Terms of Service
P.O., Box 350426
Toledo, OH 43635
AGREEMENT BETWEEN YOU AND DIGITAL 55
The Digital 55 suite of products includes OnLetterhead, 1Point Messaging Platform and other communications tools. In this Terms of Service document, they will be referred to as the Digital 55 Solutions.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
See the Privacy Statement at digital-55.com/privacy-policy for disclosures relating to the collection and use of your personal information.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
In order to open an OnLetterhead Solutions account, you must complete the registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You then will choose a username and password. You are entirely responsible for maintaining the confidentiality of your account and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Digital 55 immediately of any unauthorized use of your account or any other breach of security. Digital 55 will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Digital 55 or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
Digital 55 reserves the right to change the terms, conditions, and notices under which the Digital 55 Site/Services/Solutions are offered, including, but not limited to, the charges associated with the use of the Digital 55 Site/Services/Solutions. You are responsible for regularly reviewing these terms and conditions and additional terms posted on particular websites. Your continued use of the Digital 55
Site/Services/Solutions constitutes your agreement to all such terms, conditions, and notices.
LINKS TO THIRD PARTY SITES
Any dealings with third parties (including advertisers) included within the Digital 55 Site/Services/Solutions or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. Digital 55 shall not be responsible or liable for any part of any such dealings or promotions.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Digital 55 Site/Services/Solutions, you will not use the Digital 55 Site/Services/Solutions for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Digital 55 Site/Services/Solutions in any manner that could damage, disable, overburden, or impair any Digital 55
Site/Services/Solutions (or the network(s) connected to any Digital 55 Site/Services/Solutions) or interfere with any other party’s use and enjoyment of any Digital 55 Site/Services/Solutions. You may not attempt to gain unauthorized access to any Digital 55s
Site/Services/Solutions, other accounts, computer systems or networks connected to any Digital 55 Site/Services/Solutions, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Digital 55 Site/Services/Solutions.
USE OF SERVICES
The Digital 55 Site/Services/Solutions may contain email services, file storage, and/or other message or communication facilities designed to enable you to communicate with others (collectively, “Communication Services”). You agree to use the Communication Services only to post, send, and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
Use the Communication Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise); Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; Publish, post, upload, distribute, or disseminate any inappropriate, profane, defamatory, obscene, indecent, or unlawful topic, name, material, or information; Publish, post, upload, distribute, or disseminate any topic, name, material or information that incites discrimination, hate, or violence towards one person or a group because of their belonging to a race, a religion, or a nation, or that insults the victims of crimes against humanity by contesting the existence of those crimes; Upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same; Use any material or information, including images or photographs, which is made available through the Digital 55 Site/Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party; Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another. Use meta tag searches on the web sites; Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; Falsify or delete any author attributions, legal or other proper notices, or proprietary designations or labels of the origin or source of software, or other material contained in a file that is uploaded; Restrict or inhibit any other user from using and enjoying the Email Client; Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; Harvest or otherwise collect information about others, including email addresses; Violate any applicable laws or regulations; Create a false identity for the purpose of misleading others; Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity, any directory of users of an Digital 55 Site/Services or other user or usage information or any portion thereof. Digital 55 reserves the right at all times to disclose any information as Digital 55 deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, at Digital 55 sole discretion.
Always use caution when giving out any personally identifiable information about yourself or your children in any Digital 55 Service. Digital 55 does not control or endorse the content, messages, or information found in the Digital 55 Service and, therefore, Digital 55 specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service.
Materials uploaded to a Digital 55 Service may be subject to posted limitations on usage, reproduction, and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
MATERIALS PROVIDED TO DIGITAL 55
SOFTWARE AND CONTENT AVAILABLE THROUGH THE DIGITAL 55 SITE/SERVICES
All content and software (if any) that is made available to view and/or download in connection with the Digital 55 Site/Services/Solutions, excluding content and/or software that may be made available by end users through a Communication Service (“Software”), is owned by and is the copyrighted work of Digital 55 and/or its suppliers and is protected by copyright laws and international treaty provisions. Your use of the Software is governed by the terms of the end-user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. You acknowledge that the Software, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the United States of America & Canada. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to United States of America & Canada export restrictions.
Digital 55 hosting services include subscription services and licenses held by Digital 55 on behalf of our clients. If the client decides to move their hosting off Digital 55’s hosting platform, those subscriptions and licenses are not transferable and will be pulled prior to Digital 55 transferring the website files. The preparation and transfer of client files may result in hourly fees. The retrieval of Google Analytics connected to any website transfer will be the responsibility of the client and their new hosting company.
ABANDONED OR DORMANT PROJECTS
Digital 55’s project proposals, once signed, become binding contracts. Projects are considered abandoned or dormant when a request for content is made two (2) times in a 30-day period, and that content is not provided. Should client project be deemed abandoned or dormant by Digital 55 it is then subject to a requote or reactivation fee, to be determined by Digital 55. Reactivation fees start at $1000, and deposit/payments on abandoned and/or dormant projects are nonrefundable.
Client caused project delays of two (2) weeks or more, including but not limited to, waiting for content, approval, edits, etc., may result in a monthly fee for any work and hosting on a development site. Failure to pay any fees charged will subject client project to the ABANDONED OR DORMANT clause.
STORAGE SPACE AND OTHER LIMITATIONS
You agree that Digital 55 may establish limits concerning use of any Digital 55 Service offered on an Digital 55 Web site, including without limitation the maximum number of days that email messages will be retained by any Digital 55 Service, the maximum number of email messages that may be sent from or received by an account on any Digital 55 Service, the maximum size of an email message that may be sent from or received by an account on any Digital 55 Service, the maximum disk space that will be allotted on Digital 55 servers on your behalf, and the maximum number of times and duration you may access any Digital 55 Service in a given period of time.
You agree that Digital 55 has no responsibility or liability for the deletion, corruption, or failure to store any messages or other content maintained or transmitted by any Digital 55 Service.
DIGITAL 55 MAKES NO WARRANTY THAT ANY DIGITAL 55 SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
NO SPAM; DAMAGES
Digital 55 will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, because damages are often difficult to quantify, if actual damages cannot be reasonably calculated then you agree to pay Digital 55 liquidated damages of $5 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your account, otherwise you agree to pay Digital 55 actual damages, to the extent such actual damages can be reasonably calculated.
This agreement is governed by the laws of the State of Ohio, USA. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Ohio, USA in all disputes arising out of or relating to the use of the Digital 55 Site/Services/Solutions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Digital 55 as a result of this agreement or use of the Digital 55 Site/Services/Solutions. You agree to indemnify and hold Digital 55, its parents, subsidiaries, affiliates, officers, and employees, harmless from any claim, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of your use of or conduct on the Digital 55 Site/Services. Digital 55 reserves the right to disclose any personal information about you or your use of the Digital 55 Site/Services, including its contents, without your prior permission if Digital 55 has a good-faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect
and defend the rights or property of Digital 55 or its affiliated companies; (3) enforce the terms or use; or (4) act to protect the interests of its members or others. Digital 55 performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Digital 55 right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Digital 55
Site/Services/Solutions or information provided to or gathered by Digital 55 with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Digital 55 with respect to the Digital 55 Site/Services/Solutions and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Digital 55 with respect to the Digital 55 Site/Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
COPYRIGHT AND TRADEMARK NOTICES:
All contents of the Digital 55 Web sites are: Copyright © 2022 Digital 55 LLC. and/or its suppliers, P.O. Box 350426, Toledo, Ohio 43635. All rights reserved.
