TERMS & CONDITIONS
MASTER TERMS & CONDITIONS FOR DOUGHERTY, CLIFFORD, & WADSWORTH, CORP. DIGITAL SERVICES
Dougherty, Clifford, & Wadsworth, Corp. 895 Marconi Ave Ronkonkoma, NY 11779 Copyright © 2017
This Dougherty, Clifford, & Wadsworth, Corp. Digital Services Master Terms and Conditions and the Client’s referenced Insertion Order (“collectively, the “Agreement”) set forth the entire agreement between Dougherty, Clifford, & Wadsworth, Corp. (herein, “DCW”, “DCW Media”, or the “Company”), and Advertiser (“Client”), supersede any previous agreements or understandings between the parties with respect to their subject matter. In the event of any conflict between the terms set forth in the Insertion Order and the Master Terms and Conditions, the terms set forth in the Insertion Order shall control. The Agreement is intended to offer clients of DCW (“the Company”) a standard for conducting business in a manner acceptable to both the Client and the Company. The Agreement between DCW (“the Company”) and Client as indicated on Client’s Insertion Order is made on the day of the Client’s signed Insertion Order. Any proposal not accepted via an approved Insertion Order within thirty (30) days of proposal delivery is subject to Company revision. The terms of this Agreement are subject to change at any time. DEFINITIONS For the purposes of this Agreement: “Deliverable” – Means a tangible or intangible object produced as a result of the project that is intended to be delivered to a Client (either internal or external). A deliverable could be a report, service, a document, a server upgrade or any other building block of an overall project. “CPM” – Means Deliverables sold on a cost per thousand impression basis. “Social Media Optimization” – Is a set of methods, which are used to generate publicity through social media. “Search Engine” – Is a computer program, which is used to retrieve documents from a computer network. Three popular search engines are Google, Yahoo and Bing. “Client’s Competitor” – Is an individual or a company, which is in the same exact niche as the client and is targeting same/identical keywords in same/near by geographic location(s). “Keyword” – Keyword or keyword phrase is a search term(s) that is used to retrieve information through search engines. “Keyword Research” – Is a practice used by search engine optimization and search engine marketing professionals to find and research actual search terms people enter into the search engines when conducting a search. “URL” – Is the address of a web page on the Internet. “URL Canonicalization” – Is the process of picking the best URL when there are several choices, and it usually refers to home pages. “Website Usability”- Means how easy it is for visitors to use your website. “Website Accessibility”- Means how accessible your web pages are to your visitors and search engines. “User Engagement”- Refers to the degree to which a visitor has been positively influenced by the website and is engaged to it. “Conversions”- Also known as goals. Can be orders, leads, downloads, page views, sign ups, traffic, etc. “Conversion Rate”- Is the percentage of visits that result in goal conversions. “KPI”- KPI or Key Performance Indicator is used to measure how well an organization or individual is accomplishing its goals and objectives. “Confidential Information”- Includes but is not limited to, any and all fees, services, documents, recommendations, reports, e-mails, postal mail, courier or phone/video1 consultation for the purpose of reporting, recommending or educating the client by DCW for carrying out search engine optimization services.
In consideration of the mutual covenants set forth in this Agreement, the Client and the Company hereby agree as follows:
1. Service Specifications.
Company agrees to provide the services pursuant to the specifications outlined on Client’s Insertion Order. Any changes in specifications shall require a revised Insertion Order, signed in writing. Deliverables shall be rejected, in writing, within ten (10) business days of delivery or shall be deemed accepted by Client. In the event of a rejection, such rejection shall be made in writing, stating, with specificity the nature of the non-conformity with respect to the project specifications. Company shall have (10) business days to remedy the non-conformity. In addition to providing the Services set forth herein in accordance with requirements of this Agreement, Company shall provide all such Services to Client’s reasonable satisfaction, within applicable time frames; provided that Company shall be excused for reasonable delay solely to the extent caused by a Force Majeure event, Client’s failure or a failure by a third party (other than Company’s own subcontractors) to respond timely to written requests for their review, or failure to promptly provide required information or materials within the required periods set forth in the Insertion Order.
