Customer Terms and Conditions
Effective Date: 03/25/2023
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND DITYER LLC, A WISCONSIN LIMITED LIABILITY COMPANY (“DITYER,” “WE,” “US,” OR “OUR”).
Section 13 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 13 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 13(G); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF IT.
1. Acceptance of this Agreement.
Dityer provides a technology platform (the “Software”) connecting customers with businesses (“Merchants”) that sell products to them. Those products are delivered by independent third-party contractors (“Deliverers”) using the Dityer platform. For purposes of this Agreement, “Software” includes our website located at https://www.dityer.com/ and our mobile software application. “Service” includes our services offered through the Software, which includes the digital platform for purchase and sale of products and logistics with respect to delivery of those products. By purchasing, accessing, or using the Software, you hereby represent, warrant and agree that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Dityer;
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement; and
(d) the information you provide to us when you register an account or otherwise communicate with us is accurate.
The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by this Agreement, you must not access or use the Services.
Subject to Section 13(k) of this Agreement, Dityer may modify this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement and any modifications to it, as your continued use of the Services after any such changes binds you to such changes.
3. Additional Terms and Policies.
4. Rules and Prohibitions.
Without limiting other rules and prohibitions in this Agreement, by using the Services:
(a) You shall use the Services only for lawful purposes.
(b) You shall use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
(c) You shall access the Services only using means explicitly authorized by Dityer.
(d) You shall not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You shall not use the Services to cause nuisance, annoyance or inconvenience.
(f) You shall not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to any Merchant, User, or Deliverer unless Dityer has given you prior permission to do so in writing.
(g) You shall not copy or distribute the Software or any content displayed through the Services, including Merchants’ catalog content and reviews, for republication in any format or media.
(h) You shall not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i), You shall promptly notify us of any changes to any User information, and you shall provide us with whatever proof of identity we may reasonably request.
(j) You shall keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You shall use the Software and Services only for your own use and shall not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
(l) You shall not use the Services in any way that could damage, disable, overburden or impair any Dityer server, or the networks connected to any Dityer server.
(m) You shall not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Dityer server.
(n) You shall not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Dityer may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You shall not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites without our written permission.
(p) You shall not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
(q) You shall not try to harm other Users, Dityer, or the Services in any way whatsoever.
(r) You shall not engage in threatening, harassing, racist, sexist or any other behavior that Dityer deems inappropriate when using the Services.
(s) You shall report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You shall not abuse any promotional or coupon systems we have or create.
If we believe or determine that you have breached any of the provisions in Section 4, we may suspend and/or permanently deactivate your account at our sole discretion.
5. Contractors and Merchants Are Independent.
You acknowledge that Dityer does not itself offer delivery services and has no responsibility or liability for the acts or omissions of any Merchant or any Deliverer. Merchant is the retailer; the services offered by Dityer pursuant to this Agreement do not include any retail services. Dityer is not in the delivery business nor is it a common carrier. Dityer provides a technology platform facilitating the transmission of orders by Users to Merchants for delivery by Deliverers. Dityer will not assess or guarantee the suitability, legality or ability of any Deliverer or Merchant. Dityer is not responsible for the goods sold by the Merchants or whether the photographs or images displayed through the Services accurately reflect the goods sold by the Merchants and/or delivered by the Deliverers, and does not verify Merchants’ compliance with applicable laws or regulations. Dityer has no responsibility or liability for acts or omissions by any Merchant or Deliverer.
The goods that you purchase will be prepared by the Merchant you have selected, title to the goods passes from the Merchant to you at the Merchant’s location, and, for delivery orders, the Deliverer will be directed by your instructions to transport the products to your designated delivery location. Neither the Deliverer nor Dityer holds title to or acquires any ownership interest in any goods that you order through the Services.
6. User Account.
You may be required to register for an account to use parts of the Services (“User Account”). You shall provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and you shall update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You shall monitor your User Account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You shall not authorize others to use your User status, and you shall not assign or otherwise transfer your User Account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you must notify Dityer immediately. Dityer will not be liable, and you may be liable for losses, damages, liability, expenses, and fees incurred by Dityer or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Dityer has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Dityer may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use the Services. You must not create an account or use the Services if (1) you have been previously removed by Dityer, or (2) you have been previously banned from use of the Services.
7. User Content.
(a) User Content. Dityer may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You further represent and warrant that any User Content that you submit, post and/or otherwise transmit through the Services (i) does not violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) does not contain material that is false, intentionally misleading, or defamatory; (iii) does not contain any material that is unlawful; (iv) does not violate any law or regulation; and (v) does not violate this Agreement. You grant Dityer a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Dityer’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant Dityer a license to use your, first and last name, email address, phone number, and/or other User profile information, including without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. This license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Dityer survives termination of the Services or your account. Dityer may remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. Dityer may monitor and/or delete your User Content (but does not assume the obligation) for any reason. Dityer may also access, read, preserve, and disclose any information as Dityer reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to User support requests, or (e) protect the rights, property or safety of Dityer, its Users and the public.
