DMscore
TERMS OF SERVICE (062524)
These Terms of Service (the “Agreement”) between the customer named in the Order Form (the “Customer”) and DMscore Inc, a California Corporation (“DMscore”) are entered into as of the date set forth on the applicable Order Form (the “Effective Date”).
1. Services. Subject to the terms and conditions of this Agreement, DMscore will provide the services set forth in the applicable order form (an “Order Form”) executed by the parties, including, as applicable, to make its proprietary digital marketing platform known as the “Platform”) available to (a) Customer and (b) authorized individuals (i.e., employees, employees of Customer affiliates, and consultants of Customer) who have been supplied user names and passwords by Customer (or by DMscore at Customer’s request) (the “Users”), in accordance with specific access rights and limitations set forth in the Order Form (the “Subscription”). “Customer Domain” shall mean an internet domain name that the Customer monitors and/or assesses using the Platform. The Subscription and any other services set forth in the applicable Order Form, including the Professional Services, are collectively referred to herein as the “Services”. The Subscription and access to the Platform is granted solely to the Customer and its authorized Users, and not to any other third parties, unless expressly agreed otherwise in the applicable Order Form. Customer shall comply, and shall ensure that all Users comply with the terms and obligations under this Agreement. Customer shall be responsible for the acts and omissions of any person who accesses the Platform using passwords or access credentials provided to or created by Customer or its Users. Customer will use reasonable efforts to prevent any unauthorized use of the Platform, will promptly notify DMscore in writing of any unauthorized use that comes to Customer’s attention, and will provide all reasonable cooperation to prevent and terminate such use. Certain Services may be subject to additional terms and conditions as set forth in the Order Form.
2. Confidentiality Obligations. As used herein, “Confidential Information” means all confidential information of a party (“Discloser”) disclosed to the other party (“Recipient”) that is designated in writing as confidential or that would be understood to be confidential by a reasonable person, as well as the terms and conditions of this Agreement, and any Order Form. Confidential Information shall not include information which (a) is or subsequently becomes publicly available without Recipient’s breach of any obligation owed to Discloser; (b) became known to Recipient prior to Discloser’s disclosure of such information to Recipient; (c) became known to Recipient from a source other than Discloser other than by the breach of an obligation of confidentiality owed to Discloser; or (d) is independently developed by Recipient without reliance on the Confidential Information. Recipient shall not disclose or use any Confidential Information of Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s prior written consent. Recipient agrees to keep confidential all Confidential Information disclosed to it by Discloser, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own confidential information (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide Discloser with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest such disclosure. Recipient agrees that monetary damages for breach of this Section 2 may not be adequate and that, if necessary, Discloser shall be further entitled to seek injunctive relief.
3. Fees and Taxes. Customer shall pay to DMscore the fees specified in the Order Form (the “Fees”). Except as otherwise provided in the Order Form, (i) all Fees are quoted in US Dollars; (ii) payment obligations are non-cancellable; (iii) Fees are non-refundable; and (iv) Fees will be invoiced in advance and due within thirty (30) days from the invoice date. In the event of nonpayment of Fees, Customer agrees to pay the cost of collection including attorneys’ fees. Any amounts not paid when due shall bear interest at the lesser of 1.5% per month or the maximum rate allowed by applicable law. If Customer’s account is thirty (30) days or more overdue, in addition to any other available rights and remedies (including the termination rights set forth in this Agreement), DMscore reserves the right to suspend access to the Services without liability to DMscore until such account is paid in full. Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to the Services, other than DMscore’s income taxes. If DMscore pays any such taxes on the Customer’s behalf, Customer agrees to reimburse DMscore for such payment unless Customer provides DMscore with a valid exemption certificate authorized by the appropriate taxing authority.
