Digital Concierge Client Terms and Conditions
Table of Contents
For purposes of these Digital Concierge Client Terms and Conditions (“Terms”), “Digital Concierge”, “we” or “our” refers to Digital Concierge, and “Client,” “you” or “your” refers to your company.
Please read these Terms carefully as they, together with your signed Digital Concierge Service Proposal, if one exists, (hereinafter “Service Agreement”), and any Digital Concierge Change Orders, if any exist constitute your entire agreement with Digital Concierge (hereinafter the “Agreement”).
The parties agree that, subject to the terms and conditions of the Agreement, Digital Concierge will provide digital marketing services, products, and/or tools to client for fees.
By engaging Digital Concierge to provide services to you, you agree to be legally bound by the Service Agreement.
Digital Concierge offers a variety of digital marketing and web services, including without limitation, search engine optimization (“SEO”), link building, search engine optimized press release service, search engine visibility and premium listings services, digital advertising, content creation and design, Branding, website design and hosting, reputation management, review management, and social media management (“Services”).
Design – What is Included/Not Included
Unless otherwise specifically stated as a part of the deliverables in your Service Agreement with Digital Concierge, if Client has engaged Digital Concierge to design a website, web application, mobile site, email template or the like, Digital Concierge will provide two designs for Client to choose from. Additional designs can be provided at additional cost.
In the case of web and/or mobile sites, once Client has selected the design it would like to use as the home page, it will be permitted one round of revisions to that design. Once those revisions have been made, Digital Concierge will design one subpage template that will follow the same look and feel of the home page. Client will be permitted one round of revisions to that subpage template. Please note that the same subpage template will be used for all of the other pages of the site.
Additional revisions beyond those set forth above or additional template designs will be billed to the client at the rate of $150/hour. Also, please note that the design of the layout/placement of the content in each of the subpages of a site is not included in the cost of the project.
Rather, Client will be asked to advise where they wish to place images, content, etc. within each of the subpages. Should Client require assistance in designing a proper aesthetic for each of the subpages this will be at an additional charge of $150/hour. Finally, alterations to or resizing of graphics for placement in the subpages will also be at an additional charge of $150/hour.
If Client requests additional work not included in the original scope of the Service Agreement, Client will be responsible for all additional charges. Scope changes include but are not limited to, additional design comps, additional rounds of revision, additional copyrighting/edits, additional video edits, changes to website/web application functionality, addition of plug-ins or other technical capabilities.
Client’s emailed or verbal request for any work not included in the original scope of the Service Agreement will be deemed a change order request for which payment will be required. Pricing for the scope change may be set forth in email or verbal communications between Client and Digital Concierge. If no amount has been specified, Client will be billed at the rate of $150/hour.
If Client has engaged Digital Concierge to assist with business name selection, logo creation, slogan creation, or the like, please be advised that Digital Concierge cannot search trademark or other databases to ensure that the name or mark is not already being used, is/is not available to be trademarked or otherwise provide advice on whether the contemplated name or mark is legally available as Digital Concierge cannot provide legal advice to its clients. Digital Concierge encourages Client to retain an attorney to assist in this process.
Search Engine Optimization (SEO) Clients
Client acknowledges the following with respect to SEO services from Digital Concierge:
- Digital Concierge has no control over the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. A Client’s website may decline in rankings or become de-indexed from any search engine or directory at any time at the sole discretion of the search engine or directory.
- Due to the competitiveness of some keywords/phrases, ongoing algorithm changes, and other competitive factors, Digital Concierge does not guarantee specific rankings or search engine results page positions for any particular keyword, phrase, or search term.
- Search engines have been known to rank pages over time, therefore we cannot guarantee the rankings and traffic of new websites (or pages) to improve in any given amount of time.
- Engaging in link schemes, link exchanges or buying links can negatively impact your site’s rankings. Digital Concierge does not assume liability for Client’s choice to link to or obtain a link from any particular website without prior consultation, nor does Digital Concierge assume liability for ranking, traffic, indexing issues related to such penalties.
- Digital Concierge’s SEO process takes at least 2-3 months to show some significant effect. During this time, the Client’s site is analyzed and optimized within the timelines and resources specified in the agreement. Achieving stable ranking improvements can take up to 6-12 months or longer in some cases.
