Terms of Service
Published: 12:00 PM EST, July 27, 2023
DevWatt Digital Marketing Terms of Service (“TOS”)
Definitions
DevWatt Digital Marketing (“Company”)
Entity or Individual with whom Company has Agreement (“Client”)
Special Note: The Company, at its sole discretion, reserves the right to offer discounts or payment structures to any Clients for any reason.
General: This TOS as referenced in the Client Service Agreement (“Agreement”) sets forth the legally binding terms for the Company’s services provided to a Client. By using the Company’s Services, the Client agrees to be bound by these terms. Furthermore, by accessing or using any of the Company’s services in any manner, including, but not limited to, visiting or browsing the Company’s software, contributing content or other materials to the Company, or utilizing any of the Company’s digital marketing or advertising services, Client agrees to be bound by the TOS. These TOS may be amended from time to time with or without notice to the Client. These TOS, and any rights, Agreements, or licenses granted hereunder, may not be transferred or assigned by Client, but may be assigned by the Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Company’s Services: The Company’s services provided to the Client on and through the Company’s software, or any other third party software, on an basis with all faults. The Company’s services provided to the Client not on and through the Company’s software, or any other third party software, on an basis with all faults. Services provided by Company are on a non-exclusive basis with regard to industry and/or geographic territory. Client agrees that the owners of the Company exclusively reserve the right and may, at any time and without notice and any liability to Client, modify or discontinue its services or delete the data Client provides, whether temporarily or permanently. We shall have no responsibility or liability for the timeliness, deletion, failure to store, inaccuracy, or improper delivery of any data or information.
Client Responsibilities and Registration Obligations: In order to use the Company’s services including any of its software or third party software, Client must register with us as a Client, agree to provide truthful and accurate information, and be at least the age of eighteen (18) or older. When registering, Client explicitly agrees to these TOS and as may be modified by us from time to time and available here.
Services: Client acknowledges and agrees that Client shall only receive the Services set forth in the applicable Service Agreement and purchased by Client. Client agrees and acknowledges that the Services may be provided to Client via a third-party vendor and/or partner. Client acknowledges and agrees that the Services may be dependent on timely receipt by Company of certain information, content and materials from Client. Company will determine the method, details, and means of performing the Services.
Authorization: Client hereby authorizes Company to act on behalf of Client in connection with provision of the Services to Client under the Agreement. For the avoidance of doubt, Client grants Company all rights necessary for Company to facilitate the provision of the Services to Client hereunder. Client shall direct communications regarding the Services only to Company, unless instructed otherwise by Client. Client agrees to comply with all reasonable requests of Company necessary for the performance of the Services.
Client Representations and Warranties: Client represents and warrants that: (a) the content its provides to the Company will not infringe upon or violate any intellectual property or other rights of any third party, and that Client has all necessary licenses and clearances to use, and to allow Company to use, the content it provides; (b) Client has all rights, title, interest, consents, authorizations, permits, licenses, registrations, notices and rights to perform its obligation under this Agreement, including, but not limited to, provision of the content it provides hereunder in connection with the Services and provision of the Services to its clients and website users; (c) Client shall comply with all applicable laws, rules, regulations (including, but not limited to, laws regarding the collection, use, and disclosure of information from visitors to Client’s websites) and industry best practices in connection with its use of the Services; (d) Client’s website’s privacy policy and terms of use shall comply with all applicable laws, rules and regulations and industry best practices regarding the Services; (e) Client shall comply with all applicable privacy policies (including Company’s privacy policy), privacy settings, and any other policies, terms of use, terms of service and guidelines (including, but not limited to, those of search engines, display networks, social networks or directories such as Facebook and Twitter, as applicable) in connection with use of the Services under this Agreement; and (f) Client has the full power and authority to enter into this Agreement, and the execution and performance by Client of this Agreement does not and will not breach or cause a default under any other agreement, contract or joint venture agreement to which it is a party.
