2. ADDITIONAL TERMS
3. SITE ACCESS AND ACCOUNT REGISTRATION
You represent and warrant that:
• You are over the age of 13 as all portions of the Site are not intended for children under 13. If you are under 13 years of age, you may not register for an account or otherwise use the Site;
• You are solely responsible for all service, telephony, data charges, and other fees and costs associated with your access to and use of the Site, including without limitation maintaining all internet, browser software and extensions, computer hardware, telephone, and other equipment required for such access; and
• You will exit from your account at the end of each session or use of the Site.
With regard to your username, password, any other piece of information you provide to us as part of our security procedures (collectively, “Account Information”), you agree to treat such Account Information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account Information is personal to you, and you agree not to provide any other person with access to the Site or portions of it using your Account Information. You agree to notify us immediately of any unauthorized access to or use of your Account Information or any other breach of security that you become aware of. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your Account Information or other personal information.
Except as provided herein, you may not transfer your Account Information to any other person and you may not use anyone else’s Account Information or account at any time. In cases where you have nevertheless authorized or registered another person, or have acting negligently in safeguarding your Account Information as set forth above, to use your account, you agree you are fully responsible for (i) the acts and omissions of such person accessing the Site with your Account Information, (ii) controlling the person’s access to and use of the Site, and (iii) the consequences of any use or misuse by such person.
4. DAM SUBSCRIPTION PLANS
(a) The scope and price of your access to the Site is determined by the subscription plan or account type you select during the Site registration and subscription order process, through your subscription renewal process, or via the changes you may make to your subscription plan through your DAM account settings page, and with regard as to whether you complete such registration, order, renewal, or change through the Site’s website checkout functionalities, through a Free Trial or Company Partnership, by execution of a Sales Order, or with the assistance of DAM’s sales or support teams (collectively, “Checkout”). Regardless of the subscription plan or account type you select during Checkout, your use of and access to the Site is conditioned upon timely payment of the applicable License Fee. We reserve the right to increase or decrease the applicable License Fee for subsequent subscription periods (including each Renewal Business Term); provided that we notify you of any such change.
For purposes hereof, “License Fee” means the Individual License Fee, the Enterprise License Fee, or the Company Partnership license fee (if any), as applicable. Our rights of termination and your rights of cancellation are set forth in Section 10 below.
(b) Depending on where you transact with us, the type of payment method used and where your payment method was issued (whether the Individual Payment Method, Business Payment Method, or otherwise) your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. We do not support all payment methods, currencies, or locations for payment. If your Payment Method fails or your account is past due, we may collect fees owed using other collection mechanisms—this may include charging other payment methods on file with us or retaining collection agencies and legal counsel, the fees and cost of which you hereby agree to pay. Notwithstanding anything to the contrary, your obligation to pay fees continues through the end of your applicable subscription period and regardless of whether you cancel your subscription during such period.
(c) The scope and price of your access to Mentoring on the DAM Site or the pricing for use of www.hackhands.com ("Hack Hands") are specifically set forth in the Mentoring Terms of Section 4.1(c) below. Currently, Mentoring on the DAM Site is available in conjunction only with Individual Plans and is not available to Subscribers or Individual Business Subscriptions provisioned under a Business Plan, whereas the use of Hack Hands is a "pay as you go" model subject to the Mentoring Terms.
4.1 INDIVIDUAL PLAN
(ii) Disabling Automatic Renewal. You may disable Automatic Renewal disabling Automatic Renewal in your account settings. Disabling Automatic Renewal will cause us to stop automatically renewing your Individual Plan at the end of the then-applicable subscription term. You will still be able to use the Site until the end of your current subscription term. Disabling auto renewal does not refund any portion of your Individual License Fee, as all Individual License Fees are non-refundable.
(iii) Refunds. All or any portion of the Individual License Fee, whether paid monthly or annually, is non-refundable. Exceptions for extenuating circumstances may be considered; however, we are in no way required to refund you any portion of the Individual License Fee.
4.2 BUSINESS PLAN
By way of example, if you select 10 Individual Business Subscriptions under an annual Business Plan during Checkout beginning January 1, 2016, we will process your Business Payment Method or invoice you for the annual cost of 10 Individual Business Subscriptions on the date of your Checkout. Your 10 Individual Business Subscriptions will expire on December 31, 2016, and unless you notify us at least 30 days prior to December 31, 2016, we will renew your Business Plan on or around January 1, 2017 for one year and on or around January 1st each year thereafter for 10 Individual Business Subscriptions at the then-applicable price for such subscriptions.
