DELUGE DIGITAL MARKETING LLC. Terms of Contract
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Terms of Agreement
This signed document is a legal binding Agreement between Deluge Digital Marketing LLC (Deluge) at 1327 SE Tacoma St. #102 Portland OR 97202 and your organization, (Client) referenced herein.
Scope of work
See the THE PLAN chosen by The Client.
Client agrees to the following Terms of Agreement (this Agreement)
Single or Multiple Business Locations
This Agreement applies to all Deluge Services described in THE PLAN for single or multiple business locations. Each location must be registered. All single or multiple locations have a separate set up fee and monthly service fee.
Programs and Services
Deluge will research appropriate content and relevant data for distribution to online marketing channels. Deluge will work with the Client to produce applicable broadcasting of Client’s customer review content to visual and textual based directories.
Deluge will access Client’s customer reviews of their business and online content (as part of all plans chosen) for the purpose of reputation marketing.
Deluge may access (depending on The Plan chosen) directory sites, business listings, social media distribution software, as well as engage online on Client’s behalf.
Deluge will provide quarterly reporting as well as monthly virtual sessions with Client support.
See website www.delugedigitalmarketing.com for FAQ questions and The Plan chosen.
Client Representations and Warranties
Client represents to Deluge and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Deluge are owned by Client. That Client has permission from the rightful; Client partners, Client employees, Client relationships and Client customers to use each of these elements. Client will hold harmless, protect, and defend Deluge and its subcontractors from any claim or suit arising from the use of such elements furnished by Client directly or indirectly or associated with Client.
From time to time governments enact laws and levy taxes and tariffs affecting internet electronic commerce. Client agrees that Client is solely responsible for complying with such laws, taxes, and tariffs. Client will hold harmless, protect, and defend Deluge and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of internet electronic commerce.
Client Understands, Acknowledges and Agrees
Deluge has no control over the policies of online content aggregators or directory sites, business listings and aggregators; Infogroup, Axciom, Factual, Neustar, Google, Yelp, Facebook, Yellowpages, and Superpages. All related directory sites with respect to the type of sites or content that they accept now or in the future.
Client’s distribution data may be excluded from any online content aggregator or directory at any time at the sole discretion of the online content aggregator or directory entity. Some online content aggregators and directory sites may take as long as four (4) to six (6) months, and in some cases longer, after submission to list data on the directory sites and distribution portals.
Client understands that online content aggregators and directory sites will occasionally stop accepting content for an indefinite period of time. Aggregators may drop content for no apparent or predictable reason. In addition, Client understands that content will occasionally reappear without any additional submissions.
In the event that Client is unable to provide authorization to launch new content, Deluge will substitute scheduled content with earlier content and use the content they can best provide and will launch reinforcement or past content provided by the Client for distribution for the upcoming next scheduled thirty (30) day period.
Client Agreements for Online Reputation Marketing and Content Services
Client provides additional relevant review content in electronic format for the purpose of creating editorial content. Client agrees to provide content in the form of "customer testimonials" that can be utilized for online distribution.
Client authorizes Deluge to alter authorized marketing content for the purpose of creating multiple content elements for distribution to multiple providers.
Client authorizes Deluge use of all Client’s logos, trademarks, images for creating informational pages, editorials, social media content, online videos and any other uses as it deem necessary by Deluge for online content aggregator positioning and optimization.
Information, Email Addresses, Passwords, Credit Cards
Client and Client Customer Information: Deluge collects Client information under the direction of Client and has no direct relationship with the individuals whose personal data it processes. Deluge works with Client to help provide notice to Client’s customers concerning the purpose for which personal information is collected. In the event that a Client’s customer seeks access, or who seeks to correct, amend, or delete inaccurate data must direct said query to Client (the data controller). If Client makes a request from Deluge to remove the data, Deluge will respond to the request within thirty (30) business days.
Email Addresses: Client shares email addresses of Client and Client Customers with Deluge. The use of the email addresses is intended solely to perform services described in the Terms of Agreement and according to The Plan that Client chose. Email addresses are not used for other purposes.
