Terms of Service
5th Dynamic Marketing Solutions
2. Purpose. Customer acknowledges and agrees that the Service provided under this Service Agreement is to be used in support of Customer’s internal business purposes only as expressly permitted hereunder (the “Purpose”). Use for any reason other than the Purpose is expressly prohibited.
3. Service. The “Service” will include the Core Service and the System Administration Service, defined as follows:
3.1 Core Service The Core Service includes the following:
(a) Website Design & Hosting Service: 5th Dynamic Marketing Solutions will provide Customer with website design and WordPress setup, which can host with 5th Dynamic’s dedicated server, our affiliate company GoDaddy, or otherwise specified by user.
(b) Analysis and Reporting: Customer may use the Analytics Report Service to perform analysis and run reports based on the Analytical Data. The output of analysis and reporting by Google Analytics from our website shall be referred to herein as “Reports”.
(c) Search Engine Optimization: 5th Dynamic Marketing Solutions shall, if agreed in the Order, provide Customer with Search Engine Optimization techniques for their new website designed by 5th Dynamic. Search Engine Optimization Techniques include, but not limited to, modifying the current content (text, images, video, design) in order to achieve desired search engine results.
(d) Social Media Marketing: 5th Dynamic Marketing Solutions shall, if agreed in the Order, provide assistance to Customer with Social Media setup and Marketing techniques for their new website and business.
(e) Support: 5th Dynamic Marketing Solutions will provide standard support services during the Term in accordance with Exhibit B to this Order Form (“Support Services”).
5. Service Fees. The Service shall be provided in exchange for timely payment of the fees set forth in the Order (the “Service Fees”).
5th Dynamic Marketing Solutions
1.1 Provision of Services. 5th Dynamic Marketing Solutions will use commercially reasonable efforts to provide the Service described in the Service Order Form. 5th Dynamic Marketing Solutions grants Customer a non-exclusive, non-transferable, non-sublicenceable, limited right, during the Term (a) to use the Analytics Service (and related user documentation) to upload Analytical Data to 5th Dynamic Marketing Solutions Site, (b) to store Analytical Data on 5th Dynamic Marketing Solutions’s third party hosted site for the duration of the applicable Data Retention Period, (c) to access 5th Dynamic Marketing Solutions Site for Support Services, and (d) to run Reports. All use of the Service by Customer shall be permitted solely for the Purpose identified in the Service Summary. The rights of Customer under this Section 1.1 to use 5th Dynamic Marketing Solutions Site and the Service, is subject to and conditioned on Customer’s compliance with the terms and conditions of the Service Agreement.
1.2 Password Protected Temporary Web Pages. 5th Dynamic Marketing Solutions will provide Customer with a valid password for Password-Protected Pages which Customer must use in order to access temporary information and use the Service in accordance with the rights granted by 5th Dynamic Marketing Solutions in this Service Agreement. Customer bears sole responsibility for protecting the Password-Protected Pages, and will be liable for any unauthorized use thereof.
1.4 5th Dynamic Marketing Solutions Obligations. 5th Dynamic Marketing Solutions shall: (i) make the Service available to Customer in accordance with the user documentation made available by 5th Dynamic Marketing Solutions in this Service Agreement and pursuant to the terms and conditions of the Service Agreement; and (ii)5th Dynamic Marketing Solutions shall not use Analytical Data except to provide the Service (or to prevent or address service or technical problems) in accordance with this Service Agreement and the user documentation made available by 5th Dynamic Marketing Solutions, as expressly permitted by this Service Agreement or in accordance with Customer’s instructions.