Errors: Client may not claim a breach, terminate or cancel this Agreement if there are typographical errors, incorrect ad placements, under deliveries, omissions or errors in advertising, social media and website content provided by Company. Company agrees to take corrective action within 5 business days of notification by the Client, that portion of the advertising, website or social media content which may have been rendered valueless by such typographical errors, incorrect ad placements, under deliveries or omission of copy, unless such error arose due to the error or omission of Client, or after the advertisement, website or social media content had been set and proofed or otherwise confirmed by the Client or the advertisement was submitted after start date. Company will not be liable to Client for any loss or damage that results from a typographical error, incorrect ad placement, under delivery, omission or error related to the products and services it provides.
Advertising and Marketing Content: Company may, in its sole discretion, edit, alter, omit, reject or cancel at any time any of Client’s digital advertising or marketing products, content, or services to meet industry standards and Client’s budget. All digital advertising and marketing placements are at the option of Company to deliver its services as it best sees fit. Failure to meet placement requests will not constitute cause for adjustment, refund, make good, termination or cancellation of this Agreement.
Duplicate Content: When and if the Company is posting its own created social media, advertising, or website content on behalf of the Client, the Company reserves the right to post whatever content it deems fit to accomplish the Client’s marketing and advertising objectives and to perform the services under the Agreement with the Client. The Company may reuse content across multiple Clients; specifically their social media accounts, advertising accounts, and websites, and reserves the right to publish this content anywhere (“duplicate content”). Any and all duplicate content is owned by the Company as intellectual property which the Client is simply licensing under the terms of its service agreement with the Company.
Excusable Delays: Company will not be liable for any damages related to delay or failure to perform due to causes beyond its control, including but not limited to, fire, strike, work stoppage or other labor interruption, freight embargo, terrorism, sabotage, war, civil disturbance, governmental action, pandemic, rules or regulations, failure of machinery, equipment or information systems, failure of suppliers and digital partners, the elements, flooding, power outages or interruptions or acts of God. Company’s inability or failure to perform will not constitute a breach of this Agreement. Performance by Company of its obligations under this Agreement will be suspended during this type of delay or failure to perform. The Client may, however, terminate this Agreement if suspension lasts more than thirty (30) days.
Privacy Policy: Company agrees to keep Client information private according to standard business practices.
Registration and Passwords: Client is responsible to maintain the confidentiality of your username and password and shall be responsible for all uses of your login to the Company’s software. Client agrees to immediately notify us of any unauthorized use or its registration, user account or password. Furthermore, the Company is not responsible for maintaining the confidentiality and security of the Client’s social media account passwords and holds no liability for a breach of such.
Client Conduct:The Client agrees that any and all information or data of any kind, whether in the form of text, software, code, music or sound, photographs or graphics, video or other materials (“Content”), publicly or privately provided, shall be the sole responsibility of the person and Client providing the Content.
Client explicitly agrees, in using the Company’s software or any service provided, that it shall not:
-provide any Content or perform any conduct that may be unlawful, illegal, threatening, harmful, abusive, harassing, stalking, tortuous, defamatory, libelous, vulgar, obscene, offensive, objectionable, pornographic, designed to or does interfere or interrupt the Company’s software or any service provided, infected with a virus or other destructive or deleterious programming routine, give rise to civil or criminal liability, or which may violate an applicable local, federal, national or international law;
-impersonate or misrepresent its association with any person or entity, or forge or otherwise seek to conceal or misrepresent the origin of any Content provided by Client;
collect or harvest any data about other users;
-provide or use this web site and any Content or service in any commercial manner or in any manner that would involve junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized advertising without our prior written consent;
-provide any Content that may give rise to our civil or criminal liability or which may constitute or be considered a violation of any local, national or international law, including but not limited to laws relating to copyright, trademark, patent, or trade secrets.
Submission of Content: By providing any Content to the Company whether in the form of software, email, text, or other instrument, the Client agrees to all of the following statements listed below:
-Client agrees to grant to Company a worldwide, royalty-free, perpetual, non-exclusive right and license (including any moral rights or other necessary rights) to use, display, reproduce, modify, adapt, publish, distribute, perform, promote, archive, translate, and to create derivative works and compilations, in whole or in part. Such license will apply with respect to any form, media, technology known or later developed.
-Client warrants and represents that it has all legal, moral, and other rights that may be necessary to grant Company with the license set forth in this Section.
-Client acknowledges and agrees that Company shall have the right (but not obligation), in its sole discretion, to refuse to publish or to remove or block access to any Content provided at any time and for any reason, with or without notice.