(b) Feedback. Any submission of any ideas, suggestions, and/or proposals to Dityer through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and Dityer has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you grant to Dityer a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
(c) Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Dityer and do not represent the views of Dityer or its affiliates. Dityer is not liable for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you shall: (i) base any Rating or Review on first-hand experience with the Merchant or business; (ii) not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; and (iii) not submit a Rating or Review in exchange for payment, free items, or other benefits from a Merchant or business. Any Rating or Review you submit must comply with (1) the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising and (2) the terms of this Agreement. If we determine that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.
8. Communications with Dityer.
By creating a User Account, you consent to receiving communications from Dityer, Deliverers, or third parties providing services to Dityer including via email, text message, calls, and push notifications to the cellular telephone number you provided to Dityer. Dityer, its affiliated companies, and/or Deliverer may send you communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing Settings in your account. To opt out of receiving promotional text messages from Dityer, you must reply “STOP” from the mobile device receiving the messages. For purposes of clarity, delivery text messages between you and Deliverers are transactional text messages, not promotional text messages.
9. E-SIGN Disclosure.
By creating a User Account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Dityer at [email protected] with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device.
10. Intellectual Property Ownership.
Dityer alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Dityer. Dityer names, Dityer logos, and the product names associated with the Software and Services are trademarks of Dityer or third parties, and no right or license is granted to use them. You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
11. Payment Terms.
(a) Prices & Charges. You understand that: (a) the prices for goods displayed through the Services may differ from the prices offered or published by Merchants for the same goods and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the goods are sold; (b) Dityer may itemize its costs, profits or margins when publishing such prices; and (c) Dityer may change such prices at any time. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in- store totals. In those situations, Dityer may charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on Dityer’s income). If the charge to your payment method incorrectly differs from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Dityer may make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Dityer or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file to help prevent any interruption to your Use of the Services. We may charge any card on file if your initial form of preferred payment fails. It is your responsibility to keep your billing information up to date.
(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Dityer may provide refunds or credits.
(c) Promotional Offers and Credits. Dityer may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. Promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Dityer; (iii) are subject to the specific terms that Dityer establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in Dityer’s Terms and Conditions for Promotional Offers and Credits. Dityer may withhold or deduct credits or benefits obtained through a promotion if Dityer determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Dityer may modify or cancel an offer at any time. Dityer may also offer gratuitous credits, which can be used for the Services. Any credit issued by Dityer is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and may not be used towards any order. Credits issued through a User Account may only be redeemed through Dityer’s Services.
(d) Fees for Services. Dityer may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Shipping Fees, Successful Transaction Charges, and Pickup Fees. Dityer may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.
(a) Subscription Plan. You may enter into a subscription plan to use the Services (“Subscription Plan”), for which you will be billed monthly on a recurring basis. Payment for a Subscription Plan is due 15 days after receipt of the invoice. If you fail to remit payment in full within 15 days of receipt of the invoice, Dityer may take any of the following actions including, but not limited to, deactivating or terminating your User account, or pursuing legal action against you. Once you remit payment in full, we may reactivate your account.
(b) Termination. You may terminate your Subscription Plan by emailing [email protected]. Termination will be effective at the start of the next billing cycle. You will still be fully responsible for any outstanding invoices or fees that you may owe to Dityer upon termination. We may terminate your User Account at any time at our discretion.
(c) Deactivation. Deactivation does not remove the data within your User Account. You may request to remove all User Account data from the Software at any time by emailing [email protected].
13. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT IS PART OF YOUR CONTRACT WITH DITYER AND AFFECTS YOUR RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. THIS SECTION 13 OF THIS AGREEMENT WILL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
(a) Scope of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any Service provided by Dityer that cannot be resolved informally or in small claims court will be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Dityer, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
(b) Informal Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Dityer should be sent to P.O. Box 26293 Milwaukee, WI 53226. After the Notice is received, you and Dityer may attempt to resolve the claim or dispute informally. If you and Dityer do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules and Forum. Arbitration will be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties must select an alternative ADR Provider. The rules of the ADR Provider govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than $10,000 U.S. Dollars may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is $10,000 U.S. Dollars or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator will give the parties reasonable notice of the date, time, and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Dityer made to you prior to the initiation of arbitration, Dityer will pay you the greater of the award or $2,500.00. Each party will bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider. The arbitration proceedings, including any discovery, hearings, and rulings, will be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration will automatically be stayed pending the outcome of that proceeding.