1.5 Customer Obligations. Customer is responsible for its employees’ and authorized third parties’ use of the Service and compliance with this Service Agreement. Customer shall not attempt to gain access to the Service or its related systems or networks in a manner not set forth in the user documentation made available by 5th Dynamic Marketing Solutions. Customer may not allow a third party to use the nonpublic portions of the Service unless such third party has agreed, in writing, to terms at least as protective of 5th Dynamic Marketing Solutions as this Service Agreement, including without limitation, disclaimers of warranties and limitations of liability for the benefit of 5th Dynamic Marketing Solutions that are no less protective of 5th Dynamic Marketing Solutions than those set forth in the Service Agreement. Where necessary for performance of the Service, Customer is responsible for authorizing and enabling 5th Dynamic Marketing Solutions to submit Customer’s authentication information to any third party services, websites or APIs, that Customer designates, for the purposes of retrieving Analytical Data. Customer acknowledges and agrees that when 5th Dynamic Marketing Solutions is accessing and retrieving Analytical Data from third parties, 5th Dynamic Marketing Solutions is doing so at Customer’s request in order to provide the Service. Pursuant to the foregoing, Customer represents and warrants that it has the legal right to provide 5th Dynamic Marketing Solutions with access to all Analytical Data for the purpose of providing the Service.
1.6 Customer Internet Access. Customer will be responsible for procuring and maintaining all hardware, software and telecommunications facilities that connect Customer’s network to the Service, including without limitation browser software that supports the protocol used by 5th Dynamic Marketing Solutions (including Secure Socket Layer (SSL) protocol or other protocols accepted by 5th Dynamic Marketing Solutions). 5th Dynamic Marketing Solutions is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such hardware, software or telecommunications facilities (including but not limited to the Internet) that are not owned by 5th Dynamic Marketing Solutions. Customer will be responsible for paying all third-party access charges (e.g., Internet service provider fees).
2. FEES AND INVOICING.
2.1 Fees. All Orders are final, non-cancellable, and non-refundable unless otherwise expressly stated in the Order or this Service Agreement. Customer will pay 5th Dynamic Marketing Solutions the Service Fees in accordance with the Order. Any sums not paid when due may, at 5th Dynamic Marketing Solutions’ sole discretion, accrue interest from the date when due until actually paid at rate of three percent (3%) per month or the highest rate allowed by law, whichever is less. Without limitation of 5th Dynamic Marketing Solutions’ other remedies hereunder or at law or equity, 5th Dynamic Marketing Solutions reserves the right to suspend Customer’s access to the Service should payment not be received within five business days of written notice from 5th Dynamic Marketing Solutions that a payment is delinquent. Customer will be responsible for all taxes related to the Service Fees or its use of the Service, excluding taxes based on 5th Dynamic Marketing Solutions’ net income.
2.2 Credit Card Orders. Customers paying by credit card agree and are subject to the terms and conditions with Square or PayPal. Further, Customers paying by credit card, as indicated on the applicable Order form, are responsible for maintaining a valid credit card on file with us or PayPal at all times during the subscription term with 5th Dynamic Marketing Solutions. Customers wishing to update their credit card information on their account or PayPal account should contact us or PayPal to initiate that process. Late fees as indicated in Section 2.1 above may be applied to all late payments due to invalid credit card information on file.
2.3 Additional Functionality. 5th Dynamic Marketing Solutions may offer substantial newly developed functionality to Customer for a modified payment that reasonably reflects the value of the Service with the addition of new functionality. Customer has no obligation to accept the new functionality. 5th Dynamic Marketing Solutions has no obligation to provide this new functionality to Customer until mutual agreement is reached with respect to the pricing thereof. Once Customer accepts the new functionality in writing, the Service Fees will include the price of the new functionality and Customer will pay the new Service Fees.
3.1 5th Dynamic Marketing Solutions Ownership. 5th Dynamic Marketing Solutions has and will own all right, title and interest, including all intellectual property rights, in and to the 5th Dynamic Marketing Solutions Site, the Services, the Tools, the structure and format of any Reports, 5th Dynamic Marketing Solutions’s trademarks, and the Confidential Information of 5th Dynamic Marketing Solutions.
