Last updated: 1 August 2019
Effective date: 18 August 2011

 

BRIGHTSPOT TECHNOLOGY SOLUTIONS, PVT LTD., TERMS OF USE

PLEASE REVIEW THIS TERMS OF USE WITH TWO ADDENDUMS (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND BRIGHTSPOT TECHNOLOGY SOLUTIONS PRIVATE LIMITED, A COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, THAT OPERATES THE WEBSITE WITH URL HTTP://WWW.DIRECTDIALOGS.COM ("directdialogs" OR "WE" OR “OUR”) WITH RESPECT TO YOUR USE OF OUR ON DEMAND SOFTWARE AND SERVICES AND APPLICATIONS (THE "SERVICES").

 

By using the Services, you agree to be bound by each of the terms and conditions set forth herein including Anti-spam and Prohibited Content and Commerce Addendums. Violation of any part of the Terms of Use will result in termination of your account.

 

SERVICE TERMS

1. Our Service assists You to offer a loyalty/reward program to your customers. For this purpose, You can gather contact and demographic information of your customers (“Member” or “End Customer”). who consent to receive future electronic mail and mobile text messages. directdialogs does not offer the loyalty program nor does it send electronic mail and mobile text messages to customers. directdialogs simply provides a web-based technology platform through which You can setup and manage loyalty programs; create and send electronic messages and mobile text messages. You agree to use directdialogs services only for business purpose.

2. You agree to only send permission-based emails and mobile text. "Permission-based" means that all Members must have opted-in to receive communications from that customer. Please see addendum 1 to this Agreement titled “Anti-Spam Addendum” for details.

3. directdialogs claims no intellectual property rights over the Content you upload or provide to the Service. However, by using the Service to send Content, you agree that others may view and share your Content.

4. From time to time, directdialogs may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on www.directdialogs.com (the "Site"), and Customer’s use of the Services thereafter shall be subject thereto. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by directdialogs with respect to future functionality or features.

 

ACCOUNT TERMS

1. You must be at least 15 years of age to use this Service.You must furnish true, complete and updated contact information including your full legal name, a valid email address, and any other required information to complete the sign-up process.Your account may be terminated without warning, if you have furnished false, incomplete or old contact information.

2. You are responsible for maintaining the privacy and security of your account. We will not be held liable for any damage or loss that may result from your failure to protect your login information, including your password.

3. directdialogs reserves the right to refuse service or to terminate accounts for any Customer, and to change eligibility requirements at any time, in its sole discretion.

4. You agree to the CAN-SPAM ACT compliance

 

DATA USAGE AND PRIVACY TERMS

1. In using the Service Customer may collect personal information about Members. directdialogs will not own any data, information or material that Customer submits to directdialogs in connection with the Services ("Member Data" OR “End Customer Data”). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Member Data, and Customer is responsible for maintaining, securing and storing all Member Data in accordance with applicable law. Upon any termination or expiration of this Agreement and Customer’s payment of all unpaid and outstanding Fees, and Customer’s written request received by directdialogs within thirty (30) days of such expiration or termination, directdialogs will provide Customer with an electronic file of the Member Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, directdialogs has no obligation to retain the Member Data and may delete and destroy such Member Data without providing Customer with notice of such deletion. If Customer uses the Services during a Trial Period and fails to convert its account to directdialogs Free Edition or a standard paid customer account upon the expiration or other termination thereof, directdialogs has no obligation to retain the Member Data after the date of such expiration or termination.

2. If Customer uses the Services through directdialogs Free Edition and fails to use the Services for at least sixty (60) consecutive days, as of the sixty-first (61st) day after Customer’s last use of the Services, Customer acknowledges and agrees that directdialogs has no obligation to retain the Member Data and may delete and destroy such data without providing Customer with notice of such deletion. directdialogs will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Member Data.

3. directdialogs, in order to provide the Service, collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the "Customer Information"). directdialogs may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone.

4. Except as otherwise set forth herein, directdialogs does not disclose, sell or rent Member Data or Customer Information without Customer’s prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits directdialogs to disclose the Data to: (i) directdialogs personnel who access and manage the data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and (iii) directdialogs marketing partners, if any, through which Customer purchased the Services. Except as otherwise set forth herein, directdialogs will not provide any data to any third party without Customer’s authorization and will use commercially reasonable efforts to prohibit any third party that receives any such data from selling or redistributing such data without Customer’s authorization.