4. Proprietary Rights. The Platform and all intellectual property rights therein, and all intellectual property rights relating to the provision of support and Services are owned or licensed by DMscore. DMscore hereby grants Customer and its Users a limited, non- exclusive, non-sublicensable, non-transferable, right to access the Platform during the Term of the Subscription subject to the terms and conditions of this Agreement and the applicable Order Form. Except for the foregoing limited license, nothing in this Agreement gives Customer any right, title or interest to the Platform and/or Services, provided that, Customer shall retain all right, title, and ownership in and to the Customer-specific reports generated through the DMscore platform (the “Reports”) and any other “Work Product” specifically identified as such in the applicable order form. Notwithstanding the foregoing, Customer acknowledges that in generating Reports, creating Work Product, and providing the Services, DMscore may use certain materials, products, algorithm processing, training material, best practices and other property that belong to DMscore (“DMscore Property”). DMscore shall retain all right, title, and ownership in and to the DMscore Property, including all intellectual property rights pertaining thereto. Subject to the terms and conditions of this Agreement, DMscore grants to Customer (i) a royalty-free, worldwide, non-exclusive, non-
sublicensable, non-transferable license to use the DMscore Property in connection with the Services for its internal business purposes during the term of the Subscription, and (ii) a royalty-free, worldwide, non-exclusive, non-sublicensable, non-transferable, perpetual license to use such DMscore Property to the extent incorporated in the Reports and/or any Work Product.
5. Term. The initial term of this Agreement commences on the “Start Date” set forth in the applicable Order Form, or, if none is provided in the Order Form, the day User login names and passwords are issued to Customer and shall continue as specified in the Order Form (the “Initial Term”), and, if applicable, may be renewed as detailed in the Order Form. The Initial Term together with any renewal term(s) are collectively referred to herein as the “Term”.
6. Termination for Breach. In addition to any other termination or suspension rights expressly provided herein, this Agreement may be terminated by either party for cause (a) immediately on written notice if the other party commits a non-remediable material breach of this Agreement; (b) upon thirty (30) days’ written notice of a material breach to the other party if such breach is remediable and remains uncured at the expiration of such period; or (c) immediately if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7. Effect of Early Termination. The Services are provided for a specified Term on a noncancelable basis. In the event that the Agreement (including any Order Form) is terminated prior to the expiration of the then-current Term and such termination is not due to DMscore’s uncured or uncurable material breach of this Agreement, all Fees that would otherwise be due through the expiration of the Term in effect at such time, including any applicable taxes, shall be due and payable immediately and no refunds for pre-paid Fees will be issued. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty. In the event of termination by Customer for DMscore’s uncured or uncurable material breach, DMscore shall provide a pro rata refund of Fees prepaid for the remainder of the Term then in effect.
8. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 2, 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20, and 21.
9. Warranties.
(a) General Warranties. Each party represents and warrants that (i) such party is duly organized, validly existing, and in good standing under the laws of the state (or country, if applicable) of its organization, and has the full power and authority to enter into and perform its obligations under this Agreement; and (ii) the Agreement is executed by an employee or agent of such party with all necessary authority to bind such party.
(b) Customer Warranties. Customer warrants that (i) it has all necessary legal rights to the Customer Domain(s) in order to permit the Services to be used with respect thereto, including scraping or crawling of data on such Customer Domain(s); and (ii) Customer has and will have sufficient rights (including without limitation any required consents and intellectual property rights) in the Customer Content (as defined below in Section 10) to grant the rights to DMscore under this Agreement.
(c) DMscore Warranties. DMscore warrants that the Platform will operate in a manner consistent with generally accepted industry standards and in substantial conformity with the then current version of any applicable documentation provided by DMscore. DMscore reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to (a) maintain or enhance
(i) the quality or delivery of the Services; (ii) the competitive strength of or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law or legal requirements.
10. Customer Content. Customer retains all rights, title and interest in and to any information uploaded by Customer to the Platform as well as Customer’s Confidential Information (“Customer Content”). Customer is solely responsible for the Customer Content, including without limitation its accuracy and legality. Notwithstanding anything to the contrary herein, subject to applicable law, DMscore shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Content and data derived therefrom), and DMscore will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings of the DMscore and its affiliates, and (ii) disclose such data solely in aggregate and de-identified form in connection with its business.
