DTC's Standard Legal Terms & Conditions
These Standard Terms of Service (the "ToS") apply to all Services (as defined below), obligations, and rights of Digital Third Coast Internet Marketing Inc. ("DTC") to the extent the ToS are referenced by, incorporated into, or otherwise made part of, any service order, project order, purchase order, invoice, statement of work, or other similar document under which Services are provided (any of the foregoing, an “SOW”) between DTC and the "Client" identified on such an SOW (or, if not identified expressly as “Client”, the recipient of Services under such an SOW, hereinafter, the “Client”). If an SOW does not reference or incorporate the ToS or if such SOW is governed by DTC’s Master Services Agreement which includes DTC’s Standard Legal Terms and Conditions, the ToS do not apply thereto.
By executing, and upon the execution of, any SOW that references and/or incorporates the ToS, Client and DTC are each deemed to have accepted, and each agrees to be bound by, the ToS as being incorporated into the applicable SOW as if fully set forth therein. If Client does not agree to the ToS being incorporated into, and thereby governing, an SOW, Client should not execute such SOW. To the extent Client is a business entity (as opposed to a natural person), the individual who accepts the ToS, by executing the applicable SOW on behalf of Client, represents and warrants that he or she is authorized by Client to accept the ToS on Client's behalf.
Each SOW, together with the ToS, shall be deemed a separate contract between the parties.
1. Authorization. Execution of an SOW constitutes authorization by the Client to DTC to commence providing the services described on such SOW ("Services") to the Client. DTC agrees to provide, and Client agrees to accept and compensate DTC for, such Services, as provided in the ToS and the SOW. DTC shall provide the Services in a professional, workmanlike manner, in accordance with industry standards.
2. Scope of Services and Change Management. Service objectives, fees, timeframes, and deliverables described on an SOW are based upon information provided by the Client to DTC and are subject to the accuracy thereof. DTC's obligation to provide Services is limited to the scope of each applicable SOW. In the case of any question of interpretation regarding the scope of an SOW, DTC's reasonable interpretation shall govern, absent manifest error or bad faith. Except as expressly stated otherwise on an SOW, Services are limited to the Client Website URL(s) set forth on the SOW (the "Client Website").
(a) Once an SOW has been executed, any changes in the scope of Services thereunder requested by Client may be subject to additional fees or other charges, and shall only be deemed effective upon the execution of a Change Order executed by authorized representatives of each party. Client agrees, without limitation, that its Project Lead designated on the SOW is authorized to execute Change Orders on Client's behalf.
(b) Once Client has given approval regarding any element of the Services or deliverables submitted by DTC, such approval shall be deemed final and any change in approval status thereafter shall be deemed a change in scope and require the execution of a Change Order. Absent the execution of such Change Order, the original approval shall govern. Use of any deliverable in production constitutes acceptance by Client, except when expressly done solely for testing purposes as agreed by DTC.
(c) Any changes made by Client to the Client Website which have not been discussed with and approved by DTC, or any Client activity which modifies DTC recommended configurations, tracking code, analytics code, other website elements, or any web management or tracking accounts which DTC has configured for Client, which require any remedial or repair work by DTC, or which otherwise modifies the scope of DTC's Services, may require additional fees and the execution of a Change Order. Absent agreement on such a Change Order, the Client modified elements shall be considered out of scope of the applicable Service Order and DTC shall have no obligation with respect thereto.
3. Client Cooperation and Responsibilities. Client agrees that DTC's ability to successfully provide Services depends, in part, on Client's timely provision of materials, content, information, cooperation, review, decisions, approvals, implementation, and other participation as may be described on an SOW or as DTC may otherwise reasonably request. Client agrees to appoint a Project Lead, who shall have authority to execute Change Orders, to coordinate all of Client's activities under each SOW, and to otherwise represent Client with respect to operational activities under an SOW.
(a) Unless expressly provided on an SOW, Services do not include implementation, development, maintenance, hosting, or other support of the Client Website or any enhancements or changes recommended by DTC, and Client is responsible to provide its own design, development, and hosting resources for such purpose. Any such Services to be provided by DTC requires express agreement pursuant to an SOW or Change Order. Client agrees that its website development and management resources shall reasonably cooperate with DTC in its performance of Services and to implement DTC's recommendations.