2. Delivery Dates and Milestones
Company will use reasonable diligence in the completion of services and endeavor to deliver to Client all deliverables and milestones as defined on Client’s Insertion Order. Client acknowledges, however, that delivery deadlines and other payment milestones listed on Client’s Insertion Order are estimates, and are not required delivery dates. Campaign start is contingent upon client provided creative within the time outlined on respective trafficking sheet deadlines.
3. Property Rights
Company will be retaining all documents, source code, keyword lists, and other assets employed or created for Client during the execution of this Agreement. Client shall retain all of its intellectual property rights in any text, images, or other components it owns and delivers to Company for use in the services rendered under this Agreement. Client will receive the output formats of Company’s work where applicable. The output is to be used only within the scope of the project as outlined in the Client’s Insertion Order. Company is not responsible for retaining original source material and digital files supplied to a vendor, unless otherwise agreed upon in writing. In addition, Company is not responsible for archiving Client materials beyond the life of an Insertion Order’s project scope. Client may be charged an administrative archive fee for any requests to retrieve said files, if they are still in Company’s database.
4. Authorization, Permissions and Trademarks
Client grants Company permission to use its name, logo and other trademarks and intellectual property rights (“Trademarks”) solely and exclusively to the extent necessary for Company to perform the Services set forth in the Insertion Order. Client represents and warrants that it is the owner of all rights, title and interest in and to the Trademarks as well as to any and all other artwork, images, text, literature, copy or other visual representation or information that it provides to Company for inclusion in the Deliverables or Services set forth in the Insertion Order; that Company will not be held responsible for copyright infringement claims involving materials supplied for use by Client and Client will defend and indemnify Company against all copyright infringement claims involving materials supplied for use by Client. Client shall be solely responsible for ensuring that all necessary rights and clearances have been obtained for use of all art, images, text, or copy used by Company or incorporated in any Deliverable pursuant to the Insertion Order.
5. Fees, Expense, and Collections
Fees shall be paid by Client to Company when due in accordance with Net 30 terms, unless otherwise set forth in writing on the Insertion Order or Contract. Client shall reimburse Company for all reasonable out of pocket expenses which have been pre-approved in writing, including, without limitation, travel, production costs, equipment, and third party licenses/fees, etc. and such expenses shall be invoiced monthly with Net 30 payment terms. Upon default in the punctual payment of the contracted indebtedness or any part thereof, as the same shall become due and payable, the entire amount of indebtedness contracted for herein shall be matured and shall be due and payable immediately, at the option of Dougherty, Clifford and Wadsworth Corp., and unless same is promptly paid, Dougherty, Clifford and Wadsworth Corp. may, at its option, discontinue without notice the services contracted for herein; provided however that such discontinuance shall not relieve the Advertiser/ Client or Agency of the contract indebtedness. Company has the right to remove any resources under Company control until payment is paid in full. All payments in arrears shall bear interest at the highest contract rate permitted by law, not to exceed (1.5%) per month. Advertiser/Client agrees to pay Dougherty, Clifford and Wadsworth Corp. all costs and expenses incurred as a result of exercising its rights under this contract, including reasonable attorney’s fees and all reasonable collection agency fees.
6. Changes to an Insertion Order
If Client should request any changes to the Insertion Order before or after Company begins work under or pursuant thereto, Client agrees that Company shall submit any changes in costs or fees to Client in writing for approval. Client shall approve such changes in writing (“Change Order”), and Company shall not commence such changes to the Insertion Order until receipt of such Change Order in writing from Client. Client is responsible for providing any text or literary information, as it will be uploaded and presented onto the website/advertising medium or otherwise included in the Services, unless copywriting or copyediting services are included in the Insertion Order. Any other services provided to Client by Company outside the scope of the Insertion Order shall be billed to Client at a rate of $100.00 per hour, UNLESS A DIFFERENT RATE IS ESTABLISHED BETWEEN CLIENT AND COMPANY IN WRITING, not including any expenses incident thereto. Company shall bill Client from time to time for any such services provided, and Client agrees to pay such bills and any costs and expenses as such bills are rendered. Client requests to cancel an Insertion Order must be submitted to Company four weeks prior to the start date of the Insertion Order.
