The policies below are applicable to the Digs mobile application(s), the Digs web applications, the Digs website(s) and all other interactive features and communications provided by Digs associated with the website or mobile application, however accessed and/or used, that are operated by us, made available by us, or produced and maintained by Digs, including without limitation any notifications or newsletters (collectively “Digs” or “we”, “us”, or “our”) (“Platform”). BY USING OUR PLATFORM, YOU ARE ACCEPTING THE PRACTICES DESCRIBED IN THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE PLATFORM AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS OF SERVICE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR PLATFORM FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR TERMS OF USE WILL APPLY RETROACTIVELY.
You will be able to access and view some materials for free and without registering for an account, but certain features may only be available if you (a) register for an account and sign in to the associated service; or (b) if you subscribe to the service and pay the associated subscription fee.
This is a legal agreement between you ("you" or "user") and Digs that states the material terms and conditions that govern your use of the Platform. This agreement, together with all updates, supplements, additional terms, and all of Digs’ rules and policies collectively constitute this "Agreement" between you and Digs. BY ACCESSING THE PLATFORM, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE AND CONDITIONS OF USE STATED HEREIN, PLEASE DO NOT USE THIS PLATFORM.
PLEASE NOTE: THESE TERMS OF SERVICE CONTAIN A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY AGREEING TO THESE TERMS OF SERVE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT USE OR ACCESS THE PLATFORM.
You are responsible for all internet access, mobile data or other charges incurred when using the Platform. Remember that streaming and downloading audio-visual content can use up a lot of data.
1.
Access License. Digs grants you a limited, revocable, non-exclusive, non-transferable license to access and make use of the Platform or its content. This license does not include any right to resell or collect and use of any product listings, descriptions, or prices contained on the Platform; any derivative use of the Platform or their contents; any downloading or copying of account information for the benefit of another Builder; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the Platform and/or any portion of the Platform may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Digs’ express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you. Some features may not be available on all devices.
2.
Copyright and Ownership. All of the content featured or displayed on the Platform including without limitation text, graphics, photographs, images, moving images, sound, and illustrations ("Content"), is owned by Digs, its licensors, vendors, agents and/or its Content providers. All elements of the Platform including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Platform may only be used for the intended purpose for which such Platform is being made available. Except as permitted by copyright law, you may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Platform Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Platform You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Platform The Platform its Content and all related rights shall remain the exclusive property of Digs or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Platform
3.
Trademarks/No Endorsement. All trademarks, service marks and trade names of Digs used herein (including but not limited to: Digs name, Digs corporate logo, the Platform name, the Platform design, and any logos) (collectively “Marks”) are trademarks or registered trademarks of Digs or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Digs trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Platform without Digs' prior written consent. You shall not use Digs’ name or any language, pictures or symbols which could, in Digs’ judgment, imply Digs’ endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
4.
Account Registration and Security. You understand that you may need to create an account to have access to all of the parts of the Platform. You will: (a) provide true, accurate, current and complete information about yourself as prompted by the App's registration or subscription page (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Digs has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Digs has the right to suspend or terminate your account and refuse any and all current or future use of the Platform (or any portion thereof). You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the Platform using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Platform We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.
5.
Solicited Submission Policy. Where Digs has specifically invited or requested submissions or comments, Digs encourages you to submit content (e.g. comments to blog posts, participation in communities, tips, etc.) to Digs that they have created for consideration in connection with the Platform (“User Submissions”). User Submissions remains the intellectual property of the individual user. By posting content on our Platform you expressly grant Digs a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and your name, voice, and/or likeness as contained in your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and Digs shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.
6.
Inappropriate User Submissions. Digs does not encourage, and does not seek User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort. You agree that you have not and will not engage in any of the foregoing activities in connection with producing your User Submission. Without limiting the foregoing, you agree that in conjunction with your submission, you will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, will not impersonate any other person or misrepresent your affiliation, title, or authority, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. Digs will reject any User Submissions in which Digs believes that, in its sole discretion, any such activities have occurred. If notified by a user of a submission that allegedly violates any provision of these Terms of Use, Digs reserves the right to determine, in its sole discretion, if such a violation has occurred, and to remove any such submission from the Platform at any time and without notice.
7.
Inappropriate Material. Your use of the Platform is contingent on your compliance with our acceptable use policy and other similar policies posted on or in the Platform You are prohibited from using the Platform to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the Platform is expressly prohibited by this Agreement. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Terms of Service, we may take any action we deem necessary to cure or prevent the violation, including without limitation, banning you from using the Platform and/or the immediate removal of the related materials from the Platform at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
8.
Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the Platform for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform or (iii) bypass any measures we may use to prevent or restrict access to the Platform
9.
Right to Takedown Content. Except as disclosed in our Privacy Policy, we will not monitor, edit, or disclose the contents of a user's e-mail or Content posted to the Platform unless required in the course of normal maintenance of the Platform and its systems or unless required to do so by law or in the good-faith belief that such action is necessary to: (1) comply with the law or comply with legal process served on Digs or the Platform (2) protect and defend the rights or property of Digs, the Platform or the users of the Platform or (3) act in an emergency to protect the personal safety of our users, the Platform or the public. Users shall remain solely responsible for the content of their messages and Digs shall have no obligation to prescreen any such content. However, we shall have the right in our sole discretion to edit, refuse to post or remove any material submitted to or posted on the Platform at any time without notice. Without limiting the foregoing, we shall have the right to remove any material that we find to be in violation of the provisions hereof or otherwise objectionable, and the additional right to deny any user who fails to conform to any provision of these Terms of Service access to the Platform or any part thereof.
10.
Third Party and Builder Content. Content published by Builders on the Platform and User Submissions from other users do not represent the views of Digs or any individual associated with Digs, and we did not author this Content. In no event shall you represent or suggest, directly or indirectly, Digs’ endorsement of any Content not authored by Digs. Digs does not vouch for the accuracy or credibility of any Builder or user published Content on our Platform and do not take any responsibility or assume any liability for any actions you may take as a result of reviewing any such Builder or user published Content. Through your use of the Platform you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our Platform you assume all associated risks.
11.
Advertising Rights. Digs reserves the right to sell, license and/or display any advertising, attribution, links, promotional and/or distribution rights in connection with the Platform and Digs and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Nothing in these terms obligates or may be deemed to obligate Digs to sell, license or offer to sell or license any advertising, promotion or distribution rights.
12.
Third Party Links. From time to time, the Platform may contain links to websites that are not owned, operated or controlled by Digs or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Platform Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other websites. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from this Platform you do so entirely at your own risk.
13.
Transactional Partners. We will partner with Builders, Vendors, Subcontractors, Retailers, to promote their goods and services within our Platform. In these cases, if you click on a link, you will be taken to our partners website and you are transacting directly with the other party. On those pages or locations, the transactional partners’ brand is clearly visible and their terms of service are posted. When using these partner pages, you are bound by partner terms of service. Please note that the foregoing only applies where you leave our Platform. In the event that you purchase a good or service directly through our Platform, these terms of service will prevail.
14.
Fees. For all charges or deposits for any products or services ordered by you on or through the Platform Digs or its vendors or agents will bill your bank card or alternative payment method offered by Digs and you agree to pay all such charges or deposits. When you provide bank card information, account numbers or other information necessary to facilitate payment to us or our vendors, you represent to us that you are the authorized user of the bank card that is used to pay for the products and services. In the event legal action is necessary to collect on balances due, you agree to reimburse Digs and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of the Platform. You understand that we will hold and store such bank card or payment information to facilitate payment and deposit, damage reimbursement, and other liability purposes.
15.
Promotional Codes. On occasion, Digs may issue promotion codes or coupons that may be redeemed at the time of check out. These codes or coupons are non-transferable and may only be used by the intended recipient; these codes or coupons have no cash value and are not redeemable for cash. We reserve the right to cancel any promotion code and reduction redemption when the total value of the promotional code exceeds the price of the item. Multiple promotional codes or coupons may not be combined. Digs is not responsible for any financial loss arising out of our refusal, cancelation, or withdrawal of a promotion or any failure or inability of a customer to use a promotional code or coupon for any reason.
16.
Eligibility to Use the Platform. You may use the services offered on this Platform in any location worldwide. Digs makes no promise, however, that the services available on the Platform are appropriate or available for use in unauthorized locations (“Territory”), and accessing the Platform from territories where its contents are illegal or unlawful is prohibited, including from those territories prohibited by the United States State Department or other U.S. government entity. If You choose to access the Platform from locations outside the Territory, You do so at your own risk. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to services you use through this Platform
17.
Termination. You or we may suspend or terminate your account or your use of this Platform at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also block your access to our Platform in the event that (a) you breach these Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
18.
Representations and Warranties. You represent that You are over the age of 18, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and Your use of the Platform is and will be in compliance with all applicable laws. You represent that you have read, understood, agree with, and will abide by the terms of this agreement. In addition, you represent and warrant that your User Submissions and all elements thereof are (a) owned or controlled solely and exclusively by you, you have prior written permission from the rightful owner of the content included in your User Submissions, or you are otherwise legally entitled to grant Digs all of the rights granted herein; and (b) Digs’ use of your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including without limitation rights of publicity and privacy, and defamation. Furthermore, You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them.
