Terms of service
Terms of Service
Last updated January 15th 2019
In this Agreement, “we,” “us,” “our” or “dotdigital” will refer to Dynmark International Limited, whose registered office is at No.1 London bridge, London, SE1 9BG. And, the terms “you,” “your” and “Customer” will refer to you. If you are registering for a dotdigital account or using dotdigital’s Services on behalf of an organisation, you are agreeing to these terms for that organisation – in which case, the terms “you” and “your” and “customer” will refer to that organisation.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES OFFERED BY COMAPI. BY CLICKING THE “I ACCEPT” BUTTON ON THE REGISTRATION PAGE, OR OTHER AUTOMATED SIGN UP PROCESS, YOU AGREE TO BE BOUND BY THESE TERMS AND THEY FORM A LEGALLY BINDING DOCUMENT BETWEEN YOU AND COMAPI. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE COMAPI’S SERVICES.
The ”Effective Date” of this agreement is the date which is the earlier of (a) your initial access to the service as a consequence of clicking through and accepting these dotdigital Terms of Service or (b) the effective date of the first Order Form.
1. THE SERVICES
dotdigital provides its Services (the “Services”) subject to the terms and conditions in this Terms of Service. The Services include dotdigital Lite, dotdigital Toolkit and dotdigital Toolkit Pro; plus any updates to these services and/or new SaaS services made available to you; plus SDKs, APIs and any other software made available to you in connection with your use of our Services.
This Agreement permits you to purchase subscriptions to Services from dotdigital pursuant to any dotdigital ordering documents (which may include an offline order), or online registration referencing this Agreement (“Order Form”)
2. ACCESS TO THE SERVICES
Subject to the Terms of this agreement and our Acceptable Use Policy (“AUP”), dotdigital grants you a non-exclusive licence to copy and install certain dotdigital code onto websites, mobile apps and other internet connected devices for the sole purpose of using the Services as described in these Terms of Service, website and portal.
3. CHANGE OF TERMS
4. USE OF THE SERVICES
Your use of our Services should be in accordance with our AUP and all Applicable Law. dotdigital reserves the right to suspend your access to the Services without liability to dotdigital if your use of the Services is, solely in the opinion of dotdigital, in violation of dotdigital’s AUP or Applicable Law. You are responsible for all use and for all acts and omissions of anyone who has access to your Account(s), to the SaaS applications you may use and any applications you may build incorporating our Services. Restrictions on the use of our Services include:
- You will ensure that dotdigital are entitled to use your customer data as needed and will not use our Services in any manner that violates any applicable law.
- You will ensure you have all required consents to contact, engage, chat, or otherwise converse with your end users through the messaging channels (SMS, website, Facebook Messenger etc) you choose.
- You will not use the Services in a manner that infringes or violates the intellectual property rights of any third party; violates any applicable law, statute or regulation; is harmful, fraudulent, deceptive, abusive, defamatory or otherwise disagreeable; results in the transmission of a virus, Trojan horse or other harmful computer code or program.
- dotdigital reserves the right to remove any content from the Services if it is believed any content has violated any clause of this clause 4.
- You are responsible for your activity in connection to the Services and any fraudulent, abusive or otherwise illegal activity could result in suspension of your account, on a temporary or indefinite basis, and/or termination of this agreement
- Should you make use of a long telephone number(s), we reserve the right to reclaim any phone number from your account if, solely in our opinion, you do not send sufficient traffic over that phone number such that the phone number is underutilized
If you receive a trial or evaluation subscription to the Service (a “Trial Subscription”), then you may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by dotdigital (the “Trial Period”). Trial Subscriptions are permitted solely for your use to determine whether to purchase a paid subscription to the Services (a “Paid Subscription”). If you do not enter into a Paid Subscription at the close of your Trial Period, your right to access and use the Services will be limited to those services provided free of charge. dotdigital has the right to terminate a Trial Subscription at any time for any reason. SMS messaging shall be chargeable throughout your Trial Period. During your Trial Subscription you will be required to top up your wallet in order to consume SMS messaging. Paid Subscriptions to either dotdigital Toolkit or dotdigital ToolkitPro commit you to a one month Paid Subscription period which can be cancelled at any point. If not cancelled, the Paid Subscription period shall renew each month and be charged accordingly.
6. FEES AND TAXES
You shall pay all applicable fees, per the Order Form, that are applicable to the Services used by you. All fees paid to dotdigital are non-refundable. For the avoidance of doubt, SMS messaging shall always be chargeable, regardless of whether you are in a Trial Period or a Paid Subscription period.
“Taxes” shall mean all taxes, levies, duties imposed by any jurisdiction in any country, including, but not limited to VAT, GST, Sales and Use Taxes or similar taxes in any way connected to this agreement. All prices quoted under this agreement are excluding Taxes. Taxes shall be added to the charges quoted and payable under this agreement where required.
All fees are as set forth on the Website, User Portal or an applicable Order Form and will be paid by you on the day of invoice, unless (a) you are paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. All fees are non-refundable. dotdigital may, in its sole discretion, terminate or suspend this Agreement if invoices remain unpaid for a period greater than that specified on an invoice or applicable Order Form.
The rates for consumption items, such as SMS messaging, may vary from day to day.
If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
Recurring Billing Authorization: By providing Credit Card information and agreeing to purchase any Services, you hereby authorize dotdigital to automatically charge your Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the website or user portal or applicable Order Form. You acknowledge and agree that the amount billed and charged each month may vary depending on your use of the Services and may include subscription fees, consumption fees and other one off or recurring fees.
