TERMS AND CONDITIONS
(a) For the purpose of this Agreement, the terms set forth hereunder (either in singular or plural form) is defined to mean, unless the context requires otherwise, as follows.
(b) "DMS" shall mean Digital Media Solutions Limited
(c) "Partner" shall mean the customer named on the order form.
(d) "Project" shall mean each project performed by DMS for the Partner pursuant to the terms and conditions of this Agreement, including all Services and Deliverables to be provided by DMS under each specific Project Brief.
(e) "Project Brief" shall mean written scope of work agreed to between DMS and the Partner as to each Project to be undertaken by DMS, which references this Agreement and defines the work to be completed by DMS for each Project, including acceptance criteria, fees and payment schedule, and any modifications to this Agreement. Each Project Brief shall be made part of this Agreement. In the event of a conflict with respect to a specific Project, the scope, Services, Deliverables, DMS responsibilities, the Partner responsibilities, between a Project Brief and this Agreement, the Project Brief shall prevail. Any changes to a Project Brief must be made in writing by email, web form, letter or fax and agreed by the Partner and DMS.
(f) "License" shall mean the licensing rights to resell the services of DMS under the Partners own brand
(g) "Consultancy Package" shall mean the License and training material ordered overleaf.
(h) "Deliverables" are the outputs of Services to be supplied under any Project Brief, and shall include but are not limited to, all software and written material, including programs, tapes, listings, and other programming documentation.
(i) "Confidential Information" hereunder includes all information which is considered proprietary to DMS, the Partner or its customers, as the case may be, including but not limited to information or materials related to the business affairs of the respective party, customer information, designs and documentation of systems and software, and the Services and Deliverables developed as part of this Agreement.
(j) "Effective Date" of this Agreement shall mean the date on which the Partner makes the initial payment for the Consultancy package.
(k) "Representatives" shall mean either as individuals or collectively, employees, officers, directors, agents and consultants of DMS and the Partner, as the case may be.
(l) "Records" shall mean such notes, sketches, drawings, photocopies or other written or photographic records of or relating to each Project.
(m) "Proprietary Rights" shall mean all patents, copyrights, trademarks and trade secrets in any Services or Deliverables.
(n) "Pricing" shall mean the fees paid by the Partner to DMS as set forth in the Partner Trade Price List and/or The Project Brief.
(o) "Partner Trade Price List" shall mean the trade price list as shown on this website and the Reseller Control Panel.
(p) "Services" shall mean all work performed by DMS for the Partner on each Project including but not limited to web design, ecommerce, multimedia development, programming, web development, copywriting, content development, search engine optimisation and internet marketing.
(q) "Protege Program" shall mean the mentored training that the Partner receives as part of Consultancy Package.
2. Payment Terms
(a) The license fees shall be paid on time and in accordance with the payment plan selected on the order form.
(b) Full payment for all projects shall be made in advance to DMS for every project on submission of The Project Brief, unless otherwise agreed in writing or provided in the Project Brief.
3. Variation of Charges, Services And Terms
DMS reserve the right to change our terms and conditions, increase or decrease charges, introduce new charges, add, remove or change the services provided by DMS to the Partner at any time by posting changes on the website. Changed terms will become effective once published on this page. Please review these terms regularly to ensure you are aware of any changes made by us.
4. Ownership of Services and Deliverables
The Partner agrees that DMS shall retain Proprietary Rights with respect to any Services or Deliverables provided to the Partner by DMS.
(a) The Partner agrees that they will not employ as a staff or contractor, any employee working for DMS, for two years from the date such person ceases to be an employee or contractor of DMS, as the case may be.
(b) DMS acknowledges that the Partner is subcontracting to DMS in order to fulfil contracts for Services from its customers. DMS will not provide to or solicit from the Partner' customers any Services directly from its customers during the term of this agreement.
(a) DMS warrants that any Services provided shall be done in a workmanlike manner by competent personnel, knowledgeable in the Services and Deliverables thereunder.
(b) DMS makes no other warranties of any kind or nature, whether express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or use or warranties of uninterrupted or error free performance of computer systems, hardware, software, application or equipment.
(a) DMS is not responsible for damages incurred by the use of the images, information, and services with respect to any Project provided to the Partner by DMS and will not be held liable.
(b) It is expressly agreed between the Partner and DMS that the liability for any damages arising out of provision of the services under this agreement to the Partner by DMS caused by negligence of DMS, it's employees, agents and subcontractors or otherwise is limited to actual damages, but shall in no event exceed $100.00. The Partner and DMS hereby acknowledge that damages would be difficult to ascertain and quantify and agree that this provision liquidates the damages and is not a penalty.
