MASTER SUBSCRIBER TERMS OF SERVICE
By accessing and using this website (the “Site”), you accept and agree to be bound by the terms and provisions of these Terms of Service (these “Terms”). In addition, when using the Site’s services or any of the related applications, you shall be subject to any posted guidelines or rules applicable to such services or applications, which may be posted and modified at any time. All such guidelines or rules are hereby incorporated by reference into this Agreement.
ANY ACCESS OR USE OF THIS SITE OR ANY OF THE APPLICATIONS WILL CONSTITUTE ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO FULLY COMPLY WITH THESE TERMS, PLEASE DO NOT ACCESS OR USE THIS SITE OR ANY OF THE APPLICATIONS
This Site is made available to you by MyDigitalClients, LLC and its affiliates (the “Company”). The Site offers access to the MyDigitalClients’ Digital Optimization Tool (“MDC DOT”), which is an application that is utilized by the Company’s client, a Master subscriber for use by their sub account users. In addition to MDC DOT, the Site offers access to other services, software applications, data, information, and functionality provided by the Company on the Site and/or through other Company websites (www.mydigitalclients.com, www.mdcdot.com and www.mdclink.com) (collectively referred to herein as the “Services”).
Use of Services
The Site and the Services provide limited access for nonsubscribers and increased access for sub account users. To be authorized to use any Services, you must agree with these Terms; however, for access to subscriber-related Services, such as MDC DOT, you must also be an authorized subaccount user pursuant to a Master Subscription Agreement.
UNAUTHORIZED USE OF THE SERVICES CONSTITUTES UNAUTHORIZED ACCESS TO THE COMPANY’S COMPUTER SYSTEMS AND NETWORKS, WHICH IS STRICTLY PROHIBITED AND MAY GIVE RISE TO SERIOUS CONSEQUENCES UNDER STATE AND/OR FEDERAL LAW.
If you agree to these Terms, you are hereby granted a non-exclusive, non-transferable right to access and use the Services applicable to your intended use (nonsubscriber use versus sub account user use). With respect to subscriber-related Services, such right is subject to the terms and restrictions set forth in the applicable Master Subscription Agreement (as well as other Documentation), and, in the event of any inconsistency with these Terms, the terms of your applicable Master Subscription Agreement shall control. All rights not expressly granted to you in the Documentation are reserved by the Company.
You agree to abide by all applicable laws, rules and regulations in connection with your use of the Site, MDC DOT, and the Services, including without limitation securities laws and regulations, privacy laws and regulations, and laws governing marketing or other contact with individuals by phone, text, e-mail or regular mail. With respect any Voice Over Internet Protocol calls initiated by you through MDC DOT, you agree to abide by the Telephone Consumer Protection Act and all other applicable laws. Without limiting the foregoing, you shall not: (i) use the Site to store or transmit libelous, infringing, unlawful or tortious material or material in violation of third-party rights; (ii) use the Services for the purpose of serving as a factor in establishing an individual’s eligibility or suitability for credit, employment or insurance, or in any way that would cause the Services to be construed as a “consumer report”; (iii) transmit, provide access to or display any User-Uploaded Information to any person or entity that you know would engage in unfair or deceptive practices; (iv) use the Site or the Services in violation of any law concerning unsolicited messages or communications, including EU Directive 2002/58/EC, the U.S. CAN-SPAM Act, and the Canadian “anti-spam” law; (v) use the Site or the Services to store or transmit harmful or malicious code or devices; or (vi) interfere with or disrupt the integrity or performance of the Site or the Services, or related systems.
You agree to safeguard and maintain the confidentiality of your login credentials. You shall notify the Company immediately of any unauthorized use of your password or account or any other known or suspected breach of security.
As necessary for the provision of Services, the Company will automatically monitor and implement MDC DOT updates. You hereby authorize automatic monitoring and implementation of MDC DOT updates, and you agree to install any updates manually if necessary. These Terms apply to all Service updates.