Digital 55 and/or other Digital 55 products such as OnLetterhead and services referenced herein may also be either trademarks or registered trademarks of Digital 55 in USA/Canada and/or other countries. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
DIGITAL 55 BILLING
Charges on your Billing Account
Digital 55 bills you through an online account (your “Billing Account”) for services and items obtained under this Agreement (the “Products”). You agree to pay Digital 55 all charges at the prices then in effect for any Products ordered by you or other persons (including your agents) using your Billing Account, and you authorize Digital 55 to charge your chosen payment method (your “Payment Method”) for such Products. You agree and understand that some of the Products are subscription base and require termination based on terms and such non-termination provides Digital 55 a reasonable basis to provide and charge you for the Products based on the terms of the original agreement. You agree to make payment using that selected Payment Method. Charges on your Billing Account will be summarized for you online (your “Online Statement”). You will have one Online Statement per Billing Account. Digital 55 reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT IN ORDER TO RECEIVE THE PRODUCTS ORDERED. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR
BILLING ACCOUNT CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY DIGITAL 55 IF YOUR PAYMENT METHOD IS CANCELLED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE DIGITAL 55 ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT DIGITAL 55 MAY CONTINUE CHARGING YOU FOR ANY SERVICE/PRODUCT PROVIDED UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION FOR SUCH SERVICE/PRODUCT (CONFIRMED IN WRITING UPON REQUEST).
Currency exchange settlements will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If Digital 55 does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your Billing Account upon demand.
Prices for all Products exclude all applicable taxes and telecommunication charges, unless expressly stated otherwise. To the extent permissible by law, you agree to be responsible for any applicable taxes and telecommunication charges, whether or not such amounts are itemized on your Online Statement or charged to your Billing Account or Payment Method.
Any agreement you have with the Payment Method Provider will govern your use of your Payment Method. You agree that Digital 55 may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
DIGITAL 55 MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (CONFIRMED IN WRITING UPON REQUEST) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE DIGITAL 55 REASONABLY COULD ACT.
Your non-termination or continued use of the Products/Services on your
Billing Account reaffirms that Digital 55 is authorized to charge your
Payment Method. Digital 55 may submit those charges for payment, and you will be responsible for such charges. Those submissions will not waive Digital 55’s right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially ordered the applicable Product or service.
Subject to any withdrawal right you may have under applicable law, charges are non-refundable unless the price-plan terms expressly say otherwise. Except as otherwise required by law, the costs of any returns if permitted will be at your expense. DESIGN WORK IS NOT REFUNDABLE UNDER ANY CIRCUMSTANCES.
Due Date: Late Charge; Collection Costs
The amount due to Digital 55 for your Billing Account must be paid in full by your Payment Method Provider on the date such payment is requested by Digital 55, not later than 30 days after the billing date; you are not entitled to carry forward a balance. You agree to pay late charges that may be assessed by Digital 55 on amounts due but not timely paid. The late charge will be 1.5% per month (or 18% per annum) on the total amount due but not paid; but, if such rate is in excess of any allowable rate under applicable laws, then you will instead be charged the maximum rate that is permitted by law. Digital 55 reserves the right to refer your Billing Account to a third party for collection in the event of default. You agree to pay all costs incurred in the enforcement of this Agreement and in collection of any delinquent amounts due, including reasonable attorneys’ fees and costs.
If Digital 55 does not receive payment for any charge to your Billing Account, you will be in default and Digital 55 may suspend or cancel your Billing Account and your access to any or all Digital 55 Products. If your Payment Method Provider seeks return of payments previously made to Digital 55, but Digital 55 in good faith believes that you are liable for the charge and applicable law allows the Payment Method Provider to seek payment from you, you will also be in default and
Digital 55 may cancel your Billing Account and your access to any or all
Products. CANCELLATION OR SUSPENSION FOR DEFAULT MAY BE MADE WITHOUT PRIOR NOTICE TO YOU AND UPON SUCH CANCELLATION OR SUSPENSION, DIGITAL 55 MAY STOP DELIVERY OF ANY PRODUCT, AND ANY INFORMATION YOU HAVE STORED ON A DIGITAL 55 SERVICE MAY NOT BE RETRIEVED AT A LATER DATE.
Termination, Cancellation, or Suspension
Digital 55 may, in its discretion, terminate, cancel, or suspend an accepted order if Digital 55 is notified that your Payment Method has expired or has been canceled, or if Digital 55 has reason to believe that any Billing Account information provided to Digital 55 is untrue, inaccurate, not current, or incomplete. Termination, cancellation, or suspension, whether by you or Digital 55, will not alter your obligation to pay all charges made to your Billing Account before such termination, cancellation, or suspension (including charges made after termination by you but before Digital 55 could reasonably act on your termination notice). You will not be entitled to any refunds upon termination, cancellation, or suspension unless the applicable agreement expressly so provides. See the Digital 55 Cancellation Policy for more details.
You represent and warrant that: (1) you are at least 18 years of age or the age required or allowed under applicable law for making a legal and binding contract; (2) all information that you submit is true and accurate (including without limitation information relating to your Payment Method); and (3) you are an individual (or in the case of an entity, an agent of the entity) authorized to use the designated Payment Method. You agree to pay for all charges (including charges by other persons) and to comply with your responsibilities and obligations as stated in this Agreement. If you are an agent of an entity user, you represent and warrant that you are duly authorized to legally bind the entity to all terms and conditions of this Agreement and that you have made the entity aware of them. You agree not to assign, transfer, or sublicense any rights in your Billing Account. Digital 55 may: (1) generate print copies of its electronic records and introduce them in evidence as original documents; and (2) prove your agreement or consent in any manner, including, without limitation, by showing that a procedure existed by which you must have provided consent or engaged in conduct to obtain the applicable Products.
CONSUMER DISCLOSURES AND CONSENTS FOR ELECTRONIC INFORMATION
Disclosure to Receive All Information in Electronic Form
ALL INFORMATION THAT DIGITAL 55 IS REQUIRED BY LAW TO SEND TO YOU REGARDING THE SUBSCRIPTIONS, SERVICES, AND OTHER ITEMS PROVIDED TO YOU UNDER THIS AGREEMENT, INCLUDING ANY BILLING AND PAYMENT INFORMATION (COLLECTIVELY REFERRED TO AS “REQUIRED INFORMATION”), AND ANY OTHER INFORMATION PROVIDED TO YOU FROM DIGITAL 55, WILL BE PROVIDED TO YOU IN ELECTRONIC FORM ONLY. DIGITAL 55 WILL PROVIDE ALL REQUIRED INFORMATION TO YOU IN ELECTRONIC FORM EITHER: (1) VIA EMAIL AT THE EMAIL ADDRESS YOU SPECIFY DURING YOUR SIGN-UP FOR SUBSCRIPTIONS, SERVICES, OR OTHER ITEMS UNDER THIS AGREEMENT; (2) BY ACCESS TO AN DIGITAL 55 WEB SITE THAT WILL BE DESIGNATED IN AN EMAIL NOTICE SENT TO YOU AT THE TIME THE INFORMATION IS AVAILABLE; OR (3) TO THE EXTENT PERMISSIBLE BY LAW, BY ACCESS TO AN DIGITAL 55 WEB SITE THAT WILL BE GENERALLY DESIGNATED IN ADVANCE FOR SUCH PURPOSE.
Consent to Receive All Information in Electronic Form
YOU AGREE THAT BY ACCEPTING THE TERMS IN THIS AGREEMENT, YOU CONSENT TO RECEIVE REQUIRED INFORMATION, AND ANY OTHER INFORMATION PROVIDED TO YOU FROM DIGITAL 55, SOLELY BY ELECTRONIC COMMUNICATION. YOU ALSO CONFIRM THAT YOUR COMPUTER SATISFIES THE HARDWARE AND SOFTWARE REQUIREMENTS STATED ABOVE FOR RECEIVING, ACCESSING, DISPLAYING, PRINTING, AND STORING COPIES OF SUCH REQUIRED INFORMATION, AND YOU CONFIRM THAT YOU HAVE PROVIDED DIGITAL 55 A CURRENT EMAIL ADDRESS FOR RECEIVING REQUIRED INFORMATION.