3.2 Customer Ownership. Customer will have complete ownership of their website design (not including stock photography) after final payment has been received and there are no outstanding charges. Customer will retain ownership, right, title and interest, including all intellectual property rights in and to the raw Analytical Data uploaded by Customer to the Service, the Reports related to such Analytical Data generated by the Tools, the Customer’s trademarks, and the Confidential Information of Customer. Notwithstanding the foregoing, 5th Dynamic Marketing Solutions owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting 5th Dynamic Marketing Solutions from utilizing the Aggregated Data for purposes of operating 5th Dynamic Marketing Solutions’s business, provided that 5th Dynamic Marketing Solutions’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of Customer or specific data entered by Customer into the Service.
3.3 Rights Granted to 5th Dynamic Marketing Solutions. Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, 5th Dynamic Marketing Solutions may: (i) access and use the Analytical Data to refine, supplement or test 5th Dynamic Marketing Solutions’ product and service offerings; (ii) include anonymized Analytical Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable Analytical Data following any termination of this Service Agreement for use in connection with the foregoing. Logs will be generated for audit purposes in order to document such access by 5th Dynamic Marketing Solutions personnel.
3.4 Feedback. 5th Dynamic Marketing Solutions welcomes Customer’s suggestions and feedback on how to improve the Service. If Customer provides any suggestions, feedback, or improvements to the 5th Dynamic Marketing Solutions Site, Service, Tools, or Reports, 5th Dynamic Marketing Solutions will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
3.5 Use of Customer’s Name. Unless otherwise stated in an Order, 5th Dynamic Marketing Solutions may use Customer’s name and logo in its marketing materials, social media account, and on its web site. 5th Dynamic Marketing Solutions shall not make or publish any representations on behalf of Customer without obtaining prior, written permission.
4. TERM AND TERMINATION
4.1 Term. Unless earlier terminated in accordance with this Service Agreement, and unless otherwise set forth in the applicable Service Summary, the term of this Service Agreement will commence on the Effective Date and continue until the Termination Date. Unless stated otherwise in the Order, the Service Agreement will thereafter be renewed automatically for a length of time equal to the expiring Term at the pricing agreed in the order form, or 5th Dynamic Marketing Solutions’s then-current pricing, as applicable, unless written notice of non-renewal is given by either party no later than thirty (30) days prior to the end of the expiring Term or any subsequent term extension. Such notice may be provided via email to firstname.lastname@example.org, using the subject line “notice of non-renewal”.
4.2 Termination. This Service Agreement will remain in effect until Customer’s the Term expires, or until the Service Agreement is terminated. Either party may terminate this Service Agreement if: (i) the other party is in material breach of the Service Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Non-payment of any Service Fees or other fees due to 5th Dynamic Marketing Solutions will be considered a material breach. If Customer materially breaches the Service Agreement, 5th Dynamic Marketing Solutions may, without limitation of its other rights and remedies, withhold further performance of its obligations under the Service Agreement.
4.3 Effect of Termination. Upon termination or expiration of the Service Agreement for any reason:
All licenses and other rights granted to Customer hereunder will immediately terminate.
(b) Upon termination of this Service Agreement by Customer for uncured material breach by 5th Dynamic Marketing Solutions, 5th Dynamic Marketing Solutions will refund a pro-rated portion of any pre-paid Service Fees to reflect services actually rendered. No other Service Fees set forth in the Order will be cancelable or refundable, and shall be due and payable in accordance with the payment terms set forth in the Order.
(c) Upon expiration or termination of the Service Agreement and each Data Retention Period, 5th Dynamic Marketing Solutions will have no obligation to maintain any, and will have the right to delete all Analytical Data related to the expired or terminated Service Agreement or Data Retention Period and 5th Dynamic Marketing Solutions will have no further obligation to make such Analytical Data available to Customer.