11. Disclaimers. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9(C) (DMscore WARRANTIES) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND DMSCORE EXPRESSLY DISCLAIMS ANY OTHER ASSURANCES TERMS, CONDITIONS, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ASSURANCES, TERMS, CONDITIONS, REPRESENTATIONS AND WARRANTIES (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ADVISED OF THE PURPOSE), ACCURACY, TITLE, AND/OR NON-INFRINGEMENT, OR (2) THAT USE OF OR ACCESS TO THE SERVICES (OR ANY PORTION THEREOF) WILL BE UNINTERRUPTED OR ERROR FREE, WILL NOT HAVE ANY IMPACT ON CUSTOMER’S SYSTEMS OR WEBSITES, OR WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. DMSCORE SHALL NOT BE LIABLE FOR THE AVAILABILITY, PERFORMANCE, LIMITATIONS, CAPACITY, OR RESPONSIVENESS OF THE INTERNET OR OF CUSTOMER’S COMPUTERS, NETWORKS, SERVERS, WEBSITES (INCLUDING WITHOUT LIMITATION THE CUSTOMER DOMAIN(S)), OR IT FACILITIES, OR FOR ANY THIRD-PARTY SYSTEM (INCLUDING WITHOUT LIMITATION ANY HOSTING PROVIDER). CERTAIN SEO AUDITING AND/OR MONITORING TOOLS AVAILABLE ON THE PLATFORM MAY INCREASE SERVER DEMANDS. CUSTOMER IS SOLELY RESPONSIBLE FOR MANAGING THE SPEED AND FREQUENCY OF SEO AUDITING AND MONITORING TOOLS AND FOR THE CAPACITY OF THE SERVERS HOSTING THE CUSTOMER DOMAIN(S).
12. Security . DMscore has employed and maintains industry-standard administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of the Customer Content as further detailed in DMscore’s Security Policy as updated from time to time and currently available at https:// www. DMscore .com/ DMscore -security-policy/. Those safeguards include measures designed to prevent the unauthorized access, use, modification or disclosure of Customer Content that is accessed or processed by DMscore in the course of providing the Services to Customer, as well as the introduction of any virus or other malicious code to Customer.
13. Use Guidelines. Customer shall use the Services as contemplated by this Agreement and shall not (i) tamper with the security of the Services or with other customer accounts; (ii) translate any underlying software in the Platform in such a manner that it appears to be part of Customer’s own or a third party website or Platform; (iii) breach or attempt to breach the security or authentication measures without proper authorization; (iv) willfully render any part of the Services unusable; (v) lease, distribute, license, sell or otherwise commercially exploit the Services or make the Services available to a third party other than as contemplated in or authorized pursuant to this Agreement; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to do so or attempt to discover the source code, object code, or underlying structure, ideas or algorithms in the Platform or Services; (vii) incorporate the Platform with any third party software not explicitly authorized by DMscore in writing, or otherwise share or use the Platform for the benefit of a third party not explicitly authorized by DMscore in writing; (viii) replicate, infringe, misappropriate, mirror or frame any content, ideas, features or functions contained in or accessible from the Platform in violation of DMscore’s intellectual property rights; (ix) copy, distribute, modify, translate or create any derivative work of any part of the Platform (or any portion thereof) or the Services; (x) access or use the Platform or the Services to create or improve upon a competitive product or service; or (xi) use any part of, or any feature used by means of, the Platform in violation of applicable law or in violation of the terms and policies of a third party website. DMscore reserves the right to immediately suspend Customer’s use of the Services if Customer uses or accesses the Platform contrary to this Agreement. DMscore shall provide prior notice to Customer via email or an in-Platform message before suspending access to the Services. Without prejudice to DMscore’s rights to terminate for breach under Section 6 herein, any such suspension of Customer’s access to the Services will be limited to the period of time until the misuse has been rectified.
14. Limitation of Liability. EXCEPT FOR FEES DUE HEREUNDER, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, AND CUSTOMER’S BREACH OF SECTION 13 “USE GUIDELINES” (COLLECTIVELY, THE “EXCEPTED CLAIMS”), IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. EXCEPT FOR THE EXCEPTED CLAIMS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
15. Limitation Period. No action against either party arising out of this Agreement may be brought by the other party more than one
(1) year after the cause of action became known by such party.
