The following Terms of Service (aka TOS) from Justin Downey Marketing, LLC (DBA “JDM Digital”) outline general rules for communication, privacy expectations, non-disclosure, non-payment, roles/responsibilities, liability, and more legal stuff we think bears mentioning.
LAST UPDATED: May 13, 2014
The following Terms of Service may be updated without warning or notice. You may access this page at any time to review our TOS or subscribe to this page’s RSS feed for updates. Spell check last run on May 13, 2014 at 12:03 pm.
01. Limitations of Scope.
JDM Digital will NOT be responsible for work that is beyond the scope of service agreed to in the proposal at the time Client initiates service. Any changes to the scope of service will not be effective unless approved by both parties. A separate proposal/invoice process may be required.
02. Management Responsibility.
JDM Digital will provide certain tools, methods and resources to Client that are intended to help Client grow and build its business. However, Client is fully and exclusively responsible for its own business performance and Client satisfaction. In addition, Client has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Client’s business, including without limitation, data held by Client and its Clients, information provided by Client to Clients and/or other third parties and any safeguarding and security measures that may be required.
JDM Digital may participate in implementing needed systems, services and functions, but Client is solely responsible for the final outcomes, actions taken and results produced.
All content produced by JDM Digital within the scope of service including: software and web code, contents, graphics and design, or material developed or licensed by JDM Digital for Client as part of the service is copyrighted by JDM Digital and remains the exclusive property of JDM, unless otherwise negotiated. Upon termination of this Agreement, copyrights shall remain with JDM Digital , unless otherwise agreed upon by both parties.
After six months of service and full payment, if Client chooses to cancel this agreement per the conditions in Section 5 (below) all JDM Digital copyrighted content, EXCEPT software, web code, CMS themes, plugins, PSD files and other files or code used to create the website, or other deliverable can be used indefinitely by Client for their company. Use will be restricted to the Client company only and Client DOES NOT have any rights to resell, license or otherwise allow 3rd parties use of the supplied work, unless otherwise noted.
In the event JDM ceases business operations and providing the services described in this agreement, all JDM Digital copyrighted content, EXCEPT software, web code, CMS themes, plug-ins, PSD files and other files or code used to create the Client deliverables MAY BE used indefinitely by Client for their company. Use will be restricted to the Client company only and Client does not have any rights to resell, license or otherwise allow 3rd parties use of the delivered work.
04. Link & Attribution
Client hereby acknowledges and agrees that JDM Digital shall have the right to use the name of Client, including the Client Web Site, for reference as a customer of JDM Digital services for referral and marketing purposes, unless otherwise agreed (such as in a Non-Disclosure Agreement).
Except for reasons of non-performance by either party, this Agreement shall remain in effect until formally terminated in writing by either party. Termination of this Agreement requires written or email notice delivered thirty (30) days prior to the desired date of termination.
Repeated failure to make payment by the date due during any period gives JDM Digital the option for immediate termination without refund. Upon the expiration or termination of this Agreement for non-payment or non-performance by Client, (i) all licenses granted by JDM Digital to Client hereunder shall automatically terminate and Client shall immediately cease use of the licensed content and other deliverables, and (ii) Client’s right to Services and access to resources afforded to JDM Digital’s Clients (such as myJDM access) shall automatically and permanently be terminated.
In the event a project is terminated by Client for any reason AFTER the initial, Discovery phase is complete and production has begun, the deposit is immediately forfeit and materials produced up to that point remain the intellectual property of JDM Digital and/or its affiliates/partners.
Termination of a project PRIOR to completion of the Discovery phase qualifies for a full or partial refund – determined at the sole discretion of JDM Digital.
06. Payment for Services.
Payment terms are on a case-by-case basis. Unless otherwise noted, Client is responsible to pay the full about of each and every invoice within fifteen (15) days. Failure to pay or frequent late payments are grounds for immediate and permanent service and copyright termination and may result in destruction of supplied work.
If services are suspended (with 30 days written or emailed notice), there may be a fee up to 5% of total deal value to reinstate.
