Terms & Conditions of Service
The Customer executing the Service Agreement (“Customer”) agrees to be bound by the following Terms and Conditions of Service (“Terms and Conditions”).
1) Applicability, Modifications
a. These Terms and Conditions shall apply to Services provided by Company to Customer under the Service Agreement or any other agreement between Company and Customer, to the exclusion of any terms and conditions specified by Customer on a purchase order, acknowledgement, payment, or other document or form.
b. To be considered effective, any proposed modifications to these Terms and Conditions must be submitted in writing and accepted by Company in writing. The Company reserves the right to modify the Terms and Conditions by giving Customer at least 30 days advance notice by e-mail or mail. Customer’s continued use of related Company services following the effective date of the modification will be deemed Customer acceptance of the amendment(s).
2) Term and Termination
a. This Service Agreement is month to month agreement, whereas the Customer may cancel Services with a thirty (30) day advance notice. In the event of unresolved breaches by the either Party lasting more than 30 days, the other Party may terminate the agreement with a ten (10) day notice.
b. Customer agrees that it will use the Services in a legal, ethical and professional manner. Company has the right to terminate Services should it become aware that the Customer is using Services for /in an unlawful or inappropriate manner which tarnishes the Company’s stature. Unlawful, inappropriate or damaging use of the Services is a breach of this Agreement.
3) Services
a. “Service(s)” is defined as set of services included in the Service Agreement.
4) Fees & Payment
a. Setup fees and monthly maintenance fees for Customer’s Services are illustrated in the Service Agreement.
b. Payment for setup fees relating to the Services listed on the Service Agreement is due within 30 days of the Effective Date, or per the option(s) indicated on the related Company invoice.
c. Payment for Monthly Fees – Payment for monthly service fees is due on the 1st day of each month, which will apply to that month’s service. Company may equitably prorate fees for partial months of service.
d. Billing Cycles – Customer may opt for to pay in advance for services on a monthly or annual billing cycle. If Customer opts for a monthly billing cycle, then Customer must provide and authorize company to bill their credit card account for fees related to the Services on a recurring basis.
e. Rate Changes – From time to time, market conditions or the cost of technology may require Company to adjust monthly rates. Should a rate change affect Customer’s Services, then Company shall provide Customer at least 30 days advance notice before implementing any such rate change.
f. Delinquency, Late Fees, & Reinstatement- Customer agrees to pay all fees incurred by Customer as set forth in the Service Agreement. Should Customer be 30 days behind on payment, Company may suspend or terminate delinquent Customer Services at Company’s sole discretion. Should Customer desire Services to be reinstated, Customer must make good on delinquent payments and pay the then applicable reinstatement fee for Reinstatement Service. Any payment not received by its due date will accrue interest at 1.5% per month
5) Content
a. Intellectual Property Rights, Ownership and Use – The intellectual property rights relating to any and all photos, data, information and other content supplied by Customer to the Company for use in/with services from the Company (“Customer Content”), shall remain the property of Customer. Customer grants Company a non-exclusive limited license to use the Customer Content in connection with the delivery of the Service Agreements services.
b. Permission to Edit Customer Content – Customer grants Company permission to edit, add or delete the Company Content or any other photographs, graphics, designs or other materials as the Company deems necessary during the term.
c. Company shall not be liable for any loss, injury, claim, liability or damages of any kind arising out of or in connection with Customer Content or hyperlinks Customer’s utilize within Customer’s services or Customer Content.
d. Consulting and/or software services are provided AS IS. When 3rd party software is used to fulfill the Services and/or provided to Customer in connection with the Services (“Software”), the owners or licensors of the Software retain all right, title and interest, including any intellectual property rights, in and to the Software and all portions thereof, and no title to the Software, or any intellectual property rights in the Software, is transferred to Customer. Customer is prohibited from any unauthorized use or distribution of 3rd party Software.
6) Service Continuity
a. Company does not control the Internet, flow of data to and from the internet, any systems’ dependent upon the internet, or other service providers which make the internet function. Customer understand that failures of the Internet and various internet service providers will occur which may impact services used by Customer. Customer acknowledges outages will occur, and that Company cannot guarantee the internet’s operation and that some of the services the Company delivers depend on Internet service. Further, Company does not have editorial control over the content of any Customer communications.
b. Interruptions of Service – Service outages shall not be considered a breach if the cause is beyond the reasonable control of Company. On occasion, Company may utilize scheduled outages for system maintenance. Company will do it’s best to notify Customer’s of the relevant details surrounding any scheduled and non-scheduled interruptions in service.
