Terms and Conditions of Use
Effective Date: December 11, 2019
Digs, Inc. is a Delaware corporation with a principal place of business at 2724 W Prindiville Street, Chicago, IL 60647. As used herein, the terms “Digs,” “we,” “us,” and “our” each refer to Digs, Inc., and the terms “you” and “your” refer, in both an individual and a collective sense, to the users of the digs.co internet website and the Digs mobile application (such website and application, individually and collectively, being the “Digs Technology” and the services offered through the same, the “Services”). By using the Digs Technology, you agree to the following Terms and Conditions of Use on your own behalf and on behalf of any organization that you represent.
By visiting or using the Digs Technology, you agree to these Terms and Conditions of Use. If you do not agree to any of these Terms of Conditions of Use, you may not access or use the Digs Technology.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY, AS THEY CREATE A BINDING CONTRACT BETWEEN YOU AND DIGS. FURTHER, THESE TERMS AND CONDITIONS OF USE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND DIGS ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION, INSTEAD OF GOING TO COURT, AND WHICH LIMITS THE AVAILABILITY OF CLASS ACTION CLAIMS.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT DIGS IS NEITHER A BANK NOR A FINANCIAL PLANNER, BROKER, OR ASSET MANAGER. DIGS TECHNOLOGY IS MERELY A TOOL TO ASSIST YOU IN YOUR HOME-BUYING GOALS AND DECISION-MAKING. YOU ARE SOLELY RESPONSIBLE FOR YOUR SAVINGS AND SPENDING DECISIONS.
Consent to Use Electronic Signatures and Communications
To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all Services provided to you under these Terms and Conditions of Use, and in connection with your relationship with us (collectively, the “Communications”) that we may otherwise be required to send or provide to you in paper form. By accepting and agreeing to these Terms and Conditions of Use electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; and (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.
Your consent to receive Communications will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by contacting us at [email protected]. If you withdraw your consent to receive Communications electronically, we will close your Digs account and return the balance in your Digs account, less any accumulated Restricted Funds (as that term is hereinafter defined), and you will no longer be able to use your Digs account or the Digs Technology. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that withdrawal of your consent to receive Communications electronically will not apply to Communications provided by us to you before the withdrawal of such consent because effective.
You must keep your contact information current with us. In order to ensure that we are able to provide Communications to you electronically, you must notify us of any change in your email address by updating your profile through the Digs Technology.
You should print and save, or electronically store, a copy of all Communications that we send to you electronically.
In order to receive, access, and view electronic Communications that we make available, you must have:
- An internet browser that is currently supported by its publisher and that supports (and that is enabled to allow) the use of JavaScript and cookies;
- A connection to the Internet;
- An e-mail account and, if appropriate, e-mail software for accessing such e-mail account;
- Software, currently supported by its publisher, that accurately displays PDF files;
- A computer or device with an operating system capable of supporting all of the above; and
- If you wish to print and retain any electronic Communications that we make available, a printer.
If our hardware or software requirements change, and that change would create a material risk that you would not be able to receive, access or view electronic Communications, we will give you notice of the revised hardware or software requirements and will allow you to withdraw your consent to use electronic records and signatures without imposing any fees. The withdrawal of your consent to use electronic records and signatures may result in the termination of your access to the Digs Technology and your ability to use Services. Continued use of the Digs Technology after receiving notice of the change will constitute a reaffirmation of your consent to use electronic records and signatures.
You may obtain a paper copy of any Communications that we make available electronically by printing it yourself or by requesting that we mail you a paper copy. You may request a paper copy by regular mail at:
Digs, Inc.
2724 W Prindiville Street
Chicago, Illinois 60647
We may charge you a reasonable fee for any paper copy of Communications that have been provided to you electronically, unless charging a fee would be prohibited by applicable law.
We reserve the right, in our sole discretion, to communicate with you in paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify you of any such termination or change by updating these Terms and Conditions of Use, or by delivering notice of such termination or change electronically.