(d) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, will be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitrator will decide the rights and liabilities, if any, of you and Dityer. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator will follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Dityer.
(e) Waiver of Jury Trial. YOU AND DITYER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Dityer are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 13(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(f) Waiver of Class or Consolidated Actions. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 13(G) OF THIS AGREEMENT, YOU AND DITYER WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN SECTION 13(G). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 13(G). If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Dityer may seek arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 19. This provision does not prevent you or Dityer from participating in a class-wide settlement of claims.
(g) Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against Dityer, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider will (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You shall cooperate in good faith with Dityer and the arbitration provider to implement such a batch approach to resolution and fees.
(h) Opt Out. Dityer’s updates to this Agreement do not provide a new opportunity to opt out of the Arbitration Agreement for customers or Users who had previously agreed to a version of Dityer’s Terms and Conditions and did not validly opt out of arbitration. Dityer will continue to honor the valid opt outs of customers or Users who validly opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. If you are a customer or User who creates a User Account for the first time on or after November 1, 2020, you may opt out of this Arbitration Agreement. If you do so, neither you nor Dityer can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Dityer in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Dityer username (if any), the email address you currently use to access your User Account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: [email protected]. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.
(i) No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT WILL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND DITYER RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 13 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH DITYER.
(j) Survival. This Arbitration Agreement will survive any termination of your relationship with Dityer.
(k) Modification. Notwithstanding any provision in the Agreement to the contrary, if Dityer makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Dityer.
14. Third-Party Interactions.
(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, Dityer will not warn you that you have left Dityer’s website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Dityer. Dityer is not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements. Dityer does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores. The availability of the Software and the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). This Agreement is between you and Dityer and not with the App Store. Dityer, not the App Store, is solely responsible for the Software and the Services, including the mobile application(s), the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Software and the Services, you must have access to a wireless network, and you shall pay all fees associated with such access. You shall pay all fees (if any) charged by the App Store in connection with the Software or the Services. You shall comply with, and your license to use the Software and the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. Each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
15. Social Media Guidelines.
Dityer maintains certain social media pages for the benefit of the Dityer community. By posting, commenting, or otherwise interacting with these pages, you are bound to and shall abide by this Agreement.
You shall indemnify and hold harmless Dityer and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you shall pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Dityer may, at its own cost, assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you must fully cooperate with Dityer in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. The provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
17. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DITYER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
DITYER DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, DITYER WILL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
18. Internet Delays.
19. Breach and Limitation of Liability.
(a) General. A key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost. The limitations on remedies and liabilities set forth in this Section 19 keep the Software and Services simple and efficient, and costs low, for all Users.
(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, DITYER’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO DITYER IN THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW, DITYER SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY DITYER’S FRAUD OR FRAUDULENT MISREPRESENTATION, WILL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
20. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Milwaukee County, Wisconsin. The parties consent to the exclusive jurisdiction of those courts, and each party waives any objections it may now or later have with respect to the venue or convenience of the forum.
If you violate this Agreement, Dityer may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists. In addition, Dityer may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Dityer may take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
22. Procedure for Making Claims of Copyright Infringement.
It is Dityer’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Dityer by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please email [email protected] with the following information: (a) an electronic or physical signature of the owner of the copyright interest or someone authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your name, address, telephone number and e-mail address; (e) a written 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; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Dityer or any third-party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. This Agreement is governed by the laws of the State of Wisconsin consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.
(d) Consumer Complaints. In accordance with California Civil Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(e) Accessing and Downloading the Application from iTunes. The following applies to any Software accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
(1) The Agreement is concluded between you and Dityer only, and not Apple, and Dityer, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Dityer and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Dityer.
(4) You and Dityer acknowledge that, as between Dityer and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(5) You and Dityer acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Dityer and Apple, Dityer, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(6) You and Dityer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(f) Notice. Where Dityer requires that you provide an e-mail address, you are responsible for providing Dityer with your most current e-mail address. In the event that the last e-mail address you provided to Dityer is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Dityer’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Dityer by emailing [email protected]. Such notice shall be deemed given on the next business day after such e-mail is actually received by Dityer.
(g) Electronic Communications. For contractual purposes, you consent to receive communications from Dityer in an electronic form. All terms and conditions, agreements, notices, disclosures, and other communications that Dityer provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You shall keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
(h) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Dityer without restriction. Any attempted transfer or assignment in violation shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
(i) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement will supersede, amend, or modify the terms of any separate agreement(s) between you and Dityer relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.
(j) Successors and Assigns. This Agreement binds and benefits the parties and their respective successors and assigns.
24. Contact Information.
Dityer welcomes your questions or comments regarding this Agreement:
P.O. Box 26292
Milwaukee, WI 53226
Email: [email protected]