Effective: February 2018
WE OFFER THE SERVICES TO YOU CONDITIONED ON YOUR ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION. YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
Section 1. Content Disclaimer.
You acknowledge and agree that the Services contain content that we create as well as content provided by third parties. While we make every attempt to provide useful and accurate information and content, we do not guarantee the accuracy, the integrity, or the quality of the content made available through the Services, and you may not rely on any of this content. You acknowledge and agree that you may be exposed to content that you find offensive, indecent, or objectionable or that is inaccurate, and you bear all risks associated with using that content or being exposed to such content. We have the right, without obligation, to remove any content that may, in our sole discretion, violate these Terms or that is otherwise objectionable.
Section 2. Third-party websites, products, and services.
(a) Our Services may contain links to other Internet websites owned by third parties. Your use of each of those websites is subject to the conditions, if any, that each of those websites has posted. You acknowledge and agree that we have no control over websites that are not ours, and we are not responsible for any changes to and/or content on them. Our inclusion within the Services of any third-party content or a link to a third-party website is not an endorsement of that content or third-party site.
(b) Your correspondence or related activities with third parties, including payment transactions and goods-delivery transactions, are solely between you and that third party. You agree that we will not be responsible or liable for any loss or damage of any sort incurred as the result of any of your transactions with third parties. Any questions, complaints, or claims related to any product or service should be directed to the appropriate vendor.
Section 3. Intellectual Property Rights; Restrictions and Licenses.
(a) You acknowledge and agree that all materials published on the Services are protected by applicable copyright and/or trademark law. For purposes of clarity, such materials include without limitation, photographs, marks, logos, written content, illustrations, graphics, images, and sound or video clips, whether owned by us or our partners. You may not modify, sell, license, transfer, publish, transmit, reproduce, create derivative works of, distribute, publicly perform, publicly display, or in any way exploit any of the materials or content on the Services in whole or in part. If you would like to request permission to use any of the content within our Services, please contact us at [email protected].
(b) You are solely responsible for all materials, whether publicly posted or privately transmitted, that you upload, post, e-mail, transmit, or otherwise make available on the Services, including without limitation survey responses, content contributions, and other materials (“Your Content”). You certify that you own or have all necessary intellectual property rights in Your Content. You hereby grant us, our affiliates, and our partners a worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable, license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of (i) pursuing our business interests, (ii) distributing Your Content, either electronically or via other media, to third parties seeking to download or otherwise acquire it, and/or (iii) storing Your Content in a remote database accessible by third parties. This license shall apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.
Section 4. User Generated Content.
We do not control, verify or endorse any information, materials or other user-generated content, including without limitation, data, text, files, links, software, chat, content, music, sound, photographs, graphics, images, video, communication, messages or other materials and terms of expression that is posted or submitted by our users on or through the Services (collectively, “User Generated Content”). Users of the Services are solely responsible for any and all User Generated Content they provide to or through the Services and may be held legally liable or accountable for the contents of such User Generated Content. Higher Digital reserves the right in its sole discretion and without obligation to monitor all User Generated Content to ensure conformity with these Terms and any other rules, policies or regulations as may be promulgated by us from time to time it its sole discretion, as well as any applicable laws, rules and regulations of any government having proper jurisdiction over us. We reserve the right, in our sole and absolute discretion, to edit, delete, refuse to post, remove or otherwise alter, including truncation, of any User Generated Content posted to or submitted on or through the Services for any reason, including without limitation (i) violating any portion of the Terms, (ii) violating any applicable law, (iii) protecting user privacy, (iv) avoiding spam or (v) as otherwise determined by us in our sole discretion. Nothing set forth above shall alter or diminish your responsibility with respect to Your Content, as discussed herein. Furthermore, with respect to any conduct within the Services, you acknowledge and agree that Higher Digital assumes no and shall have no liability for any action or failure to act on the part of Higher Digital.
Section 5. Passwords.
Certain portions of the Services may be password protected. Under no circumstances may you access or use any password protected portions of the Services without a valid password issued by Higher Digital. You are responsible for ensuring that any passwords issued to you are not shared with unauthorized parties and under no circumstance shall Higher Digital be liable for any security breach resulting from the misuse of passwords by you. Higher Digital may change passwords at its discretion at any time if it deems that such passwords are compromised, weak or could lead to a Denial of Service Attack, provided that it shall provide written notice (email sufficing) to you in the event of any such change.
Section 6. Communications to You.
You understand and agree that by utilizing our Services, you agree to receive communications from us, including emails, regarding our Services and other third-party business offerings. You further understand and agree that our Services may include communications from us or from our partners to you and that these communications are considered part of the Services. To opt out of receiving communications from us via email, please email us at [email protected], or click on the “unsubscribe” link at the bottom of any communication you receive from us. Please be aware that we do not and cannot control the policies of any third parties who distribute any communications to you.
Section 8. Your Conduct.
(a) The technology and the software underlying our Services is the property of Higher Digital, our affiliates, operators, providers, parent companies, and/or partners. You agree not to sell, assign, distribute, reverse engineer, copy, modify, rent, lease, loan, grant a security interest in, or otherwise transfer any right to the technology or software underlying the Services. You agree not to modify the software underlying the Services in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Services.
