1 Pennsylvania Plaza, New York, NY 10119

© 2023 by DigiCom.

Terms

Digital Commerce Corporation, Inc. (“DigiCom”, “we”, “us” or “our”) provides website development, creative development, digital marketing, and services for businesses (the “Service”). The Order Form (the “Order Form”) sets forth the Service being purchased by the client who signed the Order Form (“you”, “your” or “Client”), the costs for such Service, and any other relevant details.

These terms of service (the “Terms”) are incorporated by reference into and made a part of any Order Form and govern the relationship between you and Digital Commerce Corporation. All Order Forms are subject to acceptance by Digital Commerce Corporation, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.

 

If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Client, to these Terms.

 

Please read the follow terms carefully. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), these Terms provide that all disputes between you and Digital Commerce Corporation will be resolved by binding arbitration and you agree to give up your right to go to court to assert or defend your rights. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), your rights will be determined by a neutral arbitrator and not a judge or jury, and your claims cannot be brought as part of a class action. Please review Section 13 (Dispute Resolution and Arbitration) below for the details regarding your agreement to arbitrate disputes with Digital Commerce Corporation.

  1. Elements of the Service
    The Service includes, but is not necessarily limited to, the development of a cloud-based provider website (“Provider Website”), and the provision of cloud-based tools and services, including but not limited to an online booking tool, call tracking, reputation management, profile syndication & management, analytics dashboard, and general online marketing services.

    1. Provider Website
      Digital Commerce Corporation will develop a cloud-based Provider Website for Client. Such Provider Website will integrate elements of software, including but not limited to the Digital Commerce Corporation online booking tool. Client may, but is not required to, submit Content (as defined below) for inclusion on the Provider Website; any such Content submitted by Client and used by Digital Commerce Corporation is subject to Section 3 (Content) and Section 4 (Ownership) below.

    2. Marketing & Creative Services
      Digital Commerce Corporation will provide the marketing and creative services indicated on the applicable Order Form.

    3. Restrictions
      Client will not, and will not permit or authorize third parties to: (a) rent, lease, resell or otherwise permit unauthorized third parties to access or use the Service; (b) reverse engineer, reverse assemble or otherwise attempt to discover the source code for any software made available as part of the Service; or (c) circumvent or disable any security or other technological features or measures of the Service.

  2. Responsibilities of the Parties
    In connection with and by agreeing to these Terms, you and Digital Commerce Corporation agree to be bound by the terms of a Business Associate Agreement, the terms of which are referenced in the Order Form incorporated herein by reference. You (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agree that you have read and agree to be bound by the terms of the Business Associate Agreement. Digital Commerce Corporation (the “Business Associate,” as referred to in the Business Associate Agreement), agrees to be bound by the terms of the Business Associate Agreement. The parties hereto each agree to perform their respective obligations as enumerated therein.

  3. Content

    1. Client may provide content to Digital Commerce Corporation for use in Digital Commerce Corporation’s provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to Digital Commerce Corporation. By providing Content, Client hereby grants Digital Commerce Corporation a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).

    2. Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that:

      • Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions, to use and to authorize Digital Commerce Corporation to use and distribute Client’s Content as necessary to exercise the licenses granted by Client in this Section 3 and in the manner contemplated by Digital Commerce Corporation, the Service, and these Terms; and

      • Client’s Content, and the use of Client’s Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Digital Commerce Corporation to violate any law or regulation.

  4. Ownership

    1. Client
      Client will retain exclusive ownership of all rights, title and interest in and to all Content which Client provides to Digital Commerce Corporation for the provision of the Services, subject to the rights granted to Digital Commerce Corporation herein. Upon termination or expiration of the Agreement, Client will own solely the domain name of the Provider Website; if the domain name was purchased and registered by Digital Commerce Corporation, Digital Commerce Corporation will take reasonable measures to assign the domain name to Client upon termination or expiration of this Agreement. If the domain name was purchased and registered by Client, Client will retain such ownership of the domain name. For clarity, all other elements of the Provider Website, apart from any Content provided by Client, will be owned solely by Digital Commerce Corporation, and will not be retained by Client upon expiration or termination of this Agreement.