Hardware and Software Requirements
In order to receive Required Information electronically from Digital 55, you must have an email address and submit it to Digital 55 upon signup for any subscription, service, or other item provided under this Agreement. Your computer also must have either Google Chrome, Microsoft Edge, Safari, or Mozilla Firefox 80 (or newer) and an email software program capable of sending and receiving email from Digital 55 via the Internet. You must be running Windows as an operating system. To utilize the OnLetterhead Outlook plugin you must have: Windows 7/10, Microsoft Outlook 2010, 2013, 2016, 365 (Desktop), or 2019, and an Outlook compatible email address configured in Outlook. To utilize the CRM, you must use Google Chrome or Microsoft Edge. Finally, your computer must be capable of receiving, accessing, displaying, and either printing or storing Required Information received in electronic form from Digital 55 via an email or by access to a Digital 55 Web site using one of the browsers specified above.
Changes to Hardware and Software Requirements
In the event that there are any changes to the hardware and software requirements listed above that are likely to have a significant impact on your ability to receive, access, display, store, and print Required Information that Digital 55 sends to you in electronic form, Digital 55 will notify you of these changes. In such case, you will be required to reconfirm your agreement to receive, and your ability to access, such Required Information in electronic form in order to avoid any disruption in the subscriptions, services, or other items provided to you under this Agreement. You may, however, always choose to withdraw your consent to receive Required Information in electronic form according to the instructions set forth without the imposition of any fees, but Digital 55 may terminate your Billing Account and any subscriptions, services, or other items provided to you if you do so.
Know It All disclaimer and unsubscribe
This site is being monitored by Digital 55 and contracting partners using one or more third-party monitoring software(s), and may capture information about your visit that will help us improve the quality of our service. You may control the data being collected from your visit by visiting www.Digital-55.com/KnowItAllInfo through a universal consumer options page located at http://unsub.digital55.com/T/unsub.html
© 2022 Digital 55. All rights reserved. Updated 5/20/2022
Master Services Agreement
Digital 55, LLC.
P.O., Box 350426
Toledo, OH 43635
AGREEMENT BETWEEN YOU AND DIGITAL 55
IMPORTANT-READ CAREFULLY: This Terms of Service / Master Services Agreement (this “MSA”, “Terms of Service”) is binding and enforceable between you (“CUSTOMER”) and Digital 55, LLC (“Digital 55”, “Digital 55Mail”, ‘OnLetterhead’, “OnMarketer”) These Terms of Service / MSA govern your access to and use of Digital 55’s website (the “Site”), any information, text, graphics, or other materials created and/or provided by Digital-55 and appearing on the Site (the “Content”), Products (as defined below), Platform (as defined below) and any services and/or software provided through the Site or by Digital 55 (the “Services”). These Terms of Service / MSA limit Digital 55’s liability and obligations to you, grant Digital 55 certain rights and allow Digital 55 to change, suspend or terminate your access to and use of the Site, Content, Files and Services. Your access to and use of the Site, Content, Files and/or Services are expressly conditioned on your compliance with these Terms of Service / MSA. By accessing or using the Site, Content, Files and/or Services you agree to be bound by these Terms of Service / MSA.
YOU UNDERSTAND THAT BY SIGNING OR CLICKING THE “I AGREE” BUTTON, BY USING THE SITE, CONTENT, FILES AND/OR SERVICES OR YOUR ACCOUNT YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE / MSA. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE / MSA IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, CONTENT, FILES OR SERVICES. You are specifically agreeing to a limit of our obligations and liability as referenced in the following Sections: Us of Site at Your Own Risk, Digital 55 is Available “AS IS” and Limitation of Liability. Further, you are specifically agreeing to arbitration, on an individual basis, in the event of a dispute between us in the following Section: Controlling Law, Arbitration, Class Action Waiver and Jurisdiction. If you agree to these Terms of Service / MSA on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service / MSA and your agreement to these terms will be treated as the agreement of the business. In that event, “you” and “your” will refer and apply to that business.
This MSA includes the General Terms and Conditions set forth on the following pages and all terms and conditions set forth in all Product Addenda specific to the Products purchased as part of Your subscription. The parties’ complete agreement with respect to the subject matter set forth in the Proposals, or Online Subscription executed by the parties during the Term includes this MSA (including all applicable Product Addenda) and all such Proposals or Online Subscription, all of which shall be hereinafter referenced as the “Agreement”. You expressly agree that the terms and conditions of this MSA shall govern all Products and Services provided to You during the Term and are a material part of Digital 55’s agreement to provide such Products and Services, whether or not the same is made express at the time of provision.
Digital 55 hereby agrees to make the Products and/or Services described in each Addendum or subscription hereto available to You, and You agree to purchase such Products and/or Services from Digital 55, subject to the terms and conditions of the Agreement.
This MSA was last updated on October 1, 2020. It is effective between You and Digital 55 as of the date of You accepting this MSA.
GENERAL TERMS AND CONDITIONS
DEFINITIONS The following Definitions are used throughout the “Terms of Service” / “Master Services Agreement” document.
“Affiliate” shall mean, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and other one-to-one digital messages.
“Confidential Information” shall have the meaning set forth in Section 6.
“Data” shall mean all data and other information uploaded by Customer to the Platform or to a Product.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents, or programs.
“Subscription” a paid license to use Digital 55 Product for a defined period of time, typically 1 month.
“Proposal” shall mean the proposal documents for Customer’s purchases of Products or Services from Digital 55 that are executed by the parties from time to time, which shall be governed by the terms of this MSA.
“Platform” shall mean Digital 55’s cross-channel interactive marketing platform.
“Product” shall mean a specific feature (e.g., Email, Mobile, SMS, MMS, Data Encryption, Data Transmission, Data Access, Data Storage, Social, Sites, Micro Sites or Personal URLs (“PURLS”)) purchased as part of Customer’s subscription to the Platform.
“Services” shall mean the implementation, integration, consulting, and/or similar services described in a Statement of Work or Subscription and provided by Digital 55 employees and subcontractors in support of Customer’s use of the Platform or a Product.
“Start Date” shall mean the date on which Digital 55 shall make the Platform, or a Product, available to Customer as set forth in an applicable Proposal or Subscription.
“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Services, if any, to be performed by Digital 55 for Customer. An SOW may be a stand-alone document or incorporated into a Proposal or Subscription and shall be governed by the terms of this MSA.
“Subscription Term” shall mean the subscription period set forth on an applicable Proposal. “Term” shall have the meaning set forth in Section 10.1.
ORDERS BY CUSTOMER AFFILIATES. This MSA enables Customer, on behalf of itself or one or more of its Affiliates, and/or any of its Affiliates, on their own behalf, to execute Proposals or SOWs with Digital 55 under the terms hereof. Each Proposal and/or SOW executed by a Customer Affiliate constitutes an independent contract between Digital 55 and the Customer Affiliate executing the Proposal and/or SOW (a “Participating Affiliate”). Customer agrees that execution of an Proposal or SOW by a Participating Affiliate shall represent such Participating Affiliate’s independent acceptance of, and agreement to be bound by, the terms and conditions of this MSA.
USE OF THE PLATFORM
3.1 Digital 55 Responsibilities. Digital 55 shall: (a) make the Platform available to Customer in a manner that is consistent with generally accepted industry standards; (b) use commercially reasonable efforts to ensure that the Platform performs in material compliance with any documentation or user guides provided to Customer; (c) provide standard support to Customer at no additional charge and (d) use commercially reasonable efforts to make the Platform available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Digital 55 shall make good faith efforts to give at least five business days’ notice and which Digital 55 shall schedule to the extent reasonably practicable during the weekend hours from 10:00 p.m. ET Friday to 4:00 a.m. ET Saturday); or (ii) any unavailability caused by a Force Majeure Event.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data; (b) prevent unauthorized access to, or use of, the Platform, and notify Digital 55 promptly of any such unauthorized access or use of which Customer or any of its Affiliates become aware; (c) ensure that a user login is only used by one person (a single login shared by multiple persons is not permitted); (d) maintain the security of its users’ account names and passwords; and (e) comply with Applicable Law with respect to Data and when using the Platform.
3.3 Use Guidelines. Customer shall not, and shall not permit any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party except as permitted by this MSA; (b) send via, upload to, or store within the Platform any Malicious Code; (c) interfere with or disrupt the integrity or performance of the Platform or any parties’ or third party’s data contained therein; or (d) attempt to gain unauthorized access to the Platform or its related systems or networks.