- Digital Concierge is not responsible for changes made to the website by other parties that adversely affect the site’s visibility in search engine results.
- Digital Concierge makes no guarantee/warranty of project timelines or added expenses if SEO work is destroyed either wholly or in parts, either knowingly or unknowingly by any party other than Digital Concierge or without the prior consultation of Digital Concierge.
- Digital Concierge is not responsible for the Client or any of its affiliates overwriting SEO work. The Client will be charged an additional fee for re-constructing, re-optimizing content/web pages, based on the hourly rate of $150 per hour.
Client acknowledges the following with respect to Advertising services from Digital Concierge:
- Digital Concierge accepts no responsibility for policies of advertising networks, third-party search engines, directories or other web sites that Digital Concierge may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s website or content may be excluded or banned from any third-party resource at any time if their policies are not adhered to. Client agrees not to hold Digital Concierge responsible for any liability or actions taken by any third-party resource under this Agreement.
- Digital Concierge does not guarantee position, consistent positioning, or specific placement for any particular paid search keyword, phrase or search term. Client acknowledges that Digital Concierge’s past performance is not indicative of any future results client may experience.
- Client acknowledges that advertising campaigns may be subject to the individual advertising network’s policies and procedures. Changes to these policies may require added resources employed by Digital Concierge to adhere to these changes. The Client may be charged an additional fee for making these updates, based on the hourly rate of $150 per hour.
- Client acknowledges that any advertising networks, search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
- Client acknowledges that advertising networks may drop listings from its database for no apparent or predictable reason. Digital Concierge shall re-submit resources to the advertising network based on the current policies of the advertising network in question.
- Digital Concierge will endeavor to make every effort to keep Client informed of any changes that Digital Concierge is made aware of that may impact any of the Paid Media Campaign and Strategy and the execution thereof under this Agreement.
- Client acknowledges that Digital Concierge cannot guarantee the exact placement of Client’s advertising; its availability or availability related to the funds in the Client’s account.
- Development of creative assets in support of Paid Media campaigns will be outlined specifically as a part of the deliverables in the Agreement with Digital Concierge.
- Any forecasting metrics provided to Client are estimates only based on industry knowledge and advertising network projected forecasts.
- If Digital Concierge executes Insertion Orders (IO) as it relates to advertising placements, each IO will list the type and amount of deliverables, the maximum amount of money to be spent, and the flight dates of advertising placements. Digital Concierge cannot be held accountable for the exact delivery, inventory and/or performance of ad campaigns projected in an IO due to these being third party forecasts.
- When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. Digital Concierge cannot be held to reporting accuracy without the ability to install appropriate tagging on all digital assets.
- When reporting is delivered by Digital Concierge, data is provided directly based on the ad network’s currently available data. If reporting is delivered before 30 days after the campaign has ended, all data may not have time to be collected and exact accuracy can be affected.
Pre-payment for media/liability for payment
Where Client has engaged Digital Concierge to procure media or advertising on its behalf (e.g., including but not limited to print, radio, television, digital), and Client is not paying for the media/advertising directly to the advertising/media vendor, Digital Concierge must receive payment for the media/advertising prior to the media/advertising running. If Digital Concierge does not receive payment for both the media budget and the media management fees, it may, at its discretion, choose to cancel or pause the media until payment is received. If Digital Concierge has not received payment for the media/advertising but nonetheless allows the media/advertising to run, Client will remain responsible to Digital Concierge and/or the advertising/media vendor for payment of same, notwithstanding the existence of any insertion order or contract between Digital Concierge and the advertising/media vendor. If an advertising/media vendor seeks payment from Digital Concierge for media that Client has not paid Digital Concierge for, Client agrees that it will execute any documents requested by Digital Concierge and/or the media/advertising vendor to assume liability for payment.
Early termination of media spend
If Client seeks to cancel media earlier than the date set forth in any media contract or IO, Digital Concierge will use its best efforts to cancel same without penalty to Client. However, Client expressly understands and agrees that certain media/advertising vendors will not allow cancellations and/or will charge a cancellation fee or “short rate” for same. Client shall be responsible for those amounts to the extent they have not already been paid to Digital Concierge. To the extent that Digital Concierge has received payment from Client that will cover those amounts, Client shall nonetheless remain responsible for payment of Digital Concierge’s time in having to process the cancellations at the rate of $150/hour.