Passwords: Client’s passwords are shared with Deluge. Passwords are used solely to provide the services described in this agreement and The Plan. All passwords are treated as sensitive, confidential information. Standard security policies to protect passwords are followed. In the event Client changes passwords that are provided to Deluge, it is Client’s responsibility to update Deluge of all changes. Failure to do so may cause disruption in services.
Client Credit Cards: Client Payments are made through a *third party service that collects Client payments through a credit /debit card. Deluge has no business partnership or affiliation with the* third party payment company other than Client payment. Deluge is not responsible for third party security.
On occasion Client provides credit card data directly to Deluge which is treated as sensitive and confidential information.
Third Party Service: Third party services that are used by Deluge are not under the control of Deluge, and Deluge is not responsible for the contents of third party services, data security, and passwords, links contained in third party sites, or any changes or updates to third party sites. Deluge is providing these links to Client to use third party services sites only as a convenience, and the inclusion of these services does not imply affiliation or endorsement by Deluge. Deluge has no responsibility for any activity done by a third party service.
Client Representation, Authorization, and Restrictions
By submitting, entering or linking to any information, data, text, software, music, sound, photographs, graphics, messages or other materials, Client represents to Deluge that Client has the right and authority to submit, enter or link to such content without violation of law or infringement of any third party's intellectual property rights or privacy rights.
Additionally, any such content submitted by Client through the software applications constitutes a representation by Client to Deluge that Client has the right to display, playback or perform such content publicly on Client mobile application, Client website or Client social media sites and directory sites as applicable. By submitting any such information, Client is granting Deluge the rights to publish such information to Client’s mobile application, Client’s website and Fan Page and other social media sites as applicable. With respect to using Deluge services, this includes the required rights and access which are required under all of the social media companies’ policies and statement of rights.
Client may not send, submit, post or otherwise transmit messages or material that contain software virus, or any other files that are designed to interrupt, destroy, and negatively affect in any manner whatsoever, any electronic equipment in connection with the use of all software applications applicable to Deluge services.
Client may not use any software applications provided by Deluge or used in conjunction with the services provided by Deluge for any unlawful purpose, including infringement of the copyrights or other proprietary rights of others, or in any illegal manner or for creation or distribution of illegal content. With respect to Deluge, Client may not submit any content through all of the software applications or cause any of the software applications to display or link to any content in violation of the social media advertising guidelines, any of the social media’s statement of rights and the policies and rules referred to therein.
Deluge Subject to Actions and Decisions of Social Media
When dealing with online tools, sites and changes on the internet, all of the software applications that Deluge uses and the services provided thereby, Deluge is subject to the rules, policies, and technology of all Social Media Sites, and has the sole determination of how to interpret and apply those rules and policies.
Deluge is not affiliated with any of the social media sites and it is possible that those sites may change their rules, policies, and technologies so that any or all the software applications no longer function in the same manner or at all.
In some cases, technology or policy changes may result in loss of your content or other data, for which Deluge is not responsible. Deluge makes no warranty that the social media sites will not take such action. In the event of such changes, if commercially and reasonably practical, Deluge will attempt to utilize updated software applications to provide the same or substantially similar functionality as provided before such changes.
However, if Deluge is unable to do so within a reasonable amount of time, Deluge may elect to cancel Client’s Account and refund a pro-rated portion of Fees paid in advance for remaining pre-paid time in any periods in which such cancellation becomes effective. Deluge may apply this cancellation on an application-by-application basis so that if one or any of the software applications for which Client paid cannot be made substantially effective, but other software applications can, Deluge may cancel only the first software application and retain Client’s account for the remaining.
Restricted Use of Deluge Confidential and Proprietary Information
A.Definition For purposes of this Agreement "Confidential and Proprietary Information" shall include all information or material that has or could have commercial value or other utility in the business in which the Client is engaged with Deluge.
Client, its’ business partners, employees, agents, representatives, and subcontractors; in carrying out their duties, will have access to certain trade secrets, marketing data, customer information as well as certain knowledge concerning the business affairs of Deluge, including the terms of this Agreement and Deluge proprietary information. Client acknowledges that the contents of Deluge Digital Marketing LLC website, including and without limitations, all trade names, trademarks, service marks, content, text, images, software, functionality, page and other design and layout, media and other materials, therein, is proprietary to or licensed by Deluge, protected under copyright, trademark and other intellectual property laws and such contents may not be reproduced without the consent of Deluge.