To the extent that the Site or MDC DOT permits the uploading, posting, storage, or viewing of contact information or other content submitted by you (“User-Uploaded Information”), the Company shall have no responsibility for any such content or access thereto, and the Company shall not be responsible for any loss, unavailability, or corruption of such content. You shall retain ownership of all such User-Uploaded Information. You are responsible for (i) ensuring that all User-Uploaded Information submitted by you complies with applicable law and (ii) obtaining all necessary rights to upload, publish, or disseminate such User-Uploaded Information.
You represent, warrant, and covenant that you shall not submit any User-Uploaded Information which (i) restricts or inhibits any other user from using and enjoying the Services; (ii) is unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent; (iii) constitutes or encourages conduct that would constitute a criminal offense or give rise to civil liability; (iv) violates, plagiarizes, infringes, or constitutes a misappropriation of the rights of any third party including, without limitation, copyright, trademark, trade secret, patent, rights of privacy or publicity or any other proprietary right; (v) contains any malware or other software code or programming of any kind; or (vi) constitutes or contains false or misleading indications of origin or statements of fact.
The Company reserves the right to refuse to post or transmit or to remove any User-Uploaded Information in whole or in part, in the Company’s sole discretion, including any User-Uploaded Information that the Company believes has been uploaded in violation of these Terms, the Company’s privacy policies, or an applicable Subscription Agreement or constitutes a threat to the operation or integrity of the Site or the Services.
Payment, Non-Payment; Suspension of Services; Changes in Fees
Payment of Fees. In exchange for the developed software and applications accessible via the Services, each Master Subscriber shall pay the Company the Platform Fee, Account Fees and Other Fees identified in the Master Subscription Agreement (together, the “Subscription Fees”). Payment of the Subscription Fees shall be made at such times and in such amounts as set forth in such Master Subscription Agreement. Except as otherwise specified in the Master Subscription Agreement, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Late Charges. If any fees or expenses are more than thirty (30) days overdue, the Company may, at its option, and without limiting its rights or remedies, charge interest at a rate of one and one-half percent (1 ½%) per month (eighteen percent (18%) per annum) or, if less, the highest rate allowed by applicable law from the date such fee or charge first became due.
Suspension of Access. If a Master Subscriber does not pay the Subscription Fees or any other fees and/or expenses payable under the Master Subscription Agreement or the other Documentation within seven (7) days after they are due, the Company may suspend or cancel access to the Services. All current and remaining fees shall be paid prior to re-activation of the Services. Further you give us the right to charge your credit card on file for any past due charges.
Suspension of Service and Acceleration. If any amount owing by a Master Subscriber for the Services is seven (7) or more days overdue (or ten (10) or more days overdue in the case of amounts you have authorized the Company to charge to your credit card), the Company may, without limiting the Company’s other rights and remedies, accelerate such Master Subscriber unpaid fees under such agreements or Documentation so that all such obligations become immediately due and payable, and suspend the Company’s services to such Master Subscriber and their sub account users until such amounts are paid in full.
Changes in Fees. At any time following the expiration of the Initial Term, the Subscription Fees may be changed, provided that the Company gives the applicable Master subscriber at least thirty (30) days’ prior written notice of the change.
Taxes. The Account Fees and any other fees owed by a Master Subscriber under the Subscription Agreement or any other Documentation do not include U.S., state, local or other taxes. Any taxes required to be paid by the Company related to the Services may be added to the fees due under the Subscription Agreement and may be billed to the Master Subscriber, and such subscriber will pay such amounts unless such subscriber provide the Company with a valid tax exemption certificate.
Subscription Agreement Term and Termination
Term. A Master Subscription Agreement shall commence on the date that the Master Subscriber created their account and will continue in force on a month to month term. A Master Subscriber can cancel their account by calling support or via the application at anytime. Unless you cancel your account before the end of a month period your subscription will be renewed for an additional one month Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the Term.