Effect of termination of Agreement
If Client terminates a Service Agreement for media placement, Digital Concierge will cancel all pending media unless otherwise agreed to in writing by the parties. If Client is indebted to Digital Concierge for Digital Concierge’s services, Digital Concierge reserves the right to offset that debt with any payments Client has prepaid to Digital Concierge. Any amounts left over after full payment of Digital Concierge’s outstanding fees (including time spent cancelling media) and fees still due to media/advertising vendors will not be refunded but may instead be used by Client for additional Digital Concierge services and/or additional media placement.
Digital Concierge may, but is not required to, retain or store video footage on behalf of Client unless specifically agreed to in the Service Agreement. If a video shoot is scheduled that Client must cancel, Client should provide at least 24 hours notice. Shoots cancelled with less than 24 hours notice will be subject to a day’s production fee.
While Digital Concierge uses its best efforts to get a Client’s press release(s) published, Client acknowledges that the decision to accept a story remains with the publishing source and Digital Concierge cannot therefore guarantee that a story or press release will be published or when it will be published.
In consideration for the Services performed by Digital Concierge, Client shall pay all Digital Concierge’s fees for Services, products, and/or tools (“Fees”) in the amounts as set forth by Digital Concierge at the time of purchase. The type of Fees and payment schedule associated with each of them will be set forth by Digital Concierge at the time of purchase.
If any conflict or discrepancy shall arise between this Digital Concierge Client Terms and Conditions and those of any Digital Concierge Service Proposal, the terms of the Digital Concierge Service Proposal shall govern and be controlling.
Service Fees are subject to change, with or without notice, at the sole discretion of Digital Concierge.
Service Fees are based on current scope of work. In the event additional services are required or there is a major change in the scope of work, then Digital Concierge reserves the right to adjust our pricing. In the event the travel required to fulfill these services is more than 50 miles, then Digital Concierge shall be reimbursed for expenses incurred. All expenses must be pre-approved by Client.
Unless expressly stated otherwise in a Digital Concierge Service Proposal, the following are Digital Concierge’s payment terms.
Deliverable-Based or One-Time Flat Fee Projects
The total approved project cost will be billed 50% upfront, due at the time of receipt and 50% billed at the completion of the project(s) or at 45 days following execution of the Service Agreement, whichever occurs first. Any approved ongoing monthly services associated with deliverable-based projects, including project management hours and website hosting, will be billed in advance of each month and are due upon receipt.
Monthly. Quarterly, and/or Annual Fee-Based Services
Digital Concierge will invoice or charge the Client’s credit card on file for all monthly, quarterly or annual fee-based services on or around the same day of each month, quarter or year preceding the month, quarter or year in which services are to be provided. Payment is due upon receipt.
If Client becomes ten (10) or more days past due, Client shall be in default of the Agreement and will result in one or more of the following:
- Services suspended until all past due charges are paid.
- Client will continue to be responsible for Service Fees during any period that Services are suspended or not delivered due to Client’s breach.
- Late Fee: 5% of Client’s total invoice. The 5% late fee will be added to the Client’s current balance.
- Unpaid balance being assigned to a collection agency
Any request for a refund of any Service Fees will be at the sole and absolute discretion of Digital Concierge. If Digital Concierge determines that the Client is eligible for a refund, it will be calculated by first deducting Digital Concierge fees for all services already performed at our customary rate and all expenses associated with the project setup at the time the refund is requested.
Client shall not be eligible for a refund of any automatic monthly recurring fees after said fees have been paid to Digital Concierge.
Client shall make every effort to fully cooperate with Digital Concierge and provide such information as is reasonably required for Digital Concierge to effectively fulfill and perform the Services.
Point of Contact: Digital Concierge will need at least one point of contact from you for regular communications. This person will be responsible for:
- gathering your company’s data, files, or other content required for Digital Concierge to perform its services;
- attending conference calls or meetings at key intervals with Digital Concierge; and
- coordinating internal communications with your team regarding the status of project(s). They will receive all communications from Digital Concierge.
Client agrees to make its employees and representatives available to Digital Concierge according to the relevant areas of responsibility as needed for completing the Services.
If the Client cannot or otherwise fails to meet required deadlines or deliver to Digital Concierge the information necessary for Digital Concierge to perform the Services, then Client shall not hold Digital Concierge liable for failure of execution of Services.
