LAST UPDATED: December 1, 2020
DATATILITY TERMS OF SERVICE
The first portion of our Terms of Service is an introduction, which is structured like an FAQ and lays out some high-level concepts before diving into other terms.
What documents make up the TOS?
We refer to the Terms of Service as the “TOS”. This page lays out the core of our TOS, but we also have other contractual documents that you can think of as additional terms for specific topics. Legally speaking, these other documents are incorporated by reference as if they were written here and form part of the overall TOS.
Whom does this TOS apply to?
When we refer to “Datatility” or we use pronouns like “we”, “us” or “our”, we are referring to Datatility, Inc. as well as its affiliates and subsidiaries.
When we refer to the “User”, we are talking about you, and we will also use words like “you” and “your” to refer to you. Who “you” are can get more complicated if you are using our services on behalf of a company, organization, or other entity. In that case, you are representing to us that you have the authority to bind your company, organization, other entity to this TOS and that you agree to be legally bound by this TOS on behalf of such entity (and “User”, “you”, and “your” then refer to such entity). If you aren’t sure what this means or whether you are authorized to bind your company, organization, or entity to this contract, you should ask others in your organization to get clarification about authority.
What is the TOS?
This TOS is a binding contract between you and Datatility, and covers all of the offerings, websites, products, services, features, content, applications and other things we offer to users like you.
We will periodically differentiate between our websites such as Datatility.com (which we will refer to collectively as the “Websites”) and all of our other services, such as our cloud infrastructure and other paid services (which we will refer to collectively as the “Services”).
As you will see later in the TOS, Section 3 (Website Terms) is specific to your use of the Websites and Section 4 (Service Terms) is specific to your use of the Services.
When does this TOS apply to me?
Now that we have some common language, we want to ensure you understand when and how the TOS applies.
First and foremost, you must understand that this is a binding legal contract that is required to use our Websites and Services. As such, you may only use our Websites and Services if you agree that you that have read, understood, and consented to be bound by this TOS.
If you sign up for Services or create an account through our Websites, this TOS takes effect when you click “I accept” or other functionality indicating your acceptance of its terms. If you purchase Services through a separate written contract, this TOS is incorporated into that contract, whether it is called out or not. Regardless of these other methods, when you access or use our Websites and Services, this TOS applies and is legally binding on you and to your access and use. These are common examples, and this paragraph does not necessarily include all the other ways you can become bound to this TOS.
What happens with disputes under this TOS?
One requirement of our TOS is that you must agree to resolve disputes arising under this TOS through binding arbitration directly between you and Datatility. In arbitration, a neutral arbitrator or panel of arbitrators will hear the arguments of both sides and decide on disputes in an expedient and cost-effective manner. You will still be able to pursue cases in court when those cases are for small claims, but all other claims will be subject to arbitration.
You should understand that this means neither you nor Datatility will have the opportunity to resolve some disputes in court before a judge or jury. You will be unable to pursue claims in a conventional trial and will not be able to participate in a court-based class action or similar proceeding.
Terms & Conditions of the TOS
- Eligibility & Registration
1.1 Before you use our Websites and Services, you must ensure that such use is in compliance with all laws, rules and regulations applicable to you. Your right to access the Websites and Services is revoked to the extent your use thereof is prohibited or to the extent our provision thereof conflicts with any applicable law, rule or regulation. You are responsible for making these determinations before using the Websites and Services.
1.2 The Websites and Services are not targeted towards, nor intended for use by, anyone under the age of 18. By using the Websites and Services, you represent and warrant to us that: (a) you are 18 years of age or older; or (b) you otherwise have sufficient legal consent, permission and capacity to use the Websites and Services in applicable jurisdiction(s) as determined by you.
1.4 We may, in our sole discretion, refuse to provide or continue providing the Websites and Services to any person or entity and change eligibility criteria at any time, including if you fail to comply with the TOS. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Websites and Services at any time at our sole discretion.
