DGR Terms and Conditions

The parties are:

• DGR Communications, LLC, 1747 E. Linda Lane, Gilbert, AZ 85234 (“DGR,” “we,” or “us”)
• The Client (YOU)

Summary

You are hiring DGR to perform the services stated in the proposal (“Services”) and to deliver the desired elements, including but not limited to websites, email campaigns, marketing and branding campaigns, and other digital or tangible collateral (collectively, the “Deliverables”). As our customer, you have the power and ability to enter into this contract on behalf of your company or organization. You agree to provide us with everything that we need to perform the Services including text, images, fonts and other information as and when we need it, and in the format that we ask for. You agree to review our work, provide feedback, and sign-off approval in a timely manner and are bound by any deadlines that we set together. You also agree to keep to the payment schedule set out in these Terms and Conditions. We have the experience and ability to perform the Services and we will carry them out in a professional and timely manner. We will endeavor to meet all the deadlines set but we are not responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved our work on time at any stage. The Terms and Conditions governing the relationship between the parties are set out below.

Testing

We will test the website in current versions of all major browsers including those made by Apple, Microsoft, Mozilla, Google and Opera.  We will not test the website in old or abandoned browsers, for example, Microsoft Internet Explorer 5, 5.5, 6, 7, 8, 9 and 10 for Windows or Mac, previous versions of Apple's Safari, Mozilla Firefox or Opera.

Content Development

As applicable, we will develop the content for the Deliverables, including but not limited to website or email copy, SEO content, and metatags. Any additional copywriting work on our part - beyond the scope outlined here - will result in a charge above and beyond the proposal price. This will not be done without your approval of an additional quote provided in advance.

Photographs

You will supply us photographs for which you have access and the legal right to use on the website or in emails in digital format. Where necessary, we also include a reasonable allowance to buy stock photographs within our budget. If no budget line exists, you will supply all required photography. Any additional stock photography, if required, will be purchased and downloaded upon your written approval of the image(s) and associated costs. For projects where any photography or videography is specified, this will be included as a separate line item.

Technical Support

Once the website is updated and/or launched, if applicable, technical support will be charged at $125 an hour with a two-hour minimum, unless you have enrolled in our maintenance plan.

Changes and Revisions

The quoted prices in the proposal are based on the time we estimate we will need to accomplish everything that you have told us you want to achieve. If you change the scope of the project, add extra pages or templates, or add new functionality, we will provide an additional quote for the extra work.

Third Party or Client Page Modification

You acknowledge that you or your staff will also have access to independently edit or update (i) web pages within the WordPress platform or (ii) email campaigns within your email marketing tools, as applicable, such as Active Campaign, Mailchimp, Constant Contact etc. You also acknowledge that if anyone - you or your subcontractors - attempt to update the (i) website or (ii) email campaigns and damage the design or impairs the ability for any digital elements to display or function properly, you may incur fees to repair such functionality that are not included in any maintenance plan or monthly service fee. An hourly rate of $125 with a two-hour minimum will be required to repair damage caused by outside parties.

Intellectual Property

"Intellectual Property Rights" means any and all rights in and to (a) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, (b) copyrights, copyrightable works and other works of authorship (including computer programs and code), data, data collections and databases, (c) trade secrets, know-how, and other confidential or proprietary information, (d) patents, patent disclosures, and inventions, (e) moral rights, and (f) any and all other intellectual property rights, registered or not and including all related rights of priority under international conventions and all similar or equivalent rights or forms of protection in any part of the world.

Upon delivery of the Deliverables, and expressly conditioned upon full payment of all fees and costs due, DGR assigns to you all of DGR’s rights in and to the Deliverables, including all final designs, artwork and graphics, content, photographs, digital files and code. We will give you a copy of all files and you should store them carefully as we are not required to keep them or provide any native source files that we used in making them. We will execute any documents reasonably requested by you to evidence such assignment, and you will reimburse us for its reasonable time and out-of-pocket expenses in connection therewith.