(a) DMS and all of it's Representatives, shall keep all Information of the Partner or the Partner' customers confidential, not to disclose it to any third party without the prior written consent of the Partner or the Partner' customers, and not to use it for any purpose other than that for which it was provided to DMS.
(b) DMS shall only disclose Confidential Information to those Representatives who need to know the same for legitimate business purposes.
(c) The Partner and its Representatives similarly agree to maintain information regarding DMS processes, tools, methodologies and any other Confidential Information of DMS strictly confidential, and the foregoing paragraphs shall apply equally to the Partners obligations to DMS.
(d) Notwithstanding the above, Confidential Information shall not include any information which
(i) is available to the public, or becomes available to the public other than as a result of an improper disclosure hereunder,
(ii) was previously known to the party obligated hereunder, or
(iii) becomes available to the obligated party on a non-confidential basis from a source other than the disclosing party, provided the source is not known by the obligated party to be in violation of a confidentiality obligation to the disclosing party.
9. Standard of Quality
(a) The respective Project Brief shall provide a list of the measures to be taken and the quality criteria to be applied in the execution of a Project.
(b) Services provided by DMS shall be tested by the Partner. Successful testing of the designs based on the above provided criteria will signify the completeness of the Services delivered and the fulfilment of the acceptance criteria.
(c) The services provided by DMS are covered by a satisfaction guarantee. Each stage of a project will have predefined milestones at which stage the client of the Partner shall approve the work done for that phase of the project and sign it off. In the event that the client is not happy with the work done in that phase of the project, DMS will rework the project to the client’s satisfaction on condition it is within the scope of the brief.
10. Independent Contractor Status
(a) DMS and the Partner agree and understand that DMS is performing under this Agreement as an independent contractor for the Partner, and neither DMS nor any of its employees, agents or subcontractors are employees or agents of the Partner.
(b) DMS, its employees, agents and subcontractors have no authority to make any contract or create any obligation or liability whatsoever on behalf of the Partner.
(c) Nothing contained herein shall be construed as reserving to the Partner any right to control DMS with respect to DMS conduct in the performance of this Agreement or the manner in which the Services under this Agreement are performed.
11. Force Majeure
Neither party shall be liable to the other party for any failure to perform or delay in performance of any of its obligations or duties or the terms of the provision of this Agreement, if any, to the extend such failure or delay is caused by or are attributable to any event of force majeure, to the extent the event is not within the control of that party whose performance under this Agreement is effected thereby.
(a) This agreement shall come into force on the Effective Date of this Agreement and shall be valid for a period of twelve months. Thereafter the agreement may be extended by a further year according to the plan chosen upon receipt of the respective annual license fee. Renewal of this Agreement shall be taken up immediately upon the expiry of this Agreement.
(b) Either party may terminate a specific Project Brief, with notice, should any of the following occur:
(i) any material breach of the provisions of this Agreement by the other party;
(ii) theft or fraud by the other party;
(d) In the event that a Project or Project Brief is cancelled before its completion, the Partner shall pay DMS for its Services and Deliverables provided (whether or not complete) until the date of cancellation plus reasonable wind-down costs of not less than $100 to cover expenses incurred by DMS thereafter (including, without limitation, any reasonable expenses incurred in reallocating contractors or employees of DMS to other projects).
13. Other Provisions
(a) The terms and provisions of this Agreement or any Project Brief cannot be altered or modified without a written instrument by email, fax or letter duly agreed by both parties.
(b) By executing a Project Brief with respect to a Project, DMS and the Partner acknowledge that there are no agreements or understandings written or oral, between them with respect to the Project other than as set forth herein or in the Project Brief and that this Agreement and such Project Brief contain the entire agreement between DMS and the Partner with respect to such Project.
(c) In the event that DMS provides Services or Deliverables to the Partner without a Project Brief being executed with respect thereto, all of the terms and conditions of this Agreement shall apply with respect to the provision of such Services or Deliverables to the extent that they are not in conflict with any other written agreement governing the provision of such Services and Deliverables.
(d) No omission or delay by DMS or the Partner at any time to enforce any right or remedy reserved to it, or to require performance of any other terms, covenants or provisions hereof or of a Project Brief shall be a waiver of any such right or remedy.
(e) All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement or Project Brief shall be given in writing and shall only be deemed received upon actual receipt by DMS or the Partner, as the case may be. Telecopy, email and courier services are permissible non-exclusive means of delivery. It shall be sent to the person and to the address or fax number for such party set forth on the order form overleaf or to such changed person, address or fax number as may be subsequently submitted by written notice of either party. (name, address, email, fax number & telephone number).
(f) All communication and support for Partners will be done electronically by email to firstname.lastname@example.org or through our online support form at www.mywebagency.com/contact.php. In the event the partner is unable to access the internet then alternative means of communication are facimilie to +44 (0)1634 310790 or by post to Digital Media Solutions Ltd, New Media House, 60 Vale Drive, Chatham, Kent, ME5 9XB.