- Datatility’s Proprietary Rights
2.1 As between you and Datatility, the Websites and Services are owned and/or provided by Datatility. The names, logos, trademarks, trade dress, arrangements, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Websites and Services (“Materials”) that we provide are protected by intellectual property and other laws. All Materials included in the Websites and Services are the property of Datatility or its third party licensors. You may only use the Websites and Services as expressly authorized by us and as set forth in this TOS. You shall abide by and maintain all intellectual property notices, information, and restrictions contained in the Websites and Services. We reserve all rights to the Websites and Services not granted expressly in this TOS.
2.2 If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Websites and Services (“Feedback”) then you hereby grant to us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Websites and Services and create other products and services.
2.3 You grant us permission to include your name, logos, and trademarks in our promotional and marketing materials and communications.
2.4 Some of the Materials provided by Datatility are licensed under one or more open source, Creative Commons, or similar licenses (collectively, “Open Source Licenses”). Nothing in this TOS prevents, restricts, or is intended to prevent or restrict you from obtaining such materials under the applicable Open Source Licenses or to limit your use of such materials under those Open Source Licenses.
2.5 Subject to your complete and ongoing compliance with this TOS and our rights therein, Datatility grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Websites and/or Services as described in and subject to this TOS.
- DO Community & User Content
3.1 Certain features of the Websites permit you to submit or upload content, including messages, reviews, media, images, folders, data, text, and other types of works (your “User Content”) and to publish your User Content on our Websites.
3.2 By providing your User Content to or via the Websites, you grant Datatility a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels.
3.3 By providing your User Content via the Websites, you grant to our other users a non-exclusive license to access and use your User Content as permitted by this TOS and the functionality of the Websites.
3.4 You are solely responsible for your User Content, and you agree Datatility is not and will not be in any way liable for your User Content. By providing your User Content via the Websites, you affirm, represent, and warrant that:
- you are the creator and owner of your User Content, or have the necessary licenses, rights, consents, and permissions to authorize Datatility and users of the Websites to use and distribute your User Content as necessary to exercise the licenses granted by you in this TOS or otherwise required of you under this TOS;
- your User Content, and use of your User Content as contemplated by this TOS, does 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; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property right of any other person; or (iii) cause us to violate any law or regulation; and
- you will indemnify us for any third party claims arising from your User Content.
3.5 We are under no obligation to edit or control your User Content or the User Content of others, and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any of your User Content at our discretion.
3.6 By submitting or uploading your User Content, you also agree to abide by the terms of any Open Source Licenses that may apply to your User Content.
- Services Content
4.1 Our Services allow you to provide us with source code, files, software, processes, interfaces, data, text, settings, media, or other information for storage, hosting, or processing by the Services (your “Services Content”). Services Content includes Listing Information and Vendor Offerings.
4.2 Subject to this TOS, by providing your Services Content to or via the Services, you grant Datatility a license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Services Content solely for the purpose of providing the Services to you.
4.3 As between you and Datatility, you retain any copyright and other ownership rights that you may hold in your Services Content.
4.4 Some of our Services allow third parties to access, use, or contribute to your Services Content, including via resale, your own products and services, or public-facing websites, applications, interfaces, and other manifestations of your Services Content. Such other users are collectively defined as your “End Users” for purposes of this TOS. For clarity, “End Users” in this context includes all such other users, regardless of whether they are intermediary parties, End Users of other End Users, or the like. You are responsible for your End Users’ compliance with this TOS.
4.5 You are solely responsible for your Services Content, End Users and any activity by your End Users, and you agree Datatility is not and will not be in any way liable for your Services Content, End Users and/or activity by your End Users. By providing your Services Content via the Services, you affirm, represent, and warrant that:
- Your Services Content, and your or your End Users’ use of your Services Content, will not violate this TOS (including the AUP) or any applicable law, regulation, rule, or third party rights;
- You are solely responsible for the development, moderation, operation, maintenance, support and use of your Services Content, including when your Services Content is contributed by your End Users;
- Your Services Content, and your or your End Users’ use of your Services Content, does 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; (ii) slander, defame, libel, or invade a right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law, regulation, rule, or rights of third parties; and
- Except for the specific Services provided to you under this TOS or other express contract, you are solely responsible for the technical operation of your Services Content, including on behalf of your End Users.