FEES & PAYMENT
Digital 55 may automatically bill your credit card each month or year on the calendar day corresponding to the commencement of your paid account. You acknowledge that the amount billed each month or year may vary for reasons that include changes due to promotional offers or changes in your account. You authorize us to charge your credit card or banking account for such varying amounts. You further authorize us to charge your credit card or bank account, at our sole discretion, for any additional product(s) or service(s) you request or consume while using the Platform, Product or Service at the time they are performed (in the case of Services) or consumed or enabled (in the case of Products). Digital 55 may also periodically authorize your credit card in anticipation of account or related charges. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.
In the event of any change in fees and charges, we will give you 30 days advance notice of these changes by email. If you want to use a different credit card or if there is a change in your credit card validity or expiration date, you may edit your information by accessing your account or by contacting us directly. If your credit card reaches its expiration date and you have not updated your billing information Digital 55 reserves the right to restrict access to or terminate your account until such time as the billing information has been updated and all pending invoices are settled. Your continued use of the Digital 55 Product constitutes your authorization for us to continue billing that credit card and you remain responsible for any uncollected amounts. It is your responsibility to keep your contact information and payment information current and updated.
4.2 Overdue Payments. Customer’s failure to timely pay any fees and expenses that are not the subject of a good faith dispute of which Customer notifies Digital 55 in a detailed writing (“Undisputed Fees”) shall constitute a material breach of the Agreement. If any amounts for which Customer is responsible are overdue, then Digital 55 may provide Customer with written or electronic notice of the same (a “Late Notice”). If Customer fails to pay all overdue amounts within 10 business days after Customer’s receipt of the Late Notice, then Digital 55 may, in addition to any of its other rights or remedies, suspend access to the Platform and/or Products and/or its provision of Services until all overdue amounts are paid in full. If Customer fails to pay all overdue amounts within 30 days after Customer’s receipt of the Late Notice, then Digital 55: (a) may terminate the Agreement, including all outstanding Proposals and SOWs; (b) shall be entitled to recover from Customer (i) interest on all overdue amounts at the lower of a rate of 1.5% per month or the maximum rate permitted by law (“Interest”); and (ii) all fees and costs (including reasonable attorneys’ fees, court costs and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”).
4.3 Taxes. Unless otherwise stated, Digital 55’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Digital 55’s net income or property. If Digital 55 has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Digital 55 with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Canceling Your Account. Your Digital 55 paid account will continue in effect and will auto renew unless and until you cancel your paid account, or we terminate it. You must cancel your paid account before it renews each month or year in order to avoid billing of the next month’s or year’s fees to your credit card. Digital 55 paid accounts are prepaid and are non-refundable. Digital 55 DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OR YEARS. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
During the first 30 days of service, you may cancel your account at any time excluding individual websites and packages. Note that refunds will not be given for work done during this period. After the first 30 days of service, Digital 55 requires a 30-day written notice for account cancellation. At the time of cancellation your account will be billed for any and all existing and/or outstanding Product(s) and Service(s). You will be billed for any Product(s) or Service(s) consumed during the 30-day cancellation period.
Digital 55 will bill the monthly or yearly fees associated with your paid accounts to the credit card you provide to us during registration (or to a different credit card if you change your account information).
By signing up for a Digital 55 paid accounts and providing Digital 55 with your payment account information, you hereby agree to these payment terms and conditions.
5.1 Restrictions. Customer shall not, and shall not permit any third party to: (a) modify, copy or create derivative works based on the Platform or Products; (b) frame or mirror any content forming part of the Platform or Products, other than on Customer’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Platform or Products; or (d) access the Platform or Products in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Platform or Products.
5.2 Digital 55’s Intellectual Property. Digital 55 reserves all rights, title, and interest in and to the Platform, the Products, and the Services, including all related patent, copyright, trademark, and other intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. In addition, Digital 55 shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the Platform or Products, including without limitation those relating to any new programs, upgrades, modifications, refinements, feedback, comments or enhancements (collectively, “Improvements”) developed by or for Digital 55 in connection with providing the Platform or Products to Customer, even when such Improvements result from Customer’s request. To the extent, if any, that ownership in such Improvements does not automatically vest in Digital 55 by virtue of the Agreement or otherwise, Customer hereby transfers and assigns to Digital 55 all rights, title, and interest that Customer may have in and to such Improvements.
5.3 Customer’s Intellectual Property. As between Digital 55 and Customer, Customer exclusively owns all rights, title, and interest in all customer Data. In exchange for a reduced cost(s) or free offering to use products, Customer will allow Digital 55 the right to utilize all data. In addition, all content created by, or by Digital 55 for, Customer during performance of the Services, including without limitation email templates, newsletters, distribution lists, links, images (excluding stock images), graphs and photos (the “Work Product”), shall be the sole and exclusive property of Customer. Digital 55 agrees that it will not use the same Work Product created for Customer under this Agreement for another Digital 55 customer; provided, however, that nothing in the preceding sentence shall be interpreted to preclude Digital 55 from using the same functionality, format, code, design, concepts, workflows, integrations or other ideas represented in the Work Product. Further, Digital 55 shall be allowed to utilize “meta-data” resulting from customer sends (specifically including “hard” and “soft” bounce data), feedback loops and reporting metrics, to optimize deliverability for Customer and for other Digital 55 Customers. For all other deliverables described in a Statement of Work which are not deemed Work Product, Digital 55 hereby grants Customer a limited, nonexclusive, nontransferable, revocable license to use such other deliverables during an applicable Subscription Term.
5.4 Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to the Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during an applicable Subscription Term, either party may include the names, trademarks and other logos of the other party (collectively the “Marks”) in lists (including on its website) of customers or vendors in accordance with the other party’s standard usage guidelines relating to its Marks. In addition, Digital 55 may use the Customer’s Marks in connection with its authorized provision of the Platform and solely to the extent Customer has uploaded or incorporated such Marks into the form of communication to be delivered, and has initiated the distribution of the same, through its use of the Platform. Except as set forth herein, neither party may use the Marks of the other party without its prior written consent.
6.1 Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the terms and conditions of the Agreement (including pricing and other terms reflected in all Proposals and SOWs), the Data, business and marketing plans, technology and technical information, financial information, business strategies, practices, procedures, methodologies, know-how, product designs, and business processes. Confidential Information (except for Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party by the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (iv) is rightfully received from a third party not known by the Receiving Party to be subject to an obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall use practices consistent with generally accepted industry standards to protect the security of Confidential Information it receives from the Disclosing Party and to prevent the disclosure or use any such Confidential Information for any purpose other than to fulfill the purpose of the Agreement. Notwithstanding the foregoing: (a) the Receiving Party may disclose such Confidential Information to its employees and that prior to disclosure it will cause such employees and contractors to agree to be bound by terms and conditions of confidentiality substantially similar to those in this MSA; and (b) each party may disclose the existence and terms of the Agreement: (i) in confidence, to a potential purchaser of or successor to any portion of such party’s business; (ii) to its attorneys, accountants and other advisors having a need to know the same; and (iii) if necessary to enforce its rights under the Agreement, provided that the Receiving Party uses reasonable efforts to limit such disclosure and to obtain confidential treatment of, or a protective order governing, the terms of the Agreement.
6.3 Compelled Disclosure. If the Receiving Party is requested to, or subject to a legal obligation to, disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with notice of the same as early as reasonably practical (if legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek immediate injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate. Customer acknowledges that Digital 55 is unable to guarantee absolute security of Data or Confidential Information and that Digital 55 has no liability to Customer for any unauthorized access or use of such Data or Information by a third party, or the corruption, deletion, destruction or loss of any such Data or Information, unless Digital 55’s security practices are below generally accepted industry standards.
6.5 Survival. Notwithstanding the expiration or termination of this MSA for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of five years after such expiration or termination, except with respect to either party’s trade secrets or to audit reports and findings belonging to Digital 55’s third party datacenters, all of which shall be held in confidence indefinitely.
