Posted: May 7, 2018
Effective Date: May 25, 2018
You can see our previous terms here.
This Agreement is applicable to you if you represent a business entity or other organization agreeing to these terms ("Customer").
This Dimagi Business Agreement (the "Agreement") is between Dimagi, Inc. and its affiliate entities, Dimagi Software Innovations Pvt. Ltd., Dimagi South Africa (PTY) LTD, Dimagi West Africa, SAS, Dimagi Tanzania Limited ("Dimagi", "we", "us", or "our") and the business entity or other organization agreeing to these terms ("Customer"). This Agreement governs Customer's use and access to Dimagi's services, client software and websites ("Services").
- If Customer is using Dimagi’s Services on behalf of a third party, Customer hereby agrees to these terms on such third party’s behalf, and Customer hereby confirms that Customer has authority to bind such third party by such agreement.
IF CUSTOMER DOES NOT AGREE TO BE BOUND TO THESE TERMS AND THE OTHER POLICIES, AGREEMENTS AND DOCUMENTS REFERENCED HEREIN, CUSTOMER SHOULD NOT USE USE OUR SERVICES.
- Provision: This Agreement governs access to, and use of, the Services and Software. Customer and End Users may access and use the Services in accordance with this Agreement.
Data Processing and Transfer:
- EU-U.S. and Swiss-U.S. Privacy Shield Programs: Dimagi is certified and complies with the EU-U.S. and Swiss-U.S. Privacy Shield Programs. If the Privacy Shield Programs are invalidated, Dimagi will use commercially reasonable efforts to comply with the resulting alternate or successor data transfer mechanisms.
- Modifications: Dimagi may update the Services from time to time. If Dimagi changes the Services in a manner that materially reduces their functionality, Dimagi will notify Customer at the email address associated with the account, and Customer may terminate the Subscription Term then in effect by providing notice to Dimagi within thirty days of the change. This termination right will not apply to updates made to any Beta Services.
- Generally: The Services allow Customer and End Users to download Software that may update automatically. If any component of the Software is offered under an open source license, Dimagi will make the license available to Customer and, to the extent the provisions of that license grant Customer additional rights, those provisions will expressly override some terms of this Agreement with respect to that component of the Software.
- License: Dimagi hereby grants to Customer during the Term a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Software solely in connection with the Services and in accordance with this Agreement. To the extent any component of the Software may be offered under an open source license, we'll make that license available to Customer.
- The Exchange: The Exchange is Dimagi’s digital distribution platform for users to publish and download mobile or other applications created by Dimagi or third parties. Through the use of our Services, Customer may access and download applications that have been published on the Exchange. Such applications are subject to separate license and end user agreements, the terms of which are separate and distinct from this Agreement. Customer should review any applicable terms or agreements prior to use of any such applications. Customer acknowledges and agrees that Dimagi is not responsible for, and assumes no liability resulting from, Customer’s use (or misuse) of any third party applications accessed via the Exchange or which otherwise are not directly provided by Dimagi as part of the Services.
- Customer Administration of the Services: Customer may specify End Users as Administrators. Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts. Dimagi’s responsibilities do not extend to the internal management or administration of the Services for Customer.
- Unauthorized Use or Access: Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 16. Customer will ensure that it does not allow any person under 16 to use the Services. Customer will promptly notify Dimagi of any unauthorized use of or access to the Services.
- Restrictions: Customer will not: (a) use the Services or Software for activities where use or failure of the Services or Software could lead to physical damage, death, or personal injury; (b) reverse engineer, decode or decompile the Services or Software, or attempt or assist anyone else to do so; or (c) use the Services or Software, including the export or re-export of Customer Data, in violation of Export Control Laws.
Compliance: Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer is responsible for use of the Services by its End Users. Customer will comply with laws and regulations applicable to Customer's use of the Services, if any. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Dimagi to provide the Services. Customer will not store, transmit or otherwise process any information via the Services that falls within the definition of "Protected Health Information" under the HIPAA Privacy Rule (45 C.F.R. Section 164.051), unless Customer and Dimagi separately enter into a HIPAA Business Associate Agreement applicable to a specific Subscription Plan as outlined on Dimagi’s Pricing Page.
Customer will not store, transmit or otherwise process personal data of EU subjects as defined by the General Data Protection Regulation (GDPR) unless Customer and Dimagi separately enter into a Data Processing Addendum (DPA).
- Third-Party Apps and Integrations: If Customer uses any third-party service or applications, such as a service that uses Dimagi’s APIs, with the Services: (a) Dimagi will not be responsible for any act or omission of the third-party, including the third-party's access to or use of Customer Data; and (b) Dimagi does not warrant or support any service provided by such third-party.