Payments may be made by check (mailed to 8330 LBJ Freeway, Suite #435, Dallas, TX 75243) or online (via PayPal or Credit Card). There may a $4.00 or a 4% convenience fee added to payments made online (determined case-by-case).
JDM Digital reserves the right to assess and collect late-payment charges of 2% per month on past due balances. If the matter is not resolved within 90-days AFTER the invoice due date, Client may be sent to a debt collection agency and/or the CSS Kill Switch may be used (see section 6.1) and/or JDM Digital will revoke access to the site (see section 6.2).
In the event Client does not respond to repeated collection attempts, the digital asset, still JDM Digital’s property, will be destroyed (see section 6.3).
6.1 UNDERSTANDING THE CSS KILL SWITCH
In rare cases, JDM Digital may complete delivery of a project prior to it being completely paid for. Under these circumstances, clients agree JDM Digital has the option of implementing a CSS Kill Switch. A CSS Kill Switch is a hidden piece of code which allows JDM Digital to remotely and temporarily disable a client’s website for partial or non-payment as per the terms of the agreement. Per this term, clients forfeit any future legal claims of (but not limited to) business damages, tampering or intrusion because of the use of the CSS Kill Switch.
Of course, once the project has been fully paid, the CSS kill switch will be removed immediately and permanently. As a side note, we’ve never had to actually use the kill switch.
6.2 REVOKING ACCESS
In the event the project is completed and invoices are 90-days or more late, JDM Digital may elect to revoke access to the site. In the case of a CMS, we would either demote or delete client admin roles. For static websites, we would change the FTP password or otherwise disable access to the site via other methods. In either case, once the matter is resolved, we would re-instate access without additional penalty and in a timely fashion
6.3 DESTRUCTION OF WORK
As discussed earlier, all produced work remains the property of JDM Digital until payment has been received in full. In extreme circumstances, JDM Digital will permanently destroy supplied work for failure to pay. At this point, our invoice would be withdrawn.
07. Warranty (or lack thereof).
JDM Digital shall provide its services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable industry standards, and will provide a standard of care based on commercially reasonable efforts.
Services and all products provided as part of the services are provided “as is” and JDM Digital disclaims, and client waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guarantee or representation related to the services. JDM Digital DOES NOT warrant that the software or any products or services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall JDM Digital be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use the Website or deliverable. JDM Digital shall NOT be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
08. Limitations of Liability.
Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of JDM Digital , JDM Digital’s liability to pay damages for any losses incurred by Client as a result of breach of contract, negligence or other tort committed by JDM Digital, regardless of the theory of liability asserted, is limited to no more than the total amount of the most recent three (3) months of active services under this agreement. In any case, JDM Digital and its partners will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages.
In addition, JDM Digital shall have no liability to Client arising from or relating to any third party hardware, software, information or materials. JDM Digital is also not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though JDM Digital will attempt to prevent or minimize exposure to such risks.
Subject to the provisions hereof, Client shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against JDM Digital and its partners arising from products or services related to this Agreement.
Conversely, JDM Digital shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against Client arising from the gross negligence or intentional misconduct by JDM Digital.
10. Quality Responsibilities.
The biggest obstacle to a smooth and efficient creative approval process is clearly defined roles and responsibilities. It is the policy of JDM Digital that we take full responsibility for the quality (defined here as free of errors, miss-spellings, configuration issues, etc.) of our work during development. However, once approved by Client, Partner or others with right of approval (or “RoA”), the responsibility is no longer that of JDM Digital’s. Modifications (no matter how small, important, or who is responsible for the error) made AFTER the approval has been given, may carry a “change-order” fee.
It is the sole responsibility of the Client, Partner or others with RoA authority to pay careful attention to errors PRIOR to final approval.
If you actually read through all that legal mumbo-jumbo and your brain isn’t bleeding, you’re our kind of client! We’d like to apologize for the boring and often scary stuff found in TOS pages and offer you a reward for your diligence. Just mention “Term 11″ of our Terms of Service and a one-time discount will be added to your next proposal. We hated writing this page almost as much as we’re sure you hated reading it…
12. Find & Replace
We’re a digital agency–not a law firm. Errors due to find & replace are hereby apologized for.