16. DMscore Indemnification. Except as provided below, DMscore shall (i) defend Customer, its agents, employees, directors, officers, and representatives (“Customer Indemnified Parties”) against any claim by a third party that the Services infringe a valid US, Canadian, UK, or EU patent (issued as of the Effective Date), or any copyright or trade secret of such third party; and (ii) indemnify Customer Indemnified Parties for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim. If the Services become, or in DMscore’s opinion, are likely to become the subject of any injunction preventing their use as contemplated herein, DMscore may, at its option and expense (a) procure for Customer the right to
continue using the Services; (b) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (c) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Services. DMscore shall have no liability with respect to any claim of infringement or breach to the extent such claim is based upon the combination, operation or use of the Services with other equipment or software not supplied by DMscore or in a manner not consistent with DMscore’s written instructions or this Agreement. THIS SECTION 16 SETS FORTH DMscore’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
17. Customer Indemnification. Customer agrees to indemnify, defend and hold DMscore, its affiliates, agents, employees, directors, officers, and representatives (“DMscore Indemnified Parties”) harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims made by or brought against the DMscore Indemnified Parties by a third party arising from or relating to Customer’s or its Users’ (i) use of the Services in violation of Section 13 (Use Guidelines) of this Agreement; or (ii) gross negligence or willful misconduct.
18. Mutual Indemnification Provisions. The party seeking indemnification (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent of any material prejudice directly resulting from such failure. The Indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party informed of, and consult with the Indemnified Party in connection with the progress of such litigation or settlement, and (ii) the Indemnifying Party shall not have any right, without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld, conditioned or denied), to settle any such claim in a manner that does not unconditionally release the Indemnified Party. At the Indemnifying Party’s request, the Indemnified Party will provide reasonable cooperation with respect to any defense or settlement.
19. Cooperation. Customer acknowledges that its access to, and the accuracy and operation of, some of the Platform’s features may be dependent upon the accuracy and completeness of the information and cooperation provided by Customer, including but not limited to access to Customer’s key employees and, if applicable, analytics platforms. DMscore shall not be liable for any failure to perform, compromised quality or delays in any scheduled deadlines that are related to Customer’s or its third-party providers’ delay or failure to provide DMscore with reasonable access to the employees, data or material required for the provision of the Services.
20. Compliance. Each party shall comply with all applicable laws related to its performance under this Agreement. Each party represents and warrants that (i) it is not named, nor is it owned by a person or entity that is subject to financial, economic or trade sanctions or embargoes, or otherwise designated on any list of prohibited or restricted parties or territories, including without limitation any such lists maintained by the U.S. government, the United Nations, the UK Government, the European Union or any of its member states; and (ii) it will immediately notify the other party if it or its owners become so named. Customer shall not permit Users to access, use or export the Services in or to any restricted or embargoed country or in violation of any U.S. or other applicable law or regulation.
21. General Provisions. This Agreement, inclusive of any applicable Order Form, and any exhibits, appendices or other documents explicitly referenced herein or thereto, constitutes the entire agreement and sets forth the entire understanding between Customer and DMscore with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. Customer agrees that DMscore may use Customer’s name and logo on DMscore’s website, and as a part of a general list of DMscore’s customers for use and reference in corporate, promotional and marketing publications. The relationship of the parties is that of independent contractors, and this Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party. Neither party shall assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition, provided the assignee is bound by the terms of this Agreement. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. The rights and obligations of the parties under this Agreement, all interpretations and performance of this Agreement, and any disputes arising under this Agreement (including any dispute relating to its existence, validity or termination, or any contractual or non-contractual obligation) shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to conflict of laws principles. The parties agree that exclusive venue for any litigation, action or proceeding arising out of or in connection with this Agreement shall be the State or Federal Courts located in San Mateo County, California, and the parties expressly waive any right to contest such venue for any reason whatsoever. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. No modification, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties. All notices required or permitted under this Agreement shall be in writing and deemed to have been effectively delivered only (a) upon personal delivery, (b) upon delivery by a courier service as confirmed by written delivery confirmation, (c) upon recipient’s confirmation of delivery by email, or (d) three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid at the address provided by Customer in the Order Form; for DMscore at 1550 Tiburon Blvd, Suite G #305, Tiburon CA 94920, attention: Legal Department; or to such other address as a party may, from time to time, communicate to the other party in writing in accordance with the provisions herein. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect. In this Agreement the words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term.