Invalid Payment: If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, you remain responsible for any amounts not remitted to dotdigital and dotdigital may, in its sole discretion, either (i) invoice you directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by you (if applicable) or (iii) terminate or suspend this Agreement.
Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, you may terminate the subscription by sending dotdigital notice of termination to [email protected]. Termination will be effective at the end of the current subscription term and is subject to 7 days notice period. Upon any termination or expiration of the subscription term, dotdigital may charge your Credit Card (or invoice you directly) for any outstanding fees.
Fee Dispute. You must contact us in writing if you dispute any amount of fees paid by you under this agreement. Written notice must be received by us within 30 days of the dispute. If you do not provide written notice of your fee dispute within 30 days, you will not be entitled to dispute any fees paid by you.
7. PREPAID BALANCE SUSPENSION
Certain Services – such as SMS consumption – are consumed from a prepaid monetary balance. If your use of the Services exceeds the amount of prepaid balance, the Services to your account may be suspended without notice. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any suspension of our services pursuant to this clause 7.
8. INTELLECTUAL PROPERTY
Intellectual property (“IP”) shall mean all patents, copyrights, design rights, trademarks and other rights in the nature of intellectual property rights (whether registered or unregistered). You acknowledge and accept that all IP in the Services belongs to dotdigital. You acquire no rights to the IP in the Services other than those expressly granted by this agreement. We exclusively own and reserve all right, title and interest in and to our Services. You exclusively own and reserve all right, title and interest in your applications and the content of any communications sent through our Services.
9. WARRANTY FROM YOU
You represent and warrant that: 1) you will comply with all applicable laws relating to the collection, use and disclosure of personally identifiable information you may have collected or processed, including the EU GDPR if applicable to your use of the Services 2) you will not use the Services in a manner that violates the intellectual property rights, or other proprietary rights of any third party, 3) you have the necessary authority to enter into this Agreement, and 4) you will use the Services in accordance with our Acceptable Use Policy.
10. DISCLAIMER OF WARRANTY
We provide the Services to you “AS IS” to the fullest extent permitted by law. Without limiting dotdigital’s express warranties and obligations under these terms, dotdigital hereby disclaims any and all other warranties, express or implied, including but not limited to warranties of merchantability, title, non-infringement, and fitness for a particular purpose. To the extent this disclaimer may conflict with applicable law, the scope and duration of any applicable warranty will be the minimum permitted under that law.
You will defend, indemnify and hold harmless, dotdigital and its parents, subsidiaries, affiliates, officers, and employees against any actual or threatened claim, loss, liability, proceeding or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with your use of the Services. You will defend, indemnify and hold harmless dotdigital and its parents, subsidiaries, affiliates, officers, and employees against any actual or threatened claim or demand made by any third party due to or arising out of your access or use of the Services, your violation of this Agreement or applicable laws, rules or regulations in connection with your use of the Services, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity. We reserve the right, at your expense, to retain separate legal counsel for ourselves in connection with any claim or to assume the exclusive defence and control of any claim in which you are a named party and that is otherwise subject to indemnification under this Section 12 . You will pay all costs, reasonable legal fees and any settlement amounts or damages awarded against dotdigital in connection with any claim. You will also be liable to us for any costs and legal fees we incur to successfully establish our right to indemnification.
13. LIABILITY LIMITS
Nothing in this Agreement limits or excludes the liability of either party for death or personal injury resulting from negligence; any damage or liability incurred as a result of fraud or fraudulent misrepresentation; or any other liability which is incapable of being excluded or limited by law. Under no circumstances will dotdigital be liable to you for any direct damages, costs or liabilities in excess of the amounts paid by you during the twelve (12) months preceding a claim. Under no circumstances will dotdigital be liable to you for indirect, special, incidental, consequential or punitive damages of any character, including, without limitation, damages for loss of goodwill, lost profits, lost sales or business, work stoppage, computer failure or malfunction, lost data, or for any and all other damages or losses.
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time, though any amounts paid by you to dotdigital in advance of that termination shall be non-refundable. dotdigital may terminate or suspend your access to the Services at any time, for any reason (including breach of any term of this agreement) and without warning, which may result in the forfeiture and destruction of all information associated with your account. Warranty disclaimers and limitation of liability provisions in this agreement shall survive termination.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Assignment – this Agreement is not assignable, transferable or sub-licensable by you except with dotdigital’s prior written consent. dotdigital may transfer, assign or delegate this Agreement and its rights and obligations without consent.
- You and dotdigital are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchisee
- Entire Agreement – If you have never signed an offline agreement with dotdigital, this agreement constitutes the whole agreement between you and dotdigital and supersedes any previous arrangement, understanding or agreement relating to the subject matter of this agreement
- Entire Agreement Existing Customer – if you have signed an offline agreement with dotdigital and that agreement has not been terminated, in the event of a conflict between the provisions contained in your existing customer agreement and those contained in these online terms of service, the provisions contained in your existing customer agreement shall prevail
- Force Majeure – neither party shall be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligation under this Agreement occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes (excluding labour disputes of either party) of whatever nature , failure of or disruption to telecommunications networks and any other reason beyond the control of either party.
- Notices – any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, or by email upon confirmation of receipt. Notices to dotdigital shall be copied to [email protected].
16. GOVERNING LAW
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.