(b) Without limiting the prohibitions set forth in Section 8(a) above, you agree that you will not use the Services to (i) publish, post, upload, e-mail, distribute, or disseminate (collectively, “transmit”) any offensive, inappropriate, profane, defamatory, infringing, vulgar, sexually explicit, obscene, indecent, or unlawful content or any hate speech (e.g. racist/discriminatory speech); (ii) transmit files that contain viruses, corrupted files, spyware, trojan horses, worms, time bombs, cancelbots, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, the Services, any software or hardware, or telecommunications equipment; (iii) restrict or inhibit any other user from using and enjoying any public area accessible through the Services; (iv) interfere with or disrupt the Services, servers, or networks; (v) impersonate any person or entity, including, but not limited to, a Higher Digital representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (vi) take any action that imposes an unreasonably or disproportionately large load on our infrastructure; or (vii) engage in any illegal activities.
(d) Unauthorized access to the Services is a breach of these Terms and a violation of the law. You agree not to access the Services by any means other than through the interface that is provided by us for use in accessing the Services. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Services, except those automated means that we have approved in advance and in writing.
(e) In all cases, use of the Services is subject to existing laws and legal process and you should comply with such laws and legal process at all times. Nothing contained in these Terms shall limit our right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Services.
Section 9. Termination, Suspension and Other Rights of Higher Digital.
(a) We at all times have the right, without obligation, to take certain actions with respect to the Services and your use of the Services in our sole and absolute discretion at any time and for any reason without giving you any prior notice, including, without limitation, the right to (i) terminate, suspend, or otherwise restrict your access to all or any part of our Services; (ii) remove, refuse, or move any material that you submit to the Services for any reason; (iii) remove, refuse, or move any content that is available through the Services; and (iv) establish general practices and limits concerning use of the Services.
(b) You agree that under no circumstances whatsoever will we, or our partners, affiliates, operators, or parent companies be liable to you or any third party for taking any of the actions set forth in Section 9(a) above for any reason or no reason at all. You further agree to refrain from bringing any action against us, or our parents, affiliates, operators, or partners for our taking any of the actions set forth in Section 9(a) above for any reason or no reason at all.
Section 10. Requests to Remove Content from the Website.
If you believe that content you own has been copied and made accessible in a manner that violates your intellectual property rights, please contact us at [email protected].
Section 11. Indemnification.
You hereby agree to indemnify, defend and hold Higher Digital and all of its operators, officers, directors, owners, employees, agents, information providers, affiliates, parent companies, partners, and licensors (collectively, the “Higher Digital Parties”) harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by any Higher Digital Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement arising out of (i) your use of the Services; (ii) the content, the quality, or the performance of content that you submit to the Services; (iii) your connection to the Services; (iv) your violation of these Terms; or (v) your violation of the rights of any other person or entity. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
Section 12. Disclaimer; No Warranties.
We, and our parents, owners, agents, information providers, employees, licensors, affiliates, and our partners: (i) disclaim any responsibility for the deletion, the failure to store, the mis-delivery, or the untimely delivery of any information or material; (ii) disclaim any responsibility for any harm resulting from downloading or accessing any information or material on the Internet using hyperlinks from the Services; (iii) disclaim any responsibility for any service outages that are caused by our maintenance on the servers or the technology that underlies the Services, failures of our service providers (including telecommunications, hosting, and power providers), computer viruses, natural disasters or other destruction or damage of our facilities, acts of nature, war, civil disturbance, or any other cause beyond our reasonable control.
WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, WE DO NOT MAKE ANY WARRANTY AS TO THE CONTENT ON THE SERVICES. THE SERVICES AND CONTENT MADE AVAILABLE THROUGH THE SERVICES ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. ANY MATERIAL THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY POTENTIAL DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR DOWNLOAD OF ANY SUCH MATERIAL. NEITHER WE NOR ANY OF OUR PARTNERS OR PROVIDERS MAKES ANY WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU OBTAIN THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS WILL BE CORRECTED. NEITHER WE NOR ANY OF OUR PARTNERS MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, ANY CONTENT MADE AVAILABLE THROUGH ANY OF OUR SERVICES, AND ANY TOOLS, PRODUCTS, OR PROPERTIES RELATED THERETO. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF ITS CONTENT.
NEITHER WE NOR OUR PARTNERS, AFFILIATES, OPERATORS, OR PARENT COMPANIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THAT OF OUR THIRD-PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Section 13. Remedy and Arbitration.
IF YOU ARE DISSATISFIED WITH THE SERVICES, IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, OR IF YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US OR A THIRD PARTY WITH RESPECT TO THESE TERMS AND/OR THE SERVICES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
We may elect to resolve any controversy or claim arising out of or relating to these Terms or the Services by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Arlington County, Virginia, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Either you or we may seek any interim or preliminary relief from a court of competent jurisdiction in Arlington County, Virginia, necessary to protect the rights or the property of you or Higher Digital (or its agents, suppliers, and subcontractors), pending the completion of arbitration.
Section 15. Miscellaneous.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on the Services or delivering them to you through e-mail. You may update your e-mail address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we cannot be held liable if we fail to notify you.
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
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 Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
These Terms, including all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements that you may have with us.
These Terms shall be construed in accordance with the laws of the State of Virginia, without regard to its conflict of laws principles.
If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms shall continue in effect.
Section 16. Modification of Terms.
At any time and without notice to you, we may modify these Terms by posting revised Terms on the Services. Your use of the Services constitutes your unconditional and binding acceptance of these Terms, including any amendments, revisions, alterations, modifications and/or supplements that we make from time to time in accordance with the provisions of hereof. You should review these Terms frequently.