    2. Digital Commerce Corporation
      Digital Commerce Corporation will retain exclusive ownership of all rights, title and interest in the development of software (including, without limitation, any modifications, updates and developments provided hereunder), as well as any Content supplied by Digital Commerce Corporation in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.

  5. Fees
    In connection with Client’s use of the Service and pursuant to Digital Commerce Corporation’s acceptance of the Order Form, Client will pay to Digital Commerce Corporation the applicable fees set forth in the Order Form. Digital Commerce Corporation reserves the right to change any of the fees at any time, provided that such changes will not take effect until a new Order Form has been executed and delivered to Digital Commerce Corporation by you. All payments required by these Terms exclude all sales, value-added, use, or other taxes, all of which Client will pay in full, except for taxes based on Digital Commerce Corporation’s net income.

    1. Implementation Fees
      Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Client’s use of the Service. Digital Commerce Corporation will provide non-refundable implementation services to Customer to the extent set forth in the Order Form.

    2. Billing Subscriptions
      There are three options regarding billing subscriptions:

      • Monthly Billing Subscription: A twelve-month term in which you are billed a portion (1/12) of the annual contract value on a monthly basis.

      • Yearly Billing Subscription: A twelve-month term in which you are required to pay the full annual contract value.

      • Quarterly Billing Subscription: A twelve month term in which you are billed a portion (1/4) of the annual contract value on a quarterly basis.

      • The applicable billing subscription option will be indicated on the Order Form. Renewal of the subscription is subject to the terms of Section 6 (Term and Termination) below.

    3. Discounts
      Digital Commerce Corporation may from time to time, in its sole discretion, provide special promotions or discounts. If Digital Commerce Corporation offers any special promotions or discounts that provide you with credits or other incentives in connection with the Service (“Promotional Credits”), and you cancel the Service prior to completion of the Initial Term (as defined below) (other than for cause, as set forth below in Section 6 vi.), you will be required to repay to Digital Commerce Corporation the full amount of any corresponding discounts.

    4. Manner of Payment
      You will pay for all amounts payable under this Agreement either by credit card (the “Client Card”), by electronic debit from your bank account (“ACH”), or such other form of payment as Digital Commerce Corporation may, in its sole discretion and with prior approval, permit (included but not limited to payment by check). You will be required to agree to the applicable payment authorization form(s), which also permit Digital Commerce Corporation to recover any Promotional Credits (as set forth above) in the authorized manner. In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by Digital Commerce Corporation’s bank.

    5. Timing of Payment
      Fees, as identified on the Order Form, are due as indicated on the Order Form and in accordance with Client’s billing subscription plan. Digital Commerce Corporation will have the right to charge the Client Card or debit from your account through ACH for fees in accordance with these Terms. You understand and acknowledge that all amounts owed must be paid in advance and that if timely payment is not received, in addition to being in breach of your contractual obligations, the Service may be paused or terminated. Any amounts not paid by you when due will bear interest at the rate of 1.5% per month (or the highest rate permitted by law). You agree to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by Digital Commerce Corporation in connection with its enforcement of its rights under these Terms.

  6. Term and Termination

    1. Term
      This Agreement will continue for the period indicated on the applicable Order Form (the “Initial Term”).

    2. Auto-Renewal
      Provided that Client has paid all fees due under this Agreement, this Agreement will automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless either party provides notice of non-renewal in accordance with subsection iii. below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.

    3. Notice of Non-Renewal
      To prevent renewal of a subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than sixty (60) days in advance of the end of the subscription then in effect. If you decide not to renew, you must send the notice of non-renewal by email to support@DigiCom.com. Any notice received with less than 60 days’ notice will result in auto-renewal of your subscription for an additional Renewal Term.