Requirements for Use of the Digs Technology
In order to use the Digs Technology, you must (a) accept and agree to these Terms and Conditions of Use, as well as the Digs Privacy Policy; (b) register with us through the Digs Technology; (c) be a United States citizen or a legal United States resident; (d) be of at least the age of majority in the jurisdiction in which you reside; (e) have a deposit account with a United States financial institution; provide all information requested by us, such as your name, email address, mobile device number, and such other information as we may request from time to time.
By using the Digs Technology, you represent and warrant that all information that you provide to us is truthful, accurate, current, and complete, and that you intend to use the Digs Technology only for lawful purposes. You agree not to misrepresent your identity to us, and to promptly notify us of changes to your user information.
Availability of the Digs Technology
Digs maintains the Digs Technology subject to these Terms and Conditions of Use.
We may alter, suspend, or discontinue the Digs Technology, in whole or in part, at any time, and for any reason, without notice. We may restrict, in our discretion, access to portions of the Digs Technology for some or all users. The Digs Technology may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
We reserve the right to modify or change the Digs Technology, with or without notice, and we are not obligated to support or update the Digs Technology. You acknowledge and agree that we shall not be liable to you or any third party in the event that we exercise our right to modify, change, or discontinue the Digs Technology.
Wait List
Prior to the launch of the Digs Technology, we have provided an opportunity for visitors to our website to enter their email to join a wait list of visitors who wish to receive further information as the program gets under way (the “Wait List”). If you join our Wait List, you acknowledge and agree that joining the Wait List does not and will not make you our customer (or a customer of any of our affiliates), obligate us to provide you any services, or create any other legal or regulatory duty on our part, other than the duty to exercise reasonable care to protect your email in accordance with the Digs Privacy Policy.
Registration
Our Services are reserved for registered users. In order to become a registered user, you must complete a registration form and select a username and password (such username and password, together, being the “Login Credentials”).
You are responsible for protecting your Login Credentials from unauthorized use. You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials.
The information that you provide during the registration process, including your name and financial account information, constitutes your “User Profile”.
You agree that you will maintain and promptly update your User Profile to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that information that you provide is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate your account and prohibit your use of the Digs Technology.
Consent to Receive Marketing Communications
As a user of the Digs Technology, you consent to receive emails and text messages from us regarding the Services that we provide, and you acknowledge that you are responsible for any data and messaging rates that may apply. We may, from time to time, send you email messages with information about upcoming events, or information about our service offerings from us and our partners. You may opt-out from receiving such correspondence by emailing [email protected], using the unsubscribe feature that may be provided in such correspondence, or by updating your notification settings through the Digs Technology.
Fees & Payments
There is a $3 per month management fee charged to all users who have connected their bank account. This “membership fee” unlocks all the features of the app. Some user accounts can be sponsored by a 3rd party (typically a lender, agent, or housing counselor.) The “membership fee” for a sponsored account is waived, i.e. the account is free. In exchange for the free account, the user is agreeing to share some of their personal information with the sponsor. Please refer to our Privacy Policy for more informaiton.
In some cases, Digs may offer rewards in the form of “homebuyer credits” as an added incentive to for Digs users to save for a home. Homebuyer credits may not be transferred or purchased. Homebuyer credits have no cash value, and are not redeemable for cash. Homebuyer credits may only be redeemed when buying a home through the lender that awarded them. Homebuyer credits are intended solely for use with the Digs Technology. You have no proprietary interest in homebuyer credits.
Homebuyer credits may be redeemed towards a home purchase through the Digs Technology. We reserve the right to restrict, in our sole discretion, the redemption of homebuyer credits for any reason, including, without limitation, on the basis of your chosen mortgage lender. Homebuyer credits cannot be retroactively applied to a previous home purchase. Homebuyer credits will expire exactly five years after the date of issuance. Upon expiration, homebuyer credits will no longer be available.
User Content
You are solely responsible for any data, text, files, information, usernames, applications, links and other content or materials that you submit, use, display or share on or via the Digs Technology (collectively, “User Content”). You must not submit, upload, post, display or share any User Content that you do not have the right to copy, use or share. If you choose to provide User Content to us, you agree that you will provide accurate, complete, and current information.