7) Trademarks
Company trademarks include the business name Digital Rein, Inc. and the Digital Rein, Inc. mark. The Service Agreement does not grant Customer any right, title, license or interest in or to Company trademarks.
8) Law & Venue
Illinois law shall govern this Agreement and parties consent to the jurisdiction of the following courts: a) Circuit Court of DuPage County, Illinois or b) United States District Court for the Northern District of Illinois, Eastern Division.
9) Limitation of Liability.
a. THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND AFFILIATES (“COMPANY PARTIES”), TO CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CUSTOMER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER FOR THE RELATED SERVICES IN THE THREE MONTHS PRIOR TO THE DATE OF THE EVENT CAUSING THE CLAIM. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. CONSIDERATION TO BE RECEIVED BY COMPANY HEREUNDER DOES NOT INCLUDE COMPENSATION FOR THE COST OF INSURING THE RISKS AND LIABILITIES DISCLAIMED BY COMPANY. THE LIMITATIONS AND DISCLAIMERS OF COMPANY’S OBLIGATIONS AND LIABILITIES ARE INTENDED TO APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND THE INVALIDITY OF APPLICATION THEREOF TO ANY GIVEN CIRCUMSTANCE SHALL NOT AFFECT SUCH APPLICATION TO ANY OTHER CIRCUMSTANCE. SUCH LIMITATIONS AND DISCLAIMERS ARE INTENDED TO PREVAIL OVER ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY.
c. When Company utilizes subcontractor(s) for the fulfillment of Services. These Terms and Conditions inure to the benefit of Company’s subcontractors and third party licensors of Software, who shall, at all times and for all purposes to the fullest extent permitted by law, be deemed to be third party beneficiaries of the Service Agreement and these Terms and Conditions.
10) Indemnification –
Customer agrees to indemnify, defend and hold Company, and its officers, directors, agents, vendors, licensors and subcontractors (collectively, the “Indemnified Parties”) harmless from and against any and all claims, liability and costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of: (i) any breach by Customer of the Service Agreement or any other contract between Company and Customer; (ii) claims based upon representations made by Customer; (iii) any use of the Customer’s web sites or services; (iv) information and services provided by Customer, and (v) any and all actions, conduct or acts of omission of Customer. Customer shall cooperate as fully and as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.
11) Disclaimers
a. CUSTOMER AGREES THAT COMPANY, ITS SERVICE PROVIDERS, SUBCONTRACTORS AND THIRD PARTY LICENSORS OF SOFTWARE WILL NOT BE HELD LIABLE FOR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN THE DELIVERY OF SERVICES OR THE SOFTWARE, INCLUDING WITHOUT LIMITATION FOR ANY DIRECT DAMAGES ARISING OUT OF ANY OF THE FOREGOING.
b. Company does not represent or endorse the accuracy or reliability of any Company Content. THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY FURTHER MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB OR OTHER SUCH COMPUTER PROGRAM. COMPANY, ITS SERVICE PROVIDERS, SUBCONTRACTORS AND THIRD PARTY LICENSORS OF SOFTWARE DO NOT WARRANT THAT THE SOFTWARE WILL MEET ANY OR ALL OF BUYER’S OR ITS INTERNAL USERS’ NEEDS OR REQUIREMENTS, THAT THE SOFTWARE WILL BE ERROR-FREE OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE FUNCTIONALITY OF THE SOFTWARE WILL BE UNINTERRUPTED. CUSTOMER HEREBY ACKNOWLEDGES THAT USE OF THE SERVICES IS AT ITS SOLE RISK.
12) Privacy
Company collects data to effectively communicate with our customers, employees, and satisfactorily deliver service. When Company collects Customer data, Customer data will not be shared with 3rd parties which have no role in the Services delivery. Any data that is collected is used to deliver Services, enhance the Customer experience, and make refinements to our current processes to provide better service offerings and delivery in the future.
Last updated 4/15/2018