WARRANTIES & DISCLAIMERS
7.1 Mutual Warranties. Each party represents and warrants that: it has the legal power to enter into the Agreement; the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
7.2 Digital 55 Warranties. Digital 55 represents and warrants that: (a) the functionality of the Platform will not be materially decreased during the Term; (b) it will utilize software and other security means designed to prevent the Platform from containing or transmitting Malicious Code; (c) it owns or otherwise has sufficient rights in the Platform and Products to grant to Customer the rights to use the Platform and Products granted herein; and (d) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards.
7.3 Customer Warranties. Customer represents and warrants that: (a) the Data does not and will not infringe on any copyright, patent, trade secret or other proprietary right held by any third party and was not and will not be gathered or used by Customer in a manner that violates Applicable Law; (b) it will not use the Platform or any Product in a manner that violates Applicable Law; and (c) it will not upload to or send through the Platform or any Product any social security numbers, passport numbers, financial account numbers, or credit card information (as contemplated by the Payment Card Industry Data Security Standards), post, publish or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another’s privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred or harm against any individual or group; (vi) infringes another’s rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability, send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services. Any violations under this section may result in account termination for cause as expressly allowed in Section 10.3 of this Agreement.
7.4 Digital Millennium Copyright Act Compliance. Customer represents and warrants that: You will only upload, post, submit or otherwise transmit data and/or files: (i) that you have the lawful right to use, copy, distribute, transmit, or display; or (ii) that does not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Digital 55 has adopted and implemented a policy that permits the deletion of files that violate this policy, and that permits the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Any violations under this section may result in account termination for cause as expressly allowed in Section 10.3 of this Agreement.
7.5 Canadian Anti-Spam Legislation (CASL). Customer acknowledges it is their obligation to conform to CASL regulations. To that end, customer agrees explicitly to abide by all provisions of the Canadian Law relative to email including its obligations to (a) Email only to individuals in Canada who have strictly opted-in to receive communications (Email, SMS, or otherwise) from Customer; (b) Retain specific and detailed records associated with that Customer opt-in including Opt-In Time, Opt-In Date, Opt-In Type, Opt-In Method, Opt-In Source, Proof of direct relationship of the opt-in; (c) Promptly honor requests for opt-in information and promptly honor opt-out (unsubscribe) requests; (d) Reconfirm the direct relationship with the client via opt-in every 12 months. Any violations under this section may result in account termination for cause as expressly allowed in Section 10.3 of this Agreement.
Further, in addition to the Indemnification provision in Section 8 below, Customer further acknowledges that it is solely responsible for conforming to CASL regulations and accordingly indemnifies Digital 55 against any breach of CASL that may be caused by Customer’s use of the Digital 55 platform, including but not limited to the payment of any fines.
7.6 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Digital 55 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, PLATFORM AND PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Digital 55 DOES NOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE PLATFORM OR ANY PRODUCT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE PLATFORM OR ANY PRODUCT, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY Digital 55.
8.1 By Digital 55. Digital 55 shall defend, indemnify and hold Customer, its Affiliates, and their respective officers, directors, agents and employees, harmless against any loss, damage or costs (including reasonable attorneys’ fees) (“Losses”) incurred in connection with any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party relating to: (a) Digital 55’s violation of Applicable Law in (i) providing the Services or (ii) making the Platform and/or Products available to Customer; (b) negligent acts or omissions of Digital 55 resulting in a breach of the confidentiality obligations set forth in Section 6; and/or (c) Customer’s use of the Platform or any Product in a manner permitted by the Agreement that infringes the intellectual property rights of such third party; provided, however, that Digital 55 shall have no such indemnification obligation if the Claim relates (i) to a third-party Product made available through the Platform or (ii) to use of the Platform or an Digital 55 Product in combination with Data, Marks, software, data products, processes, or materials not provided by Digital 55 and the infringement would not have occurred but for the combination.
8.2 By Customer. Customer shall defend, indemnify, and hold Digital 55, its Affiliates, and their respective officers, directors, agents and employees, harmless against any Loss incurred in connection with any Claim made or brought against Digital 55 by a third party alleging that: (a) Customer has used the Platform or any Product in a way that violates Applicable Law or the Agreement; and (b) Data, and/or any materials provided to Digital 55 necessary to perform the Services, infringe upon or violate the intellectual property, privacy, or other rights of a third party.
8.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 8, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, however, that any delay in notification shall not relieve the indemnifying party of its obligations hereunder except to the extent that the delay materially impairs its ability to defend the applicable Claim or perform its indemnification obligations hereunder; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the indemnifying party to defend and settle such Claim. The indemnifying party may select counsel of its choice to defend the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, with the consent of the indemnified party, such consent not to be unreasonably withheld, conditioned, or delayed.
9.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE SUMS PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL CUSTOMER’S LIABILITY TO Digital 55 BE LESS THAN THE SUM OF ALL OUTSTANDING FEES AND EXPENSES OWED BY CUSTOMER OR ANY CUSTOMER AFFILIATE PLUS ALL INTEREST AND COLLECTION COSTS ASSOCIATED THEREWITH. NOTWITHSTANDING THE FOREGOING, CUSTOMER’S EXCLUSIVE REMEDY, AND Digital 55’S ENTIRE LIABILITY, FOR ANY BREACH OF THE WARRANTIES IN SECTION 7.2(D) IS LIMITED TO RE-PERFORMANCE OF THE SERVICES. IF Digital 55 IS UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED WITHIN 30 DAYS OF RECEIPT OF WRITTEN NOTICE OF BREACH, CUSTOMER SHALL BE ENTITLED TO RECOVER THE FEES PAID TO Digital 55 FOR THE DEFICIENT SERVICES.
9.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO LOST PROFITS AND LOSS OF GOODWILL), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM & TERMINATION
10.1 Term of MSA. This MSA commences on the Effective Date and continues until the termination or expiration of all Subscription Terms specified in all Proposals and/or of the terms specified in all SOWs (the “Term”).
10.2 Term of Subscriptions. Subscriptions to the Platform or a Product commence on the Start Date and continue for the Subscription Term specified in the applicable Proposal or Subscription. Unless otherwise set forth in an Proposal or Subscription, subscriptions shall automatically renew for additional periods of one year for the fees set forth in the applicable Proposal or Subscription unless either party gives the other notice of non-renewal at least 30 days prior to the end of the then-current Subscription Term.
10.3 Termination; Surviving Provisions. Digital 55 may, at our sole discretion, terminate your account or your access to your account or use of the Site or the Product(s), disable your account or disable access to the Site or the Product(s), remove all or a portion of your contacts and content, cancel or suspend any of your events, or put your account on inactive status, in each case at any time, with or without cause, with or without notice and without refund.
We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause.
After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Upon request within 30 days of your termination, we will provide the list of unsubscribe requests from your account to you. Under the CAN-SPAM Act and Canada’s Anti-Spam Legislation, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
If your account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your contacts and content.
10.4 Surviving Provisions. Section 1 and Sections 4 through 11 shall survive any termination or expiration of this Agreement, regardless of the cause of termination.
11.1 Relationship of the Parties; Third Party Beneficiaries. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Unless otherwise provided in an Addendum, there are no third-party beneficiaries to the Agreement.
11.2 Force Majeure. Neither party is responsible for delays or failures to perform its responsibilities under the Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.
11.3 Notices. Any notice, request, approval or written consent required under the Agreement shall be sufficiently given if in writing and delivered in person or mailed (certified or registered mail, return receipt requested) by one party to the other at the address set forth on the first page hereof or to such other address as the recipient may subsequently furnish in writing to the sender. Notices to Digital 55 shall be addressed to the attention of its General Counsel. Notices to Customer shall be addressed to Customer’s signatory of this MSA unless otherwise designated in writing. Notice shall be effective upon receipt.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. Any provision of the Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without (a) invalidating the remaining provisions hereof if the essential provisions of the Agreement for each party remain valid, binding, and enforceable, or (b) affecting the validity or enforceability of such provisions in any other jurisdiction.