19.
DISCLAIMERS. YOUR USE OF THE PLATFORM IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE PLATFORM ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER DIGS, NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE PLATFORM THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE PLATFORM MAY BE OUT OF DATE, AND NEITHER DIGS, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DIGS OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
20.
LIMITATIONS OF LIABILITY. DIGS DOES NOT ASSUME ANY RESPONSIBILITY, OR WILL BE LIABLE, FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THIS PLATFORM OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THIS PLATFORM IN NO EVENT WILL DIGS, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE PLATFORM BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PLATFORM OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE PLATFORM WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THE PLATFORM OR ANY MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE PLATFORM YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE PLATFORM IN NO EVENT SHALL DIGS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) TWENTY FIVE DOLLARS (US $25.00) OR (B) THE VALUE OF THE SERVICES PURCHASED OR SUBSCRIBED BY YOU ON THE PLATFORM.
21.
Indemnity. You agree to defend, indemnify and hold Digs and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the Platform or your placement or transmission of any User Submission or other content, message or information on this Platform by you or your authorized users; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any User Submission that you provide to Digs, including without limitation any claim or damages arising from a defamation or invasion of privacy claim; or (vi) any other party’s access and use of the Platform with your unique username, password or other appropriate security code.
22.
Release. In the event that you have a dispute with one or more other users of the Platform or with a Builder that has posted content or an offering on the Platform you release Digs (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.DIGS EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS DIGS PLATFORM.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
23.
Force Majeure. Neither Digs nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
24.
Governing Law. This Agreement will be governed by, and will be construed under, the laws of the State of Washington, without regard to choice of law principles.
25.
Dispute Resolution – Arbitration.
(a) Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Digs (each a “Claim” and collectively “Claims”), you and Digs agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. If necessary to preserve a Claim under any applicable statute of limitations, you or Digs may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration. YOU AND DIGS MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate, contained in Section 25, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Digs. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the Digs Platform, services, your relationship with Digs, the threatened or actual suspension, deactivation or termination of your user account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Digs, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Digs and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND DIGS ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief. You and Digs agree that any arbitration will be limited to the Claim between Digs and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND DIGS ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Digs otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Rules and Logistics Governing Arbitration. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Digs will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Builders, but is bound by rulings in prior arbitrations involving the same Builder to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Digs initiates arbitration under this Arbitration Agreement, Digs will pay all AAA filing and arbitration fees. If you file a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Digs will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). (ii) For Claims that (A) are based on an alleged employment relationship between Digs and you; (B) arise out of, or relate to, Digs’ actual or threatened deactivation of your; or (C) arise out of, or relate to Digs’ actual or threatened termination of your agreement with Digs, Digs shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Digs pursuant to the fee provisions above). However, if you are the party initiating such claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you reside, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 25(d)(i) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Digs agree otherwise, any arbitration hearings between Digs and you will take place in the county of your primary address, and any arbitration hearings between Digs and a Client will take place in the county in which you received services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for an AAA arbitration.
(e) Exceptions to Arbitration. The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
• Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
• Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis; and
• Claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
(f) Severability. In addition to the severability provisions in Section 25(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(g) Right to Opt Out of Arbitration Agreement. You may opt out of the Arbitration Agreement by notifying Digs in writing within thirty (30) days of the date you first registered for the Digs Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification to Digs that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
26.
Privacy. Data collection and use, including data collection and use of personally identifiable information is governed by Digs’
Privacy Policy which is incorporated into and is a part of this Agreement.
27.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE. In operating the Platform, we may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Platform. Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Platform. Company has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Company or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of this Agreement. If you believe any material available via the Platform infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is
copyrightagent@digs.com.
Please provide the following notice:
1. Identify the copyrighted work or other intellectual property that you claim has been infringed;
2. Identify the material on the Platform that you claim is infringing, with enough detail so that we may locate it on the Platform;
3. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
4. A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
5. Your address, telephone number, and email address; and
6. Your physical or electronic signature.
We may give notice to our users of any infringement notice by means of a general notice on any of our Platform, electronic mail to a user's e-mail address in our records, or by written communication sent by first-class mail to a user's physical address in our records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
28.
Additional Assistance. If you do not understand any of the foregoing Terms of Service or if you have any questions or comments, we invite you to contact us by email at
support@digs.com.
29.
Copyright Notice. All design, graphics, text selections, arrangements, and all software are Copyright © 2022, Digs, Inc. and its related companies or its licensors. ALL RIGHTS RESERVED.