If, however, you select 25 Individual Business Subscriptions under a two-year Business Plan during checkout beginning February 10, 2016, we will process your Business Payment Method or invoice you for the two-year cost of 25 Individual Business Subscriptions on the date of your Checkout. Your 25 Individual Business Subscriptions will expire on February 9, 2018, and unless you notify us at least 30 days prior to February 9, 2018, we will renew your Business Plan for an additional two years on or around February 10, 2018 and on or around February 10th every two years thereafter for 25 Individual Business Subscriptions at the then-applicable price for such subscriptions.
(b) Enterprise Fee. As a Business Plan user, you agree pay to DAM an annual license fee in advance for all your Individual Business Subscriptions and in the amount and on the billing frequency set forth during Checkout or as set forth on a Sales Order (“Enterprise License Fee”), as applicable.
(ii) Payment by Invoice. If you select to be invoiced during Checkout rather than paying via credit card or PayPal®, your Enterprise License Fee will be billed as of the effective date of your initial Checkout (or Sales Order, as applicable) and the anniversary thereof. You hereby agree the Enterprise License Fee is due as of the date of any DAM invoice, payable within thirty (30) days of said date.
(iii) Automatic Renewal. WHETHER YOU SELECT TO PAY YOUR ENTERPRISE LICENSE FEE VIA A BUSINESS PAYMENT METHOD OR INVOICE, YOU UNDERSTAND AND AGREE THAT WE WILL AUTOMATICALLY RENEW AND PROCESS PAYMENT FOR YOUR ENTERPRISE LICENSE FEE ON THE BILLING FREQUENCY YOU SELECTED BY PROCESSING YOUR BUSINESS PAYMENT METHOD (OR INVOICING YOU, IF APPLICABLE) FOR THE APPLICABLE RENEWAL BUSINESS TERM.
(iv) Disabling Automatic Renewal. You may disable Automatic Renewal by contacting your DAM Sales or Support Representative, or disabling Automatic Renewal in your account settings. Disabling Automatic Renewal will cause us to stop automatically renewing your Business Plan at the end of the then-applicable subscription term. You will still be able to use the Site until the end of your current subscription term. Disabling auto renewal does not refund any portion of your Enterprise License Fee, as all Business License Fees are non-refundable.
(v) Suspension Because of Nonpayment. If payment is not received within the required time period, or if we are unable to renew your Business Plan based on inaccurate or outdated Business Payment Method information, we may suspend your access to the Site (including the access of all your Individual Business Subscriptions) until payment is received. In the event we suspend your Business Plan because of nonpayment, no additional time will be added to the then-applicable Term of your Enterprise License.
(c) Additional Subscribers. As a Business Plan user, you or your Plan Manager (as defined below) may request additional Individual Business Subscriptions to be used by additional Subscribers during the Initial Business Term or any Renewal Business Term, as applicable. The Additional Subscribers’ access to the Site is conditioned upon timely payment of the applicable Enterprise License Fee, which will be prorated for the number of months remaining in such Term. The pro-rated fee for such additional Individual Business Subscriptions will be calculated by including the month during which such subscription is added regardless of how many days remain in such month at the time the subscription is added.
“Affiliate” for purposes hereof means, with respect to a party, any entity that is a direct or indirect parent or subsidiary of such party or that directly or indirectly (i) owns or controls such party, (ii) is owned or controlled by such party, or (iii) is under common ownership or control with such party. For purposes of this definition, “control” means the power to direct the management or policies of such entity, whether through the ownership of voting securities, by contract, or otherwise. Ownership of fifty percent (50%) or more of the voting equity interests of an entity, either directly or indirectly, constitutes control of such entity, but the foregoing does not preclude a finding that a party may control another entity through ownership of less than fifty percent (50%) of such equity interests.
(g) Your Marks. As a Business Plan user, you agree that we may use your logo and name; provided that such use may be for informational purposes only in marketing efforts, solely for the purpose of identifying you as a customer of DAM, and for no other purpose.
4.3 FREE TRIAL / PILOT SUBSCRIPTION
(a) Free Trial. As a Free Trial user, you acknowledge and agree that we require you to provide your Payment Method details to start a Free Trial. At the end of your Free Trial, we will automatically charge you for the subscription plan associated with your Free Trial on the first day following the end of the Free Trial period, and continuing automatically on the billing frequency determined through Checkout. By providing your Payment Method details in conjunction with the Free Trial registration, you agree to these charges, as more specifically set forth in Section 4.1(b). If you do not want to be charged, you must cancel your Free Trial before the end of your Free Trial.
(b) Pilot. At the end of your Pilot, you must provide either a Business Payment Method (see Section 4.2(b)(i)) or agree to be charged by invoice (see Section 4.2(b)(ii)) and pay the applicable Enterprise Licensee Fee in order to continue using and accessing the Site. Please contact your DAM Sales Representative for more details.