11.6 Assignment. Neither party may assign the Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all Proposals and SOWs), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to affect an assignment in breach of this Section shall be void. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law; Venue; JURY TRIAL WAIVER. The Agreement, and all claims arising out of or relating to its subject matter, shall be exclusively governed by and construed under the internal laws of the State of Ohio, without regard to its conflicts of laws rules. Each party consents to the exclusive jurisdiction of the state and federal courts located in Lucas County, Ohio to adjudicate any claim arising out of or relating to the Agreement or its subject matter. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.
11.8 Attorneys’ Fees. If either party hereto files a legal proceeding arising out of or relating to the Agreement or its subject matter, the prevailing party (as adjudged by a court or other fact finder) shall be entitled to an award of all costs and expenses incurred in connection with such proceeding, including but not limited to reasonable attorneys’ fees and expert witness fees.
11.9 Entire Agreement. The Agreement, as defined herein, constitutes the entire agreement between the parties with respect to the subject matter set forth in the Proposals and SOWs executed by the parties during the Term, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by both parties hereto. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Addendum, Exhibit, Proposal, or SOW, the terms of this MSA shall prevail unless expressly stated otherwise in such Addendum, Exhibit, Proposal, or SOW. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Proposals and SOWs) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void. The language used in this MSA shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this MSA. In the event of any asserted ambiguous term or condition herein, the parties agree that the principle that ambiguities shall be construed against the drafter shall not be employed. Each party represents and warrants that, in deciding to execute the Agreement, it has not relied and should not rely on any understandings, representations, inducements, warranties or promises, whether written or oral and/or whether express or implied, regarding the Agreement, the matters referenced in the Agreement or any other matters not referenced in the Agreement. Each party represents and warrants that it did not enter the Agreement based on any representation or omission of any other party or its agents, and that any term not present in the Agreement was not material to its decision to enter into the Agreement.
11.10 Counterparts. This MSA may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this MSA by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this MSA.
Your privacy is important to us, and maintaining your trust and confidence is one of our highest priorities.
A. Types of Information We Collect
We collect certain personal information about you – but only when that information is provided by you or is obtained by us with your authorization. We use that information establish accounts and process payments for our products and services.
Examples of sources from which we collect information include:
Interviews and phone calls with you,
Letters or e-mails from you, and
Forms you complete on our website.
B. Parties to Whom We Disclose Information
As a general rule, we do not disclose personal information about our clients or former clients to anyone.
We are the sole owners of the information collected on this site. We only have access to/collect information that you voluntarily give us via email or other direct contact from you. We will not sell or rent this information to anyone.
We will use your information to respond to you, regarding the reason you contacted us. We will not share your information with any third party outside of our organization, other than as necessary to fulfill your request.
Your Access to and Control Over Information
You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address or phone number given on our website:
See what data we have about you, if any.
Change/correct any data we have about you.
Have us delete any data we have about you.
Express any concern you have about our use of your data.
We take precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline.
Wherever we collect sensitive information (such as credit card data), that information is encrypted and transmitted to us in a secure way – please note that we can always exchange sensitive information verbally so no sensitive information about you or your account is done via the internet.. While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.
Thank you for allowing us to serve your marketing and communications needs. We value your business and are committed to protecting your privacy.
Please call us if you have any questions or if we can be of further service.
© 2022 Digital 55. All rights reserved.
Digital 55 Refund & Cancellation Policy
The following is the cancellation and refund policy for Digital 55’s Digital Services (*):
● All projects begin with a complete analysis, discovery, and creation of a scope of work proposal document. This process ensures that both parties completely understand the work requirements thus lessening the likelihood for cancellations, reversals, and/or disputes in projects.
● We do not issue refunds for digital services once the order is confirmed and the project moves into the planning phase. A refund is not possible for work already completed.
● Once mock-ups (if required) are approved and/or development begins neither whole nor partial reimbursements will be given.
● SEO and digital marketing service packages are non-refundable. However, the client may cancel such services with a 30 day-written notice. If the client is under contract, they may be subject to a cancellation fee.
● No refunds are offered on deposits or payments for abandoned or dormant projects. The cut-off time for abandoned or dormant projects is 30 days. Digital 55 will contact you two (2) times in that 30-day period to request content. If content is not provided within that 30-day period, your account will be considered dormant or abandoned and subject to a reactivation fee.
● If a project is terminated on a mutual basis, the client will be given control of the completed work once they have paid for said work. In this case, any payment for further development will become void and no previous payment or deposit will be refunded.
● Should the client choose to terminate hosting services with Digital 55, the website files will be transferred in accordance with the terms outlined in section 5.3 of our MSA and SOFTWARE AND CONTENT AVAILABLE THROUGH THE DIGITAL 55 SITE/SERVICES section of our Terms of Service, once the account/contract terms are paid in full.
● During the first 30 days of service, you may cancel your account at any time excluding individual websites and packages. Note that refunds will not be given for work done during this period.
Digital Products (**) Digital 55 honors refund requests for non-tangible (digital) products under the following exceptional circumstances:
● “Non-delivery of the electronic product” – download issues due to Digital 55 server problems, software compatibility issues, issues originated from client’s email service provider, or unzipping difficulties. Claims for non-delivery must be submitted within 7 days from the date of purchase. A digital product is considered received and downloaded if no claim was submitted.
● Digital Product “not as described” – such issues must be reported within 7 days from the date of purchase. Detailed, clear evidence must be provided with proof that the purchased and delivered digital product is “not as described” by Digital 55. All objections based purely on the customer’s false anticipations or desires do not meet the requirements for refunds.
● Major or Critical Defects – Digital 55 tests every digital product before release. However, unforeseen defects can arise from time to time. Claims for such errors must be submitted within 7 days from the date of initial access. Digital 55 reserves the right to correct such errors within 3 business days. If no satisfactory remedy is supplied, then the customer is entitled to a full refund of the purchase the following business day.
● Software Compatibility – Digital 55 will not offer refunds for materials that do not work because of software incompatibility issues.
* Digital Services include SEO and digital marketing packages, WordPress Security Management, Industry Trend Research, Web Consultancy, Website Design and Revamp, Search Engine Optimization (SEO), Online Operations, Full Service Email Marketing, Content Creation, Social Media Services including any consulting, Market Insights, Strategic Planning, Web Analytics, and Marketing Strategies.
** Digital Products include blog posts, text and video tutorials, webinars, downloadable software, email marketing blast tools, SMS blasts, website themes, logos, PDFs, downloadable links, photos, web graphics, and templates.
Digital 55 reserves the right to revise the terms of this policy at any time.
CRM Terms of Service
Effective Date: 1st July 2021.
THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “You” or “Your”) AND Digital 55 LLC’s INUGO THE SIMPLE AND EASY CRM (hereinafter “Inugo”) GOVERNING YOUR USE OF INUGO THE SIMPLE AND EASY CRM SUITE OF ONLINE BUSINESS PRODUCTIVITY AND COLLABORATION SOFTWARE.
Parts of this Agreement
This Agreement consists of the following terms and conditions (hereinafter the “General Terms”) and terms and conditions, if any, specific to use of individual Services (hereinafter the “Service Specific Terms”). The General Terms and Service Specific Terms are collectively referred to as the “Terms”. In the event of a conflict between the General Terms and Service Specific Terms, the Service Specific Terms shall prevail.
Acceptance of the Terms
You must be of legal age to enter into a binding agreement in order to accept the Terms. If you do not agree to the General Terms, do not use any of our Services. If you agree to the General Terms and do not agree to any Service Specific Terms, do not use the corresponding Service. You can accept the Terms by your acceptance of the terms via signed proposal or by actually using the Services.
Description of Service
We provide an array of Services for online collaboration and management including word processor, spreadsheet, presentation tool, database application creator, email client, chat client, organizer, customer relationship management application and project management application ("Service" or "Services"). You may use the Services for your personal and business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your user account and if you choose to do so, you can publish and share such content.
Subscription to Beta Service
We may offer certain Services as closed or open beta Services ("Beta Service" or “Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial Services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that Inugo will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension, or discontinuance of any of the Beta Services for any reason.