Digs does not claim ownership of any User Content. By submitting User Content, however, you grant Digs a worldwide license and right to (i) copy, store and use that User Content for the purpose of providing you with our Services; (ii) modify the User Content to remove identifiers of you and any other individuals or companies, aggregate such User Content and copy, store, and use the aggregated User Content for any purpose; (iii) use User Content in perpetuity for marketing purposes in any manner and in any media format; (iv) disclose User Content when required by law to do so.
User Content Authorization. You expressly authorize Digs to access information from your bank accounts (“Your Bank Accounts”) you maintain online with third-party financial institutions with which you have customer relationships, maintain account(s) or engage in financial transactions (“Account Information”), which is included in your User Content, on your behalf as your agent. When you use the “Add Accounts” feature of the Service, you will be directly connected to the website for the third party you have identified. Digs’s third party processors will submit information including usernames and passwords that you provide to log you into such third party website(s). You hereby authorize and permit Digs to use and store information submitted by you to the Digs App (such as account passwords and usernames) to accomplish the foregoing and to configure the Services so that they are compatible with the third party sites for which you submit your information. For purposes of these Terms and Conditions and solely to provide the Account Information to you as part of the Digs App and Services, you grant Digs a limited power of attorney, and appoint Digs as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN DIGS IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, DIGS IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Digs App. Digs is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate Account Information.
We may, at any time, require you to provide additional information in order to verify your identity. This information may include, but is not limited to, your address, date of birth, Social Security Number, and a copy of your driver’s license. Such information may be required, for instance, in order for us (or our partner banks) to satisfy legal obligations. More information on how we may use your personal information can be found in the Digs Privacy Policy.
User Conduct
You may not use the Digs Technology for illegal or unlawful or malicious activities, or for activities that we deem improper, for any reason whatsoever, in our sole judgment, including, without limitation, the laundering of proceeds of any unlawful activity, the financing of terrorism, the commission of fraud or market manipulation, and harassment or disparagement of any user of the Digs Technology. Your use of the Digs Technology and Services is conditioned in part on your compliance with these Terms and Conditions of Use, and your failure to comply herewith may result in termination of your access to and use of the Digs Technology and Services, as well as liability for damages caused by your noncompliance.
In addition to the foregoing, while using the Digs Technology, you may not, except as may be expressly set forth herein, (a) access or use (or attempt to access or use) another user’s account without permission, or solicit another user’s login information; (b) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (c) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Digs Technology; (d) “frame” or “mirror” any portion of the Digs Technology; (e) use any robot, spider, site search or retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Digs Technology; (f) harvest or collect information about or from other users of the Digs Technology; (g) probe, scan or test the vulnerability of the Digs Technology, breach the security or authentication measures on the Digs Technology, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Digs Technology, such as a denial-of-service attack; (h) send or otherwise post unauthorized commercial communications (such as spam); (i) access or use any portion of the Digs Technology if you are a direct or indirect competitor of Digs, or provide, disclose or transmit any portion of the Digs Technology to any direct or indirect competitor of Digs; or (j) facilitate or encourage any violations of this Section.
Links to Other Sites
The Digs Technology may contain links to other independent third-party websites (the “Linked Sites”). Linked Sites are not under our control, and we are not responsible for and do not endorse the content of Linked Sites, including any products, information or materials contained on Linked Sites. You will need to make your own independent judgment regarding your interaction with Linked Sites. Some of the Linked Sites may constitute merchant sites, and sales through such merchant sites may generate a commission payable to us. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Linked sites, other third-party websites, or websites linking to the Digs Technology. You should review the applicable terms and policies, including those pertaining to privacy and data gathering practices, of all websites that you visit, and you should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Mortgage Loan Request Services
Digs offers mortgage loan request Services via an online form (the “Short Form”). The Short Form does not ask for your Social Security Number. We will use the completed Short Form to attempt to match you with mortgage lenders, brokers or partners (hereinafter, collectively, the “Lenders”). Because these matches are generated from a subset of information from the Short Form, the Lenders will not be able to respond with customized conditional offers until they speak with you to get additional information.