7. Portfolio License, Credit
Client hereby grants to Company the non-exclusive, royalty free, non-transferable, perpetual, worldwide right and license to use, reproduce, and publicly display in all media, all Deliverables, solely as a part of Company’s portfolio in connection with Company’s marketing and promotional activities, and for no other reason whatsoever. Client agrees to allow Company to feature Client in press releases and on its website and social media profiles, including an announcement that Company has been hired by Client unless otherwise agreed to in writing.
All information regarding Client and its business that is not generally known by the public or the industry, independently developed by Company, or acquired from a third party without Company’s breach of confidentiality, shall be deemed “Confidential Information.” Company acknowledges that it may be provided with Confidential Information during the Term of the Agreement and agrees, in consideration of the Agreement and payments made thereunder, that neither the Company, nor its subcontractors will use, publish, disseminate or otherwise disclose any Confidential Information without the prior written consent of Client for a period of two (2) years from the date of disclosure. The parties to the Agreement further agree that this paragraph shall stay in full force following the termination of this Agreement notwithstanding anything to the contrary herein.
9. Software/Liability Disclaimer
In the course of performing the Services within the Insertion Order, Company and/or its vendors and/or subcontractors, may be required to use certain proprietary software and documentation, and in the course of such use, install such software or code temporarily in Client’s computers. Unless otherwise expressly agreed in writing, these items are and at all times continue to be owned by Company or its suppliers. Client agrees that it shall have no interest whatsoever in such items and will not to use, copy, decompile, or examine for any purpose such items. The parties hereto acknowledge and agree that Company will be relying on representations and warranties made by third party software and hardware vendors or third party service providers in providing the Services, and Client agrees (a) that Company shall not be deemed to have provided any warranties as to the quality, performance or fitness of any third party or outside hardware or software that Company or Client may select for use, (b) that Client assumes sole risk in its selection of any third party vendor products and/or services and (c) Client agrees that it shall not seek any remedies against Company with respect to deficiencies or inappropriateness of any such third party products, services or coding. Company shall bear no liability for, nor shall any refund of any fees and/or expenses be made, in the event that any Deliverables or Services are incompatible with any third party software, including, but not limited to, plug-ins, add-ons, modules, search engines, scripts, and extensions, utilized by Company. Nothing herein contained in this Agreement shall be construed as a warranty that any Deliverables or Services will be compatible with Client’s third party software, nor shall Company be required to provide technical support or assistance in the event of such incompatibility. Dougherty, Clifford and Wadsworth Corp. shall not be held liable for any system failures, lost data, corrupt files, or hosting downtime involving any of the Client’s products or services.
10. Representations & Warranties; Limitation
Each of Company and Client represents and warrants to the other that: (i) it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (ii) the execution, delivery, and performance of this Agreement shall not conflict with its charter or bylaws, or any agreement, order, or judgment to which it is bound. The immediately foregoing warranty is a limited warranty and is the only warranty made by Company hereunder. UPON EACH DELIVERABLE BEING PROVIDED, AND CLIENT Accepting SUCH DELIVERABLE, such deliverable shall be DEEMED ACCEPTED “AS IS” WITHOUT OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE, ACCURACY, OR COMPLETENESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability
CLIENT EXPRESSLY AGREES THAT IT WILL NOT HOLD THE COMPANY RESPONSIBLE FOR ANY LIABILITY CAUSED BY THE CLIENT’S USE OF THE COMPANY’S PRODUCTS OR SERVICES TO THE EXTENT SUCH USE INFRINGES ON THE RIGHTS OF OTHERS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER BY COMMON LAW OR STATUTE, ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF ACTION OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY TO CLIENT FOR EVERY REASON SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO COMPANY PURSUANT HERETO.