4.5 You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your Services Content, which may include the use of encryption technology to protect your Services Content from unauthorized access and routine archiving your Services Content. Datatility does not promise to retain any preservations or backups of your Services Content. You are solely responsible for the integrity, preservation and backup of your Services Content, regardless of whether your use of Services includes a Datatility backup feature or functionality, and to the fullest extent permitted by law, Datatility shall have no liability for any data loss, unavailability, or other consequences related to the foregoing.
4.6 When purchasing Services, you may specify the geographic region and jurisdiction in which your Services Content will be stored. You consent to the storage of your Services Content in, and transfer of your Services Content into, the geographic region and jurisdiction you select. Unless otherwise agreed in writing between you and Datatility, you agree that Datatility may transfer and store your Services Content in other geographic regions or jurisdictions at its sole discretion. You represent and warrant that such storage and transfer are adequately consented to by you and permissible pursuant to applicable laws, regulations, rules, and third party rights.
- Rules of Conduct
5.1 You must use the Websites and Services in accordance with our AUP, which is incorporated by reference. Accordingly, any use of the Websites and Services in violation of the AUP shall constitute a breach of this TOS.
5.2 You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees, any third party (including your contractors or agents), your End Users, your licensees, or your customers.
5.3 You are responsible for notifying your employees, agents, and others related to your use of the Websites and Services of the provisions of this TOS, including where the terms of the TOS are binding on them.
5.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Websites or Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Websites or Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations. To the extent any portions of the Websites or Services are subject to Open Source Licenses, such Open Source Licenses apply regardless of this section.
5.5 We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) respond to any applicable law, regulation, legal process or governmental request; (ii) enforce this TOS, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of us, our users and the public.
5.6 As a reward for being early adopters of the Services, some Users with older Accounts received free bandwidth promotions contingent on their Accounts remaining operative, in good standing, and in compliance with this TOS (“Free Bandwidth Accounts“). Free Bandwidth Accounts will no longer receive free bandwidth if: (a) such Accounts are transferred in ownership to third party; (b) such Free Bandwidth Accounts are used in violation of this TOS (including the AUP); or (c) such Free Bandwidth Accounts are used in connection with any of the following activities: (i) run Torrents for download or Seed Servers, TOR, or services that include content of an adult or pornographic nature; (ii) resell or otherwise offer as a service such free bandwidth to third parties; or (iii) otherwise circumvent or attempt to circumvent the intended use of Free Bandwidth Accounts by redistributing the benefits of free bandwidth to third parties.
5.7 The Services are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (“OFAC”). By accessing the Services, you agree to comply with these laws and regulations. Specifically, you represent and warrant that you are not (a) located in any country that is subject to OFAC’s trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine; or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”). Additionally, you agree not to – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any service received from Datatility in contradiction with these laws and regulations. Failure to comply with these laws and regulations may result in the suspension or termination of your Account.
5.8 You agree to comply with all applicable export and import control laws and regulations in your use of the Services, and, in particular, you will not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. You assume full legal responsibility for any access and use of the Services from outside the United States, with full understanding that such access or use may constitute export of technology and technical data that may implicate export regulations and/or require export license.
5.9 You shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. You are solely responsible for any unauthorized access to your Account, and must notify Datatility immediately of any such unauthorized access upon becoming aware of it.
- Payments and Billing
6.1 We use third-party payment processors (the “Payment Processors“) to bill you through the payment account(s) linked to your Account (your “Billing Information”). The processing of payments may be subject to the terms, conditions and policies of the Payment Processors in addition to this TOS. We are not responsible for acts or omissions of the Payment Processors. You agree to pay us, through the Payment Processors or as otherwise agreed to by Datatility, all sums for Services you select or use at applicable prices in accordance with our pricing and billing policies and you hereby authorize us and applicable Payment Processors to charge all such sums (including all applicable taxes) to the payment method(s) specified in or linked to your Account (your “Payment Method“).