By submitting the Short Form, you authorize Digs to provide your information to up to a Lender. By submitting the Short Form, you certify that all of the information you have provided on the Short Form is true, accurate and complete, to the best of your knowledge. The Lenders with which you may be matched may later require a Social Security Number to proceed with your formal loan application. After being matched with a Lender, you may receive a “hard inquiry” on your credit report.
Lenders may require additional information prior to providing an actual mortgage loan offer. In these situations, the Lenders will contact you directly to discuss your loan request and to discuss the specific terms of any such offer. If your submission of a Short Form eventually results in the consummation of a mortgage loan transaction with a Lender to which we have introduced you, you agree to provide information about such transaction to Digs, including, but not limited to, a HUD-1 settlement statement, and you authorize the Lenders to provide that information to Digs on your behalf. Certain state regulations require that Digs know the disposition of the mortgage loan inquiry, resulting loan product offered, rate, APR, loan amount, and other pertinent loan file information in order to adhere to licensing record retention requirements. You hereby provide express written consent for Digs and the selected Lender to share loan file information for the purposes described herein, as well as for litigation, regulatory request(s), law enforcement requests, internal analytics, and marketing purposes.
Suspension and Termination
We reserve the right to do any of the following, at any time, without providing notice to you: (1) modify, suspend, or terminate operation of or access to the Digs Technology, or any portion thereof, for any reason; (2) modify or change the Digs Technology, and any applicable policies related thereto; and (3) interrupt the operation of the Digs Technology, or any portion thereof, as necessary, to perform any maintenance or modifications, in our sole discretion.
If we suspect an unauthorized transaction related to any Digs account or that the account was created based on fraudulent information or for a fraudulent or illegal purpose, we may freeze the account, pending further investigation, and will notify you of the end result of that investigation.
You may terminate your Digs Account by notifying Digs via email at [email protected] of your intention to terminate. You may also terminate your Digs account within the Digs Technology.
Digs may terminate your Digs account at any time upon notice to the email address provided by you as part of your User Profile. In the event of termination by you or by us, Digs will delete your User Profile and deactivate your login within forty-eight (48) hours. Any funds held in your Digs accounts at the time of termination will be credited to your Funding Source. If Digs cannot connect to your Funding Source, you will need to add a new Bank Account in order to receive the funds. Any credits that attempt to post to a Digs account following closure thereof (whether by you or by Digs) will be returned as “Account Closed.”
If you do not make use of our Services for a designated amount of time, applicable laws may require Digs to report these funds in your account as unclaimed property. Should this occur, we may try to locate you using the information that you provided to us. If our attempts fail and we cannot locate you, we may be required, depending on state law, to comply with state unclaimed property laws regarding the disposition of the funds. The designated amount of time to report the funds as unclaimed varies, based on the state.
Deposit Network Service Acknowledgement
By utilizing the services, your beneficial funds may be held at nbkc bank in an omnibus custodial account (“Omnibus Account”). In its ordinary course of business, nbkc bank may utilize a “Deposit Network Service” to deposit funds from the Omnibus Account into other FDIC insured banks (“Network Banks”). In the event funds from the Omnibus Account are deposited into Network Banks via the Deposit Network Service, nbkc bank will deliver funds to a custody bank (“Custodian Bank”) participating in the Deposit Network Service. In the event any of your beneficial funds from the Omnibus Account arrive at a Network Bank through a Deposit Network Service, they may be eligible for FDIC insurance, however, in the event you or nbkc bank have funds, either directly or indirectly, at any of the Network Banks, such deposit insurance coverage may be adversely affected, and the principal and any accrued interest may not benefit from FDIC insurance, even if the total amount deposited in that Network Bank through the Deposit Network Service is less than the Standard Maximum Deposit Insurance Amount, as then provided by the FDIC. In addition, in the event of a failure of a Network Bank, you may be requested to provide certain personal information for the purposes of processing a claim to seek the associated FDIC insurance. In the event you do not provide such information on a timely basis, it is possible the beneficial funds will not benefit from FDIC insurance. By utilizing the services, you authorize nbkc bank to utilize a Deposit Network Service as described and acknowledge that any associated beneficial principal balance and any accrued interest may or may not benefit from FDIC insurance.