4.4 Survival. The provisions of 1.3 (Restrictions), 2 (Fees and Invoicing), 3 (Ownership), 4.3 (Effect of Termination), 4.4 (Survival), 5 (Limited Warranties; Disclaimers), 6 (Confidentiality), 7 (Limitation of Liability), 8 (Indemnification), and 9 (General Terms) will survive the expiration or termination of this Service Agreement.
5. LIMITED WARRANTIES; DISCLAIMERS
5.1 Limited Warranty. 5th Dynamic Marketing Solutions warrants to Customer that the Service, when used properly in accordance with 5th Dynamic Marketing Solutions’s documentation and the terms and conditions of this Service Agreement, will function materially in accordance with the user documentation made available by 5th Dynamic Marketing Solutions. Customer must promptly report any issues with the Service or Remote Collector to 5th Dynamic Marketing Solutions so 5th Dynamic Marketing Solutions will have the opportunity to research and resolve such issues. Customer’s sole and exclusive remedy for any breach of this warranty is for 5th Dynamic Marketing Solutions to re-perform the applicable Service at the request of Customer. Notwithstanding the foregoing, 5th Dynamic Marketing Solutions disclaims any representations or warranties that the 5th Dynamic Marketing Solutions Site, Service, Tools, or Reports will meet Customer’s requirements or be uninterrupted or error-free. Further, 5th Dynamic Marketing Solutions disclaims any representations or warranties on the Tools, the use of which if provided at 5th Dynamic Marketing Solutions’s discretion, is provided on an as-is basis.
5.2 Use of Analytical Data. Customer warrants to 5th Dynamic Marketing Solutions that (a) Customer has the right to provide to 5th Dynamic Marketing Solutions the Analytical Data and 5th Dynamic Marketing Solutions has the right to use such Analytical Data in the manner described in this Service Agreement, and (b) Customer has provided all necessary notices to, and obtained all necessary permissions from the owners of such Analytical Data (if Customer is not the owner) related to the use of such Analytical Data in the manner described in this Service Agreement, including without limitation in compliance with all applicable privacy and other laws.
5.3 Security. 5th Dynamic Marketing Solutions uses Secure Socket Layer (SSL) encryption on all its web pages where Analytical Data is collected to protect its transmission over the Internet. As of the Effective Date, 5th Dynamic Marketing Solutions uses GoDaddy as its storage and Hosting Services and Square (or PayPal) for its payment services. Customer acknowledges, however, that no data transmission over the Internet or data storage system can be guaranteed to be 100% secure and 5th Dynamic Marketing Solutions cannot ensure the security of data transmitted to it or that it stores.
5.4 Availability. 5th Dynamic Marketing Solutions uses a third party service provider to host the Analytics Service and Storage components of the Service. As of the Effective Date, 5th Dynamic Marketing Solutions uses GoDaddy, which offers robust durability and availability. 5th Dynamic Marketing Solutions retains the right to substitute an alternate qualified 5th Dynamic Marketing Solutions at any time. 5th Dynamic Marketing Solutions makes no representations or warranties regarding the GoDaddy service, its durability, or availability. For more information on the GoDaddy service and its performance standards, please see the GoDaddy site (http://www.godaddy.com).
5.5 Backups. The 5th Dynamic dedicated server (with GoDaddy) will provide the appropriate daily server backups to ensure the safety of our Customer websites. Customer acknowledges and agrees that 5th Dynamic Marketing Solutions will have no responsibility (or related liability) for backing up any information that Customer provides to 5th Dynamic Marketing Solutions.