Termination for Cause. Either party may terminate a Master Subscription Agreement in the event the other party has materially breached or defaulted in the performance of any of its obligations thereunder or under the Documentation or any subscriber is verbally abusive or take other actions that negatively interfere with the Company’s business, and such breach or default has continued for ten (10) days after written notice thereof was provided to the breaching party by the non-breaching party. Any termination shall become effective at the end of such notice period unless the breaching party has cured any such breach or default (or taken steps to prevent the reoccurrence of such breach if it cannot be cured after the fact) prior to the expiration of such period.
Refund or Payment upon Termination. If the Master Subscriber Subscription is properly terminated in accordance with Section IV(b) above, the Company will refund any prepaid fees covering the remainder of the Term after the effective date of termination. If the Master Subscription Agreement is terminated by the Company in accordance with Section IV(b) above, the applicable Master Subscriber will pay any unpaid fees covering the remainder of their Term of all order forms or Subscription Agreements. Termination will not relieve such Master Subscriber of its obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
Termination for Convenience. In addition, the Company shall have the right to terminate a Master Subscription Agreement for any reason with twenty (20) days’ written notice. If the Master Subscription Agreement is properly terminated by the Company in accordance with this subsection, the Company will refund any prepaid fees covering the remainder of the Term of all order forms after the effective date of termination.
Effect of Termination. Upon termination of a Master Subscription for any reason, all rights granted to the applicable Master Subscriber and sub account user under the Master Subscription Agreement and Sub Account Terms of Service agreement shall immediately cease and terminate and such Master Subscriber and sub account user shall cease the use of the Services or any portion thereof. Master Subscribers shall return the originals of Documentation, any confidential information provided to such parties by the Company and all copies thereof, in whole or in part, to the Company within thirty (30) days after the effective date of termination. Should the Company request, the applicable Master Subscriber agrees to provide a written certification of compliance with this provision to the Company.
Injunctive Relief. Each Master Subscriber acknowledges that in the event of a breach by such user of any of the provisions in the Master Subscription Agreement, Terms of service or the other Documentation, the Company will not have an adequate remedy in money damages and shall be entitled to injunctive relief, in addition to other remedies granted to the Company by the Documentation
Survival. Sections IV, VII, IX, X and XI of these Terms, all accrued rights to payment, and all remedies for breach of these Terms and the other Documentation shall survive termination of the Master Subscription Agreement and the relationship between the Subscriber and the Company.
Termination; Reservation of Rights
All rights granted to you by these Terms will terminate, and you will lose your status as a Master Subscriber, if applicable, if you fail to comply with any provision of these Terms, the Master Subscription Agreement, if applicable, or the other Documentation. The Company reserves the right to reconfigure or discontinue features or functionality of the Services, the Site, or MDC DOT at any time, with or without notice, for any reason or no reason at all, with no liability to you.
Ownership of Information; Intellectual Property Rights
Except with respect to User-Uploaded Information, the content and information displayed on the Site is the property of the Company. The Company shall own all right, title and interest, including all related intellectual property rights, in and to the Site, MDC DOT, and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. The Site and Services may contain or reference patents, trademarks, copyrighted materials, trade secrets, products, processes or other proprietary rights of the Company (“Intellectual Property Rights”). No right or license is granted to you for the Intellectual Property Rights.
Representations and Warranties of Subscriber
Each Master Subscriber represents and warrants that it has not falsely identified himself or herself nor provided any false information to gain access to the Services.
Revision of Terms
The Company may revise these Terms from time to time. Each Master Subscriber may be required to agree to revised Terms as a condition of continued use of the Services through the Site and MDC DOT, and in any event each Subscriber’s continued use of the Site after the effective date of revised Terms shall confirm his, her or its agreement to be bound by such Terms.
EACH MASTER SUBSCRIBER AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, AND REPRESENTATIVES FROM AND AGAINST ANY CLAIM, SUIT, ACTION, OR LOSS (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM OR RELATED TO (I) ANY USER-UPLOADED INFORMATION POSTED BY YOU, (II) YOUR USE OF THE SERVICES, OR (III) ANY VIOLATION OF THESE TERMS OR THE OTHER DOCUMENTATION, EVEN IF SUCH CLAIM, SUIT, ACTION, OR LOSS ARISES FROM THE NEGLIGENCE OF THE COMPANY.
