TERMS AND CONDITIONS
The following are the terms and conditions (the “Terms”) that govern the provision of certain Products and Services (as defined below) by Pro Digital Marketing Inc. (Pro Digital Marketing”, “we”, “us”, or “our”) to the purchaser or user of those services (“Customer”, “you”, or “your”), and which govern the rights and responsibilities between Pro Digital Marketing and you. These Terms, together with your proposal and any operating rules, policies, price schedules, or other supplemental documents, all of which are expressly incorporated herein by reference and published from time to time by Pro Digital Marketing on its website (collectively, the “Agreement”), constitute the entire agreement between Pro Digital Marketing and you regarding the Products and. By accepting our proposal or by using the Products and Services, you agree to be bound by these Terms.
The individual or entity listed in our records as the “technical contact” is considered by us to be the owner of your account. It is important to update your records should this individual change, or should you need to have our records reflect a different individual or entity as the Owner.
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about the Products and Services. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility or liability for interruptions in provision of the Products and Services, or damages of any sort, based on communications that are redirected as a result of your failure to provide us with updated contact information.
Pro Digital Marketing provides website development and design (“Design”) and search engine optimization (“SEO”) services and products (the “Products and Services”). The scope and duration of the Products and Services being delivered by Pro Digital marketing will be as set forth in your proposal.
Either party may terminate this Agreement by providing written notice to the other no later than 30 days before the desired date of termination (the “Termination Date”). You acknowledge and agree that if the required written notice is provided less than 30 days before the next Recurring Payment Date (as defined below), there will be no prorations or adjustments.
You are responsible for the fees and charges set out in the Agreement (“Fees”). You are responsible for all taxes and fees associated with the Products and Services which we are legally required or permitted to collect from you. You are not responsible for taxes based on our income. If you provide us with a credit card, we will bill all charges authorized by these Terms to that credit card. We reserve the right to bill you for fees charged to us by our credit card processor.
Our obligation to provide the Products and Services is contingent upon your payment of the Fees by the Due Date, as defined below. You must pay the Fees without setoff or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Products and Services be suspended, for any reason, Fees will continue to accrue. Fees for Design are not refundable for any reason once you take delivery of the Design. We may make changes to a website design up to 5 business days after delivery of the same and such changes will be included in the Fee. Any change requested thereafter will be billed to you at our standard hourly rates, which may change from time-to-time.
Unless otherwise agreed to, you agree to pay all charges by the due date indicated on an invoice ("Due Date") for Products and Services charged on a flat fee basis. Products and Services billed on a monthly basis shall be due and owing on the same day of each month as set forth in an invoice (the “Recurring Payment Date”). If you find an error on an invoice, we must provide written notification of this error to us prior to the Due Date. Your notice must contain enough information for us to investigate your claim. We will have 45 days from the Due Date to investigate your claim. If we find that your claim is valid, we will remove the disputed amount from the Fees on your next invoice. If we find that the dispute is invalid, we will provide you with a written explanation of our decision. If you disagree with this decision, you may pursue your remedies as set out in these Terms. You must pay any Fees not in dispute when they are due. If you initiate a chargeback rather than following these provisions, your account will be suspended.
You will pay us interest on payments made after the Due Date at the rate of 1% per month or the maximum rate allowable by law. You may be assessed a processing fee of $25 on late payments, at our sole discretion, if we incur administrative and/or legal costs associated with your late payment.
We hereby reserve the right to change our fee structure at any time. Additionally, all Fees shall be subject to an automatic increase of no less than 5% on January 1st of each year.
5. MODIFICATION OF TERMS OF SERVICE
Pro Digital Marketing may amend and/or revise at any time these Terms by posting an amended and/or revised version of the same on our website (https://audseo.com) , or delivering a copy of the amended and/or revised Terms to your email address of record. All amendments and/or revisions are intended to improve our ability to provide Products and Services.
6. WARRANTIES AND REPRESENTATIONS OF CUSTOMER
You warrant and represent to Pro Digital Marketing that you have all rights, licenses, and permissions to use any codes, scripts, data, reports, images, or other pieces of intellectual property that you provide to Pro Digital Marketing for incorporation into the Products and Services provided to you.
7. DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. PRO DIGITAL MARKETING HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND SAID IMPLIED WARRANTED ARE HEREBY EXCLUDED TO THE EXTENT ALLOWABLE BY APPLICABLE LAW. PRO DIGITAL MARKETING DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. PRO DIGITAL MARKETING IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU VIA THE PRODUCTS AND SERVICES PROVIDED BY US. PRO DIGITAL MARKETING SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY PRO DIGITAL MARKETING. NO WARRANTIES MADE BY THESE THIRD PARTIES TO PRO DIGITAL MARKETING SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD-PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM PRO DIGITAL MARKETING, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS, OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES MAY NOT ALLOW PRO DIGITAL MARKETING TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO THE LATER OF 90 DAYS FROM THE EFFECTIVE DATE FOR DELIVERY OF AN INDIVIDUAL PRODUCT OR SERVICE OR ANY DURATION REQUIRED BY APPLICABLE LAW.
IN NO EVENT WILL PRO DIGITAL MARKETING’S LIABILITY UNDER THE AGREEMENT EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY PRO DIGITAL MARKETING FROM THE CUSTOMER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM PRO DIGITAL MARKETING SHALL BE INTERPRETED TO INCLUDE PRO DIGITAL MARKETING’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMERS THROUGH PRO DIGITAL MARKETING.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD PRO DIGITAL MARKETING OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS, AND/OR THIRD-PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, OR ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF PRO DIGITAL MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU HEREBY AGREE THAT IN THOSE JURISDICTIONS PRO DIGITAL MARKETING’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless Pro Digital Marketing and its subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Products and Services (ii) any violation by you of the Agreement; (iii) any breach of any of your representations, warranties or covenants contained in these Terms; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
9. ADA AND ACCESSIBILITY COMPLIANCE
Pro Digital Marketing does not guarantee, imply, or warrant that use of our Products and Services will make your website 100% compliant with the Americans with Disabilities Act of 1990, Section 508 of the Rehabilitation Act, or WCAG standards (“Accessibility Requirements”) at any given moment, due to factors beyond our control, such as changes you make to your website, issues originating in your website, and/or other technological based issues (we do not, for example, create subtitles for videos or remediate PDF files). You hereby irrevocably waive any claim against Pro Digital Marketing for any liability, legal or otherwise, and agree to not bring any claim against Pro Digital Marketing relating to or arising from the Accessibility Requirements.
During the term of this Agreement, and continuing for a period of 12 months from the final date of provision of Products and Services by Pro Digital Marketing to you, you agree to not, directly or indirectly, solicit any employee of Pro Digital Marketing for employment or to terminate or breach an employment, contractual, or other relationship with Pro Digital Marketing.
Pro Digital Marketing retains the right to use for marketing purposes, any Products and Services provided to you, including but not limited to displaying graphics and other web content elements as part of Pro Digital Marketing’s portfolio, and as content features in other projects. This includes attribution links.
A. Choice of Law Jurisdiction and Forum
This Agreement shall be governed by the laws of the State of Wisconsin without regard to its choice of law rules. The parties specifically disclaim the application of the United Nations Convention for the International Sale of Goods. State courts located in Rock County State of Wisconsin shall have sole and exclusive venue in the event of litigation arising out this Agreement. The parties expressly agree that jurisdiction is proper in the court set out in this paragraph.
B. Force Majeure
Other than obligations regarding payments or confidentiality, neither party shall be in default or otherwise liable for any delay in or failure to perform under this Agreement if such a delay or failure is caused by an event beyond its reasonable control. Events beyond a party’s reasonable control include, but are not limited to, any act of God, any act of a common enemy, the elements, earthquakes, floods, fires, epidemics, pandemics, inability to secure products or services from other persons, entities or transportation facilities, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party’s employees, agents or contractors. Such a delay or failure shall not constitute a breach of these Terms. Lack of funds shall not constitute a reason beyond a party’s reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than five days from the beginning of the event.
C. Transfer and Assignment
You may not sell, assign or transfer any of your rights or obligations under the Agreement without our prior written consent. We reserve the right to transfer services we provide to you, or assign this Agreement, at any time, without your consent or knowledge. These Terms shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
Any failure or delay on our part in exercising any of the rights or powers given to us in these Terms shall not operate as a waiver of such a right or power, or affect our right to exercise the same or any other right or power at a later date.
Should any paragraph or aspect of these Terms be determined to be contrary to law, the remainder of the Terms shall be interpreted in such a manner as if the omitted portions had not been included.
F. No Agency
These Terms do not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.