Third Party Services: Goods and services of third parties may be advertised and/or made available on or through the Company’s software. Representations made regarding products and services provided by third parties are governed by the policies and representations made by these third parties. Company shall not be liable for or responsible in any manner for any of Client’s dealings or interaction with third parties.
Indemnification: Client agrees to indemnify and hold Company harmless, Company’s subsidiaries, affiliates, related parties, officers, directors, employees, agents, independent contractors, advertisers, partners, and co- branders from any claim or demand, including reasonable attorney’s fees, that may be made by you and/or any third party, that is due to or arising out of Client’s conduct or connection with the Company’s software or service, Client’s provision of Content, Client’s violation of this TOS, Company’s fulfillment of any of its services, or any other violation of the rights of another person or party.
Intellectual Property: Each party warrants that its respective performance of the terms of this agreement will not in any way constitute knowing, intentional infringement or violation of any copyright, trade secret, trade mark, patent, invention or any other nondisclosure rights of any third party. Client hereby indemnify and hold harmless Company against all costs (including attorney fees), damages and liabilities arising from negligent or intended acts on Client’s part constituting the violation of any copyright, trade secret, trade mark, service mark, patent, invention, proprietary information or nondisclosure rights of any third party. To the full extent of the law, Client will pay any expenses or damages to Company resulting from claims made by third parties with regard to usage of material Client has provided, even after termination of this Agreement.
No Guarantees: Client acknowledges and agrees that Company makes no specific guarantee or warranty regarding the services which it performs on Client’s behalf, including placement of paid search advertising, Google Maps marketing, Google SEO marketing, or any specific results. Company does not warrant the number of calls, clicks, impressions or website visits or that paid search advertising or marketing campaign will appear in response to any particular query. Company does not warrant that the performance will be error-free but will immediately act to correct errors once they have been identified.
Force Majeure: Company shall not be in breach of its obligations under these Terms and Conditions of Service in the event that, for cause(s) beyond reasonable control, Company is unable to perform, in whole or in part, any one or more of its obligations. Such causes will include, but not be limited to governmental regulation, pandemic, fire or other causality, inability to obtain materials or services, technical failure or difficulties, problems or interruptions of the internet, or any other cause not within the reasonable control of either party.
DISCLAIMER OF REPRESENTATIONS: CLIENT AGREES AND ACKNOWLEDGES THAT THE COMPANY HAS NOT MADE ANY REPRESENTATIONS OR GUARANTEES REGARDING THE EXPECTED BENEFITS, PROFITABILITY OR EFFECTIVENESS OF THE SERVICES, NOR CAN IT DO SO. THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE COMPANY DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR-FREE OR SECURE. THE COMPANY HAS NO CONTROL OVER THIRD PARTIES, INCLUDING SEARCH ENGINE RANKING COMPANIES, SOCIAL MEDIA OUTLETS, BRAND REPUTATION OR PUBLIC RELATIONS OUTCOMES AND FULLY DISCLAIM ALL LIABILITY FOR ANY ACTIONS TAKEN BY ANY THIRD PARTIES.
DISCLAIMER OF WARRANTIES: CLIENT UNDERSTANDS AND AGREES THAT ITS USE OF THE COMPANY’S SOFTWARE AND ANY SERVICES OR CONTENT PROVIDED (THE “SERVICES”) IS MADE AVAILABLE AND PROVIDED TO CLIENT AT ITS OWN RISK. IT IS PROVIDED TO CLIENT “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY, IMPLIED OR EXPRESS, THAT ANY PART OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OF ANY QUALITY, NOR THAT ANY CONTENT IS SAFE IN ANY MANNER FOR DOWNLOAD. CLIENT UNDERSTANDS AND AGREES THAT NEITHER COMPANY NOR ANY PARTICIPANT IN THE SERVICE PROVIDES PROFESSIONAL ADVICE OF ANY KIND AND THAT USE OF SUCH ADVICE OR ANY OTHER INFORMATION IS SOLELY AT CLIENT’S OWN RISK AND WITHOUT OUR LIABILITY OF ANY KIND.