Each party hereto (the “Indemnitor”) shall defend, indemnify and hold harmless the other party, its corporate affiliates and their respective officers, directors, agents and employees (the “Indemnified Parties”) against all third party claims, costs, expenses (including reasonable attorneys’ fees), demands and judgments made or recovered against them related to any breach of any representation or warranty provided under this Agreement; provided, however, that such indemnification and hold harmless obligation is expressly conditioned on the following: (i) that Indemnitor shall be notified in writing promptly of any such claim or demand, (ii) that Indemnitor shall have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires contribution from the Indemnified Parties must be approved by the Indemnified Parties; and that (iii) the Indemnified Parties shall cooperate with Indemnitor in a reasonable way and at Indemnitor’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Parties may, at their expense and option, use counsel of their choosing to observe the defense of any such claim.
Client has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of Company, which consent can be withheld for any reason.
14. No Partnership
Nothing contained in this Agreement shall be construed to create an employer/employee, joint venture, partnership, or principal-agent relationship between the parties. Company’s performance of services for Client hereunder is as an independent contractor.
15. Modification & Notices
This Agreement (including the Insertion Order, which is incorporated herein by reference) constitutes the entire agreement between Company and Client with respect to the subject matter hereof and supersedes all prior understandings, communications, and agreements between them, written or oral, regarding such subject matter. This Agreement shall not be modified, nor shall any provision hereof be waived or amended, except by a written amendment duly executed by Company and Client. A waiver of any provision hereof with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. If any provision hereof shall be held to be invalid or unenforceable, then such provision shall be reformed to the extent necessary to make such provision valid and enforceable when so applied. Any written notices pursuant to the Agreement to be given hereunder shall be delivered via U.S. Mail, express courier, or confirmed email, are to be sent to the addresses set for in the Insertion Order.
16. Governing Law
This agreement and its validity, construction, and performance shall be governed in all respects by the laws of the State of New York. All parties to this agreement waive any jurisdictional claims and agree to submit to personal jurisdiction to a court of competent jurisdiction in the County of Suffolk, State of New York for any controversies arising out of this agreement.
In the event of any conflict, ambiguity, or inconsistency between or among the terms and conditions of this Agreement and any Insertion Order attached hereto, the terms and conditions of the applicable Insertion Order shall control only with respect to such Insertion Order.
18. Compliance With The Law
This Agreement shall be fairly interpreted in accordance with its terms and without strict construction in favor of or against either party based on the identity of the drafter of this Agreement or any term or provision thereof.
20. Non Disclosure Agreement
At any time during or subsequent to contract period, client agrees to keep in strictest confidence and trust all of the DCW confidential information to which the Client has access. The Client will not use or disclose the DCW confidential information without the written consent of DCW. Client agrees not to attack/criticize DCW and any of its employees, associates or partner publicly (on public forums, blogs, social networks etc.) at any time during or subsequent to Insertion Order period.
Client represents and warrants that the person signing the Insertion Order has full authority on behalf of Client to enter into and execute this Agreement.
22. Paid Advertising Specific Provisions (SEM and Display):
Client acknowledges that all SEM CPC prices and clicks listed on proposals and Insertion Orders are estimates only and are not guaranteed. All campaigns relative to each Insertion Order will be adjusted according to the best performing keywords. CPC will fluctuate contingent upon keyword performance and efforts made by DCW to optimize the campaign.
Client acknowledges that all Display CPM prices and impressions listed in proposals and Insertion Orders are estimates only and are not guaranteed.
All digital media insertion orders are bound by the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0, found at http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf (the “Terms”), in addition to the terms below. By signing the Insertion Order you agree to the terms and conditions. All quote and impression levels listed on the Insertion Order are subject to change. Site/keyword lists are for example only, and are subject to change. DCW Media cannot guarantee uniform distribution across the site list due to outside factors such as market conditions, publisher pricing and inventory, and proprietary behavioral targeting technology.