Certain limits on transfers to and withdrawals from your Digs account may be imposed pursuant to the (1) policies of NBKC Bank or any other depository institution in which we may, from time to time, place your funds, and (2) our fraud and security management system.
DIGS DOES NOT HOLD OR HAVE ACCESS TO OR ANY CONTROL OVER THE ACCOUNT ESTABLISHED FOR THE PURPOSE OF HOLDING OR MAINTAINING YOUR FUNDS CONSTRUCTIVELY OR OTHERWISE; RATHER, DIGS PARTNER BANKS WILL AT ALL TIMES HOLD AND HAVE ACCESS TO AND CONTROL OVER ALL ACCOUNTS ESTABLISHED FOR SERVICES.
Third-Party Agents
Digs employs third parties in order to provide some of its Services to you. Third-party services are used to, among other things, verify your identity, streamline on-boarding, issue cards, process transactions, retrieve financial data, and aggregate data. These third parties will have access to only that information provided by you to Digs that is needed by them to execute the specific processes for which we have engaged them. Without limiting the generality of the foregoing, to the extent that Digs is permitted to undertake any action under these Terms and Conditions of Use, you agree that we may permit our third-party agents to undertake such action on our behalf.
Alerts
Digs may, from time to time, provide automatic alerts when certain changes are made to your User Profile. Such alerts will be sent to the email address or mobile number you have provided. If your email address or your mobile number changes, you are responsible for informing us of that change. Alerts may include your Digs username and information about your Bank Accounts.
You understand and agree that any alerts provided to you through the Digs Technology may be delayed or prevented by a variety of factors. We neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that Digs shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert, for any errors in the content of an alert, or for any actions taken or not taken by you or any third-party in reliance on an alert.
Digs Intellectual Property Rights
You acknowledge and agree that content and materials available through the Digs Technology may be protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by us, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any such content and materials. Notwithstanding the above, you may print or download a copy of any of such content and materials for your personal, non-commercial use, provided you keep intact all copyright and other proprietary notices. Systematic retrieval or data or other content from the Digs Technology to create or compile, directly or indirectly, a collection, compilation, database, or directory, without or express, prior, and written permission, is prohibited.
Disclaimer of Warranties
THE DIGS TECHNOLOGY AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE DIGS TECHNOLOGY ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. DIGS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE DIGS TECHNOLOGY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE DIGS TECHNOLOGY AND RECEIPT OF SERVICES IS AT YOUR SOLE RISK.
DIGS MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE DIGS TECHNOLOGY, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. DIGS MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE DIGS TECHNOLOGY IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
Limitations of Liability
DIGS SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE DIGS TECHNOLOGY, YOUR USE OF THE DIGS TECHNOLOGY, OR THESE TERMS AND CONDITIONS OF USE, EVEN IF DIGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS OF USE, DIGS’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL, AT ALL TIMES, BE LIMITED TO FIVE HUNDRED UNITED STATES DOLLARS ($500.00), EXCEPT TO THE EXTENT SUCH LIABILITY ARISES FROM A CAUSE FOR WHICH APPLICABLE LAW DOES NOT PERMIT SUCH A LIMITATION ON LIABILITY.
DIGS RESERVES THE RIGHT TO CANCEL OR RESTRICT YOUR ACCESS TO THE DIGS TECHNOLOGY WITHOUT NOTICE TO YOU. DIGS IS NOT RESPONSIBLE FOR DAMAGES SUFFERED BY YOU OR ANY INCONVENIENCE CAUSED DIRECTLY OR INDIRECTLY BY OUR TERMINATION OF YOUR ACCESS TO THE DIGS PLATFORM OR SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, DIGS WILL NOT ACCEPT OR HAVE ANY LIABILITY IN THE EVENT OF UNAUTHORIZED USE OF YOUR DIGS ACCOUNT, THE CONDUCT OF FRAUDULENT OR ILLEGAL ACTIVITIES VIA YOUR DIGS ACCOUNT, ANY INABILITY TO TRANSACT OR PROBLEMS RELATED TO POOR INTERNET ACCESS, MOBILE DEVICE OR COMPUTER FAILURE OR OTHER COMMUNICATION ISSUES, OR ANY ISSUES RELATED TO THE TIMELY EXECUTION OF A PAYMENT, TRANSFER, DEPOSIT OR SIMILAR.