Modification of Terms of Service
We may modify the Terms upon notice to you at any time through a Service announcement or by sending email to your primary email address. If we make significant changes to the Terms that affect your rights, you will be provided with at least 30 days advance notice of the changes by email to your primary email address. You may terminate your use of the Services by providing Inugo notice by email within 30 days of being notified of the availability of the modified Terms if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. In the event of such termination, you will be entitled to prorated refund of the unused portion of any prepaid fees. Your continued use of the Service after the effective date of any change to the Terms will be deemed to be your agreement to the modified Terms.
User Sign up Obligations
You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address. You agree to: a) provide true, accurate, current and complete information about yourself as prompted by the sign-up process; and b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if Inugo has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete,
Inugo may terminate your user account and refuse current or future use of any or all of the Services.
Organization Accounts and Administrators
When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account.
You are responsible for i) ensuring confidentiality of your organization account password, ii) appointing competent individuals as administrators for managing your organization account, and iii) ensuring that all activities that occur in connection with your organization account comply with this Agreement. You understand that Inugo is not responsible for account administration and internal management of the Services for you.
You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. You may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to firstname.lastname@example.org, provided that the process is acceptable to Inugo. In the absence of any specified administrator account recovery process, Inugo may provide control of an administrator account to an individual providing proof satisfactory to Inugo demonstrating authorization to act on behalf of the organization. You agree not to hold Inugo liable for the consequences of any action taken by Inugo in good faith in this regard.
Personal Information and Privacy
for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise. Communications from Inugo
The Service may include certain communications from Inugo, such as Service announcements, administrative messages, and newsletters. You understand that these communications shall be considered part of using the Services. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving Service announcements and administrative messages.
If we receive a complaint from any person against you with respect to your activities as part of use of the Services, we will forward the complaint to the primary email address of your user account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy Inugo in the communication. If you do not respond to the complainant within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by Inugo to the complainant.
Fees and Payments
The Services are available under subscription plans of various durations. Payments for subscription plans of duration of less than a year can be made only by Credit Card. Your subscription will be automatically renewed at the end of each subscription period unless you downgrade your paid subscription plan to a free plan or inform us that you do not wish to renew the subscription. At the time of automatic renewal, the subscription fee will be charged to the Credit Card last used by you. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different Credit Card. If you do not wish to renew the subscription, you must inform us at least seven days prior to the renewal date. If you have not downgraded to a free plan and if you have not informed us that you do not wish to renew the subscription, you will be presumed to have authorized Inugo to charge the subscription fee to the Credit Card last used by you. Please check and know about our Cancellation Policy https://digital-55.com/cancellation-policy.
From time to time, we may change the price of any Service or charge for use of Services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any Service unless you have opted for a paid subscription plan.
Restrictions on Use
In addition to all other terms and conditions of this Agreement, you shall not: (i) transfer the Services or otherwise make it available to any third party; (ii) provide any Service based on the Services without prior written permission; (iii) use the third party links to sites without agreeing to their website terms & conditions; (iv) post links to third party sites or use their logo, company name, etc. without their prior written permission; (v) publish any personal or confidential information belonging to any person or entity without obtaining consent from such person or entity; (vi) use the Services in any manner that could damage, disable, overburden, impair or harm any server, network, computer system, resource of Inugo; (vii) violate any applicable local, state, national or international law; and (viii) create a false identity to mislead any person as to the identity or origin of any communication.
Spamming and Illegal Activities
You agree to be solely responsible for the contents of your transmissions through the Services. You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity.
Inactive User Accounts Policy
We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 120 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and option to back-up your data. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate Service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In
case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
We respect your right to ownership of content created or stored by you. You own the content created or stored by you as long as you are paying a subscription for the Service. Should a user not be paying for the Service, the data created is owned by Inugo. Unless specifically permitted by you, your use of the Services does not grant Inugo the license to use, reproduce, adapt, modify, publish, or distribute the content created by you or stored in your user account for Inugo’s commercial, marketing or any similar purpose. But you grant Inugo permission to access, copy, distribute, store, transmit, reformat, publicly display, and publicly perform the content of your user account solely as required for the purpose of providing the Services to you.
User Generated Content
You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization, or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that Inugo will have the right to block access to or remove such content made available by you if Inugo receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by Inugo for this purpose.
For procedure relating to complaints of illegality or infringement of third party rights in content transmitted or published using the Services.
If you wish to protest any blocking or removal of content by Inugo, you may do so by emailing email@example.com.
Sample files and Applications
Inugo may provide sample files and applications for the purpose of demonstrating the possibility of using the Services effectively for specific purposes. The information contained in any such sample files and applications consists of random data. Inugo makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the information or the sample files and applications.
Inugo, or logos are trademarks of Digital 55, LLC. You agree not to display or use, in any manner, the Inugo trademarks, without Inugo’s prior permission.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. INUGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INUGO MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM INUGO, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Limitation of Liability
YOU AGREE THAT INUGO SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER
LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF INUGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL INUGO’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH SERVICE.
You agree to indemnify and hold harmless Inugo, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of the Services, except where such use is authorized by Inugo.
Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Ohio and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, Inugo may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
Suspension and Termination
We may suspend your user account or temporarily disable access to whole or part of any Service in the event of any suspected illegal activity, extended periods of inactivity or requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to firstname.lastname@example.org within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate your user account on your request.
In addition, we reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Terms and to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. You have the right to terminate your user account if Inugo breaches its obligations under these Terms and in such event, you will be entitled to prorated refund of any prepaid fees. Termination of user account will include denial of access to all Services, deletion of information in your user account such as your email address and password and deletion of all data in your user account.
END OF TERMS OF SERVICE
If you have any questions or concerns regarding this Agreement, please contact us at email@example.com.
SEO/PPC/Social Terms of Service
In consideration of the mutual covenants set forth in any Agreement and/or Client and DIGITAL 55 hereby agree as follows:
Development of PPC Campaign and/or Optimization Services and/or Social Media Services or referred as “PPC Campaign” in this document.
DIGITAL 55 agrees to create, install, manage, develop and employ custom PPC Advertising tactics according to the terms listed on Exhibit A attached hereto.
DIGITAL 55 agrees to develop the PPC Campaign pursuant to the Specifications set forth in Exhibit A.
Delivery Dates and Milestones
DIGITAL 55 will use reasonable diligence in the development of the PPC Campaign and Strategy and endeavor to deliver to client all deliverables and milestones on a monthly basis. Client acknowledges, however, that this delivery deadline and the other payment milestones are estimates, and are not required delivery dates. DIGITAL 55 will retain all documents, source code, keyword lists and other assets employed or created for client during the execution of any agreement. Client will receive only the output formats of DIGITAL 55’s work where applicable. The output is to be used only within the scope of the project as outlined in Exhibit A. Client shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to DIGITAL 55 for use in the PPC Campaign and Strategy rendered under any agreement.
PPC Campaign and Optimization services are intended to provide client with preferential positioning in selected paid search engine inclusion and report
results on an ongoing and timely basis. Some of the PPC Campaign and Optimization tactics include:
1.1 PPC Keyword Selection Services
DIGITAL 55 will manage a list of keywords and phrases relevant to client’s desired search terms based upon
Research conducted by DIGITAL 55
Competitive analysis of keyword terms currently in market use. Other client-provided analytics and metrics for particular terms or phrases.
1.2 PPC Campaign Components, Implementation, Ongoing Research and Reporting Services
DIGITAL 55 can write or modify Client’s advertising copy that is designed to drive high quality traffic to client web site(s) based upon the various keywords identified and selected in section 1.1. Click-through rates shall be tracked and copywriting shall be adjusted based on these reports.
DIGITAL 55 and client shall agree upon an initial budget for all PPC efforts.
Campaign Creation and Implementation
DIGITAL 55 shall set up independent PPC accounts in client name with all agreed-upon PPC Advertising Networks and subject to the agreed-upon budgets. DIGITAL 55 shall create various campaigns with varying advertising copy, keywords and demographic targeting based on the DIGITAL 55’s research. Campaigns may differ in copywriting and keyword usage based upon the individual PPC advertiser.