5.6 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 5.1, 5th Dynamic Marketing Solutions MAKES NO, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE: (A) WITH RESPECT TO THE 5th Dynamic Marketing Solutions SITE, SERVICE, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, INCLUDING WITHOUT LIMITATION, THAT ANY OF THE FOREGOING WILL BE ERROR-FREE, RELIABLE, COMPLETE OR SECURE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT 5th Dynamic Marketing Solutions IS PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST CUSTOMER IN OPERATING CUSTOMER’S OWN BUSINESS AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (AND 5th Dynamic Marketing Solutions ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON USE OF THE 5th Dynamic Marketing Solutions SITE, SERVICE, TOOLS, REPORTS, OR RELATED DOCUMENTATION AND SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. 5th Dynamic Marketing Solutions MAKES NO WARRANTIES TO ANY THIRD PARTY. 5th Dynamic Marketing Solutions WILL NOT BE LIABLE FOR ANY DEFICIENCY IN PERFORMING UNDER THIS AGREEMENT IF SUCH DEFICIENCY RESULTS FROM FAILURE BY CUSTOMER TO PROVIDE COMPLETE AND ACCURATE INFORMATION OR OTHER COOPERATION REASONABLY NECESSARY FOR 5th Dynamic Marketing Solutions’S PERFORMANCE HEREUNDER (INCLUDING WITHOUT LIMITATION THE PROVISION OF ANALYTICAL DATA).
6.1 Confidential Information. Each party (“Receiving Party”) may have access to Confidential Information of the other party (“Disclosing Party”), its licensors, or customers (“Confidential Information”). Confidential Information includes all nonpublic information of a party that is disclosed in connection with this Service Agreement that is marked or otherwise identified as confidential or proprietary or that a reasonably prudent business person would understand to be confidential in light of nature of the information and the circumstances of its disclosure. For further clarity, 5th Dynamic Marketing Solutions’s Confidential Information will include, without limitation (a) the Analytics Service, Password-Protected Pages, the Tools, and all related documentation, applications and tools made available to Customer; (b) nonpublic know-how, inventions (whether or not patentable), techniques, methods, algorithms, product and software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, interfaces, and other technical or business information relating to the Service; (c) information pertaining to Password-Protected Pages issued pursuant to this Service Agreement; and (d) all terms and conditions of this Service Agreement, including, but not limited to pricing information which may be provided. Notwithstanding the foregoing, the Analytical Data, resulting metrics and visualization and results of analyses will be deemed Customer’s Confidential Information and the materials and information in (a) and (c) will be deemed 5th Dynamic Marketing Solutions’s Confidential Information, in each case, with no requirement of marking or identification.
6.2 Use and Disclosure Restrictions. Except as otherwise permitted herein each party (as Receiving Party) agrees: (a) the same care and discretion to avoid disclosure, publication or dissemination of the Confidential Information of the Disclosing Party as it uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than reasonable care; (b) to use such Confidential Information only for the performance of its obligations and exercise of its rights hereunder; and (c) disclose Confidential Information of the Disclosing Party only to those of the Receiving Party’s employees, consultants or contractors who have a need to know such information and are bound by obligations of confidentiality at least as stringent as those contained herein with respect to such Confidential Information. Further, Customer agrees not to design or develop, or authorize the design or development of, any other product, software, materials or services using any of the algorithms, methods, or techniques contained in the Service.
6.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information will not apply to the extent any information: (a) was or becomes publicly known through no act or omission of the Receiving Party; (b) was known by the Receiving Party before receipt from the Disclosing Party; or (c) becomes known to the Receiving Party without confidential or proprietary restriction from a source other than the Disclosing Party. In addition, the Receiving Party may use or disclose Confidential Information to the extent it is legally compelled to disclose such Confidential Information, provided, however, that, prior to any such compelled disclosure it will cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
7. LIMITATION OF LIABILITY
7.1 TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, EXCEPT WITH RESPECT TO MISUSE OF THE SERVICE, REMOTE COLLECTOR, OR TOOLS BY CUSTOMER (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS SERVICE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED; AND (B) LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THIS SERVICE AGREEMENT, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL NOT EXCEED THE GREATER OF (I) AMOUNTS ACTUALLY RECEIVED BY OR PAYABLE TO 5th Dynamic Marketing Solutions UNDER THIS SERVICE AGREEMENT DURING THE APPLICABLE TERM, OR (II) ONE HUNDRED DOLLARS.