- Customer Responsibility:
- Dimagi’s Responsibility:
- Subscription Plan: Dimagi Services come in several Subscription plans (“Plans”). The cost and details of these Plans can be found on Dimagi’s Pricing Page.
- Subscription Term: Customer must access the Services on a periodic subscription basis (“Subscription Term”).
- Recurring Billing: By starting a Subscription Term, Customer authorizes Dimagi to charge a periodic plan fee at the then-current rate, and any other charges Customer incurs in connection with its use of the Services.
- Price Changes: Dimagi reserves the right to adjust pricing for Plans or any components thereof in any manner and at any time as Dimagi may determine in its sole discretion. Except as otherwise expressly provided for in this agreement, any price changes to Customer's Plans will take effect following an e-mail or in-product notice to Customer.
- Billing Cycle: The periodic plan fee for Dimagi’s Services will be billed each calendar month unless and until Customer cancels the Plan. Dimagi reserves the right to change the timing of billing, in particular, if Customer’s payment has not successfully settled, or to enforce a minimum subscription length.
- Cancellation: Customer may cancel its Plan by downgrading to Dimagi’s free "Community Subscription Plan".
- Partial Billing: Dimagi may provide billing over partial periods of the Subscription Term at its discretion. At any time, and for any reason, Dimagi may provide a refund, discount, or other consideration to some or all of our customers in our sole discretion ("credits").
- Taxes and other Payment Levies and Fees: Taxes and foreign currency exchange fees levied by any financial institution in connection with payments for Services are in addition to any subscription fees payable to Dimagi pursuant to a Plan. Customer agrees to pay all taxes and foreign exchange fees associated with Customer’s subscription for any Services hereunder or otherwise provide Dimagi with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Security Emergencies: Notwithstanding anything in this Agreement, if there is a Security Emergency then Dimagi may automatically suspend use of the Services by Customer. Dimagi will make commercially reasonable efforts to narrowly tailor the suspension as needed to minimize the disruption to the Services associated with such Security Emergency.
Customer is free to stop using our Services at any time. We reserve the right to suspend or terminate Customer’s access to he Services with notice to Customer if: (a) Customer violates these Terms or any other agreement between Customer and Dimagi (including the Acceptable Use Policy), as determined by Dimagi in its sole discretion, (b) Customer uses the Services in a manner that could cause risk of harm or loss to us or other Dimagi customers or users.
If Customer is engaged in any activities described above, we may be able to provide Customer with advance notice via the email address associated with Customer’s account to remedy the activity that prompted us to contact Customer and give Customer the opportunity to export Customer’s Data from our Services, but we cannot guarantee that we will provide such advance notice, as we may need to terminate Customer’s access to the Services immediately under certain circumstances (including those described below). If we are able to provide Customer with such advance notice and after delivery of such notice Customer fails to cease participating in such activities, we may terminate or suspend Customer’s access to the Services indefinitely. For example, we won't provide Customer with advance notice prior to termination or suspension of Customer’s access to the Services where: (a) Customer is in material breach of these Terms or any other agreement between Customer and Dimagi (except as required by any such other agreement), (b) doing so could result in legal liability or compromise our ability to provide the Services to other users, or (c) we a're prohibited from doing so by law.
Upon termination for any reason, Customer agrees to destroy all copies of the Software in Customer’s possession. Upon termination for any reason, we will use commercially reasonable efforts to make Customer’s Data available to Customer for export for at least a two-week period following such termination. Upon Customer’s request, we will delete all data collected through Customer’s application from all servers within 30 days of receiving notice.
Intellectual Property Rights
- Feedback; Suggestions: Dimagi may use, modify, and incorporate into its products and services, any feedback, comments, or suggestions on the Services that Customer or End Users may send Dimagi or post in Dimagi’s forums without restriction, and without any obligation to Customer or any of its End Users.
- Customer will indemnify, defend, and hold harmless Dimagi from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Dimagi or any of its Affiliates regarding: (a) Customer Data; (b) Customer's or End Users' use of the Services.
- Beta Services: Despite anything to the contrary in this Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported by Dimagi and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected; and (e) DIMAGI WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF BETA SERVICES – ANY SUCH USE WILL BE AT CUSTOMER’S OWN RISK.
- No Medical Advice: Neither Dimagi nor any of its Affiliates or Sub-processors is responsible for the provision of medical advice or other health care services to Customer or its End Users, and Customer understands that Dimagi’s employees and Affiliates are not licensed medical professionals. Customer acknowledges and agrees that the information generated and/or made accessible via the Services is for informational purposes only. The Services should not be used as a substitute for medical advice or treatment provided by a licensed professional. Dimagi is not responsible for, and assumes no liability resulting from, any use of the Services contrary to this provision.
