Please read this carefully as this is a legally binding agreement (“Agreement”) between Dewmas Holdings Inc., a Delaware corporation (collectively, "Dewmas” or “we”, “us”, or “our”) and you (including the organization on whose behalf you are accessing this website and the services, collectively, "you" or “You”) governing your procurement of a subscription to access and use the customer feedback management service and related services (the “Services”).
BY SELECTING A SERVICE PLAN YOU REPRESENT THAT YOU AGREE TO THESE TERMS, AND HAVE THE REQUISITE AUTHORITY TO DO SO ON BEHALF OF THE ORGANIZATION/COMPANY FOR WHOM YOU ARE ACCESSING THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SERVICE.
We provide online reputation monitoring, analysis and related services (“Services”) for You. We may periodically change the Service offerings and features as part of our commitment to continuous improvement. The Subscription Form (the “Subscription Form”) will specify the Services and the Service plan that you are procuring. By submitting a Subscription Form, You are submitting an offer to obtain the right to use the Services pursuant to the terms of this Agreement. You must be the person, or an authorized representative of the person or entity, for whom you have requested that we perform Services (the “You”).
By providing any Client Materials, You warrant and represent that You have sole ownership of such Client Materials and that they are free of any intellectual property claims by any third party. You also represent that You are in full compliance with all applicable state and federal laws, rules, and regulations. In particular, and without limitation, you warrant and represent that your use of the Services and Website will not violate any obligation with respect to the the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and any other applicable federal or state law and amendments thereto.
Online Reviews and Ratings
If monitoring and managing your online reviews or ratings is included in the Services you order in the Subscription Form, you represent and warrant that: (a) you are authorized to provide us with any customer, patient, and user information that you provide to us in connection with such Services (the ”Reviewer Information”), including any personally identifying information of those parties; (b) our possession and/or use of the Reviewer Information on your behalf in connection with the Services will not violate any contract, statute, or regulation; (c) any content that you and/or your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, are the original work of your authorship, and will only concern you and the goods and/or services that you provide; and (d) You and/or your authorized representative(s) will only request reviews via the Services from actual paying customers. We will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through the use of our Services.
Various state and federal laws may restrict the use of personal information similar to the information you provide on the Website. By providing information, the use and collection of which may be restricted by law, you waive any protections or restrictions related to such information.
Acceptable Use Policy
We do not allow this website or our other websites (“Site”) or Services to be used for illegal activities or for activities that we deem improper for any reason whatsoever in our sole judgment. Your use of the Site and Services is conditioned upon your compliance with the rules of conduct set forth in this Section, and any failure to comply may result in termination of your access to and use of the Site and Services.
While using the Site and Services, you are not to: (a) impersonate any person or entity, or misrepresent your affiliation with any person or entity, (b) use or provide any fraudulent, misleading or inaccurate information; (c) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation, their privacy rights or rights of publicity; (d) access or use (or attempt to access or use) another user’s account without permission; (e) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items or computer code of a destructive nature; (f) misappropriate, modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Services; (g) “frame” or “mirror” any portion of the Site or Services; (h) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or Services; (i) harvest or collect information about or from other users of the Site or Services; (j) probe, scan or test the vulnerability of the Site or breach the security or authentication measures on the Site; or (k) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site.
Subject to the limited rights to use the Site and Services pursuant to this Agreement, we retain all right, title and interest in and to the Site and Services, including all related intellectual property contained therein.
Restrictions on Use
You agree not to: (a) permit any third party to access or use the Services; (b) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (c) modify or make derivative works based upon the Services; (d) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; or (e) reverse engineer or access the Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services.
Use by Children
The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to exceed the compliance requirements of COPPA, we do not target children under 18, nor do we knowingly collect any information from children under 18 or allow plug-ins or other services to collect such information without express written consent from their parents or guardians. We also prohibit children under 18 from posting any information on the Website without written parental consent. By using any of the Services or posting any information about yourself, you warrant that you are at least 18 years old. In addition, you may not post any photos or other information about any individual who is under 18 without obtaining written parental consent. If you become aware of any materials posted by a child under age 18, please notify us immediately.
Except any content generated or otherwise owned by You, as expressly provided in this Agreement, no part of the Site and no Site content may be copied, reproduced, republished, posted, publicly displayed, translated, or distributed in any way, without our express prior written consent. You may use information about our Services purposely made available by us for downloading from the Site only for your non-commercial, informational purposes.
User Accounts and Passwords
Certain features or services offered on or through the Site may require you to open an account (including setting up a login ID and/or password(s)). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your login ID and password, and for any and all activity that occurs under your account. You agree to notify us immediately of any unauthorized use of your account or password, or any other breach of security.
Fees and Auto-Renewal
You agree to pay all fees specified on your accepted Subscription Form(s). Except as otherwise specified herein or on a Subscription Form, all payment obligations are non-cancelable and all fees paid are non-refundable. You understand and accept that, unless otherwise expressly stated on the applicable Subscription Form, our Services are subscriptions services that operate on an auto-renewal basis such that your credit card, debit card, electronic payment, or other method of payment (“Accounts”) will be assessed the specified fees at regular intervals based on your subscription program (e.g. annually, quarterly, monthly).