8.1 5th Dynamic Marketing Solutions Indemnity. 5th Dynamic Marketing Solutions will defend Customer from any third party claim brought against Customer that the unmodified Analytics Service, Tools and Reports as made available by 5th Dynamic Marketing Solutions and used in accordance with this Service Agreement infringe such party’s copyright or misappropriate such party’s trade secrets.
8.2 Customer Indemnity. Customer will defend 5th Dynamic Marketing Solutions from, and pay finally awarded damages or reasonable settlement amounts resulting from, any third party claim brought against 5th Dynamic Marketing Solutions in connection with any breach by Customer of this Service Agreement or the licenses granted hereunder.
8.3 Procedures. The party entitled to be indemnified (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party”) of any claim for which indemnification may be required under this Section 8. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except if and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable claim. If the Indemnified Party notifies the Indemnifying Party of any claim asserted by a third party against the Indemnified Party that the Indemnifying Party acknowledges is a claim for which it must indemnify the Indemnified Party under this Service Agreement, the Indemnifying Party will be entitled to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include without limitation using reasonable efforts to provide or make available documents, information and witnesses.
8.4 5th Dynamic Marketing Solutions’s liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in Canada, the United States or European Union.
9. GENERAL TERMS
9.1 Governing Law. This Service Agreement is to be construed in accordance with and governed by the internal laws of Canada and U.S., without regard to its conflict of laws principles, and will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Nothing in this Service Agreement will prevent either party from seeking injunctive relief (or any other provisional remedy or equitable relief) from any court having jurisdiction in order to protect any and all of such party’s respective rights.
9.2 Assignment. Neither party may, without the prior written consent of the other party (which shall not be unreasonably withheld), assign this Service Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Service Agreement and shall be void. Notwithstanding the foregoing, a party may assign its rights and benefits and delegate its duties and obligations under this Service Agreement without the consent of the other party (1) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body, (2) in connection with a merger, reorganization or sale of all or substantially all relevant assets of the assigning party, or (3) in the case of Customer, to an affiliate; in each case provided that such successor assumes the assigning party’s obligations under this Service Agreement.
9.3 Force Majeure. Neither party will be liable under this Service Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.
9.4 Government Rights. If Customer is, or is entering into this Service Agreement on behalf of, any agency or instrumentality of the Canadian or United States Government, the Application is “commercial computer software” and “commercial computer software documentation”.
9.5 Notices. Notices to 5th Dynamic Marketing Solutions must be sent via email to email@example.com, or in writing to 5th Dynamic Marketing Solutions, Inc., 26 Wallace Gate, Bradford, Ontario, Canada L3Z 0P3 Attn: Legal Department, via certified mail, or reputable overnight courier. Notices to Customer may be sent to the applicable account email address. Notices sent via any of the permissible methods are deemed given when sent.
9.6 Severability and Waiver. In the event that any provision of this Service Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Service Agreement, while the remainder of this Service Agreement will continue in full force. The waiver by either party of any default or breach of this Service Agreement will not constitute a waiver of any other or subsequent default or breach.
9.7 Terms Modification. 5th Dynamic Marketing Solutions may revise this Service Agreement from time to time and the most current version will always be posted on the 5th Dynamic Marketing Solutions website. If a revision, in 5th Dynamic Marketing Solutions’s sole discretion, is material, 5th Dynamic Marketing Solutions will notify Customer (by email) if major changes affect their account, or general pricing, in the future, otherwise no notification will be made. Revisions will be posted to 5th Dynamic’s terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Service Agreement.
9.8 Entire Agreement. Except as agreed to otherwise in writing by the parties that references this Service Agreement, this Service Agreement (including any Orders, which are incorporated herein by this reference) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Service Agreement. No cancellation, amendment, or modification of this Service Agreement or any provision of this Service Agreement will be effective unless in writing and signed by a duly authorized signatory of both parties. This Service Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
5th Dynamic Marketing Solutions Disclaimer Statements:
1. All content provided on this “5th Dynamic Marketing Solutions” (5dynamic.com) website is for informational purposes and for registered clients. The owner of this website makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site.