DIGITAL 55 may create special Web Pages (“landing pages”) to which all click-through actions. Creative services rendered under any Agreement may be subject to separate Web Design and Development fees and terms and conditions.
Monitoring and Reporting
DIGITAL 55 shall monitor and manage client’s PPC campaign and monitor CPC (cost per click) rates. Bids may be adjusted in order to maximize high quality traffic. Non-performing keywords may be removed from the PPC campaign based on the results of this reporting. Reports shall be provided to client on a monthly basis if proposal identifies it.
1.3 ROI and Conversion Tracking Software
In the event that it is deemed necessary and vital to install ROI tracking or other metric measurement software, DIGITAL 55 can monitor and configure software packages (“the Installation” or the “Software”) for certain fees. DIGITAL 55 shall not be responsible for keeping copies, back-ups or any other form of the Software after turning over the original copies to client. DIGITAL 55 will not maintain the Installation, updates, or any daily tasks required for the maintenance of the Software under any agreement.
DIGITAL 55 will not manage or maintain copies of licenses for any of the software packages or installations under any Agreement.
1.4 Service Disclaimers
Client acknowledges the following with respect to services:
a) DIGITAL 55 accepts no responsibility for policies of PPC Advertising Networks, third-party search engines, directories or other web sites (“Third Party Resources”) that DIGITAL 55 may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s web site or content may be excluded or banned from any Third-Party Resource at any time. Client agrees not to hold DIGITAL 55 responsible for any liability or actions taken by Third-Party Resources under any Agreement. b) Client acknowledges the nature of many of the resources DIGITAL 55 may employ under any Agreement are competitive in nature. DIGITAL 55 does not guarantee position, consistent positioning, or specific placement for any
particular PPC keyword, phrase or search term. Client acknowledges that DIGITAL 55’s past performance is not indicative of any future results client may experience.
c) Client acknowledges that PPC Advertising may be subject to the individual advertising network’s policies and procedures. Each edit or change made to any resources employed by DIGITAL 55 may repeat these inclusion times. d) Client acknowledges that any of the PPC advertising networks; search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
e) Client acknowledges that PPC advertising networks or search engines may drop listings from its database for no apparent or predictable reason. DIGITAL 55 shall re-submit resources to the search engine based on the current policies of the search engine in question and whether pay inclusion programs are being used.
f) DIGITAL 55 will endeavor to make every effort to keep client informed of any changes that DIGITAL 55 is made aware of that impact any of the PPC Campaign and Strategy and the execution thereof under any Agreement. Client acknowledges that DIGITAL 55 may not become aware of changes to third-party resources, industry changes or any other changes that may or may not affect PPC campaign.
g) Client acknowledges that DIGITAL 55 cannot guarantee the exact placement of client’s advertising; its availability or availability related to the funds in the client’s account. Client is solely responsible for all advertising fees and must maintain adequate funds in any third-party accounts in order to maintain inclusion in these resources.
For all of DIGITAL 55’s services under any Agreement, client shall compensate DIGITAL 55, in cash, pursuant to the terms of Exhibit A attached hereto. In the event client fails to make any of the payments referenced in Exhibit A by the deadline set forth in Exhibit A, DIGITAL 55 has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by DIGITAL 55, whether leased to client by DIGITAL 55 or not and any DIGITAL 55 personnel or staff from client location(s), or (3) bring legal action.
Client and DIGITAL 55 acknowledge and agree that the Specifications and all other documents and information related to the development of PPC Campaign (the “Confidential Information”) will constitute valuable trade secrets of DIGITAL 55. Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of any agreement, without DIGITAL 55’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
Limited Warranty and Limitation on Damages
Client waives any warranty, express or implied. Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to DIGITAL 55 as set forth in Exhibit A attached hereto.
DIGITAL 55 shall be retained as independent contractor. DIGITAL 55 will be fully responsible for payment of its own income taxes on all compensation earned under any agreement. Client will not withhold or pay any income tax, social security tax, or any other payroll taxes on DIGITAL 55’s behalf. DIGITAL 55 understands that it will not be entitled to any fringe benefits that client provides for its employees generally or to any statutory employment benefits, including without limitation worker’s compensation or unemployment insurance.
Client agrees to make available to DIGITAL 55, for DIGITAL 55’s use in performing the services required by any agreement, such items of hardware and software as client and DIGITAL 55 agree are reasonably necessary for such purpose. Client agrees to make available any access to services deemed necessary by DIGITAL 55 to fulfill its obligations under any agreement.
2.1 Entire Agreement
Any agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of any agreement shall be valid unless made in writing and signed by both parties hereto.
2.2 Governing Law
Any agreement shall be governed by and construed in accordance with the laws of the state of Ohio. Exclusive jurisdiction and venue shall be in the State of Ohio.
2.3 Binding Effect
Any agreement shall be binding upon and inure to the benefit of client and DIGITAL 55 and their respective successors and assigns, provided that DIGITAL 55 may not assign any of its obligations under any agreement without client’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of any agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of any agreement.
2.5 Good Faith
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of any agreement.
2.6 No Right to Assign
Client has no right to assign, sell, modify or otherwise alter any agreement, except upon the express written advance approval of DIGITAL 55, which consent can be withheld for any reason.
2.7 Right to Remove Resources
In the event client fails to make any of the payments set forth on Exhibit A within the time prescribed in Exhibit A, DIGITAL 55 has the right to remove any PPC campaign under DIGITAL 55 control until payment is paid in full, plus accrued late charges of 2% per month.
Client warrants that everything it provides DIGITAL 55 to employ in the PPC campaign is legally owned or licensed to client. Client agrees to indemnify and hold DIGITAL 55 harmless from any and all claims brought by any third
party relating to any aspect of the PPC campaign, including but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by client’s products/services, material supplied by client, copyright infringement, and defective products sold via the PPC campaign. Client agrees to indemnify DIGITAL 55 from responsibility for problems/disruptions caused by third-party services that client may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to the ownership and operation of the PPC campaign.
2.9 Use of Material for Promotional Purposes
Client grants DIGITAL 55 the right to use its work in producing the PPC campaign for promotional purposes and/or to cross-link it with other advertising developed by DIGITAL 55. Client grants DIGITAL 55 the right to list reference or otherwise identify client as a client of DIGITAL 55 in DIGITAL 55’s advertising and marketing.
2.10 No Responsibility for Loss
DIGITAL 55 will have no responsibility for any third party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed for the PPC campaign. DIGITAL 55 is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the PPC campaign under any agreement.
2.11 Right to Make Derivative Works
DIGITAL 55 will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to the PPC campaign.
2.12 Attorney’s Fees
In the event any party to any agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
2.13 Identification of DIGITAL 55
Client agrees that DIGITAL 55 identification may be annotated, and remain within the code or on the web site as the authors. Client also agrees to put DIGITAL 55’s copyright notices on the PPC campaign reports and the relevant content therein.
2.14 Transfer of Rights
In the event DIGITAL 55 is unable to continue maintenance of the PPC campaign services, non-exclusive rights to the PPC campaign will be granted to client. Transfer of Rights does not apply to non-transferable third-party licenses and proprietary material owned by the developers.
Some of the tactics DIGITAL 55 will utilize as part of it’s service offering are as follows:
– Individual ads monitored and poor performers replaced with new ad copy – Keyword performance analyzed and poor performing keywords eliminated – Keyword opportunities identified based on ad and keyword performance – Ad groups created or modified based on ad and keyword performance – Ad and keyword bids modified to maximize high quality traffic – Recommendations made to improve landing page performance – Competitor campaigns reviewed to identify keywords, ad and landing pages opportunities
– Monthly statistics and account changes report sent
– Phone call tracking and recording for analytics purposes
By purchasing our PPC services the client understands that DIGITAL 55 may not execute all of these tactics, and will use its best judgment which tactics to
utilize at our discretion. Client Agrees to pre-pay DIGITAL 55 for each month in advance and will be automatically billed by credit card. The amount paid each month will be based on the specific PPC package the Client purchased at signup.
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