    4. Early Cancelation For Websites SOW; No Refunds
      The website subscription term in effect will end on the expiration date unless you provide 60 days written notice to cancel. Early termination of contract will result in a $600 penalty to be paid upon notice. We do not provide refunds if you decide to stop using the subscription during your subscription term.

    5. Cancelation For Digital Marketing or A La Carte SOW; No Refunds
      The cancelation clause will be defined in the SOW signed by both parties.

    6. Suspension for Non-Payment
      We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any portion or all of the Service ten (10) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.

    7. Termination for Cause
      Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within ten (10) days after receipt of written notice from Digital Commerce Corporation. Pursuant to the payment policies outlined in Section 5 (Fees), you understand and agree that you will not be entitled to any refunds of amounts already paid to Digital Commerce Corporation unless you properly terminate the Agreement for cause per the terms of this Section.

    8. Effect of Termination
      Upon the expiration or termination of this Agreement, Client’s rights to access and use the Service will terminate, provided that: (i) any and all payment obligations of Client under this Agreement outstanding as of the effective date of expiration or termination will survive; (ii) Digital Commerce Corporation shall return or destroy all PHI received from you, or created or received by us on your behalf (including any PHI in the possession of Digital Commerce Corporation’s subcontractors or agents), and otherwise comply with the termination provisions of the Business Associate Agreement; (iii) where returning or destroying the PHI is infeasible, Digital Commerce Corporation will provide notification to you of the conditions that make return or destruction infeasible, and upon mutual written agreement regarding such infeasibility, the protections of this Agreement and the Business Associate Agreement will continue to apply to such PHI to limit further uses and disclosures of such PHI for so long as the PHI must be maintained; and (iv) the following provisions will survive: Sections 2, 3, 4, 5, 6 vii., and 8-14.

    9. Terms of Termination for Marketing Campaigns:​​

      1. ​​Client may terminate a Digital Marketing SOW at any time during any SOW Renewal Term upon thirty  (30) day’s written notice to Digital Commerce Corporation.

      2. Client has the option to terminate a Digital Marketing SOW only if Digital Commerce Corporation does not meet the agreed upon benchmark such as a CPA, CPL, CPI to name a few within the SOW upon thirty  (30) day’s written notice to Digital Commerce Corporation.

  7. Hosting, Updates, and Privacy
    The Service will be hosted and operated by or on behalf of Digital Commerce Corporation. Digital Commerce Corporation may update the features, functionality and user interface of the Service from time to time at its sole discretion. Please read the Digital Commerce Corporation Privacy Policy, found on our website at Digital Commerce Corporation.com, carefully for information relating to our collection, use, storage and disclosure of information. The Digital Commerce Corporation Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

  8. Publicity
    You agree that Digital Commerce Corporation may, during and after the Term of this Agreement, include your name (including any applicable trade name, trademark, service mark or logo) on Digital Commerce Corporation’s client list, and in its marketing materials, sales presentations and any online directories that Digital Commerce Corporation may, from time to time, publish.

  9. Confidentiality

    1. Confidential Information
      Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business or practice, plans, technology, and products (“Confidential Information”). Each party will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.

    2. Confidentiality of Agreement
      Each party agrees that the terms and conditions, but not the existence, of this Agreement will be treated as the other’s Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in connection with the requirements of a public offering or securities filing; (v) in confidence, to its employees and agents and to its professional advisors such as accountants, banks and financing sources; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.