2. The owner of 5th Dynamic Marketing Solutions (5dynamic.com) will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information. This terms and conditions is subject to change at anytime with or without notice.
3. 5th Dynamic Marketing Solutions (5dynamic.com) does not represent or endorse the accuracy or reliability of any 3rd Party (or Affiliate) information, content or advertisements contained on, distributed through, or linked, downloaded or accessed from any of the pages contained on this website, nor the quality of any products, information’s or any other material displayed,purchased, or obtained by you as a result of an advertisement or any other information’s or offer in or in connection with the services herein.
4. You hereby acknowledge that any reliance upon any materials shall be at your sole risk. 5th Dynamic Marketing Solutions (5dynamic.com) reserves the right, in it’s sole dis-creation and without any obligation, to make improvements to, or correct any error or omissions in any portion of the service or the materials.
5. THE SERVICES AND THE MATERIALS ARE PROVIDED BY 5th Dynamic Marketing Solutions (5dynamic.com) ON AN “AS IS” BASIS, AND 5th Dynamic Marketing Solutions (5dynamic.com) EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE OR ANY MATERIALS AND PRODUCTS IN NO EVENT SHALL TO 5th Dynamic Marketing Solutions (5dynamic.com) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHAT’S OVER WITH RESPECT TO THE SERVICE, THE MATERIALS AND THE PRODUCTS.
6. 5th Dynamic Marketing Solutions (5dynamic.com) respects the rights (including the intellectual property rights) of others and we ask our users to do the same. 5th Dynamic Marketing Solutions (5dynamic.com) may in appropriate circumstances and in it’s sole dis-creation, terminate the accounts of users that infringe or otherwise violate such rights of others.
7. This web site, and the information which it contains, is the property of 5th Dynamic Marketing Solutions and its affiliates and licensors, and is protected from unauthorized copying and dissemination by Canadian and U.S. copyright law, trademark law, international conventions and other intellectual property laws. 5th Dynamic Marketing Solutions’ names, logos, designs, photographs, and any written contents are copyright of 5th Dynamic Marketing Solutions and/or affiliates.
Other Service Agreements:
Web Hosting: We use industry standard server hardware and software. 5th Dynamic works to minimize any downtime and endeavors to provide an uninterrupted service at all times. Notwithstanding this, you acknowledge that the web hosting service of 5th Dynamic relies on factors outside of its control and accordingly we do not accept any responsibility for any losses incurred for any down time. While we make incremental and full scheduled backups of its servers, we do not guarantee that any lost data will be recovered. You acknowledge and agree that we may at any time vary the terms upon which it provides web hosting services by providing you with a written notice. All 5th Dynamic dedicated server hosting packages for our Customer’s websites are given up to 20GB of storage and unlimited bandwidth, unless otherwise upgraded to the maximum of 30GB of storage. Hosting plans are prepaid for an annual plan through 5th Dynamic. Other hosting service options will be presented to our Customers through the 5th Dynamic Re-seller shop or a third party provider, subject to a monthly or annual plan. We do not hold any responsibility or accountability to any hosting plans.
Re-seller Shop – Internet Services: Our SHOP site (linked off our “internet services” page) is a storefront re-selling program partnered with GoDaddy Operating Company, LLC for the intent of providing our clients with optimal in-house services at a similar or discounted rate then what is offered through the main GoDaddy website. As so, we do not hold any responsibility or accountability to any hosting plans, domain names registrations or transfers, email plans, or any other internet service purchased through our re-seller shop or an outside provider. Anything purchased through our re-seller SHOP will be the responsibility of GoDaddy and its support team. They will be held responsible for the satisfaction of 5th Dynamic and our customers. Please visit GoDaddy’s Terms and Conditions for more information.
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Last Edited on 2017-03-02