5. While setting up Your account, You have the option of listing your business PRIVATE or PUBLIC. By listing PUBLIC, members of loyalty programs from other businesses that use directdialogs will be able to see Your business name in their mobile phone application and their web account. This facilitates end customers to easily signup for Your loyalty program. Similarly, for PUBLIC listing, Your Members will also be able to see other businesses in their mobile phone application and web account for easy signup. However, if you list Your business as PRIVATE, your business will not show up for members of other businesses and your Members will not be able to see other businesses in their mobile application and web account.

 

FEES AND PAYMENT

1. In consideration for the Services to be provided by directdialogs (other than through directdialogs Free Edition), Customer agrees to pay the monthly subscription fees set forth. Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages and mobile texts sent using the Services may be blocked or prevented at destination email servers and mobile operators. Customer’s payment obligation set forth herein continues regardless of whether delivery of such email and mobile messages is prevented or blocked.

2. The Service is billed in advance for each month, and is non-refundable. There will be no refunds or credits for partial months of service, or refunds made should you not use the Service during a period of time when your account is open. No exceptions will be made.

3. Should you upgrade or downgrade your account plan, your credit card will be charged your new billing rate immediately. Your credit card will then be charged your new billing rate every 30 days thereafter unless you cancel your account.

4. directdialogs reserves the right to modify, suspend, or discontinue the Service at any time for any reason with or without notice.

5. directdialogs reserves the right to change our monthly fees upon 30 days’ notice from us. Fee change notices may be posted to the Service or on the directdialogs website: http://www.directdialogs.com

 

CANCELLATION AND TERMINATION

1. You alone are responsible for the proper cancellation of your account. You may cancel your account at any time by clicking on the Account Settings link in your directdialogs online account. The Account screen provides a simple link to cancel your account. Email or phone requests to cancel your account will not be deemed cancellation.

2. You can cancel at any time, but you will remain liable for all charges accrued up to that time, including full monthly charges for the month which you discontinued service. You will not be charged again.

3. directdialogs reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your content in the Service, for any reason, including, if directdialogs believes that You have violated any terms or conditions in this Agreement. directdialogs will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of Service, may be referred to appropriate law enforcement authorities. directdialogs shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.

 

GENERAL CONDITIONS

1. Disclaimer of Warranties: Services (and the professional services, as applicable) are provided "as is" and "as available" and without representation or warranty of any kind. To the maximum extent permitted by applicable law, directdialogs and its affiliates, resellers, distributors, agents, dealers and suppliers (collectively, the "Representatives") disclaim any and all representations and warranties, whether oral or written, express or implied, including (without limitation) any warranty as to merchantability, fitness for a particular purpose or use, title, or non-infringement, with respect to the services or the professional services. The representatives do not warrant that the services or the professional services will meet customer’s requirements nor do they give any warranty about the results that may be obtained by using the services or the professional services.

2. Limitation of Liability.: In no event will directdialogs or any Representative be liable to Customer or any other party for any special, direct, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the Services (or the professional services, if applicable), or to this agreement, including, but not limited to, damages for loss of data, loss of use, or loss of profits, even if directdialogs or its representative has been advised in advance of the possibility of such loss or damages. Further, in no event will directdialogs or any representative’s total cumulative liability to customer or any other party for claims, losses, or damages of any kind, whether based on contract, tort, negligence, indemnity or otherwise, arising out of or related in any way to this agreement, the services, or the professional services, exceed the actual fees customer paid to directdialogs for the services during the twelve (12) month period ending on the date of the cause of action giving rise to the claim, loss, or damage. No claim may be asserted by Customer against directdialogs more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or directdialogs’ non-provision, of the Services (or the Professional Services as the case may be), Customer’s sole and exclusive remedy shall be for directdialogs to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).

3. Indemnification: Customer agrees to indemnify, defend and hold harmless directdialogs, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s acts or omissions; (ii) Customer’s violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada’s Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer’s breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer’s breach of any of its representations or warranties set forth herein; and/or (v) Customer’s infringement or misappropriation of any intellectual property rights or other rights of any person or entity.

4. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration.

5. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between directdialogs and Customer. Customer does not have any right, power, or authority to act as a legal representative of directdialogs.

6. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of directdialogs. Any such transfer, assignment, sublicense or delegation without consent will be null and void.

7. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.

8. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.

9. You understand that the Service can be used for transmission of your Content, and that during processing, your Content may be transferred unencrypted over the internet.

10. You may not use the service to transmit any viruses, worms, or malicious content.

11. Any questions regarding the Terms of Use should be addressed to help at directdialogs dot com.

12. Governing Law: This Agreement shall be governed by the laws of GOVERNMENT OF INDIA without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of Republic of INDIA for the purpose of resolving any dispute relating to Your access to or use of the Service.

13. Export Compliance: You are responsible for complying with any applicable laws, rules, or regulations governing the export of the Service or any of its components.

14. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by directdialogs and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.

 

ADDENDUM1: ANTI-SPAM ADDENDUM

As part of this Agreement, each customer must agree to only send permission-based emails and mobile texts. "Permission-based" means that all Members must have opted-in to receive communications from that Customer.

 

An opt-in can occur either via a sign-up form on a web site, at a point-of-sale sign-up form, or on a physical sign-up sheet. Any opt-in form should include a clear description of what will be sent and how often it will be sent. Purchased lists may not be used within directdialogs, regardless of the source or permission status.

 

As a customer of directdialogs, you may not:

• harvest emails from web sites
• purchase lists (whether they are opt-in or not)
• have a pre-checked field on your subscription form
• have a subscription form that subscribes users to an unrelated list
• add an email address into a list without the subscriber’s permission
• email someone who has requested to be removed from your list

 

You may:
• send out transactional messages to Members on status of their account, new offers, current position of the offers or reminders on offer expiry, etc
• send out a regular newsletter to a Member who has opted-in to receive it
• send out information and content to Member who have requested to receive content on that topic from your organization

 

Policy Enforcement:
directdialogs has a no tolerance spam policy. The strict measures we take to enforce our policy include, but are not limited to:
• We review and monitor large list imports. This includes a review of the list source, list age, collection methods, and confirmation practices.
• One of our staff reviews each message sent to more than 5000 recipients and either will approve or reject it. This threshold is 500 recipients for Customers that have been with us for less than two months.
• Any customer found to be using the Services for spam will be immediately cut-off from use of the Services.

 

ADDENDUM 2: PROHIBITED CONTENT AND COMMERCE

As part of this Agreement, each Customer must agree to comply with the prohibited content and commerce statements made here. 
directdialogs expressly prohibits the use of directdialogs website, software or services by any party that engages in, or posts on its website content that relates to, the provision, distribution, display, performance, solicitation, disclosure and/or sale or rent of (as applicable) any of the following ("Prohibited Content"):

1. pornography, adult entertainment, nudity, prostitution or escort services; online gambling; federally regulated or otherwise illegal drugs or narcotics, or paraphernalia associated therewith; illegal or unlawful goods or services; act(s) of violence or commission(s) of crimes or illegal activities; products or services from an embargoed or blacklisted country, individual or entity; stolen goods; libelous, defamatory, scandalous, threatening or harassing acts; pirated computer programs; counterfeit or fraudulent products; instructions on how to assemble or otherwise make any weapon including bombs, grenades or firearms;

2. mailing lists, distribution lists, newsgroups, or spam email addresses;

3. content or material that exploits or is harmful to children under 18 years of age;

4. any personally identifying information or private information;

5. content that is: unlawful; grossly offensive, including expressions of bigotry, discrimination, prejudice, racism, hatred or excessive profanity; or obscene, lewd, lascivious, filthy, malicious, libelous, defamatory, excessively violent, defamatory, threatening, harassing or otherwise morally objectionable;

6. viruses, worms, harmful or malicious code and/or Trojan horses;

7. pyramid schemes, multi-level channel and/or network marketing opportunities, including, but not limited to personal work-at-home offers promoting "get rich quick," "build your wealth," and "financial independence" offerings;

8. any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence; and

9. content that violates or misappropriates any third party intellectual property, moral or privacy right.