USAGE AND ACCESS RIGHTS.
Right to Use. Digiarks will provide the Digiarks Services to Customer as set forth in the Order Form and/or SOW. Subject to the terms and conditions of this Agreement, Digiarks grants to Customer a limited non-exclusive, non-transferable right and license during the Term, solely for its and its authorized Affiliate’s internal business purposes, and in accordance with the Documentation, to: (a) use the Digiarks Services; (b) implement, configure, and permit its Authorized Users to access and use the Digiarks Services; and (c) access and use the Documentation. Customer shall ensure compliance with the terms of this Agreement by all Authorized Users and Customer’s Affiliates (if authorized to use the Digiarks Services under any Order Form or SOW), and Customer shall be responsible for such Authorized Users’ and Affiliates’ acts and omissions in connection with this Agreement.
Customer Responsibilities. Customer shall: (i) retain sole responsibility for the content of its transmissions through the Digiarks Services; (ii) delegate a Customer mailing domain to Digiarks for deployment of Customer’s emails through the Digiarks Services (such mailing domains shall resolve to an active Customer website); (iii) comply with consent recordkeeping required under the applicable laws (including without limitation the Telephone Consumer Protection Act and CAN-SPAM Act, as applicable) and produce any consent records to Digiarks upon Digiarks’s reasonable request; (iv) ensure that each Consumer User has accepted the ToU prior to accessing the consumer-facing features of the Digiarks Services; and (v) permit Digiarks to: (a) apply authentication protocols to Customer-designated domain names and messaging in accordance with standards set forth by the Internet Engineering Task Force and as used by Internet Service Providers (“ISP”), (b) apply any complaint data received from an ISP or message recipient to Customer’s and/or Digiarks’s network suppression list, which is designed to prevent deliverability issues, and (c) independently create and maintain outbound and inbound IP addresses on behalf of Customer.
Restrictions. Customer shall not, and shall not permit others to, do the following with respect to the Digiarks Services: (a) use the Digiarks Services, or allow access to them, in a manner that circumvents contractual usage restrictions; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Digiarks Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement; (c) access or use the Digiarks Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Digiarks Services or allow access by a direct competitor of Digiarks; (d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Digiarks Services or technologies unless otherwise permitted by applicable law and then only with the express prior written consent of Digiarks; (e) use the Digiarks Services or Documentation in a way that: (i) violates or infringes upon the rights of a third party, (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene, or (iii) violates Digiarks’s Acceptable Use Policy, attached hereto as Exhibit A; or (f) interfere with or disrupt the integrity, operation, or performance of the Digiarks Services or interfere with the use or enjoyment of it by others.
Digiarks’s Responsibilities. Digiarks will: (i) provide portal support for the Digiarks Services (or, if purchased by Customer in an applicable Order Form or SOW, premium or platinum support) under Digiarks’s then-current applicable support terms and conditions for the applicable Digiarks Service, and (ii) use commercially reasonable efforts to make the Digiarks Software available 24 hours a day, 7 days a week except for: (a) planned downtime (of which Digiarks shall give advance electronic notice); and (b) any unavailability caused by a Force Majeure Event.
Discretion to Select Online Service Provider. Digiarks may host the Digiarks Services using a reputable online service provider of its choice, which is currently Digital Ocean.
Suspension of Access. Digiarks may suspend any use of the Digiarks Services or remove or disable the Digiarks Services if Digiarks reasonably and in good faith believes Customer’s use of the Digiarks Services violates this Agreement. Digiarks will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless Digiarks reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process; or (b) it is necessary to delay notice in order to prevent imminent harm to the Digiarks Services or a third party. Under circumstances where notice is delayed, Digiarks will provide notice if and when the related imminent harm in the previous sentence no longer applies.
Beta Programs. Digiarks may make available services or functionality to Customer to try at its option at no additional charge which is designated as beta, pilot, limited release, or evaluation (each, a “Beta Program”). Customer may be presented with additional terms and conditions when registering for a Beta Program, and any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding upon the Parties. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SECTION 9, BETA PROGRAMS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY.