The Company shall have no obligation to correct any bugs, defects or errors in, or to support, maintain, improve, modify, upgrade, update, or enhance the Site, MDC DOT, or any other aspect of the Services. Use, downloading, and installation of any aspect of the Services (including any posting of or access to User-Uploaded Information) are at your own risk, and the Company is not responsible for any damage to your computer or mobile computing device or any loss of data that may result.
The Company shall not be liable for any damages or other adverse consequences arising as a result of the unavailability of the Site, Services, or User-Uploaded Information for any period of time.
The Company does not make any warranty that the Services are error-free, current, complete, or compatible with any particular device, software, or platform you use. Your use of the Services, including any material downloaded using the Services, is at your own risk and you are solely responsible for any loss of data or damage to your computer system or device that results from such use.
THE SERVICES INCLUDING THE COMPANY CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OR AN APPLICABLE SUBSCRIPTION AGREEMENT.
The Company is not responsible for the practices of any third-party websites which provide a link to our Site, or the practices of any third-party website to which we provide a link. Any third-party website links on the Site or in MDC DOT are provided as a convenience only. We encourage you to use caution and exercise good judgment when providing information to, transacting business with, or using the services of any third-party website.
Limitations of Liability
THE CUMULATIVE LIABILITY OF THE COMPANY TO MASTER SUBSCRIBER FOR ALL CLAIMS RELATING TO THIS DOCUMENTATION AND/OR THE SERVICES, INCLUDING ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO BREACH OF CONTRACT, GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, TORT, EQUITABLE CLAIMS OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID BY SUCH MASTER SUBSCRIBER. IN NO EVENT SHALL THE COMPANY BE LIABLE HEREUNDER FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST BUSINESS OR LOST SAVINGS, OR LOSS OR DAMAGE TO DATA, OR LOST PROFITS, OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST SUBSCRIBER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS UPON DAMAGES AND CLAIMS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF ANY OF THE DOCUMENTATION HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Essential Basis of Agreement
XII. Essential Basis of Agreement. Both parties acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in the Documentation form an essential basis of the agreement between the parties with respect to the Services, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions of the Services, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of the Services (specifically including, but not limited to, the Subscription Fees) would be substantially different.
The Company may give notice by means of a general notice on the Services, e-mail, or by first class mail. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if first class mail) or 12 hours after sending (if email). You may give notice to the Company (notice deemed given when received) at any time by any of the following: first class mail or nationally recognized overnight delivery service to MyDigitalClients, LLC, 301 S Rogers St., #207 Waxahachie, Texas 75165-3348.
The laws of the State of Texas, excluding its conflicts of law rules, shall govern these Terms and the Documentation, and (ii) you hereby irrevocably agree that all claims or disputes arising out of or in connection with these Terms shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in Dallas County, Texas and you waive any objection to personal jurisdiction or the propriety or convenience of venue in such courts.
These Terms and the other Documentation are the complete and exclusive statement of the agreement with respect to the subject matter hereof and supersede all other communications or representations or agreements (whether oral, written, or otherwise) relating thereto. The failure of the Company to require performance of any provision of these Terms or the other Documentation in no manner shall affect its right at a later time to enforce the same. No waiver by the Company of any breach of these Terms or the other Documentation, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any other such breach, or a waiver of any other breach of these Terms or the applicable other Documentation.
If any provision of these Terms or any of the other Documentation shall to any extent be held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of these Terms or the other Documentation shall in no way be affected or impaired thereby and each such provision of these Terms and the other Documentation shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms and the other Documentation, as applicable, shall be reformed to the minimum extent necessary to correct any invalidity, illegality, or unenforceability, while preserving to the maximum extent the rights and commercial expectations of the parties hereto, as expressed herein. The section headings in these Terms are for convenience only and shall have no legal or contractual effect.
Effective Date: Monday, August 3, 2015