6.2 You must provide current, complete and accurate information for your Account and Billing Information, and must promptly update all such information in the event of changes (such as a change in billing address, credit card number, or credit card expiration date). You must promptly notify us or our Payment Processors if your payment method is canceled (e.g., for loss or theft) or otherwise inoperable. Changes to such information can be made in your account settings.
6.3 By entering into this TOS and using the Services, you agree to be billed on a recurring basis and to be automatically charged by us or our Payment Processors using your Payment Methods upon invoicing. If your Payment Method or payment of fees is subject to other terms and conditions, as set forth in order forms, invoices or otherwise, then those other terms and conditions apply in addition to this TOS. You may also be billed an amount up to your current balance at any time to verify the accuracy of your account information. We reserve the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Websites and Services at any time at our sole discretion, including for nonpayment, late payment, or failure to charge your Payment Methods upon invoicing.
6.4 You are responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to your purchase of the Services, including but not limited to national, state or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, “Taxes“). Unless otherwise stated, our pricing policies do not include and are not discounted or enhanced for any such Taxes. If we become obligated to collect or pay Taxes in connection with your purchase of the Services, those Taxes will be invoiced to you as part of a billing process or collected at the time of purchase. In certain states, countries and territories, we may determine if your purchase of Services is subject to certain Taxes, and if so, may collect such Taxes and remit them to the appropriate taxing authority. If you believe that a given Tax does not apply or that some amount must be withheld from payments to us, you must promptly provide us with a tax certificate, withholding receipt, tax identifier (e.g., VAT ID) or other adequate proof, provided such information is valid and sufficiently authorized by all appropriate taxing authorities. You must also provide us with any tax identification information that is necessary for us to comply with our tax obligations, as we determine from time to time. You will be solely responsible for any misrepresentations made or non-compliance caused by you regarding Taxes, whether with respect to us or other parties, including any penalties, fines, audits, interest, back-payments or further taxes associated with such misrepresentations or non-compliance.
6.5 We may offer Service credits from time to time, and any provision of such credits is governed by the disclosures, terms and policies concerning the credits. You acknowledge and agree that all credits, whether previously offered or otherwise, are revocable or subject to early expiration at any time and for any reason or no reason by us, including for abuse, misrepresentation of Account information, unauthorized transfer, or illegal conduct by you.
- Third Party Services
The Websites and Services may include links to third party websites, services or other resources on the Internet, and third party websites, services or other resources may include links to our Websites and Services as well. When you access third party resources on the Internet, you do so at your own risk. These third party resources are not under our control, and, to the fullest extent permitted by law, we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such resources. The inclusion of any such link does not imply our endorsement or any association between us and any third party. To the fullest extent permitted by law, we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party resource.
- Confidentiality & Beta Services
8.1 To the extent you receive or possess any nonpublic information from us that is designated confidential or, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, such information is our “Confidential Information” and must be handled according to this TOS. Confidential Information includes but is not limited to: (a) nonpublic information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (b) the existence and content of our discussions or negotiations with you regarding your Account and/or use of the Services. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this TOS; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the information by a wrongful or tortious act or by violating the rights of us or third parties; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
8.2 You may not use Confidential Information except in connection with your use of the Service as permitted under this TOS or as separately authorized in a signed writing by us. You agree to not disclose Confidential Information during the term of this TOS, after you cease using the Services and after this TOS otherwise no longer applies. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, including at least the measures you take to protect your own confidential information of a similar nature.
8.3 We may offer “beta” versions or features of the Services (each, a “Beta Service”). Any production candidate or non-production version of Services or other version of the Services designated as a beta or testing version is considered a Beta Service under this TOS. We will determine, at our sole discretion, the availability, duration, features, and components of each Beta Service. If we permit you to use a Beta Service, you agree that information we provide relating to the Beta Service is Confidential Information, and you specifically agree, in addition to the other requirements set forth in this TOS, to not: (i) use the Beta Service for benchmarking or performance testing or to publicly disseminate performance information or analysis from any source relating to the Service; (ii) modify or create derivative works of the Beta Service or remove any product identification, proprietary, copyright or other notices contained in the Beta Service; or (iii) allow any other individual to access or use the Beta Service. We, at our sole discretion, shall determine whether or not to continue to offer any Beta Service, and may cease offering any Beta Service at any time.