  10. Indemnities

    1. Digital Commerce Corporation Indemnity
      Digital Commerce Corporation will indemnify, defend and hold Client harmless from and against: (a) any third party claim brought against Client alleging that the Marketing Software or any Digital Commerce Corporation-provided Content infringes any third party intellectual property or proprietary right, including without limitation, patent, copyright or trademark; and (b) any liability, claim, action, loss, cost, damage or expense (including reasonable fees of attorneys and experts) incurred or suffered by Client, to the extent that such liability, claim, action, loss, cost, damage, expense or fees are attributable to or incurred as a result of an unauthorized use or disclosure of PHI by Digital Commerce Corporation or Digital Commerce Corporation’s breach of this Agreement; provided that (i) Client promptly notifies Digital Commerce Corporation in writing of such claim, (ii) provides assistance as reasonably requested by Digital Commerce Corporation to defend or settle such claim and (iii) gives Digital Commerce Corporation the exclusive authority to defend or settle such claim. Digital Commerce Corporation will not enter into any settlement that requires Client to admit liability or pay money without Client’s prior written approval, which will not be unreasonably withheld or delayed. Digital Commerce Corporation will have no liability or obligation under this Section 10 i. for any Content provided by Client.

    2. Client Indemnity
      Client will indemnify, defend and hold Digital Commerce Corporation and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Digital Commerce Corporation Indemnitees”) harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including but not limited to any dispute arising from the sale, license, supply or provision of your goods or services. Client specifically agrees to indemnify the Digital Commerce Corporation Indemnitees as it relates to any claims against them related to the accessibility of the Provider Website to persons with disabilities, specifically those who are visually or hearing impaired. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

  11. Representations and Warranties; Disclaimer

    1. Mutual Representations and Warranties
      Each party represents and warrants to the other that: (i) this Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s entering into or performance of this Agreement; and (iii) the entering into and performance of this Agreement does not and will not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

    2. Disclaimer
      Except as expressly set forth above, Digital Commerce Corporation makes no representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, and Digital Commerce Corporation expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Digital Commerce Corporation does not warrant that the service will be error-free or that operation of the service will be secure or uninterrupted. From time to time, client may request the addition of certain code and/or functionalities to be added to client’s website or other platform. Digital Commerce Corporation shall not be responsible for ensuring that the requested code and/or functionalities comply(ies) with any and all applicable laws and regulations pertaining to client’s business. Client hereby acknowledges and agrees that client alone shall be responsible for ensuring that client’s website and service offerings, even if supported by Digital Commerce Corporation, comply with applicable laws and regulations.

  12. Limitation of Liability
    Digital Commerce Corporation will not be liable to the client for any lost profits, cost of cover, loss of data, interruption of business or any incidental, special, indirect or consequential damages, even if client is advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise and (ii) Digital Commerce Corporation's total liability under or arising out of or related to this agreement will be limited to the amounts paid to Digital Commerce Corporation by client during the 12-month period immediately prior to the incident giving rise to such liability. This limitation of liability is intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective or if a remedy fails of its essential purpose.

  13. Dispute Resolution and Arbitration

    1. Generally
      Except as provided in subsection ii. below, any and all disputes, controversies, or claims arising out of or relating to the Service, this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Los Angeles County, California. The arbitrator shall apply the laws of the State of California to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded as provided by the arbitrator.

    2. Exceptions
      Despite the provisions of this Section 13, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.

    3. No Class Actions
      Each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Digital Commerce Corporation agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Los Angeles County, California. All other claims shall be arbitrated in accordance with this Section 13.

  14. Miscellaneous
    Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York (except that body of law controlling conflicts of law). Neither party may assign this Agreement without the prior written consent of the other party, except that Digital Commerce Corporation may freely assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its business or assets without the prior consent of Client. Any attempted assignment or delegation in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Digital Commerce Corporation may, without your consent, subcontract to any party the performance of all or any of Digital Commerce Corporation’s obligations under this Agreement provided that Digital Commerce Corporation remains primarily liable for the performance of those obligations. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party as furnished in writing by either party hereto to the other. Digital Commerce Corporation’s address for notice is: Digital Commerce Corporation, Inc., 2118 38th St, Astoria NY 11195, Attn: General Counsel. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier. Digital Commerce Corporation and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Digital Commerce Corporation and Client. Neither Digital Commerce Corporation nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents and terms incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.