4.4 COMPANY PARTNERSHIP
5. PROPRIETARY MATERIALS
(e) Third-Party Marks. Other trademarks, service marks, and logos used throughout the Site are the trademarks, service marks, or logos of their respective owners. These may include: Apple®, the Apple logo, and iPad, which are trademarks of Apple Inc., registered in the U.S. and other countries; Android®, Google Play® and the Google Play logo, which are trademarks of Google Inc; and PayPal®, which is a registered trademark of PayPal, Inc.
(f) Violation of Copyright or Intellectual Property Laws. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our sole discretion, remove or disable access to any materials on the Site that we believe (or are notified) may infringe on the rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or otherwise infringes on your intellectual property rights, please report it to us.
6. MOBILE AND OTHER DEVICES
If you use a mobile device or DAM-provided mobile application to access the Site, the following additional terms and conditions (“Mobile Terms”) also apply:
(a) You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status, and details.
(b) You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage, or service changes made by your service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use.
7. USER CONTENT AND FEEDBACK
(a) Interactive Services. The Site from time to time may provide you with the ability to upload, post, submit, publish, or transmit to other users or persons (hereinafter, “post”) via online forums, chat capabilities, user discussion groups, blogs, online profiles, or other online forums (“Interactive Services”).
(b) User Content. The Interactive Services are intended to provide you and other users with valuable resources on selected topics. Some, if not most, of the content found on such Interactive Services is provided by third party users, and not us (such content, “User Content”). The third party user (including you, if applicable) is solely responsible for the User Content and for complying with applicable laws relating thereto.
(i) All User Content you submit to the Interactive Services (including for inclusion on the Site) or that is otherwise made available to DAM will be considered non-confidential and non-proprietary, and by so doing, you hereby grant us and our Affiliates and service providers, and each other and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material.
(ii) To the extent that you provide any User Content, you represent and warrant that (a) you have all necessary rights, licenses and/or clearances to provide such User Content and permit us to use such User Content as provided above, (b) such User Content is accurate and reasonably complete, (c) as between you and DAM, you are responsible for the payment of third party fees, if any, related to the provision and use of such User Content, (d) such User Content does not and will not infringe or misappropriate any third party rights or constitute a fraudulent statement or misrepresentation or unfair business practices, and (e) you agree to comply with all applicable rules regarding online conduct and acceptable content we may post on the Site or Interactive Services from time to time, including those set forth in Section 8 below.
(c) Feedback. We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Site (“Feedback”). You acknowledge and agree that any and all Feedback provided will be the sole and exclusive property of DAM, and you hereby irrevocably assign to DAM and agree to irrevocably assign to DAM all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist DAM to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
(d) Monitoring and Enforcement. We have the right to:
(i) remove or refuse to post any User Content or Feedback for any or no reason in our sole discretion;
(iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
(iv) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website; and
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.
Notwithstanding anything to the contrary, we have no obligation to review material before it is posted on the Site, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
8. DAM “DOs” and “DON’Ts”
You acknowledge and agree that the Site contains training videos that are viewable through online streaming methods and are not to be downloaded by you (or your Subscribers), except under limited circumstances and for limited times as permitted by the Site’s offline viewing features (if permitted by your subscription plan). In addition, you agree to adhere and abide to the following DOs and DON’Ts.
(a) DOs (User Obligations). You acknowledge and agree that you, and your Subscribers (if applicable), will:
Comply with all applicable federal, state, local, or international law or regulations (including, without limitation, any laws regarding copyright, intellectual property, privacy and personal identity, or the export of data or software to and from the US or other countries);
Provide accurate information to us and keep it updated; and
Use your real name on your profile and use the Interactive Services in a respectful manner;
(b) DON’Ts (Prohibited Conduct). You acknowledge and agree that you, and your Subscribers (if applicable), will not:
reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, capture, download, save, upload, print, or otherwise transfer or retain information or content available on the Site other than with regard to Authorized Downloadable Materials, subject to the limited permissions set forth herein;
manually or systematically harvest, scrape, collect or otherwise extract information or data contained on the Site, other than permitted use of Authorized Downloadable Materials or temporary storage of video materials for offline viewing (if permitted by your subscription plan).
