any password or account or any other known or suspected breach of security, and (b) not impersonate another Digital Intakes user or provide false identity information to gain access to or use the Service.
Information Provided to Digital Intakes.
You represent and warrant that you own and control all of the rights to the information and materials that you store, post or transmit through the Service, or you otherwise have the right to use such information and materials; and the use of the information and materials you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for Digital Intakes or for third parties. You understand that all information publicly posted or privately transmitted through the Service is your sole responsibility and that Digital Intakes will not be liable for any errors or omissions in any content.
You must have the required equipment, software, and Internet access to use the Service. Acquiring, installing, maintaining and operating equipment and Internet access is solely your responsibility. Digital Intakes neither represents nor warrants that the Service will be accessible through all web browser releases or all versions of computing devices.
PRICING AND PAYMENT TERMS
If you elect to access any paid component of the Service, such as becoming a monthly subscriber, you agree to pay the monthly subscription fees indicated on the site for the Service.
Applicable fees will be invoiced to you at the end of your free trial and each month thereafter until you cancel your account. All amounts owed shall be due 30 days from your receipt of an invoice for same. You hereby authorize Digital Intakes to charge your credit card for payment of the Service on or shortly after each monthly due date. If for any reason Digital Intakes is unable to process your payment using the credit card information provided, Digital Intakes may immediately suspend or terminate your account. You are responsible for keeping your credit card information current and remain liable for all unpaid fees. All fees must be paid in United States currency. Fees are non-refundable and no refunds will be issued for partially used periods. Digital Intakes may modify the fees upon 30 days prior notice.
The fees and expenses due to Digital Intakes as set forth in this Agreement are net amounts to be received by Digital Intakes, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by you or imposed on Digital Intakes in the performance of this Agreement or otherwise due as a result of this Agreement. This Section will not apply to taxes based solely on Digital Intakes's income.
Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.
Digital Intakes and its licensors own all right, title and interest, including all related intellectual property rights in and to the Service, Digital Intakes’s logos and trademarks, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. You retain all ownership and intellectual property rights in and to User Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership of all User Data. You grant Digital Intakes a worldwide, limited right and license to host, copy, transmit, view, modify, reformat, translate, transfer and display User Data as necessary or appropriate for Digital Intakes to provide the Service in accordance with this Agreement.
Digital Intakes Indemnity.
Digital Intakes will defend you against any claims, actions, suits, demands, obligations, and proceedings ("Claims") made or brought against you by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, any such Claim. If Digital Intakes receives information about an infringement or misappropriation claim related to the Service, Digital Intakes may in its discretion (a) modify the affected Service so that they no longer infringe or misappropriate, (b) obtain a license for your continued use of the affected Service in accordance with this Agreement, or (c) terminate your rights to the affected Service and refund to you any unused prepaid fees covering the remainder of the term of the terminated subscriptions. This Section states Digital Intakes’s sole liability to you, and your exclusive remedy against Digital Intakes, for a claim of infringement or misappropriation.
Indemnity by You.
You will, at your expense, defend, indemnify, and hold harmless Digital Intakes and its affiliates, and its and their respective employees, officers, directors, agents, successors and assigns ("Digital Intakes Indemnitees") from and against any and all Claims of any kind threatened, asserted, or filed against Digital Intakes Indemnitees, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) breach by you or an Authorized User of this Agreement; (b) any actual or alleged infringement or violation of any copyright, trademark, trade secret, or other proprietary right of a third party; (c) any act or omission to act by you or anyone acting on your behalf; or (d) User Data.
The indemnifying party’s obligations in Sections 6.1 and 6.2 are subject to the party seeking to be indemnified: (a) providing the other party reasonably prompt notice in writing of any such Claim; (b) providing the other party information, assistance, and authority, at the indemnifying party’s expense, to help the indemnifying party to defend such Claims; and (c) giving the other party sole control of the defense and settlement of the Claim. The indemnified party will not have any right, without the other party’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement, blame, or wrongdoing (whether in contract, tort, or otherwise) on the part of the indemnified party or otherwise requires the indemnified party to take or refrain from taking any material action (such as the payment of fees).
Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DIGITAL INTAKES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DIGITAL INTAKES DOES NOT WARRANT THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS, (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (c) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT DIGITAL INTAKES DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. DIGITAL INTAKES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
Limitation of Remedy.
DIGITAL INTAKES AND ITS LICENSORS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
No Liability for Direct Damages.
EXCEPT WITH RESPECT TO DIGITAL INTAKES'S INDEMNITY OBLIGATIONS UNDER SECTION 6.1, AND TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL DIGITAL INTAKES AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS HAVE ANY LIABILITY WHATSOEVER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE.
Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY DIGITAL INTAKES TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
CONFIDENTIALITY; PRIVACY; SECURITY
In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available to the other party (as the "Receiving Party") certain Confidential Information. Subject to Section 9.2, "Confidential Information" means non-public information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.
Notwithstanding the foregoing, Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information.
Subject to Section 9.4, Receiving Party agrees to hold the Confidential Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by Disclosing Party to any third party, or utilize the Confidential Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. You acknowledge that the Service and related materials are the Confidential Information of Digital Intakes or its licensors. The obligations in this Section shall continue for so long as such information constitutes Confidential Information. The foregoing obligations shall not apply if and to the extent that: (a) Receiving Party establishes that the information communicated was publicly known at the time of Receiving Party's receipt or has become publicly known other than by a breach of this Agreement; or (b) Receiving Party is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, provided however, that, Receiving Party shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which Receiving Party is required to disclose.
Business Associate Addendum.
Before using the Service, you must accept the terms set forth in the Business Associate Addendum, incorporated herein by reference, by clicking the "Accept" button made available to you. To the extent the Business Associate Addendum conflicts with this Agreement, the Business Associate Addendum shall control.
Data Privacy; Security.
The Service may include the storage and processing of personal data that may be subject to mandatory legislation, such as the legislation based on EU Directive 95/46/EC which aims to prevent the violation of personal integrity in the processing of personal data (as amended, the "Personal Data Act"). You will always be considered as the controller of personal data provided by you or Authorized Users even if the processing is carried out by Digital Intakes or its service providers. Digital Intakes and its service providers engaged for the storage and other processing of data are considered your data processors (personal data assistants) and it is your sole responsibility to ensure that such processing of personal data is in compliance with the Personal Data Act and other applicable legislation. You will promptly notify Digital Intakes if its or its service providers’ processing of personal data is subject to legislation which is not based on the Personal Data Act. If a provision under the Personal Data Act or other legislation would confer responsibility or liability directly on Digital Intakes or its service providers to ensure compliance with such legislation, Digital Intakes is unwilling to grant any access to the Service and you must cease access to and use of the Service immediately and notify Digital Intakes thereof. Digital Intakes and its service providers will take reasonable steps to help ensure the safety of your personal data in compliance with the Personal Data Act, if applicable. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you understand that the Service is not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Service. You agree that such export control laws govern your use of the Service (including technical data), and you agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software programs or materials resulting from the Service will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Digital Intakes is an independent contractor (and not as your agent or representative) in the performance of this Agreement and no joint venture, partnership, or agency relationship between the parties. Digital Intakes may utilize subcontractors or other third parties to perform its duties under this Agreement. You may not assign the agreement or give or transfer the Service or an interest in them to another individual or entity. All notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) one day after they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile or by email, in each case to such address as the party to receive the notice or request so designates by written notice to the other. Digital Intakes will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Digital Intakes’s reasonable control.
This Agreement is governed by and construed in accordance with the laws of the State of Georgia without regard to conflict of laws principles. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement will be construed as though all parties had drafted it. This Agreement (including information and other agreements incorporated into this Agreement by reference) is the final and complete expression of the agreement between these parties regarding the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Digital Intakes will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise.