Terms Of Sale Agreement
Please READ carefully by purchasing a product, service or subscription you (herein referred to as “Client”) agrees to the follow terms stated herein.
THE DIGITAL NAVIGATOR LLC (“THE DIGITAL NAVIGATOR”) IS WILLING TO SELL TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT” YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN THE DIGITAL NAVIGATOR IS UNWILLING TO SELL TO YOU, AND YOU SHOULD SELECT THE “DECLINE” BUTTON AND THE REGISTRATION WILL NOT CONTINUE.
This Agreement covers the services (“Services”) as Client may engage The Digital Navigator to provide from time to time during the Term. The Services may be agreed to by the Client completing the website checkout process which contains services, a quote delivered by the Company which may be accepted by the Client by email, or for Services that are more involved and are for amount in excess of $5,000 per month, Company shall prepare a statement of work as described on Exhibit A (prepared on an as needed basis) (“SOW”). All Services to be provided by The Digital Navigator will be outlined either in the website checkout system, quote or the SOW or amendments thereto as agreed to by the parties, such agreement may be by verified email or by an agreed upon SOW. To the extent that the terms of this Agreement shall conflict with those set forth in any quote or SOW, the terms of this Agreement shall prevail. Any and all changes to a quote or SOW shall require a written amendment to such quote or SOW agreed to by both parties.
The “Term” of this Agreement shall commence on the Effective Date and shall continue in effect until the Services are completed, unless earlier terminated in accordance with the provisions of Section 8 below. The termination of any SOW does not in and of itself constitute the termination of this Agreement. The termination of the Agreement shall cause any and all SOWs then in effect to also terminate.
3.FEE STRUCTURE AND BILLING:
- The Client will not receive access to any Services until Client provides the full initial payment to The Digital Navigator in accordance with the pricing set forth in the respective website checkout form, quote or SOW, which pricing is inclusive of all taxes except for applicable sales taxes, if any.
- Unless otherwise specified in the applicable quote or SOW, The Digital Navigator shall invoice Client for the initial upfront payment to be paid on receipt of the invoice. All other payments shall due in accordance with the terms of the invoice provided by The Digital Navigator. If Client submits a website checkout form which contain recurring payments then Client agrees to have payments automatically processed in accordance with the website checkout payment schedule through the authorized Client credit card and Bank ACH if an ACH authorization form has been completed by Client.
- In the event charges due are not paid in full, for any reason, within five (5) days of being due, The Digital Navigator shall have the right to suspend all or any portion of the Services until such time as all undisputed charges and applicable late fees have been paid. Following such payment, The Digital Navigator may reinstate Services to Client only upon satisfactory assurance of Client’s ability to pay for Services, including modified payment terms.
- In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Company.
- The Digital Navigator acknowledges that the Client is engaged in a variety of innovative activities that have included and may continue to include development of new concepts applicable to its business. Subject to Section 6, all information utilized by the Client, including information developed by the Digital Navigator in the course of his services hereunder, shall be deemed to be proprietary to the Client. Digital Navigator will not disclose such information to any third party, subject to applicable laws or requirements by governmental authorities.
- The obligations and restrictions in this Section 4 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party prior to the disclosure of such information from the disclosing party; (iii) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing party and who provides such information without restriction as to use or disclosure. The provisions of this Section 4 will not restrict either party from disclosing the other party’s Information or the terms and conditions of this Agreement pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure endeavors to give reasonable, advance notice to the other party to enable it to contest such order or requirement.
5.1 Definition and Permitted Use.
- For purposes of this Agreement, “Personal Data” means any information that is about, or can be related to, an identifiable individual involving Client or any Client content, “Client Data” means all electronic data or information submitted by Client and its users to the Services, including but not limited to Personal Data. It includes any information that can be linked to an individual or used to identify an individual, natural person directly or indirectly. Personal Data shall be considered Confidential Information regardless of the source. Client agrees to comply with all applicable local, state, national and foreign laws, treaties, and regulations in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Client warrants that to the extent required by any privacy law or regulation applicable to Client or its authorized users authorized use of the Services, Client shall provide all proper notices under such privacy laws or regulations and obtain from its personnel, customer, or other required third parties all rights and permissions legally required in order to grant the authorizations in this section and to use the Services as contemplated herein. Client will ensure that any use of the Services by any authorized users is in accordance with the terms of this Agreement. Client agrees to notify The Digital Navigator immediately of any unauthorized use of any password or account necessary to log into the Services provided or any other known or suspected breach of security or any known or suspected distribution of Client content to the extent arising out of Client use of the Services or Work Product.
5.2 Ownership and Treatment of Personal Information. As between Client and The Digital Navigator, Client is and shall remain the sole and exclusive owner of all right, title and interest in and to Personal Data. Personal Data shall be considered Client’s Confidential Information. Notwithstanding anything else in this Agreement or otherwise, Client acknowledges and agrees that The Digital Navigator may monitor Client’s use and of its users’ use of the Services, including any data and information related to such use, and the Client Data only in an aggregated and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between The Digital Navigator and Client, all right, title and interest in the Aggregated Statistics, belong to and are retained solely by The Digital Navigator. Client acknowledges that The Digital Navigator will be compiling Aggregated Statistics based on Client Data input into the Services and Client agrees that The Digital Navigator may (a) make such Aggregated Statistics publicly available, and (b) use such Aggregated Statistics to the extent and in a manner permitted by applicable law or regulation, including, without limitation for purposes of data gathering, analysis, service enhancement and marketing, provided that such Aggregated Statistics do not identify Client, Personal Data, or Client’s Confidential Information.
6. CLIENT OBLIGATIONS:
- Authorized End User Access to Services. Subject to the terms and conditions herein, Client may permit any authorized user to access and use the Services. Client will manage the information available for viewing or editing on the Client’s website for which it has administrative controls and except for the acts and/or omissions by the Company, Client shall be responsible for managing and administering access to its website.
- To the extent that Client and any authorized user, through or in connection with use of the Services or website, collect, use, send, store or disclose data from any other party, Client and/or each authorized end user represents that it has all requisite rights to storing, accessing, using, displaying or sending such data, information or materials in connection with or through the website or Services in accordance with all applicable laws and regulations, including data privacy regulations.
- Usage Restrictions. The rights granted to Client in the Agreement are subject to Client’s authorization and payment of all Fees to access and use the Services, as well as the following restrictions: Client shall not, and shall not permit any authorized user to: (i) license, sell, rent, lease, transfer, assign or otherwise make available the Services, website or the documentation provided by Company available to any third party without Company’s approval; (ii) modify, copy, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) take any action or subject Services to any testing or interference that may disrupt, delay or otherwise interfere with the performance of the Services without the prior written consent of the Company, including but not limited to unauthorized penetration or benchmark testing; (iv) make any unauthorized use, resale or commercial exploitation of any part of the Services; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the website or Services; (vi) use the website or Services to send spam or unsolicited messages in violation of any laws, or send, upload, use or store any material containing viruses, worms, Trojan horses or any other malicious or harmful computer code, file, script, agent or program with the website or Services, or upload or transmit any information, data or material to or from the website or Services that infringes any third party rights, is threatening, libelous, or violates any third party privacy rights; or (vii) interfere with the Services or gain unauthorized access to the Services or The Digital Navigator Technology. Client shall ensure that its use and its authorized end user’s use of the Services or any website provided complies with all applicable laws, statutes, regulations or rules and shall not use or compile any of the Services or website for the purpose of any illegal activity.
- Client acknowledges and agrees that Company shall have the right and authority to take all reasonable steps appropriate and/or necessary to protect the security and integrity of the Services or any website or portal hosted for Client as judged in Company’s reasonable discretion which may include temporary suspension of the Services or website, upon notice if (i) anyone that has violated or attempts to violate the provisions of Section 6(c), or (ii) there is a potential threat to or attack on the Services or website. In such instances, Company will promptly notify Client of such suspension and the steps taken by Company in connection with such suspension and if the cause is due to a third party threat, the Company will make reasonable efforts to resolve the same and restore the Services as promptly as possible. Company may also suspend or temporarily revoke Client’s access or use of the Services or any website for any account for which any payment is due but remains unpaid after five (5) day’s prior written notice of such delinquency. Client agrees that Company shall not be liable to Client, or to any third party, for any suspension of the Service or website resulting from Client’s non-payment of the fees.
- Each Party represents that it will comply with its responsibility in relation to the preservation of Payment Card Industry Data Security Standards (“PCI-DSS”), in accordance with the use and performance of the Services, and agrees to maintain all PCI-DSS requirements in connection with such use. Both Parties agree to cooperate fully to the extent necessary to fulfill joint obligations, and neither Party shall be held liable to the extent the other Party refuses or delays cooperation on a joint obligation as is necessary or reasonably required in connection with PCI DSS. Each Party shall implement and maintain commercially reasonable security measures to protect all cardholder data in their possession or control and not take any action in connection with using the Application IP that places either Party in non-compliance with the PCI DSS.
- Company acknowledges that as between Company and Client, Client owns or otherwise has rights to all Client content that it provides or otherwise permits access to Company for the Services, including Client Data. Except (a) as expressly set forth in this Agreement or any quote or SOW as being the responsibility of Company or (b) for the acts and/or omissions by the Company, Client is solely responsible and liable for all Client content. Client represents and warrants that it has all necessary rights, permission and authorization to transmit or otherwise permit access to any such Client content to Company, including any data or information contained therein and that, to the extent Client shares or otherwise permits Company or the Services or website to make use of any credentials to obtain such Client content, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.
- Client agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Services or website, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Client warrants that to the extent required by any privacy law or regulation applicable to the provision of the Services to Client or its authorized users, Client shall provide all proper notices under such privacy laws or regulations and obtain from its personnel, customer, or other required third parties all rights and permissions legally required in order to grant the authorizations in this section and to use the Services as contemplated herein. Client will ensure that any use of the Services by any authorized users is in accordance with the terms of this Agreement. Client agrees to notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Client content. Client certifies that neither Client nor any authorized users are on the U.S. Department of Commerce’s Denied Persons List or affiliated lists or on the U.S. Department of Treasury’s Specially Designated Nationals List. Any unauthorized use of the Services or website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
7. INTELLECTUAL PROPERTY RIGHTS:
- This is an agreement for the provision of The Digital Navigator ’s Services and not an agreement for sale. Client agrees that The Digital Navigator retains all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to The Digital Navigator’s technology, intellectual property rights, source code, software, logos, ideas, layouts, artwork, scripts, designs, templates, content, images, video, APIs, methodologies, know-how and any modifications, improvements and derivative works thereof, excluding the Client Materials and Client’s Information (collectively, “The Digital Navigator Technology”). Unless otherwise specified in the Statement of Work, The Digital Navigator hereby grants Client a worldwide, non-exclusive license to use The Digital Navigator Technology solely in connection with the Services. Nothing herein shall be construed as restricting Client’s ability to use and exploit any and all of the proceeds and results of the Service during the Term of the Services.
- With respect to specific projects or designated Services that are specific and customized to the Client and the fees for the project are in excess of $5,000 and are described on a specific SOW, The Digital Navigator agrees that upon full payment of applicable fees (including any royalties or revenue shares if applicable), the work that is specifically described on the applicable SOW as being customized and specific to the Client and work for hire for the Client (the “Work Product”) shall have all such title, right and ownership be vested in Client and deemed assigned to Client as Client’s exclusive property and Client shall have the full right to use any and all of the Work Product.
- Subject to the terms and conditions of this Agreement, Client hereby grants The Digital Navigator a non-transferable, worldwide, non-sublicensable, non-exclusive, revocable and limited license to use the Client Materials solely as necessary to perform the Services during the term of the applicable SOW. As used herein, the term “Client Materials” shall mean the logo along with the trademarks, approved key artwork, advertising, promotional materials and/or other elements supplied to The Digital Navigator by Client. Client represents and warrants that all The Digital Navigator shall have all permissions, authority and rights to access all Client Material provided to it and such Client Material shall not violate, infringe or misappropriate the rights of any third party.
8. DISCLAIMERS; REPRESENTATIONS AND WARRANTIES/INDEMNIFICATION:
- EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENTS SIGNED BY THE PARTIES, THE SERVICES, CONTENT, AND/OR PRODUCTS PERFORMED OR PROVIDED BY THE DIGITAL NAVIGATOR ARE PROVIDED “AS-IS”, AND NEITHER THE DIGITAL NAVIGATOR NOR ANY OF ITS LICENSORS MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH PRODUCTS, SERVICES, AND/OR CONTENT. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES THE DIGITAL NAVIGATOR SPECIFICALLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR PRODUCTS, AND/OR CONTENT ACQUIRED FROM OR PRODUCED BY THE DIGITAL NAVIGATOR, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. NEITHER THE DIGITAL NAVIGATOR NOR ANY OF ITS REPRESENTATIVES OR LICENSORS REPRESENTS OR WARRANTS THAT ITS PRODUCTS, SERVICES, AND/OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR (C) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE OR USE OF THE SERVICES OR PRODUCTS IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT. The parties acknowledge that the limitations set forth herein are integral to the amount of fees levied in connection with this Agreement, and that, were The Digital Navigator to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. The Digital Navigator does not monitor or exercise control over the Client’s content of the information transmitted through its website, systems, or facilities. Use of the Services or any information that may be obtained therefrom is at Client’s own risk. The Digital Navigator shall have no responsibility or liability for the accuracy or quality of information obtained through its Services. The Digital Navigator shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of services to Client resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. IN NO EVENT WILL ANY LIABILITY EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO OR DUE TO THE DIGITAL NAVIGATOR BY CLIENT UNDER SECTION 3 DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Client shall indemnify, defend and hold The Digital Navigator, its parent, subsidiaries, corporate affiliates, and their respective officers, directors, employees and agents, harmless from and against any and all claims, liabilities, suits, actions, penalties, and damages (including reasonable fees for an attorney of The Digital Navigator’s choice) (collectively, “Claims”) that arise in connection with, or are alleged to arise in connection with Client’s breach of this Agreement (including breach of any representation or warranty) and/or negligence or willful misconduct, but not limited to: (a) breach of any representation, warranty, obligation, or covenant in this Agreement; (b) violations of applicable federal, state, or local statutes or regulations including without limitation privacy laws, laws governing marketing to children, mobile marketing laws, privacy, and anti-lottery laws; (c) property damage or personal injury; (d) applicable taxes or assessments with respect to consideration paid hereunder; (e) Claims by Client’s employees and contract personnel, if any; (f) Claims for violation of any third party’s privacy or publicity rights, trade secrets, proprietary information, or other registered or unregistered intellectual property or proprietary rights; and (g) Claims for unfair or deceptive trade practices, false or deceptive advertisement, act of unfair competition, or violation of any consumer protection law.
- Client shall not settle any Claim described in Section 7(b) without The Digital Navigator’s prior written approval, which may not be unreasonably withheld or delayed. Client agrees to pay or reimburse all costs that may be incurred by The Digital Navigator in enforcing the indemnity set forth in Section 7(b), including reasonable attorneys’ fees
- Client’s obligations under this Section 7 shall survive the expiration or termination of this Agreement.
- The Digital Navigator may immediately terminate this Agreement and/or any one or more quotes or SOWs hereunder if Client fails to reasonably cooperate with The Digital Navigator and perform their responsibilities as outlined in the applicable quote or SOW and such failure is not cured within ten (10) days from the date The Digital Navigator sends written notice thereof to Client. In such event, Client shall pay The Digital Navigator in accordance with the SOW only for Services performed prior to the effective date of termination.
- Other than for failure to pay amounts owed when due, as set forth above, either Party may, at its option, terminate this Agreement upon thirty (30) days’ advance written notice to the other Party in the event of a breach of any material obligation under this Agreement. Such termination notice shall specifically identify the breach or breaches on which such notice of termination is based. Except for failure to pay past due amounts, the alleged breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, bankruptcy reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
- Upon any termination of this Agreement, Client will (i) immediately discontinue all use of the Services and any Confidential Information of The Digital Navigator or The Digital Navigator Technology and, upon request by the respective Party, a Party will delete or return any of the other Party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries; (ii) return to the other Party or, at the other Party’s option, destroy, all copies of any application documentation and any Confidential Information then in the other Party’s possession; and (iii) promptly pay to The Digital Navigator all undisputed amounts due through the date of termination. Client shall be entitled to access and retain all Personal Data and Client content for a period of five (5) business days after the effective date of termination after which all such Personal Data shall be deleted. If elected by Client in writing prior to the end of the Term and for an applicable fee agreed to and paid prior to the end of the Term, The Digital Navigator will retain any Client content for up to thirty (30) days after the termination or expiration of this Agreement unless the Parties otherwise agree, and assist as agreed with any transition.
10. LIMITATION OF LIABILITY:
- NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIVE REMEDY AGAINST THE DIGITAL NAVIGATOR FOR ANY DAMAGES DETERMINED OWED TO CLIENT PURSUANT TO SECTION 13 ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE THE REFUND OF THE FEES PAID BY CLIENT FOR THE PREVIOUS THREE (3) MONTHS TO THE DIGITAL NAVIGATOR WITH RESPECT TO THE THEN CURRENT TERM OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
All notices hereunder shall be in writing and shall be served by first class mail, postage prepaid, electronic mail, or by a nationally-recognized, overnight courier, duly addressed as follows:
If to The Digital Navigator: Attention The Digital Navigator, 5830 E 2nd St, Ste 7000Casper, WY 82609
If to Client: the address set forth on the invoice, website checkout form or SOW
Notices shall also be effective when sent by email to firstname.lastname@example.org or to Client’s verified email address as of the next business day.
12. INDEPENDENT CONTRACTOR:
- Nothing in this Agreement shall be construed to create a partnership, joint venture, or employer/employee relationship between the parties hereto, and The Digital Navigator and its employees and agents shall be deemed to be at all times independent contractors.
- The Digital Navigator shall determine the method, details, and means of performing the Services and shall devote such time as reasonably necessary to perform the Services. The Digital Navigator shall utilize its own equipment and shall be solely responsible for the supervision of its employees and contract personnel, if any.
During this agreement, and for a period of 2 years immediately following the termination or expiration of this Agreement, Client agrees not to solicit or induce any employee or independent contractor to terminate or breach any employment, contractual or other relationship with The Digital Navigator and entities under the control of The Digital Navigator as it would cause financial losses. Client agrees that for each individual that Client hires or engages in violation of this Section 12, Client shall pay to The Digital Navigator liquidated damages equal to the greater of one hundred and fifty percent (150%) of the annual cumulative value of all compensation and benefits paid or payable to that individual by either Client or The Digital Navigator, whichever amount is greater, plus US$50,000.00.
- This Agreement is governed by, and construed and enforced in accordance with, the laws of Wyoming, without regard to its law governing conflict of laws or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of, and venue in, the state and federal courts located in Cheyenne, Wyoming. The parties further agree and irrevocably submit to conducting all judicial proceedings, including hearings, depositions, and trial, virtually to the extent that virtual proceedings are allowed by the court governing the action. All terms in this Agreement are only intended to apply to the maximum extent permitted by applicable law.
- This Agreement may not be modified except as agreed by Client and an officer of The Digital Navigator, electronic mail shall be acceptable to modify this Agreement, or any quote or SOW.
- The language of this Agreement shall be given its ordinary meaning and any ambiguity herein shall not be construed against either party.
- Except as expressly provided in this Agreement, (i) this Agreement is entered into solely between, and may be enforced only by, Client and The Digital Navigator; and (ii) this Agreement shall not be deemed to create any rights in third parties, including without limitation subcontractors, or create any obligations of any party to such third parties.
- Client may not assign this Agreement without The Digital Navigator ’s prior written consent.
- If any part of this Agreement is deemed unenforceable, the remaining portions shall continue in full force and effect.
Please READ carefully by utilizing a product, service or subscription you (herein referred to as “Client”) agrees to the follow policies stated herein.
Your data is Your data
You always have administrator access to your accounts and website and we will provide you with new login credentials upon request. All of your information and data always remains your property and is accessible to you. You understand that you are responsible for the costs of hiring experts and required services to manipulate your data or perform the migration. In the unlikely event of a dispute or migration of your services to another provider you will have full access to your data and website to perform the transfer. It’s simply the right thing to do.
We understand the value and importance of your website, content, and marketing system for your business. That’s why you own it, always.
New client services are activated within 30 days and all client account login credentials required for us to perform the service activation and setup service must be received by the client within 5 business days of our request for login credentials, unless otherwise agreed. Add-on services are activated within 5 business days.
For website hosting services, the plan starts immediately when you acquire it and the website will be ready to “go live” within 1 week. This period is used to optimized your website code, transfer data, configure the server and perform testing prior to sending live traffic to your website.
This section applies to our Managed WordPress service. Hackers frequently exploit loopholes in old software versions and improper configuration which could cause thousands of dollars in damage. Through regular and timely maintenance, and monitoring, we help to protect your business and keep your assets online. Data stored on our servers is encrypted using 256 bit encryption. If your website gets infected or hacked, and it did not have any prior malware, viruses or other pre-existing exploits, then we will clean and restore your website free of charge in the event such an event occurs.
Updates and Maintenance
This section applies to our Managed WordPress service. Your website and related plugins and add-ons are updated regularly to ensure optimal security and performance of your services and optimal security. For all services we ensure each new software installed is compatible with your setup and will help your revert to backup data if necessary and at no additional cost. We understand it is crucial that your online business stays online. We use our judgement to determine the timing of the updates to maximize performance, reduce risk and minimize potential conflicts between your unique software stack.
Data Protection and Backups
Your website information is backed up daily. This increases the protection of your online business and ensures a speedy recovery in the unlikely event of successful attacks by hackers or other events that may compromise your site. Some clients also want to store an offline backup copy and we will assist you with setting this up for a mutually agreed fee based on frequency, size and location of backups.
High speed Performance
We will help you setup your website and online business system on cutting-edge Google Cloud Platform powered service that is configured for optimal speed. We guarantee that your website will be at least 10% faster than your current host no matter where you host! If we don’t meet this speed improvement we will continue optimizing your website and hosting to hit this goal or your money back.
Service Uptime and Redundancy
Your electronic commerce platform is meant to stay online; your business and clients depend on it. Our recommended suppliers provide 99.9% uptime and 100% redundancy. We are not responsible and cannot be held liable for service interruptions caused by 3rd parties and our suppliers as our setup services are provided on a best effort basis.
Security Certificate and SSL & HTTPS Checkout
Your service includes the setup of a security certificate to enable HTTPS and SSL checkout (the lock icon) which gives confidence to your visitors that their sensitive information and credit card details are protected. Having an https website is now an important Google ranking factor which means that more visitors find your site through search engines.
Agreement to ActiveCampaign Terms of Service
If you acquire an email marketing plan with us, you are also bound by the Terms of Service of ActiveCampaign. By clicking to indicate your acceptance of the terms of purchase on checkout, or otherwise accessing or using the email marketing services, you agree to these ActiveCampaign Terms of services. Click here to read the ActiveCampaign Terms of Service.
Expiration of Development Hours and Services
Development, support and service hours are valid for a period of up to 12 months from the purchase date. Service hours from monthly development packages and monthly subscriptions do not carry over to the next month when unused.
Consent to these policies
This document was last updated on February 6, 2023 for edits to the choice of law and venue which was changed to Wyoming and to further clarify the terms of sale with detailed updates throughout.. August 15, 2022 for edits to Section “10. Refund Policy” by removing refunds. Prior edit was on January 27, 2022 for edits to section “12. Warranty Disclaimer; Limitation of Liability.” on January 27,2022 to further specify limitation of liabilities and the exclusive remedy arising out of or related to this Agreement shall be the refund of the fees paid by Client for the previous three (3) months to The Digital Navigator. Amended on March 30, 2021 for the addition of “11. Not Hiring Away Contractors and Employees.”. This document was also updated on March 9, 2021 for the addition of “Website Ownership and Minimum Serivce Period” and to change the effective law and courts from Wyoming to the Republic of Panama. This document was also updated on May 31, 2020 for the removal of the arbitration clause and added clarity to the legal forum. This document was also updated on July 5th, 2019 to add a link to provide clarity on the Terms of Sale Agreement.