You are responsible for obtaining legal advice on registering and protecting your Intellectual Property Rights, including trademarks or copyrights that may arise as a result of the performance of our Services.

You guarantee that any elements you provide for inclusion in the Deliverables, including but not limited to pre-existing trademarks, service marks, copyrighted works, patented materials or products, trade secrets, and other proprietary and confidential materials (collectively “Client Materials”), are either owned by you or that you have full right and authority to permit their use, whether or not you have filed for trademark or copyright protection.  Neither DGR, nor anyone acting on our behalf, will be liable for any dispute arising from or in connection with the use or infringement of any Intellectual Property Rights of any third party, in any jurisdiction.

Client Materials will remain your sole property. You hereby grant to DGR a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Materials solely in connection with our performance of the Services.

Any commissioned original illustration, videography or photography remains the property of the illustrator or photographer. DGR, on behalf of illustrator, photographer or licensing agency, grants you a nonexclusive, nontransferable license to use, reproduce, display, and publish the commissioned artwork solely in connection with the Deliverables, as specified in the licensing agreement, if any. Intellectual Property Rights in third party materials will be owned by the respective third parties. We will inform you of all third party materials to be procured by us that you may need to license at your own expense, and unless otherwise agreed, you will obtain a license to use the third party materials consistent with the usage rights granted. You will indemnify, save and hold harmless DGR from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of your failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Deliverables at your request.

DGR retains all proprietary rights, including property ownership, intellectual property rights and copyrights, in and to all preliminary works, including designs, artwork, digital files, and web design code not approved by you and deemed as final. You will return to us all preliminary works and working files in your possession within thirty (30) days of completion of the Services.

If you terminate the agreement prior to completion of the Services, all proprietary rights, including property ownership, intellectual property rights and copyrights in the designs, artwork, digital files, web design code, and original or commissioned artwork, but not the Client Materials, will be retained by DGR.

We reserve the right to display and link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles, and in books.

Confidentiality

“Confidential Information” means any and all information which is possessed by or developed for a party and which relates to such party’s existing or potential business or technology, which information is generally not known to the public and which information such party seeks to protect from disclosure to its existing or potential competitors or others, and includes, without limitation, pricing,  costs, business plans, records, and strategies, financial and accounting records, business know­how and techniques, trade secrets, marketing plans, products, inventions, inventories, client and supplier contact information, and information received by a party from others that such party has an obligation to treat as confidential, information that may or may not be marked "confidential" or carry any other marks or designations, in any format (hard copy, electronic, or otherwise) or location in which it is created or maintained.

Each party will hold the other party’s Confidential Information in strict confidence and safeguard the information from unauthorized access or dissemination. Except as required for the performance of the Services or as expressly authorized in writing by a party, neither party will use or disclose, directly or indirectly, any Confidential Information to any unauthorized third parties and will notify the other party immediately in the event of any loss or disclosure of any Confidential Information. Neither party will disclose any Confidential Information belonging to others. Each party acknowledges and agrees that their obligations with respect to Confidential Information will continue in effect for a total period of three (3) years from the Effective Date.

The prohibitions in this section do not apply to Confidential Information after it has become generally known in the industry in which a party conducts its business, was independently developed by the other party, or after it is communicated to either party by a third party that had no confidentiality obligations with respect to such information. This section does not prohibit any disclosure that is required by law or court order, provided that a party has not intentionally taken actions to trigger such required disclosure and, so long as not prohibited by any applicable law or regulation, the other party is given reasonable prior notice and an opportunity to contest or minimize such disclosure.

Indemnification

Each party will defend, indemnify and hold the other party, its affiliates, and their respective officers, directors, shareholders, employees and agents harmless from and against any and all claims, actions, demands, lawsuits, losses, damages, costs, judgments, penalties, and liabilities (including reasonable attorneys’ fees and courts costs), that arise out of or relate to third party claims alleging infringement or violation of such third party's patent, trade secret, copyright, trademark or other intellectual property right.