Integration with Non-Digiarks Services. The Digiarks Services may contain features designed to interoperate with Non-Digiarks Services. To use such features, Customer may be required to obtain access to such Non-Digiarks Services from their providers and may be required to grant Digiarks access to Customer’s account for such Non-Digiarks Services. If Customer installs or enables Non-Digiarks Services for use with the Digiarks Services, Customer grants Digiarks permission to allow the provider of that Non-Digiarks Service to access Customer Data as required for interoperation of that Non-Digiarks Service and the Digiarks Service. Digiarks cannot guarantee the continued availability of such Digiarks Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Digiarks Service ceases to make the Non-Digiarks Service available for interoperation with the corresponding Digiarks Service features in a manner acceptable to Digiarks. Digiarks does not warrant or support any Non-Digiarks Services.
SECURITY AND DATA RESPONSIBILITIES.
Security. Digiarks will use commercially reasonable and industry standard information security technologies described in Digiarks’s Data Security Policy attached hereto as Exhibit B in providing the Digiarks Services.
Customer Data. Customer shall be responsible for Customer Data as entered into, supplied or used in the Digiarks Services. Further, Customer is solely responsible for determining the suitability of the Digiarks Services for Customer's business and complying with any regulations, laws or conventions applicable to the collection and use of Customer Data and Customer’s use of the Digiarks Services. Customer grants to Digiarks the non-exclusive right to process Customer Data (including Personal Data as defined below) for the sole purpose of and only to the extent necessary for Digiarks: (a) to provide the Digiarks Services; (b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 if Digiarks has a reasonable belief of Customer’s non-compliance; and (c) as otherwise set forth in this Agreement. Digiarks may utilize the data concerning and derived from Customer’s use of the Digiarks Services, including Customer Data but excluding Personal Data, for research and development, including to improve Digiarks Services, and to provide Customer with reports on its use of the Digiarks Services. For purposes of this Agreement, “Personal Data” shall mean any information relating to (i) an identified or identifiable natural person, and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable data protection laws and regulations). Customer agrees that Digiarks may collect, use, and disclose data concerning and derived from Customer’s use of the Digiarks Services, including Customer Data, for industry analysis, benchmarking, analytics, marketing, and other business purposes during and after the Term, provided that any such data collected, used, and disclosed for such purposes will be in aggregate form only and will not identify Customer, its Authorized Users, or any third parties utilizing the Digiarks Services as the source of the data (“Anonymized Data”) and Digiarks complies with all applicable laws in collecting, using and disclosing such Anonymized Data. Anonymized Data shall not be considered Confidential Information of Customer. Except as otherwise expressly set forth in an Order Form, Customer acknowledges and agrees that Digiarks has no obligation to maintain or store Transactional Data for more than two (2) years after the date of origination of such Transactional Data. For purposes of this provision, “Transactional Data” shall mean data relating to Customer’s consumer and/or client transactions and email interactions such as purchases, store visits, surveys filled, email clicks and opens, campaign metadata, bounces, web visits, add to cart clicks, and other similar event interaction and disposition data.
Personal Data. Customer agrees that it has collected and shall maintain and handle all Personal Data (as defined below) contained in Customer Data in compliance with all applicable data privacy and protection laws, rules, and regulations. Customer authorizes Digiarks to process its Personal Data in accordance with the applicable data protection provisions and the technical and organizational measures referred to in the Data Security Policy attached hereto as Exhibit B. Customer shall not provide or cause to be provided to Digiarks any social security numbers, driver’s license identification numbers, account passwords (other than passwords required to access the Digiarks Services), Payment Card Information (as defined in the Payment Card Industry Data Security Standards), any Protected Health Information under the Health Insurance Portability and Accountability Act of 1996, or any information comprising special categories of personal data (or “sensitive data”) under the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) or any other analogous international law, rule or regulation. For the avoidance of doubt, Customer is the controller, and Digiarks is the processor, of Customer Data.