The Client acknowledges and agrees that due to the dynamic properties of the internet and the services provided by Digital Concierge, as well as the reliance upon public behavioral elements beyond our control, Digital Concierge cannot guarantee any particular results including, without limitation, page placement in search engine ranking results, a specific number of clicks on search engines, a specific number of Social Media likes or shares, etc. (“Results”).
Client further agrees that Digital Concierge shall not be responsible for a reduction in the Results caused by changes made by the Client without the approval or authorization of Digital Concierge.
Client Representations and Warranties
Client agrees, represents, and warrants to Digital Concierge, both during and after the term of this Agreement that:
- The Service is for the sole use within Client’s own organization and by Client’s own employees, representatives or agents.
- The Service may not be shared with affiliates or any third party, including joint marketing arrangements.
- Client shall not use the Service in any way that
- infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy,
- violates any law, statute, ordinance or regulation, or
- is defamatory, libelous, unlawfully threatening or unlawfully harassing.
This Agreement will commence on the date Client pays to Digital Concierge an initial fee and continue for a term of one (1) year.
Automatic Renewal: All terms of this agreement will automatically renew after the initial term on a month-to-month basis, unless Termination occurs in accordance with the terms of the Agreement.
Client shall have the right, at any time, to terminate this Agreement, for any reason by providing not less than thirty (30) days written notice to the other party. Digital Concierge reserves the right, in its sole and absolute discretion to immediately terminate this Agreement at any time, for any reason, or for no reason at all.
Early Termination: We put a great deal of care and effort into getting to know our clients and plan marketing initiatives on their behalf. We also provide more favorable pricing under the belief that a client will honor the full term of the Agreement. In the event of early termination, the following fees will be due:
- Deliverable-based or one-time flat fee projects: If the initial 50% payment has not already been paid: 75% of the total contracted amount (including any project management fees) will be due. If the 50% payment has already been paid: 50% of the remaining contracted amount (including any monthly project management fees) will be due; however, if Digital Concierge has delivered the work and is only waiting for feedback, edits or approvals from the Client, the full contract amount will be due
- Monthly, quarterly or annual fee-based services: Client shall be responsible for paying 75% of the unpaid remaining balance due for the full Agreement term for the monthly, quarterly or annual fee-based services. (Ex. Client agrees to 12 months of email services for $12,000; Client completes and pays for for 3 months. Client is responsible for $6750, which represents 75% of the remaining balance on the Agreement). However, prepaid monthly, quarterly or annual hosting or domain renewals will not be refunded.
Any termination of this Agreement, under any circumstances, will not release the Client from its financial obligations on projects opened by Digital Concierge at the Client’s request. Digital Concierge will be entitled to any commissions, fees and payments for services performed prior to the Client’s instructions to cancel, for commissions, fees, and payments during the 30 days cancellation notice period, and for advertising and materials placed or delivered thereafter if Digital Concierge is unable to halt such placement or delivery.
Client acknowledges and agrees that upon termination of this Agreement certain information regarding the Client that was posted on the Internet as part of our Services may continue to be available to the public on the Internet following termination of the Agreement. All provisions of this Agreement that by their purpose should survive termination of the Agreement including, without limitation, those set forth in the “Survival” section hereafter, shall survive.
Performance Post Termination, Suspension or Pausing
The Client acknowledges and agrees that the continual application of Digital Concierge Services is essential to successfully increasing results provided through the Services.
The Client further agrees that the termination, suspension or pausing of the Services may have an adverse effect on the performance of the Services and Client shall not hold Digital Concierge responsible or liable for any reduction in performance, loss or revenue or other damages resulting from the termination, suspension or pausing of the Services.
Independent Contractor Status
The relationship of Digital Concierge to Client will be that of an independent contractor, and neither Digital Concierge nor any employee of Digital Concierge will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture, agency, employment, or partnership.
Third Party Services
Client acknowledges and agrees that some of the Services you receive from Digital Concierge may be provided by one or more third party service providers, third party platforms, vendors, contractors, website hosting services or affiliates (“Third Party Services”) selected by Digital Concierge in our sole and absolute discretion, including without limitation, Facebook, Google, Twitter, Instagram, Youtube, WordPress, LinkedIn, etc.