(b) DTC shall be entitled to rely on the accuracy, truthfulness, completeness and appropriateness of all (i) information provided by Client, and (ii) content provided on or available through the Client Website. DTC reserves the right to refuse to promote, market, or otherwise work with any content or materials which DTC reasonably considers to be illegal, tortious, obscene, offensive, threatening or harassing, to infringe upon the proprietary rights of any third parties, or otherwise inappropriate. Client hereby represents and warrants to DTC that it has sufficient title or license rights to the Client Website content and to the other materials provided to DTC for the purposes of the Services.
(c) DTC shall use reasonable efforts to identify any delays in the Services or the completion of any deliverables described on an SOW. Without limitation to any other remedies available, the timeframe for Services shall be extended equivalently to any delays caused by Client, and should such delays be substantial, and should such delays be substantial, additional fees and/or a Change Order may be required by DTC.
(d) Client shall comply with all laws and pay all applicable taxes pertaining to the operation of the Client Website, Client's operations, and the promotion, distribution and sale of Client's products and/or services. Without limitation to the foregoing, Client agrees that DTC has no responsibility for any aspect of Client's e-commerce operations, payment card processing, or the distribution and sale of Client's products and services.
4. Fees and Payment Terms. Client agrees to pay to DTC all fees, expenses, rates, charges, or other amounts described on an SOW by the dates and upon the other terms set forth on such SOW. All taxes (and similar charges) relating to or arising out of the Services shall be paid by Client in addition to fees or other charges.
(a) In the absence of specified billing and payment terms on an SOW: (i) DTC may invoice for a Service in advance on or about the first day of the month in which such Service is to be provided, and (A) payment (credit/debit) card payments, as applicable, will be charged on the 5th day of such month, and (B) payments by check or wire transfer (or other methods permitted by DTC) shall be due and payable by the 30th day of such month; (ii) projected expenses are payable with any required prepayment set forth on the applicable SOW; and (iii) all other fees or other expenses are payable in arrears within thirty (30) days of the invoice date therefor. To the extent Client has provided DTC a payment card for the processing of fees and other charges, Client hereby authorizes recurring billing and charge processing for the Services through the term thereof.
(b) DTC need not provide any Service until any required prepayment or security deposit described on an SOW is received, and if DTC reasonably determines that Client represents a credit risk (without limitation, if Client files for bankruptcy, becomes insolvent, suffers a degraded financial condition, or has a history of late payments) DTC may require prepayment or other security before continuing with the Services.
(c) Time is of the essence for payments, and Services may be suspended if payment is more than 5 days late. Amounts past due beyond 30 days accrue interest at the lower of 15% per annum or the highest rate allowed by law. Client is responsible for all costs and expenses of collecting any amounts due, including attorneys' or collectors’ fees and expenses. Billing disputes must be provided in writing prior to the applicable invoice due date (except for invoices which are payable immediately and invoices payable by payment card, with respect to which billing disputes must be received in writing within 15 days after the invoice date) or shall be deemed waived.
(d) Amounts paid to DTC shall be non-refundable except as to prepaid amounts for Services which have not been provided by DTC for periods after any required notice of termination or non-renewal becomes effective.
5. Term and Termination.
(a) The SOW shall be effective commencing on the Date of SOW stated on the SOW and shall continue through the Program Term stated thereon.
(b) Except as provided below, an SOW may be terminated without cause ("for convenience") by either party upon thirty (30) days' prior written notice to the other party. Notwithstanding the foregoing, if an SOW contains an express minimum Project Term or minimum revenue commitment, Client may only terminate such SOW for convenience upon satisfaction of such minimum (and upon any termination without satisfaction thereof, applicable fees or charges shall accelerate and become payable upon termination, in satisfaction of such minimum).
(c) If a party is in material breach of an SOW, without limitation to any other remedies available, the non-breaching party may terminate such SOW after first providing the breaching party with written notice specifying such breach in reasonable detail and after fifteen (15) days after have passed without remedy of such breach. If DTC terminates any SOW due to a breach by Client, or if Client remains substantially inactive after 30 days notice from DTC that Client's action or response is required to continue Services, Client shall be deemed to have terminated the same without providing the requisite notice (or as applicable, without satisfying the minimum revenue or Project Term requirements pursuant to Section 5(b).
(d) A party may terminate an SOW immediately upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its material assets; (ii) the other party becomes insolvent, generally unable to pay its debts as they become due, or makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or debtor's relief law; (iii) if proceedings are commenced against the other party, under any bankruptcy, insolvency or debtor's relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) if the other party is liquidated, dissolved or ceases operations.