LIMITATION OF LIABILITY: IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, LOST REVENUES, LOST OPPORTUNITY COSTS, DIMINISHED BRAND OR ANY OTHER ECONOMIC LOSS, OF ANY TYPE OR NATURE, OR FOR EVENTS OR CIRCUMSTANCES BEYOND COMPANY’S CONTROL, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCCASIONAL SHORT TERM INTERRUPTIONS OF SERVICE NOR INTERRUPTIONS OF SERVICE RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND COMPANY’S REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM AGAINST COMPANY HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER COMPANY IN DEFAULT UNDER THIS AGREEMENT. COMPANY’S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THIS AGREEMENT, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF COMPANY UNDER ANY AND ALL LEGAL THEORIES WILL NOT EXCEED THE LESSER OF (I) $50,000 OR (II) THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY IN THE 12 MONTHS BEFORE SUCH CLAIM AROSE. CLIENT HEREBY ACKNOWLEDGES THAT THE REMEDIES SET FORTH ABOVE ARE REASONABLE AND WILL NOT FAIL OF THEIR ESSENTIAL PURPOSE.
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE RESULTING FROM OR ARISING OUT OF (I) THE USE OF OR THE INABILITY TO USE THE SERVICE, (II) THE COST TO OBTAIN SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY TRANSACTION ENTERED INTO ON THROUGH THE SERVICE, (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT DATA TRANSMISSIONS, (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (V) ANY OTHER MATTER RELATING TO THE SERVICE.
Regards to Communication: Company does not make any representations or warranties as to the truth or accuracy of any statement made or materials posted on or through the software, forum, bulletin board, chat room, or any other user interactive area of Company’s software. Client agrees and acknowledges that it assumes the risk of any actions taken in reliance upon the information that may be contained in Company’s software, forum, bulletin board, chat room, or any other user interactive area of Company’s software.
Company does not endorse or lend any credence for any statements that are made by any participant in any forum, bulletin board, chat room, or any other user interactive area of Company’s software. Any opinions or views expressed by Company, forum, bulletin board, chat room, or any other user interactive area of our site participants are their own. Company does not endorse or support or otherwise give any credence or reason for reliance on any such statements or opinions.
Client is fully responsible for its own statements and materials that it posts in Company’s software, forum, bulletin board, chat room, or any other user interactive area of Company’s software and any consequences, whether or not foreseen, to any party who may rely upon these statements. Client agrees that it will not take any action directed towards attempting to hold Company responsible for any such materials or statements.
As a participant in Company’s software, forum, bulletin board, chat room, or any other user interactive area of Company’s site, Client agrees that Company may remove any materials from its site, forum, bulletin board, chat room, or any other user interactive area of its site for any reason, at its sole discretion, or for no reason at all. This includes material which is disruptive, abusive, offensive, illegal, vulgar, pornographic, or any other material. Client holds Company harmless from and against any damage Client or others may suffer as a result of Company’s removal of any content from its forum, bulletin board, chat room, or any other user interactive area of its site or from the discontinuance of its forum, bulletin board, chat room, or any other user interactive area of its site at any time.
Important Communication Note: When opting to do shares through Company’s sites social accounts it owns based on the service Client has subscribed to when it placed an order may be shared through third party accounts. Moreover, please note since when shares are conducted through a 3rd party service Company will not have the ability to access the amount of friends/followers one may have.
If Client has used the Company’s services before, it is possible that the Company has data about Client already and it is being used to contact Client about offers, events, items or related activities. If you are an existing client, Company will continue to keep you informed unless Client revokes its consent via the procedures set forth below. This communication can be any form of communication and may include but is not limited to email, Facebook, Google+, Twitter, LinkedIn, Instagram, YouTube, any other social platforms, mail, text messages, phone and phone calls.
Furthermore, the Company reserves the right to communicate to Client’s social media following, using communication including but not limited to the above mentioned ways of communication, of any kind, including social media platforms including but not limited to Facebook, Google, Twitter, Instagram, YouTube, LinkedIn, and such, may also be shared through third party accounts. If Client is a new user, Company will give the choice (for example, once Client has subscribed or signed up) whether or not Client wants to receive emails regarding future offers, events and new services or related activities. By signing up with Company’s services, regardless of plan or type of service, Client has to consent to making Company an Administrator of its social media accounts. Company needs these privileges to execute the offered product and/or services. By signing up for an account of any kind Client gives Company consent to use the full administrator rights given for reasons including but not limited to manage all aspects of the Page including sending messages and publishing as the Page, creating ads, viewing insights, and assigning Page roles. Company will not bombard you with emails, but Company would like to keep you informed of any developments.