CLIENT ACKNOWLEDGES AND AGREES THAT Digital Concierge DOES NOT CONTROL SUCH THIRD PARTY SERVICES AND IS THEREFORE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ISSUES OF ANY KIND RELATING TO THIRD PARTY ACCESS OR THIRD PARTY SERVICES. CLIENT FURTHER AGREES THAT IF A THIRD PARTY SERVICE CANNOT OR OTHERWISE FAILS TO COMMUNICATE WITH DIGITAL CONCIERGE, MEET REQUIRED DEADLINES OR DELIVER TO DIGITAL CONCIERGE THE INFORMATION NECESSARY FOR DIGITAL CONCIERGE TO PERFORM THE SERVICES, THEN CLIENT SHALL NOT HOLD DIGITAL CONCIERGE LIABLE FOR FAILURE OF EXECUTION OF SERVICES. CLIENT FURTHER AGREES THAT DIGITAL CONCIERGE IS NOT RESPONSIBLE FOR CHANGES CLIENT MAKES TO THE THIRD PARTY SERVICES WITHOUT DIGITAL CONCIERGE APPROVAL OR AUTHORIZATION. CLIENT AGREES TO INDEMNIFY DIGITAL CONCIERGE FOR ANY DAMAGES THAT MAY RESULT FROM CLIENTS USE OF OR UNAUTHORIZED CHANGES TO ANY THIRD PARTY SERVICES.
Digital Concierge reserves the right, in its sole and absolute discretion, to terminate, suspend, cancel or alter your Third Party Access at any time and without notice to you.
Security and Release
In order to provide our Services, Digital Concierge may need to be given login or access credentials (“Digital Concierge Credentials”) to password protected services used by the Client including, but limited to, Client hosting services, cPanel, Social Media Accounts, Google Analytics, Google My Business and Google Adwords. Digital Concierge requests that the Client provide unique Digital Concierge Credentials before services commence.
Client hereby releases, to the maximum extent allowed by law, Digital Concierge, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Digital Concierge access to, or a third party hacking or intrusion of Clients password protected services.
If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Client Content Rights and Related Responsibilities
“Client Content” means, without limitation, any digital files, images, photos, artwork, videos, audio and documents, or other content you make available to Digital Concierge. Digital Concierge will make commercially reasonable efforts to ensure that all facilities, and third parties used to process and store your Content meet a high standard for security.
In order for us to provide the Service to you, we require that you grant us certain rights with respect to Client Content, including the ability to transmit, manipulate, process, store and copy Client Content in order to provide our Services.
Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you. THIS PERMISSION INCLUDES ALLOWING US TO TRANSMIT USER CONTENT TO THIRD-PARTY SERVICE PROVIDERS FOR USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICE AND THE RIGHTS GRANTED TO US ARE EXTENDED TO THESE THIRD PARTIES TO THE DEGREE NECESSARY IN ORDER FOR THE SERVICE TO BE PROVIDED.
With regard to Client Content, you represent and warrant that: (i) you have all necessary rights, including intellectual property rights, to submit Client Content to Digital Concierge and grant the licenses set forth herein; (ii) Digital Concierge will not need to obtain licenses from any third party or pay royalties to any third party with respect to Client Content; (iii) Client Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) Client Content complies with all applicable laws.
You grant Digital Concierge a limited, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from Client Content for the purpose of allowing you to edit and display Client Content using Digital Concierge Services and archiving or preserving Client Content for disputes, legal proceedings, or investigations. The license for legal archival/preservation purposes will continue indefinitely.
You grant Digital Concierge and its successors, assignees and licensees the right, but not the obligation, to photograph, record, reproduce, depict and incorporate Client Content and materials (together “Materials”) including without limitation Client names, trademarks, service marks, trade names, logos, and copyrights depicted in the Materials and images thereof on the Digital Concierge website “www.digitalconcierge.us”, the promotion, marketing and exploitation of the Website, and in Digital Concierge advertising campaigns, ad copy, promotional material, and the like.
You retain ownership of all Client Content and Materials and all of the intellectual property rights in Client Content and Materials. Digital Concierge does not claim ownership over any of your Client Content or Materials.
Client Content placed on, as well as the format, layout and structure of third party platforms, such as WordPress, are subject to changes resulting from third party updates, therefore the Client agrees that such changes are beyond Digital Concierge control and Digital Concierge shall not be liable for any negative performance consequently resulting therefrom.