Limitation of Liability
- Limitation on Indirect Liability: TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DIMAGI OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR DIMAGI AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation on Amount of Liability: TO THE FULLEST EXTENT PERMITTED BY LAW, DIMAGI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO DIMAGI HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- For Customers Based in the United States of America: Any dispute arising in connection with these Terms which cannot be amicably settled between Dimagi and Customer through Alternative Dispute Resolution (ADR) procedures, if any, shall be arbitrated under the Rules of Commercial Arbitration of the American Arbitration Association by binding arbitration located in The Commonwealth of Massachusetts. Any resulting arbitral decision shall be final and binding on both parties. In resolving a dispute hereunder, the parties agree that this Agreement will be interpreted in accordance with the substantive laws of The Commonwealth of Massachusetts.
- For Customers Based Outside of the United States of America: Any dispute arising in connection with these Terms which cannot be amicably settled between Dimagi and Customer through Alternative Dispute Resolution (ADR) procedures, if any, shall be arbitrated in accordance with the UNCITRAL Arbitration Rules. The arbitration shall take place in New York. Any resulting arbitral decision shall be final and binding on both parties. In resolving a dispute hereunder, the parties agree that this Agreement will be interpreted in accordance with the substantive laws of New York.
- NO CLASS ACTIONS: Customer may only resolve disputes with Dimagi on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
- Terms Modification. Dimagi may revise this Agreement from time to time and the most current version will always be posted on Dimagi’s website. If a revision, in Dimagi's sole discretion, is material, Dimagi will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer should terminate the Services.
- Governing Law: THE AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
- Notice: Notices must be sent via email and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Dimagi must be sent to [email protected]
- Waiver: A waiver of any default is not a waiver of any subsequent default.
- Assignment: Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Dimagi. Dimagi may not assign this Agreement without providing notice to Customer, except Dimagi may assign this Agreement or any of its rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing prior notice to Customer. Any other attempt to transfer or assign is void.
- No Agency. Dimagi and Customer are not legal partners or agents, but are independent contractors.
- Force Majeure: Except for payment obligations, neither Dimagi nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
- No Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.
- "Acceptable Use Policy" means the Dimagi’s acceptable use policy set forth here.
- "Account Data" means the account and contact information submitted to the Services by Customer or End Users.
- "Administrator" means the Customer-designated End User who administers the Services to End Users on Customer's behalf. Administrators may be able to access, disclose, restrict or remove Customer Data in or from End User Accounts. Administrators may also have the ability to monitor, restrict, or terminate access to End User Accounts.
- "Admin Account" means the administrative account provided to Customer by Dimagi for the purpose of administering the Services.
- "Admin Console" means the online tool provided by Dimagi to Customer for use in administering the Services.
- "Affiliate" means any entity that controls, is controlled by or is under common control with a Party, where "control" means the ability to direct the management and policies of an entity.
- "Beta Services" means services or features provided by Dimagi from time to time that are identified as “alpha,” “beta,” “preview,” “early access,” or “evaluation,” or words or phrases with similar meanings.
- "Customer Data" means Stored Data, Account Data, and messages, comments, structured data, photos, and other content submitted to or otherwise generated via the Services by Customer or End Users.
- "Effective Date" means the date this Agreement is accepted by Customer.
- "End Users" means users of Customer's Services account. End Users may include Customer's and its Affiliate's employees and consultants.
- "End User Account" means a Dimagi hosted account established by Customer through the Services for an End User.
- "EU-US Privacy Shield Program" means the EU-U.S. Privacy Shield Program framework and its principles as set forth by the US Department of Commerce and the European Commission regarding the collection, use, and retention of personal data from EU member states.
- "Export Control Laws" means all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State.
- "Fees" means the amounts invoiced to Customer by Dimagi for Services.
- "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
- “Process” means store, retrieve, transmit, analyze, and any other action reasonably necessary or desirable to be taken in connection with the provision of the Services to Customer.
- "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services; or (ii) unauthorized third-party access to the Services.
- "Services" means the services provided by Dimagi to Customer.
- "Software" means the client software provided by Dimagi to Customer as part of the Services.
- "Stored Data" means the files uploaded to or otherwise maintained via the Services using the Software by Customer or End Users.
- "Sub-processor" means an entity who agrees to Process Stored Data on Dimagi's behalf, or on behalf of another Dimagi Sub-processor, in order to provide the Services.
- "Taxes" means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), duty or other charge of any kind or nature excluding tax that is based on Dimagi's net income, associated with the Services or Software, including any related penalties or interest.
- “Terms of Service” means the Dimagi Terms of Service, available here.
- "Third-Party Request" means a request from a third-party for records relating to an End User's use of the Services including information in or from an End User Account, or from Customer's Services account. Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User's authorized representative, permitting a disclosure.
- "Withholding Taxes" mean any Taxes Customer is required by law to withhold, which are then imposed on Dimagi.