B. Restricted Use: Neither Client, its business partners, employees, agents, representatives, and sub-contractors may use any Deluge confidential and proprietary Information for any reason whatsoever (other than to perform this Agreement), including, but not limited to, for its own benefit or for the benefit of a third party or to interfere, or cause interference with Deluge and Deluge’s customers. Client shall ensure that Deluge confidential information is protected with at least the same degree of care Client uses to protect its own information of like nature, but no less than a reasonable degree of care, taking into account the competitive nature of the information.
Client specifically agrees that all materials (and all copies thereof) relating to Deluge including, but not limited to, all price, specification data, all administrative manuals, all sales literature, and any and all other information or data related to Deluge's programming services, are the exclusive property of Deluge and are to be used by Client, its partners, employees and representatives solely in the performance of their obligations and duties as described herein, and that such lists and other data are to be returned to Deluge immediately upon termination or at the request of Deluge.
C. No Confidentiality Obligation: For purposes of this Section, Deluge Confidential Information shall not include information: (1) which becomes generally available to the public through no wrongful act of Client; (2) is already lawfully in the possession of Client and not subject to an existing Agreement of confidentiality; (3) is furnished to Client by a third party free from any duty of confidentiality to Deluge. (4) Is disclosed pursuant to the binding order of a government agency or a court so long as Client provides notice to Deluge prior to any such disclosure and uses reasonable efforts to obtain confidential treatment for the information.
D. Client Non-Disclosure obligations: Client shall hold and maintain Deluge confidential information in strict confidence for the sole and exclusive benefit of Deluge. Client shall carefully restrict access to Deluge confidential information to employees, subcontractors, and third parties as is reasonably required. Client shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Client shall not, without prior written approval of Deluge, use for Client's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Deluge, any confidential Information. Client shall return to Deluge any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to confidential Information immediately if Deluge requests it verbally or in writing.
E. Time Periods of Non-Disclosure: The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Client duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Deluge sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.
Nothing contained in this Agreement shall be deemed to constitute, for Client or Deluge, a partnership, joint venture, person or company or employee of the other party for any purpose.
This Agreement expresses the complete understanding of Deluge and Client with respect to the subject matter and supersedes all prior proposals, other agreements, representations, and understandings. This Agreement may not be amended except in writing agreed and signed by both Deluge and Client.
The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
Additional Services and Operations
Deluge may provide additional services if requested to do so by Client. Except for the Services described herein and in the Scope of Work (The Plan). Deluge will have no obligation and Client may not make any claim to provide any additional creative, design, technical or production services to Deluge under this Terms of Agreement.
Delivery by Deluge of any such additional Services shall be subject to (1) Deluge's availability to perform the requested work, (2) execution by both parties of a separate work order specifically outlining the additional Services, (3) the fees to be paid by Client to Deluge for such Services, (4) payment in advance by Client of such fees.
Payment, Compensation, No Refunds
Deluge Digital Marketing LLC for all of the services provided shall be as referenced in the Scope of Work describing The Plan that is chosen by the Client. Client pays for Deluge Services on a month to month basis. Monthly payment starts the day you agree to move forward, during the first scheduled virtual session. Client will pay each month for a month in advance of services, which will automatically be charged through a third party online payment service (see paragraph 7 for further information regarding 3rd party online payment service). The payment date occurs each month on the day services started. A special annual payment plan may be available on a case-by-case basis with a full commitment.
THERE ARE NO REFUNDS.
Service Cancellation by Email or Mail
Email cancellation to email@example.com, or send a letter of cancellation by mail to Deluge Digital Marketing LLC, 1327 SE Tacoma St. #102 Portland OR 97202. Attn: Billing Department.
Notification of cancellation must be from the Owner or Manager of the Client and will not be accepted by the Client Administrator or Employee who doesn’t have the authority to do so.
Upon cancellation, Client shall receive services through the current billing cycle. After the cycle ends, automatic payment processing will cease. Client agrees to pay Deluge for all services performed in accordance with the agreed upon amounts and billing schedule set forth.
Deluge will retain personal data processed on behalf of Client for as long as needed to provide services to client. Deluge will retain and use this personal information only as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Upon termination of services, Client records and confidential information may be retained by Deluge up to ninety (30) days after services are cancelled (see paragraph 7 for further information regarding information handling, email and third party services).
The Client may not transfer this service or Agreement to anyone else who is not signed on the Agreement. A representative authorized to work on behalf of Client with Deluge must be fully informed of the provisions herein and authorized to fulfill the terms of the Agreement.
The Agreement and the attached “Scope of Work” addendum (The Plan) that Client chose shall not be transferable in the event that Client’s business changes ownership. However, FULL payment is due until the services are terminated in accordance with the terms stated herein and all fees owed are to be paid in full by the Client or Business, regardless of new ownership.
Limitation of Liability; Disclaimer
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. DELUGE SHALL NOT, IN ANY EVENT, BE LIABLE TO THE CLIENT UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT TO BE PAID BY CLIENT DURING THE YEAR IN, WHICH THE LIABILITY ACCRUES. (B) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DELUGE SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL ACCESS THE CLIENT’S CONTENT OR "CLICK-THROUGH" THE CLIENT’S CONTENT.
Deluge and Client hereby agree mutually to indemnify, defend and hold each other harmless including, but not limited to, their officers, directors, agents, affiliates, distributors, franchisees, representatives, independent sucontractors, employees and all assignees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including, without limitation, reasonable attorneys' fees, that may at any time be incurred by any of them by reason of any claims, suits or proceedings:
a)for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Distribution Portal content provided by the respective parties (b) arising out of any material breach by either party of any duty, representation or warranty under this Agreement; or (c) relating to any contaminated file, virus, worm or Trojan horse originating from their respective content. Either party will promptly notify the other of any claim, action or demand (an "Action") for which indemnity is claimed.
Both Deluge and the Client reserve the right to participate fully in and assume joint control of the defense of any action for which indemnification has been requested. Settlement of any action shall be subject to the prior written approval of Deluge and Client. This section will survive the completion, expiration, termination or cancellation of this Agreement.
Agreement Not To Hire
Client, its employees, any shareholders, any principals, and agents agree not to directly or indirectly solicit or recruit services from Deluge's employees, independent contractors, shareholders or principals outside of this agreement during the course of this Agreement, and for a period of one (1) year following the expiration of this Agreement.
Parties Are Independent Contractors
Neither Deluge nor Client is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance.
This Agreement shall be interpreted, construed and enforced in all respects and in accordance with the laws of the State of Oregon. The Client and the Company hereby irrevocably consent to the jurisdiction of the courts of the State of Oregon and the federal courts situated in Oregon in connection with any action arising under this Agreement.
Any notice to be given under this Agreement shall be sufficient if it is in writing and is sent by any verifiable means to the Party to be charged with receipt of the notice at the last available address of that Party.
Any dispute, controversy or claim arising under, out of or relating to this Agreement or The Plan, any subsequent amendments or addendums of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-agreement (non-contractual) claims, shall be submitted to mediation in accordance with a mutually agreed on mediator. The arbitral tribunal shall consist of a sole arbitrator agreed on by both Deluge and Client. The place of arbitration shall be in Oregon. The dispute, controversy or claim shall be decided in accordance with the law of Oregon Arbitration may be commenced by giving written notice to the other party to a dispute. Any award rendered by the arbitrator shall be conclusive and binding upon parties hereto.
At any time this Agreement for services may be terminated by either party with appropriate written notice. Termination is in accordance with the Agreement Terms for Service Cancellation.
Non- disclosure, confidential, proprietary data and material shall remain confidential as such even after the parties have severed business ties. Fees that are due remain as such and are paid in accordance with the Agreement terms to the end of the service. Proprietary Property or material in Client’s possession shall be returned or deleted immediately per Deluge verbal or written request.
In the event that either Party to this Agreement is required to bring any legal action to enforce its rights under this agreement, the prevailing party to any such litigation shall be reimbursed by the other party for the reasonable attorney fees, costs, and expenses incurred in connection with that legal action.