You agree to release, indemnify, defend and hold harmless Digital Concierge and Digital Concierge’s officers, directors, employees, agents, subsidiaries, partners, contractors, shareholders, attorneys, assigns and affiliates from and against any loss, liabilities, damages, costs, or expenses, including reasonable attorneys’ fees, resulting from any third party claim, action or demand arising under or relating to:
- This Agreement or the breach of Client warranties, representations and obligations under this Agreement or any other Digital Concierge term, rule, policy or agreement;
- Client’s failure to perform in accordance with this Agreement;
- Client’s use of the Services;
- The Client website, Client Content or Client Domain; or
- Client’s violation of any third party rights.
You agree that this indemnification obligation survives this Agreement’s termination or expiration. You agree to give prompt, written notice to Digital Concierge upon the receipt of notice of any claim by a third party against you which might give rise to a claim against Digital Concierge, stating the nature and basis of such claim and, if ascertainable, the amount thereof.
Digital Concierge Proprietary Property
Digital Concierge shall have no duty or obligation to disclose to the Client, or any third party, any material, services, processes, methods, plans, concepts, software or any other property, of any nature or kind, that Digital Concierge, in its sole discretion, deems to be proprietary to Digital Concierge. The Client acknowledges and consents to this right. Any resource acquisitions (“Resources”) made by Digital Concierge including, but not limited to, tools and websites, are the property of Digital Concierge and use of these Resources for the benefit of the Client does not transfer ownership of these Resources to the Client.
“Confidential Information” means information about Digital Concierge’s business, products, suppliers, third party providers, technologies, strategies, financial information, operations or activities that is proprietary and confidential, including without limitation any Digital Concierge digital brochure or “Deck”, and all business, promotional, marketing, financial, technical and other information disclosed by Digital Concierge.
Client agrees that it shall not disclose any Digital Concierge digital brochure or “Deck” through any Social Media or other internet outlet, nor disclose any other Confidential Information or the contents of this Agreement to any third party (other than its employees and professionals who have a need to know and agree to this restriction) without Digital Concierge’s prior written consent.
Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations.
Digital Concierge reserves the right to change or modify these Terms at any time and in its sole and absolute discretion, with or without notice, by posting the amended Terms on our website at http://www.Digital Concierge.us/client-terms-and-conditions/. Unless otherwise specified, any changes or modifications will be effective immediately upon posting on the website and your continued use of Digital Concierge’s services after such time will constitute your acceptance of such changes or modifications.
Disclaimer of Warranties
OUR CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE CONTENT AND THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES.
WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY CONTENT, INFORMATION OR MATERIAL.
WE DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability
IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES; OR (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (1) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities. All notices must be sent to the address as shown on the Contact Us page of the Digital Concierge website located at www.DigitalConcierge.us/contact-us.
Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
Except for claims for emergency equitable or injunctive relief which cannot be timely addressed through arbitration, the parties hereby agree to submit any claim or dispute arising out of the terms of this Agreement to private and confidential arbitration by a single neutral arbitrator through Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The JAMS Streamlined Arbitration Rules & Procedures in effect at the time of the claim or dispute is arbitrated will govern the procedure for the arbitration proceedings between the parties, except as expressly set forth herein. The arbitration will take place in Stockton, California. The arbitrator in this matter will not have the power to modify any of the provisions of this Agreement. The decision of the arbitrator will be final and binding on all parties to this Agreement, and judgment thereon may be entered in any court having jurisdiction. The party initiating the arbitration will advance the arbitrator’s fee and all costs of services provided by the arbitrator and arbitration organization. However, all the costs of the arbitration proceeding or litigation to enforce this Agreement, including attorneys’ fees and costs, will be paid to the prevailing party as determined by the arbitrator or court. The parties hereby waive any right to a jury trial on any dispute or claim covered by this Agreement.
This Agreement and all exhibits set forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by both parties.
In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
Any obligation of the parties relating to the following provisions shall survive termination or expiration of this Agreement: service fees, billing, payment, intellectual property rights, license, term, termination, disclaimer of warranties, limitation of liability, indemnification, confidentiality, choice of law and venue, limitation of actions and disputes.
Neither party may assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other party.