- No Warranty
9.1 The Websites and Services, including without limitation any content delivered as a part thereof, are provided “as is” and on an “as available” basis. Datatility disclaims all warranties of any kind, whether express or implied, relating to the Websites and Services and all content delivered in connection thereto, including but not limited to: (a) any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement; (b) any warranty arising out of course of dealing, usage, or trade; or (c) any warranty or guaranty relating to availability, accuracy, error rate, system integrity, or uninterrupted access. We do not warrant that: (i) the Websites or Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Websites or Services is free of viruses or other harmful components; or (iv) the results of using the Websites or Services will meet your requirements. Your use of the Websites and Services is solely at your own risk.
9.2 Datatility is not responsible for the content that you access through your use of the Websites, Services, or content of other users of Datatility or other third parties. To the extent permitted by applicable law, you release us from all liability relating to such content. You acknowledge and agree that we make no representations concerning any content contained in or accessed through the Websites or content of other users of Datatility or other third parties, and that we are not responsible or liable for the accuracy, quality, legality, or other attributes of such content.
9.3 The limitations, exclusions, and disclaimers in this Section 9 apply to the fullest extent permitted by law. Datatility does not disclaim any warranty or other right that Datatility is prohibited from disclaiming under applicable law.
- Limitation of Liability
10.1 To the fullest extent permitted by law, in no event will we be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) arising out of or relating to your access to or use of, or your inability to access or use, the Websites and Services or any materials or content on the Websites and Services, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, and whether or not we have been informed of the possibility of damage. To the fullest extent permitted by law, you agree we will have no liability for any data that may be destroyed, lost or otherwise rendered inaccessible, whether because you failed to backup your data or for any other reason.
10.2 Except as provided in Section 13 and to the fullest extent permitted by law, our aggregate liability to you for all claims arising out of or relating to this TOS or the Websites and Services, whether in contract, tort, or otherwise, is limited to the amount you have paid to us for the Services at issue in the month prior to the event or circumstance giving rise to claim.
10.3 Each provision of this TOS that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this TOS. This allocation is an essential element of the basis of the bargain between you and us. Each of these provisions is severable and independent of all other provisions of this TOS. The limitations in this section will apply even if any limited remedy fails of its essential purpose.
To the fullest extent permitted by law, you are responsible for your use of the Websites and Services, and you shall defend, indemnify, and hold harmless us and our employees, officers, directors, agents, contractors, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and costs, that arise from or relate to your Services Content, User Content, your End Users, or your access to or use of the Websites and Services, including your breach of this TOS or applicable law, willful misconduct, negligence, illegal activity, breach of security or data, unauthorized access to or use of your Account, or infringement of a third party’s right, including any intellectual property, confidentiality, property or privacy right. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting your indemnification obligations with respect to that matter, in which event you will make best efforts to assist and cooperate with us in defending the matter at your expense.
While we prefer to give advance notice of termination, we reserve the right, in our sole discretion, to terminate your access to all or any part of the Websites and/or Services at any time, with or without notice, effective immediately. Any such termination may result in the immediate forfeiture and destruction of data associated with your Account. Except as otherwise set forth herein or expressly agreed between the parties, any and all fees paid to us are non-refundable and any and all fees still owed to us at the time of such termination shall be immediately due and payable. Upon termination, any and all rights granted to you by this TOS will immediately be terminated, and you must also promptly discontinue all use of the Websites and/or Services. All provisions of this TOS which by their nature should reasonably be expected to survive termination shall survive termination, including Sections 2.1-2.4, 3, 4, 6, 8, 9, 10, 11, 12, 13, and 14.
- Dispute Resolution and Arbitration
13.1 In the interest of resolving disputes between you and Datatility in the most expedient and cost-effective manner, and except as described in Section 13.2, you and Datatility agree that every dispute arising in connection with this TOS will be resolved by binding arbitration. Arbitration is less formal 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 limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this TOS, 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 this TOS, if applicable. You understand and agree that, by entering into this TOS, you and Datatility are each waiving the right to a trial by jury or to participate in a class action.