Indemnification
You agree to indemnify, defend, and otherwise hold harmless Digs, Inc., each of its affiliates and each of their respective officers, directors, employees, agents, partners and representatives from any and all losses and damages (whether direct, indirect, incidental, special, consequential, punitive or exemplary) and costs and expenses (including reasonable attorneys’ fees and expenses) arising or resulting from (i) your use or misuse of the Digs Technology, (ii) unauthorized access to or alteration of your communications with or through the Digs Technology, (iii) any mismatched, incorrect, or incomplete identifying information regarding your Funding Source or in payment instructions for any ACH transfer, or (iv) any breach of these Terms and Conditions of Use. Any business transactions that may arise between Users from their use of the Digs Technology are the sole responsibility of the Users involved.
Governing Law and Forum for Disputes
These Terms and Conditions of Use, and your relationship with Digs, shall be governed by the laws of the State of Delaware, without regard to conflicts of law principles. Any dispute with Digs, or its officers, directors, employees, agents or affiliates, arising under or in relation to these Terms and Conditions of Use shall be resolved exclusively through arbitration as set forth in these Terms and Conditions of Use, except with respect to imminent harm requiring temporary or preliminary injunctive relief, in which case Digs may seek such relief in any court of competent jurisdiction.
Agreement to Arbitrate
You agree that all disputes between you and Digs (whether or not such dispute involves a third party), arising out of or relating to these Terms and Conditions of Use, the Digs Technology, or the Digs Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Delaware, U.S.A., under the then-effective Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and you and Digs hereby expressly waive trial by jury. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
You and Digs shall appoint as sole arbitrator a person mutually agreed by you and Digs or, if you and Digs cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party.
The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator).
All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement.
Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms and Conditions of Use or to award punitive damages, including, but not limited to, pursuant to federal or state statutes permitting multiple or punitive awards.
Any claims brought by you or Digs must be brought in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor Digs will participate in a class action or class-wide arbitration for any claims covered by these Terms and Conditions of Use. You hereby waive any and all rights to bring any claims related to these Terms and Conditions of Use and the Digs Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.
Notwithstanding any provision in these Terms and Conditions of Use to the contrary, you and Digs agree that if we make any change to the arbitration procedures set forth herein (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Digs prior to the effective date of such change. Moreover, if we seek to remove the arbitration procedures from these Terms and Conditions of Use, such termination shall not be effective until thirty (30) days after the effective date of the version of these Terms and Conditions of Use not containing the arbitration procedures, and shall not be effective as to any claim that was filed in a legal proceeding against Digs prior to the effective date of such version.
The provisions of these Terms and Conditions of Use related to arbitration will survive the termination of your relationship with Digs.
Severability
If any portion of these Terms and Conditions of Use is deemed invalid, unlawful, void or for any reason unenforceable by any arbitrator or court of competent jurisdiction, these Terms and Conditions of Use, as a whole, shall not be deemed unlawful, void or unenforceable; rather, only that portion of these Terms and Conditions of Use that is unlawful, void or unenforceable shall be stricken from these Terms and Conditions of Use, and that portion deemed invalid, unlawful, void, or unenforceable shall not affect the validity and enforceability of any remaining provisions.
Waiver, Survival, and Other Agreements
You agree that our failure to enforce any legal right or remedy provided by these Terms and Conditions of Use do not constitute a formal waiver of our rights or remedies and that those rights or remedies will still be available.
Any covenant, agreement, representation or warranty made in these Terms and Conditions of Use expressly indicated as surviving the termination of our relationship with you shall survive the termination of these Terms and Conditions of Use.
These Terms and Conditions of Use represent the entire understanding and agreement between you and Digs regarding the Digs Technology, and supersede all other previous agreements, including any prior version of these Terms and Conditions of Use.
Contact
For questions related to these Terms and Conditions, or for questions related to the Digs Technology and Services please contact us at: [email protected].