(e) Upon termination or expiration of an SOW: (i) each party shall return to the other (or destroy, if reasonable) the other's Confidential Information (as defined below) in its possession or under its control, as applicable; (ii) Client shall pay DTC all amounts then due and payable (including without limitation unpaid amounts for any Services provided, whether invoiced or not at such time, and all other amounts due pursuant to the terms hereof); and (iii) subject to full payment of all amounts due DTC, DTC shall provide Client with the log-in information (account ID, password) for any web accounts initiated by DTC specifically for Client (such as, without limitation, Google AdWords accounts). In the case of any fees for Services partially rendered upon the effective date of termination, DTC may charge on a pro rated basis based on the portion of Services provided. Those terms hereof which by their nature should survive a termination of an SOW shall so survive.
6. Confidentiality. During the performance of the Services or otherwise in conjunction with an SOW, a party (the "receiving party") may be provided, or may otherwise have access to, information that is confidential and/or proprietary ("Confidential Information") to the other party (the "disclosing party"). Confidential Information includes without limitation: proprietary software and the source code and documentation thereof, specifications, operational processes, business plans, testing methods or results, IT systems information, financial reports, product attributes or plans, customer information, supplier information, personnel information, account log-in information, and data pertaining to or arising out of disclosing party's operations. Confidential Information does not include, and the receiving party shall have no obligation with respect to information: (w) already known by the receiving party prior to disclosure from or on behalf of the disclosing party, (x) received by the receiving party from a third party who has the right to make such disclosure without confidentiality restrictions, (y) which is at the time of disclosure, or which later becomes, available to the public without breach of confidentiality obligations; or (z) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
(a) The receiving party shall (i) use the disclosing party's Confidential Information only for the purposes of an SOW; (ii) use the same degree of care to protect the disclosing party's Confidential Information as it does to protect its own Confidential Information of similar character, but no less than a reasonable degree of care; (iii) make no copies of the disclosing party's Confidential Information except that which is required for the purposes of an SOW; and (iv) not disclose the discloser's Confidential Information except to (A) its employees on a need to know basis and (B) its contractors or professional advisors who have agreed in writing to protect the confidentiality thereof on a need to know basis.
(b) A receiving party may disclose Confidential Information pursuant to a legal requirement to do so, provided it shall first provide the disclosing party with written notice of such pending required disclosure (to the extent practicable under applicable law), and cooperate with the disclosing party at the disclosing party's expense, in its efforts to limit or protect such disclosure.
(c) A receiving party's obligations under this section shall survive the termination of the applicable SOW for a period of four (4) years after termination thereof.
7. Limitations of Liability.
(a) EXCEPT WITH RESPECT TO DTC'S VIOLATION OF SECTION 6, NEITHER DTC NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS SHALL BE LIABLE TO CLIENT (OR ANY PARTY CLAIMING THROUGH CLIENT) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES, OR LOST PROFITS, ROYALTIES, OR DATA, IRRESPECTIVE OF WHETHER DTC HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE THEORY OF RECOVERY (BE IT CONTRACT, TORT, PROPERTY, OR OTHERWISE) SHALL DTC'S AGGREGATE LIABILITY TO CLIENT UNDER ANY SOW EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO DTC FOR THE ITEM OR ELEMENT OF SERVICE UNDER SUCH SOW GIVING RISE TO SUCH CLAIM DURING THE SIX MONTHS PRIOR TO THE DATE SUCH CLAIM AROSE (MINUS DIRECTLY CORRESPONDING OUT OF POCKET EXPENSES). DTC IS NOT LIABLE FOR DAMAGES OF ANY SORT (INCLUDING DIRECT DAMAGES), UNDER ANY LEGAL THEORY, FOR ANY HACKING, MALICIOUS, ILLEGAL OR FRAUDULENT ACTS OF THIRD PARTIES, OR ANY BREACH OF SECURITY. DTC'S PRICING REFLECTS THE ALLOCATION OF RISK AND LIMITATIONS OF LIABILITY SPECIFIED HEREIN.
(b) EXCEPT FOR CLAIMS FOR UNPAID FEES AND EXPENSES BY DTC, CLAIMS FOR MONETARY DAMAGES MUST BE MADE WITHIN ONE YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED.
(c) Neither party shall be liable hereunder for any breach of a non-payment obligation under an SOW which is caused by "force majeure" conditions beyond its reasonable control, such as (and without limitation) acts of God, war, riots, acts of government, labor strife, and communications failures, so long as the breaching party is using reasonable efforts to perform. Notwithstanding, should any non-performance due to a force majeure event of a material term or condition hereof continue beyond 60 days, the non-breaching party may terminate an SOW upon written notice to the other.