13.2 Despite the other provisions of Section 13, nothing in this TOS will waive, preclude, or otherwise limit the right of either party to bring an individual action in small claims court.
13.3 Any arbitration between you and Datatility will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this TOS. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
13.4 A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Datatility’s address for notice is: Datatility, Inc., ATTN: Legal, 44050 Ashburn Plaza Suite 195-120 Ashburn, VA 20147. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Datatility may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Datatility must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
13.5 Any arbitration hearing will take place at a location to be agreed upon in Ashburn, VA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing. 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 that case, you agree to reimburse Datatility 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 must 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.
13.6 You and Datatility agree that each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Datatility 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.
13.7 If any portion of this Section 13 is found to be unenforceable, then that portion will be null and void and the remainder of this Section 13 will reasonably remain in effect. In such event, if Section 13 cannot reasonably remain in effect as a whole, you and Datatility agree that the exclusive jurisdiction and venue described in Section 14.4 will govern any action arising out of or related to this TOS.
- Miscellaneous Provisions
14.1 Updates and Modifications. Datatility reserves the right to update, change or otherwise modify this TOS on a going-forward basis at any time and in Datatility’s sole discretion. If Datatility updates this TOS, Datatility may provide notice of such updates, such as by sending an email notification to the email address listed in your Account and/or updating the “Last Updated” date at the beginning of this TOS. Updates will be effective on the date specified in the notice. By continuing to access or use the Websites or Services after the date specified in the notice or updated TOS, you are agreeing to accept and be bound by the updated TOS and all of the terms incorporated therein. If you do not agree to the updated TOS, then you may not continue to use the Websites or Services and your sole and exclusive remedy is to deactivate your Account and otherwise discontinue use of the Websites and/or Services.
14.2 General. This TOS, including all documents expressly incorporated by reference herein, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Use of section headers in this TOS is for convenience only and will not have any impact on the interpretation of any provision. Any use of the singular shall be reasonably construed as if it also includes the plural, and vice versa. If not already specified, any use of “including” or “such as” shall be construed to mean “including but not limited to.” If any part of this TOS is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this TOS, or any provision of this TOS, be a waiver of any subsequent breach or default or a waiver of the provision itself.
14.3 Assignment. You may not assign, transfer or delegate this TOS or any of your rights and obligations under the TOS, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign, transfer or delegate this TOS or our rights and obligations under this TOS without notice or consent. Subject to this section, this TOS will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns, and any assignment or transfer in violation of this section will be void.
14.4 Governing Law. This TOS and any dispute related thereto (including under Section 13) is governed by the laws of the State of Virginia without regard to conflict of law principles. Subject to Section 13, you and Datatility submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Loudoun County, Ashburn for resolution of any lawsuit or court proceeding permitted under this TOS.
14.5 Notice. You must send notices by certified U.S. Mail or by Federal Express (signature required and return receipt requested) to: Datatility, Inc., 44050 Ashburn Plaza Suite 195-120 Ashburn, VA 20147 USA. You agree to receive electronic notices from us, which will be sent by email to the email address then associated with your Account. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the email address associated with your Account is accurate and current. Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email.
14.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint or to receive further information regarding use of the Websites or Services.
14.8 Relationship of the Parties. The parties are independent contractors. This TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
14.9 Force Majeure. Datatility shall not be liable for nonperformance of the terms herein to the extent that Datatility is prevented from performing as a result of any act or event which occurs and is beyond Datatility’s reasonable control, including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, epidemic, pandemic or any unforeseen change in circumstances, or any other causes beyond our reasonable control.
14.10 No Third-Party Beneficiaries. This TOS does not create any third party beneficiary rights in any individual or entity that is not a party to this TOS.
14.11 Government Use. Datatility provides the Websites and Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Websites and Services include only those rights customarily provided to the public as defined in this TOS. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this TOS, then it must negotiate with Datatility to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
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