These Diagnal Engage Trial Terms of Service (this "Agreement") are entered into by DIAGNAL LIMITED ("DIAGNAL") and the entity executing this Agreement ("CUSTOMER"). This Agreement governs the CUSTOMER use of Diagnal Engage (the "Service") which commences at the time of first acceptance of this Agreement and continues as long as the CUSTOMER makes use of the Service. By using the Service with a registered username, the CUSTOMER accepts this entire Agreement and asserts it is authorized to act on behalf of, and bind to this Agreement, any entity making use of, or benefiting from the Service, with the registered username.
DIAGNAL and the CUSTOMER hereby agree as follows:
The Service is a marketing technology service offered through engage.diagnal.com that allows the CUSTOMER to create run, and manage digital marketing campaigns to recipients.
The Service is owned and operated by DIAGNAL.
Trial Service. CUSTOMER can partake in a free limited usage trial period for the Service according to terms and conditions of this Agreement and as communicated on engage.diagnal.com during the registration process. After the free trial period, CUSTOMER will be enrolled automatically to a Paid Service plan unless the CUSTOMER terminates their Trial Service. CUSTOMER can choose to convert from a Trial Service to Paid Service at any time during the trial period.
Paid Service. DIAGNAL offers Paid Service plans with associated USD priced Service Fees which are due for immediate payment when billed. Service Fees include prepaid monthly Minimum Fees plus Overage Fees for overages above the monthly minimum usage. Minimum Fees are billed at beginning of each billing month whereas Overage Fees are billed at end of each billing month based on usage in that month. CUSTOMER will be responsible for monitoring its usage of the Service and ensuring Overage Fees are budgeted at the monitored usage levels. Service Fees are communicated on engage.diagnal.com during the registration process and on the account settings page. DIAGNAL may add new features to the Service for additional Service Fees or may amend existing Service Fees at its sole discretion. Additions or amendments to Service Fees will be communicated to the CUSTOMER via email.
Credit Card. CUSTOMER provide valid credit card details during the registration process and authorises DIAGNAL to deduct the due Service Fees against the registered credit card. CUSTOMER will update the credit card details for any registered credit card that expires or is otherwise invalidated. CUSOTMER represents and warrants that CUSTOMER is authorised to use the registered credit card, and that all due Service Fees can be billed to the registered credit card and will not be rejected. If DIAGNAL is unable to process the credit card payment, DIAGNAL may suspend CUSTOMER account until CUSTOMER payment can be processed.
Subject to the terms in this Agreement, DIAGNAL grants CUSTOMER limited, non-exclusive, non-transferrable access to the Service for its own use and not for resale or further distribution.
CUSTOMER will not be permitted to and will not authorize any third party to:
Reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of the Service;
Rent, lease, sublicense access to the Service;
Circumvent or disable any security or technological features of the Service.
CUSTOMER will respect DIAGNAL proprietary rights in the Service (proprietary rights include patents, trademarks, service marks, trade secrets, and copyrights).
CUSTOMER can submit a Termination Request for the Service at any time. Termination for the Trial Service shall be effective at the end of the trial period. Termination for the Paid Service shall be effective at end of the current monthly billing cycle. Minimum Fees for the current monthly billing period will not be refunded. Overage Fees up to the time of Termination Request will be billed at end of current monthly billing cycle. Overages after time of Termination Request will not be permitted and the CUSTOMER account shall be limited to minimum usage level only. Upon Termination of the Service, DIAGNAL will stop providing the Service to the CUSTOMER, and CUSTOMER will stop accessing the Service at this time; and CUSTOMER will delete all copies of the Service SDK from all its properties and certify this in writing to DIAGNAL within 5 business days of such termination if so required by DIAGNAL.
DIAGNAL may restrict, limit, suspend or terminate the Trial Service or Paid Service for the CUSTOMER at any time, with or without cause.
DIAGNAL may change the Service, or any features of the Service at any time.
CUSTOMER will complete the registration process by providing DIAGNAL with complete and accurate information as prompted by any online or offline registration forms including but not limited to CUSTOMER Service user email addresses which will be used as the CUSTOMER Service username.
CUSTOMER is responsible for keeping its Service usernames and passwords confidential. CUSTOMER will immediately notify DIAGNAL of any unauthorized use of the Service with the registered CUSTOMER Service usernames.
DIAGNAL reserves the right to reject or remove any configuration or content submitted to the Service by the CUSTOMER with or without prior notice and without liability.
CUSTOMER will not use the Service to:
Transmit any unlawful, harmful, threatening, abusive, obscene, libellous, unlicensed or otherwise objectionable content;
Harm DIAGNAL or third parties in any way;
Impersonate any person or entity;
Transmit any unsolicited or unauthorized advertising or unauthorized promotional material;
Transmit any software viruses;
Intentionally or unintentionally violate any applicable local or international law;
Collect or store personal data about users without their consent.
CUSTOMER is responsible for any end user related content or data that CUSTOMER accesses, submits or transmits using the Service (“End User Data”). CUSTOMER agrees to provide notices and obtain necessary end user consents and comply with all applicable laws related to CUSTOMER use of the Service including those related to the collection, use, processing, transfer and disclosure of End User Data. CUSTOMER shall have the sole responsibility for the accuracy, quality, integrity, legality and ownership of End User Data. DIAGNAL does not claim any ownership rights in and to any End User Data. On termination of CUSTOMER use of the Service, CUSTOMER may send a written request to DIAGNAL at email@example.com requesting the deletion of all End User Data which DIAGNAL will do at the earliest opportunity. If CUSTOMER or DIAGNAL terminates the use of the Service, then the CUSTOMER will no longer be able to access End User Data through the Service and may lose any End User Data submitted to the Service.
To the maximum extent permitted by law, CUSTOMER shall assume full responsibility for any loss that results from use of the Service. DIAGNAL will not be liable for any indirect, punitive, special, or consequential damages under any circumstances.
To the maximum extent permitted by law, DIAGNAL provides the Service as is. That means DIAGNAL does not provide warranties of any kind, either express or implied, including but not limited to warranties of merchantability and fitness for a particular purpose.
CUSTOMER will indemnify and hold DIAGNAL, DIAGNAL agents, employees, directors, suppliers, licensors, subsidiaries, affiliates, officers, representatives and assigns harmless from any costs, damages, expenses and liability caused by CUSTOMER’s use of the Service (including CUSTOMER use of End User Data in connection with the Service), CUSTOMER violation of these terms, or CUSTOMER violation of any rights of a third party through use of the Service.
The rights and obligations detailed hereunder are personal to each party and neither party shall be entitled to assign this Agreement to any third party without the prior written consent of the other party, consent of which shall not be unreasonably withheld. Notwithstanding the above, both parties shall be entitled to assign and/or transfer any part of its rights and obligations herein to any person or entity which acquires substantially all of the business and assets of the assigning party, by providing prior written notice to the other, provided that the assigning party shall remain liable for all its obligations herein. Save for the above, a party’s rights and obligations under this Agreement may not be assigned or delegated in whole or in part without the express prior written consent of the other party.
This Agreement shall be governed and construed in accordance with the laws of Hong Kong. Any dispute arising from or in connection of this Agreement shall be finally settled by courts of Hong Kong.
Any provision of this Agreement that is determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement, or affecting the validity or enforceability of such provision in any other jurisdiction.
Even if this Agreement is terminated, the following sections will continue to apply: 7, 8, 9, 15, 17, 18, 19, 20, 21, 23, 24.