(d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, DTC DISCLAIMS ALL WARRANTIES, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE NONINFRINGEMENT OF ANY PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND ALL SERVICES AND DELIVERABLES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. DTC DOES NOT GUARANTEE ANY SPECIFIC RESULTS, UPTIME, PERFORMANCE, OR ERROR-FREE OPERATION.
8. Indemnity. Client shall indemnify and hold harmless DTC and its directors, officers, employees, and subcontractors from and against any third party claim, and the expenses (including without limitation reasonable attorneys' fees), liabilities, and direct damages resulting directly therefrom, arising directly out of (i) any breach by Client of its obligations under this Agreement, (ii) any infringement upon any third party rights of any materials or specifications provided by Client, or (iii) any aspect of the content on, or the operation of, the Client Website, or the promotion, sale, or distribution of the Client's products or services, except as the same may arise out of DTC's breach of an SOW or DTC's willful misconduct or gross negligence.
(a) A party claiming a right to be indemnified hereunder shall provide the other party with prompt written notice of any event giving rise to a right to be indemnified and tendering the right to reasonably conduct the defense of any related legal proceedings (provided it may participate in such proceedings with its own counsel at its expense). Under no circumstances may an indemnified party settle any claim with respect to which it claims a right to indemnity hereunder without the express consent of the indemnifying party.
9. Intellectual Property. Except as expressly provided on an SOW, DTC does not provide work for hire, and while Client shall own, and DTC hereby assigns, the contents of any site audits, reports or recommendations provided by DTC for Client, Client shall not own any templates, tools, know-how, or other items used by DTC to perform the Services or deliver or track any results thereof. DTC hereby licenses to Client the perpetual right to use the deliverables provided by DTC to Client pursuant to an SOW which Client does not otherwise own, for Client's internal use only as contemplated by the applicable SOW. Notwithstanding the foregoing, to the extent that DTC creates custom copy expressly for use on the Client Website, Client shall own, and DTC hereby assigns to Client, such custom copy.
10. Independent Contractors. Each of the parties is an independent contractor hereunder and neither party has the right to bind the other in any manner to any legal obligations to third parties.
11. Governing Law. The ToS, and each SOW, shall be governed and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. All actions concerning any dispute arising out of the ToS or an SOW must be brought in the state or federal courts with appropriate subject matter jurisdiction located in (or having jurisdiction over) Cook County, Illinois, and each party consents to jurisdiction of said courts.
12. Non-Solicitation of Employees. During the term of each SOW, plus two years thereafter, Client will not solicit for employment, or other engagement, the employees or consultants of DTC unless expressly agreed in writing by DTC. If Client breaches the foregoing restrictions, DTC shall be entitled to liquidated damages (which are not a penalty) equal to two times the annualized salary or other compensation paid to the affected individual by DTC.
13. No Other Applicable Terms; Amendments; Order of Precedence. Each SOW, including the ToS as incorporated therein, constitutes the sole agreement between the parties with respect to its subject matter. Any amendment to any SOW (including without limitation any Change Orders) must be in writing and executed by an authorized representative of each party. The terms and conditions of each SOW are applicable to that specific SOW only, and not to any other SOW between the parties. If a term in the applicable SOW conflicts with a term in the ToS, the provisions of the SOW shall prevail unless the ToS specifically states that the term in the ToS shall prevail over any conflicting term in an SOW. The terms of an SOW (including theses ToS incorporated therein) shall supersede any conflicting provision in any respective Client purchase order or order acknowledgement.
14. Severability; Waiver. If any provision of any SOW, including the ToS shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the applicable SOW, including the ToS and shall not affect the validity and enforceability of any remaining provisions. No waiver of any rights under any SOW, including the ToS shall be deemed to waive any other rights, nor any waiver of the same rights in any different future context. No failure to enforce any rights hereunder shall be deemed a waiver thereof (except as expressly provided in Section 7).
15. Assignment. Neither party may assign any SOW without the express written consent of the other party, provided that (a) either party may assign an SOW in conjunction with a merger, acquisition of substantially all of its assets or all of its capital stock, corporate reorganization, or a similar transaction, upon written notice, to an acquirer who agrees in writing to be bound hereby; and (b) DTC may use subcontractors and independent contractors to perform Services hereunder.