permit or provide others access to the Site using your Account Information or otherwise, or the Account Information of another authorized user;
impersonate or attempt to impersonate DAM, a DAM employee, another user, or any other person or entity (including, without limitation, by using e-mail addresses or Account Information associated with any of the foregoing) or provide incorrect or knowingly false information;
remove or modify any copyright, trademark, legal notices, or other proprietary notations from the Proprietary Materials or any other content available on the Site;
violate or attempt to violate the Site’s security mechanisms, attempt to gain unauthorized access to the Site or assist others to do so, or otherwise breach the security of the Site or corrupt the Site in any way;
co-brand or frame the Site or establish a link in such a way as to suggest any form or association, approval, or endorsement on our part, without the prior express written permission of an authorized representative of DAM;
use any portion of the Site to aid in transmitting, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
post to the Interactive Services or any other portion of the Site any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory, or libelous content;
use the Site or its contents (including User Content) to recruit, solicit, or contact in any form other users or potential users for employment or contracting for a business not affiliated with us without the prior express written permission of an authorized representative of DAM;
use or attempt to use the Site to store or transmit software viruses, worms, time bombs, Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm us or users of the Site or expose them to liability; and/or
use the Site in any manner that could disable, overburden, damage, or impair the Site, interfere with any other party’s use of the Site (including their ability to engage in real time activities through the Site), or otherwise attempt to interfere with the property working of the Site.
(d) Geographic Restrictions. The applications, mobile applications, functionalities, content, materials, and other services that may be available on or through the Site from time to time, are subject to United States Export Controls. No content or functionality from the Site may be downloaded or exported (i) into (or to a resident of) Cuba, Libya, North Korea, Iran, Syria, or any other country subject to an applicable embargo or other trade restriction by any government regulatory agency having jurisdiction, or (ii) by or to any person or entity on the United States Treasury Department’s list of Specially Designated Nationals (SDN) or the United States Commerce Department’s Consolidated Screening List (CSL). By downloading or using any content or functionality, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Although the Site may be accessible worldwide, we make no representation that materials on the Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal, is prohibited. Those who choose to access the Site from other locations do so at their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Site is void where prohibited.
9. REPRESENTATION, WARRANTIES, AND COVENANTS
(c) Reliance and Functionality. DAM does not warrant that the content or functions of the Site will meet your requirements or that the operation of the Site will be uninterrupted or error free. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents. The Site (including without limitation our blogs) and Interactive Services may include content provided by third parties, including materials provided by other users, bloggers, or third-party licensors, syndicators, aggregators, and reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by DAM, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of DAM. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
(d) Availability of Site. You recognize that the traffic of data through the Internet may cause delays during the download of information from the Site, and accordingly, you agree not to hold us liable for delays that are ordinary in the course of Internet use. You further acknowledge and accept that the Site may not be available on a continual twenty-four hour basis due to such delays, delays caused by the our upgrading, modification, or standard maintenance of the Site, or any other delays outside of our control.
(e) Third-party Links, SSO, OAuth, etc. If the Site contains links to other sites and resources provided by third parties, including without limitation single-sign on services (SSO) or OAuth resources (e.g. Facebook, GitHub, LinkedIn, etc.), links or capabilities to share to social media websites, these links and resources are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links on the Site. We have no control over the contents, software, or privacy practices of these third party sites, SSO, OAuth, or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
10. TERMINATION; CANCELLATION
(b) Individual Plan Cancellation. An Individual Plan user may cancel his or her Individual Plan at any time via his or her account settings page. If you are dissatisfied for any reason with your Individual Plan subscription, your sole right and exclusive remedy is to terminate your Individual Plan. Other than as set forth herein, we will not offer refunds on any fees or charges related to your Individual Plan—this includes any partially used or unused periods for which you have already paid. Your obligation to pay fees continues through the end of the subscription period during which you cancel your Individual Plan.
(d) You acknowledge and agree that DAM may retain and store your information on DAM’s systems for archival purposes notwithstanding any termination or cancellation of your account or subscription plan.
(b) Indemnification Procedure. You agree to cooperate as fully as reasonably required in the defense of any Claims, including asserting any available defenses. We reserve the right, at our own expense, to assume the exclusive defense and control of any Claims or matter otherwise subject to indemnification by you and you may not in any event settle any Claims without our prior written consent.
12. NO WARRANTY; LIMITATIONS ON LIABILITY
(a) No Warranty. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER DAM NOR ANY PERSON OR ENTITY ASSOCIATED WITH DAM MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER DAM NOR ANY PERSON OR ENTITY ASSOCIATED WITH DAM PROMISES, REPRESENTS OR WARRANTS THAT THE SITE OR CONTENT OBTAINED THROUGH THE SITE OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. DAM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. MODIFICATION TO TERMS OR THE SITE
(b) Changes to the Site. DAM may at any time, without notice or liability, change or eliminate any content or feature of the Site or any portion thereof, or restrict the use of any portion of the Site. Your only right with respect to any dissatisfaction with any service-related change or elimination is to cease use of the Site. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any reason.
(c) Rights of Dissatisfaction. Your only right with respect to any dissatisfaction with any modification, service-related change, or elimination made pursuant to this Section, or any policies or practices of DAM in providing the Site, is to cease use of the Site.