In the event of any instalment of the license fees or project costs not being paid on time, the Partner will be notified in writing by post, fax or email. If the Partner fails to remedy the situation within 7 days of the date of the notification letter, the Partner will be in breach of contract and DMS reserve the right to terminate the contract with immediate effect. In these circumstances any refund guarantee will become null and void and the full balance outstanding will become due. If payment has been made by credit or debit card the reseller authorizes DMS to take the outstanding payment from the resellers credit or debit card on which the original payment was made.
15. Refund Policy
(a) This Agreement may be terminated by the
Partner in writing by post, email or fax within
30 days of receiving an order acknowledgement
and account login details for a full refund.
The order acknowledgement and account login
details will be emailed immediately if ordering
online by credit card or upon clearance of funds
if paying in any other way.
(b) Cancellation of the agreement after the
first 30 days may be done in writing by post,
email or fax giving 30 days notice. Upon expiry
of the notice no further payments will be deducted.
(c) If the Partner wishes to claim a refund
under the "Better Than Money Back Guarantee"
the terms are that the Partner must complete
and submit all the written exercises and content
of the Protégé Program and implement
the business plan developed and mutually agreed
during the Protégé program. If
after completing the exercises and subsequently
operating the business in accordance with the
business plan the Partner is not satisfied for
any reason, the Partner may claim a full refund
of the license fee paid under this contract
plus a further $100 compensation by contacting
DMS in writing by letter, fax or email to notify
DMS of a wish to claim a refund. DMS will issue
a refund and compensation within 30 days of
receiving the aforementioned refund request.
In the event of a refund being claimed the Partner
agrees to transfer all intellectual property
rights to DMS which shall include but not be
limited to: the website, content, research and
solutions developed through the Protégé
(d) The Special Offer discount waiving the
$500 set-up fee is for one time use only. In
the event that the partner terminates their
license, then re-orders a new license at a later
date they will not be entitled to claim the
discount a second time without express permission
from the management of DMS.
16. Earnings Disclaimer
Any Examples of income earnings on this site are only estimates of what the Partner could earn and no guarantee is given that you will achieve the same levels of success. Where examples are given attributed to specific individuals or businesses the figures are correct, however there is no assurance that the Partner will achieve the same. No assurance can be given to the Partner by DMS that past results can be used as indicative of future results. All business ventures carry some element of risk.
17. Server Usage
All Partners have unlimited bandwidth and web space on DMS’s servers for hosting all their client'sand their own web sites subject to the conditions shown below. In the event of a breach of any of these conditions DMS will investigate the evidence and in the event that the complaint is upheld DMS reserve the right to suspend or cancel the users account.
(a) Acceptable Use: The server space and bandwidth provided for the purpose of web hosting is only to be used for legitimate web site content. This means all files on a domain must be part of an active web site or web application that provides web-based content to site visitors.
(b) Storage Policy: The web space provided should not be used for backups, digital file storage, archives, downloads or other non web-based content without written permission from DMS.
(c) Anti-Spamming Policy: The sending of unsolicited commercial email where the recipient has not given permission (opted-in) to the senders email list is known as spamming. DMS have a zero tolerance policy towards spamming as it can have an adverse affect on all domains on the servers due to association.
(d) Adult and Pornographic Materials: Sites must not contain pornographic, erotic or obscene materials. The definition of pornography, erotic and obscene materials, is at the discretion of DMS.
(e) Intellectual Property & Copyright Abuse: Sites must not contain materials that infringes on the intellectual property rights of others. This includes but not limited to warez, pirated or password cracked software, trademarks, patents, service marks and copyrighted materials. The burden of proof falls on the account holder and not DMS to prove the rights to use the materials.
(f) Unlimited Use Policy: High bandwidth usage: In the event that a customer is found to be using higher than normal server resources to such an extent that he or she may compromise server performance and resources for other customers, DMS reserves the right to impose the Excessive Use Policy.
(g) Excessive Use Policy: DMS reserves the right to implement the following policy at its sole discretion: When an account is found to be monopolising the server resources DMS reserves the right to temporarily or permanently disable that account or site with immediate effect dependent on the severity and circumstances of the situation. In such instances, which will only be implemented in extreme cases to prevent misuse of our servers and disruption to other users, if the excessive use issue cannot be resolved we will offer alternate hosting arrangement more suitable to the account holders usage levels.
In the event any one or more of the provisions of this Agreement and/or Project Brief shall be held invalid, illegal or unenforceable, the remaining provisions of this Agreement and/or Project Brief shall be unimpaired and the Agreement and/or Project Brief shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
This Agreement shall be construed in accordance with and governed for all purposes by the laws of England and Wales.