Billing: Client’s monthly subscription will automatically renew at the end of each subscription term. Company will charge Client’s credit card or bank account on the one-month anniversary of Client’s last subscription date, unless Client cancels its subscription at least three business days before the monthly renewal date. Company does not prorate or refund any payments. Billing charge will appear as DEVWATT DIGITAL on Client’s credit card statement. Client shall be charged for a one-time set-up fee on the first month’s billing. Company reserves the right to waive or spread out the set-up charge over several months. In the event that Client does not remit the monthly subscription amount when due, Company shall cease providing services for Client. Moreover, Client shall be responsible for interest upon any outstanding balance equal to 1 ½% per month until paid in full. Client shall also be responsible for all of Company’s costs of collection including attorney’s fees and costs.
Cancellation of Service: Client may cancel its subscription at any time by emailing cancel@devwatt.com and including legal Client name, address, and last 4 digits of credit card or bank account on file. Only the credit card holder or persons of record for the account in question will be deemed qualified to start a cancellation or discontinuation process. Company requires at least three days’ notice before Client’s next billing date in order to discontinue a subscription and/or service. Company reserves the right to terminate Client’s access to use of service at any time and without notice to the account holder. Company does not issue refunds for partially started billing cycles.
Should Client elect to cancel any ongoing services provided by the Company, the Company shall cease to provide such services on the last day of the current billing cycle including but not limited to website hosting and website management. The Client released the company from any liability arising from a website going down or not being live due to the discontinuation of the Company's service.
Arbitration: For any disputes or discrepancies Client may have with Company, Client agrees to first contact Company and attempt to resolve the dispute with Company informally. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Jurisdiction and venue shall be in Montgomery county, Pennsylvania. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitrator shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties.
All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copy no later than 30 days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
Reservation of Rights: Company reserves all of its rights, including but not limited to any and all copyrights, trademarks, patents, trade secrets, and any other proprietary right that Company may have in its web site, its content, and the goods and services that may be provided. The use of Company’s rights and property requires its prior written consent. Company is not providing Client with any implied or express licenses or rights by making services available to Client and Client will have no rights to make any commercial uses of Company’s web site or service without its prior written consent.
Notification of Copyright Infringement: If Client believes that its property has been used in any way that would be considered copyright infringement or a violation of its intellectual property rights, Company may be contacted at the following address:
DevWatt Digital Marketing
500 Office Center Drive, Suite 400
Fort Washington, PA 19034
COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Company takes no responsibility and assumes no liability for any User Content that Client or any other user or third party posts or transmits using Company’s images, products or services. Client understands and agrees that it may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to its purpose.
Applicable Law: The Parties agree that this TOS and any dispute arising out of Client’s use of Company’s software or our products or services shall be governed by and construed in accordance with local laws where the headquarters of the Company is located, without regard to its conflict of law provisions. By registering or using this web site and service Client consents and submits to the exclusive jurisdiction and venue of the county or city where the headquarters of the Company is located.
Miscellaneous Information:
(i) In the event that this TOS conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties, such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law, and the remainder of this TOS will remain valid and intact;
(ii) The failure of either party to assert any right under this TOS shall not be considered a waiver of any that party’s right and that right will remain in full force and effect;
(iii) Client agrees that without regard to any statue or contrary law that any claim or cause arising out of this web site or its services must be filed within six (6) months after such claim or cause arose or the claim shall be forever barred; (iv) Company may assign its rights and obligations under this TOS and it shall be relieved of any further obligation.
In the event of any conflict between the terms of this Agreement or any of the other Agreements or exhibits referred to herein, the terms of this Agreement shall control.
Contact us:
DevWatt Digital Marketing
500 Office Center Drive, Suite 400
Fort Washington, PA 19034
215-774-5353
info@devwatt.com