Disclaimer of Warranties; Limitation of Liability

Although we strive for optimal performance, security and deliverability of your website and your email campaigns, DGR did not build the WordPress software or plugins used on the website, are not supplying the hosting platform it runs on, and did not build any email marketing tool software, such as Mailchimp, Active Campaign, Constant Contact etc.. We do not represent, guarantee or warrant that the functions contained in these web pages or internet websites will be uninterrupted, error-free, free from loss, corruption, attack, viruses, interference, hacking, or other security intrusions, and we disclaim any liability relating thereto. The Services provided by DGR are provided "AS IS", WITHOUT WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY OR MERCHANTABILITY OF THE COMPUTER PROGRAM; 2) FITNESS FOR A PARTICULAR PURPOSE, LICENSEE'S PURPOSE OR SYSTEM INTEGRATION; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY OF INFORMATIONAL CONTENT; 6) NON-INFRINGEMENT; 7) QUIET ENJOYMENT; 8) TITLE; 9) MARKETABILITY; 10) PROFITABILITY; 11) SUITABILITY; AND/OR 12) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. YOU AGREE THAT ANY EFFORTS BY DGR TO MODIFY ITS GOODS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL DGR BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, EVEN IF DGR WAS GROSSLY NEGLIGENT, ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

Cancellation of Service

Any project payments are non-refundable. Cancellation of any monthly recurring service can occur at any time after one month of service, with one month (30 days) notice period. In order to cancel your recurring payment or change payment method, simply contact us prior to your payment due date.

Payments

As detailed in our quote.

Payment of any invoice is due within seven (7) days. Interest will accrue at the rate of 5% per annum if payment is more than 30 days late. Legal fees and collection costs will be your responsibility. DGR retains ownership and copyright on any materials produced until full project payment is received.  DGR reserves the right to take the website down if payment is not received by 90 days after due.

Price Validity

The prices quoted in this proposal shall remain open for acceptance for 30 days from the date the bid was provided - as shown on the cover page. If we have quoted 3rd party costs (e.g. hosting), we cannot guarantee those prices will still be accurate if proposal acceptance is significantly delayed (beyond 14 days).

Relationship of the Parties

DGR and its employees, contractors, and personnel performing any services on your behalf under these Terms and Conditions are independent contractors and not your employees. Neither party is an agent of the other and neither party will have any right or authority to make any contract, sale or other agreement in the name of, or for the account of the other party, or to make any representation, or to assume, create or incur any obligation or liability of any kind, express or implied, on behalf of the other party. Each party will be responsible for any applicable payment and withholdings of any salary, benefits, incentives, and any other compensation or taxes relevant to its personnel. Nothing in these Terms and Conditions, and no course of dealing between the parties, will be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties.

Arbitration

Any dispute arising under these Terms and Conditions which the parties cannot resolve within sixty (60) days will be directed to mandatory and binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA") in Maricopa County, Arizona, with all expenses being shared equally by the parties. Judgment upon any AAA award may be entered in any court having jurisdiction. Any costs incurred in the enforcement of the arbitration award will be paid by the party against whom enforcement is sought.

THE PARTIES EXPRESSLY AGREE THAT ARBITRATION WILL BE THE ONLY FORUM AVAILABLE TO RESOLVE DISPUTES.

Miscellaneous Provisions

These Terms and Conditions, and any proposals attached hereto, supersede any and all other agreements, either oral, electronic or in writing, between the parties with respect to the matters stated herein, and contain all of the covenants and agreements between the parties with respect thereto. These Terms and Conditions may be amended or modified only in writing and will be effective only after affixation of both parties' signatures by authorized representatives.

These Terms and Conditions will be governed by, and construed in accordance with, the laws of the State of Arizona, and the parties expressly waive its choice of law rules.

If any provision of these Terms and Conditions is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

These Terms and Conditions will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, affiliates and permitted assigns.

The parties knowingly and expressly consent to the foregoing Terms and Conditions. Each signatory is authorized to enter into these Terms and Conditions on behalf of its respective party.