The fees for each renewal term will be equal to the fees for the immediately prior term, unless we notify you at least thirty (30) days prior to such renewal of a change to the fees. You represent and warrant that you have the legal rights to use the Accounts and hereby authorize us to charge your Accounts for all Services listed on the Subscription Form(s) for the initial subscription term and each renewal term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Subscription Form.
Taxes, Late Fees and Penalties
You will be responsible for paying any applicable sales, use or similar taxes related to each Subscription Form. If any fees due to us are not received by the due date, then we may charge you interest on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. This late payment interest is without prejudice to our other rights and remedies, including the right to terminate or suspend your use of the Services.
Each of the parties represents and warrants that it has all necessary power to enter into and perform its obligations under this Agreement.
The Company does not represent, warrant or guarantee that its Services will achieve the result that you desire or that were proposed or agreed upon as the desired result at the time the Services were purchased or otherwise. We do not guarantee or warrant that we will find or communicate to you every example or all examples of Internet content about you.
THE SERVICES ARE PROVIDED "AS IS" AND WE SPECIFICALLY DISCLAIM, ON OUR OWN BEHALF AND ON BEHALF OF OUR THIRD-PARTY SUPPLIERS, ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU
You agree to indemnify, hold harmless and defend us, our officers, directors, employees, agents, and affiliates, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against us or any of our officers, directors, employees, agents, or affiliates, and pay all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by us or any of our officers, directors, employees, agents, or affiliates, arising out of or relating to:
(a) your breach of any term or condition of this Agreement; (b) your fraudulent or malicious use of the Services; (c) your violation of applicable laws, rules or regulations in connection with the Services; (d) our retrieval, use, storage, and distribution for You as contemplated under this Agreement of any content or information, including User Content, Client Materials or Reviewer Information; or (e) the violation of any rights of any other person or entity arising out of or related to the use of the Services. In such a case, we will provide you with written or electronic notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
Limitation of Liability
NEITHER WE, NOR OUR THIRD PARTY SUPPLIERS, WILL BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY
OUR MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE FEES YOU HAVE PAID TO US PURSUANT TO THE SUBSCRIPTION FORM THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, OR (B) US $50.00. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES
The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
You may terminate this Agreement at any time without cause upon written notice, provided that fees paid or committed are non-refundable (unless specifically provided otherwise in the Subscription Form).
We may terminate this Agreement without cause upon written notice, provided that we will refund to You the unearned portion of any pre-paid fees. Either party may terminate this Agreement at any time on written notice to the other if the other is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach.
Effect of Termination
On termination for any reason: (a) all rights granted to you under this Agreement, including your right to use the Site or Services, shall cease; (b) we shall stop performing all Services and may, at our discretion, remove materials from the Internet published by us as part of the Services; and (c) fees paid will not be refunded except (i) as specified in the Subscription Form; (ii) We terminate without cause or (iii) You terminate with cause. Sections 5, 6, 8, 10, 11, 13, 14, 21 – 25 shall survive any termination or expiration of this Agreement.
Links to Other Sites
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under our control, and we are not responsible for and do not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
We respect the intellectual property of others and ask that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site and Services who are repeat infringers of intellectual property rights, including copyrights.
If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement
Our designated Copyright Agent is: Dewmas Holdings, General Counsel; 86 Idora Avenue San Francisco, CA 94127 888.804.4324 firstname.lastname@example.org
Dispute Resolution. Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by final and binding arbitration. The arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”) selected from and administered by the San Francisco, California, office of JAMS in accordance with its then-existing Comprehensive Arbitration Rules & Procedures for matters where over $100,000 or injunctive relief is being claimed, and in accordance with its then-existing Streamlined Arbitration Rules & Procedures for matters where less than $100,000 is being claimed. The arbitration hearing shall be held in San Francisco, California. This Agreement shall be governed by and construed under the laws of the state of California, consistent with the Federal Arbitration Act, without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Arbitrator shall be authorized to award compensatory damages, subject to the express limitations of liability provided herein, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS; however, the Arbitrator shall be authorized to award to the prevailing party reimbursement for its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the Arbitrator.
Within fifteen (15) calendar days after the conclusion of the arbitration, the Arbitrators shall issue a written award, including the calculation of any damages awarded. Each party shall fully perform and satisfy the arbitration award within 15 days of the service of the award. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding; and a right to invoke formal rules of procedure and evidence.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnification).
All notices shall be sent to the addresses set forth on the applicable Subscription Form, which may be updated from time to time upon written notice to the other party.
Waiver and Severability
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Amendments and Assignment
Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement (including any Subscription Form(s)), without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
This Agreement, including all exhibits and addenda hereto and the accepted Subscription Form(s), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
No modification, amendment, or waiver of any provision of any Subscription Form resulting in an Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties or any accepted Subscription Forms, the terms of such exhibit, addendum or accepted Subscription Forms shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order form or other order form documentation (excluding accepted Subscription Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Any additional or different terms in acknowledgment forms, purchase orders, or other communications, are deemed material, are objected to, and rejected by the parties, unless agreed to in a signed writing by the parties.