We Are Data Revolution
We simplify technology so our clients can focus on their business
Terms and Conditions
The following are the “Terms and Conditions” which govern the delivery of the products and services provided by Data Revolution LLC (“Provider”) to the Client pursuant to the Provider Quotation and the Proposal Acceptance and Notice to Proceed, including all change orders (“Solution Proposal”). These Terms and Conditions are incorporated into the Solution Proposal.
1. Project Authorization & Services. The Solution Proposal are governed by these Terms and Conditions. The products and services to be provided by Provider may include hardware, software, installation, programming, configuration, implementation, training, monitoring, hosting, security or other consultation related to products or services that Client will or has received under the Solution Proposal or by separate agreement(s) (“Products and Services”). Client warrants that the individual agreeing to the Solution Proposal is a duly authorized representative of Client. Provider is only responsible for the Products and Services referenced in the Solution Proposal.
2. Payment for Services. Products and Services fees are invoiced in full upon receipt of an order, with payment terms of 100% down payment upon signing the Solutions Proposal for all hardware, software, and any applicable licensing being purchased, with all labor costs due immediately upon completion of the project. All monthly recurring charges will be billed on the first of each month. All recurring payments are due within ten (10) days from the date of the invoice. Any invoice not timely paid is subject to a $25 service fee plus interest at 18% per annum or the maximum allowed by law, whichever is less.( Note: discounts are based on the quantities of Products and Services. Changes can affect the monthly pricing.
3. Term. The fees and costs owing for Products and Services that are recurring shall have an initial three (3) year term. Upon expiration of the initial three (3) year term, the Solution Proposal shall automatically renew for a 12-month term and will thereafter automatically renew annually. If Products or Services are added or changed during the initial three (3) year term, then the three (3) year term recommences with the addition or changes to Products and Services, so that the three (3) year term for Products and Services runs concurrently commencing from the most recent Products or Services additions or changes, unless the parties agree otherwise in writing.
4. Termination. Either party may terminate Products and Services upon thirty (30) days written notice given to the other party. If Client terminates any such Products and Services before the end of the Term (initial three (3) year term, or annual term upon renewal thereafter) (except for breach by Provider), Client will be obligated to pay Provider a termination fee equal to the nonrecurring charges (if unpaid) and One Hundred Percent (100%) of the monthly recurring charges for the terminated Products and Services multiplied by the number of months, including partial months, remaining in the Term. If Client terminates or decreases any portion of the Products and Services that is part of a bundle offering, the remaining Products and Service(s) shall be subject to price increases for the remaining Term. These provisions survive termination of the Agreement. Should Client fail to pay all sums owing to Provider when due, Provider may after first giving 20 days advance written notice to Client to cure, terminate all Products and Services to Client immediately.
5. Fees During Initial Three-Year Term. The fees specified in the Solution Proposal and invoices are the total fees and charges for the Products and Services, unless fees and charges are increased due to Products and Services being added, or as otherwise agreed to between the parties hereto. Otherwise, the fees will not be increased during the initial three (3) year term of the Solution Proposal. If during the initial three (3) year terms, any change order affects the time or cost of performance under the applicable Products and Services, an adjustment in the fees and costs to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective.
6. Automatic Renewal of Term and Changes to Fees. After the initial three (3) year term, the term shall renew for successive 12 month term annually. During each annual renewal, the total fees and charges for the Products and Services are subject to change and increase with each annual renewal. Provider will give Client notice of the fees and charges changes thirty (30) days in advance of the change going into effect on annual renewals.
7. Taxes. Client is responsible for all applicable federal, state and local sales, use, communication, or other taxes due on the Products and Services rendered hereunder, except for taxes based on Provider’s income.
8. Expenses. Provider shall be reimbursed by Client for the travel expenses specified in the Products and Services, if any. If dates Provider is scheduled to be onsite are changed or cancelled by Client within three (3) days of the scheduled date, Client shall be assessed a cancellation fee of $200 in addition to any travel related fees and penalties.
9. Provision of Services. Provider will perform Products and Services based on a schedule mutually agreed to by the parties. Services will expire unless the Services that are scheduled by the Client are delivered within six (6) months from the date they were ordered by Client, however Client will still owe Provider for the Products and Services ordered by Client if the delay in scheduling and delivery are due to no fault of Provider. Services will ordinarily be performed by a Provider’s service representative or other authorized representative of Provider. Client agrees, however, that Provider, in its sole discretion, may provide the Services through a third-party representative.
10. Access. Client shall provide Provider with access to data, materials, software and hardware as reasonably required for Provider to perform the Products and Services (“Client Materials”). Client hereby grants Provider a limited right to use such Client Materials solely for the purpose of performing Products and Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to Provider for such purpose. Client shall provide Provider with safe access to Client’s premises as reasonably required for Provider to perform the Products and Services, if onsite performance of Products and Services is needed and agreed to by Client. Provider personnel shall comply with the reasonable written rules and regulations of Client related to use of its premises, provided that such written rules and regulations are provided to Provider at least seven (7) days prior to commencement of the Services. Provider shall not be responsible for failures or delays in performing Products and Services due to Client’s failure or delay providing access to Client Materials or Client premises or due to Client-imposed or government-imposed security requirements.
11. Third Party Platforms and Data. For certain Products and Services, the Client may provide Provider with access to certain data and materials (“Third Party Data”) accessed through Clients’ accounts (“Third Party Accounts”) with third party application platforms through which Client offers its Site to end users (“Third Party Platforms”). “Site” means those websites, Third Party Platforms, applications or devices owned or controlled by Client or a third party for which Client wishes to, and has the authority to, use the Provider tracking code, Provider APIs, third party APIs, or any other collection methods to collect or upload data in connection with the Products and Services. For these Products and Services, Provider will need rights to access, upload and view the Third-Party Data by using Client’s credentials to access Third Party Accounts. Client acknowledges and agrees that Products and Services related to any Third-Party Data or Third-Party Platforms are conditioned and dependent upon the applicable Third-Party Platform allowing access to Client’s Third-Party Account and Third-Party Data by Provider, as a service provider of Client. Client shall provide Provider with timely and appropriate access to its Third-Party Account credentials and password (“Third Party Account Information”) to enable Provider to access Client’s account on Third Party Platforms. Client acknowledges and agrees that Provider’s provision of the Products and Services related to any Third Party Data is conditioned upon Provider’s receipt of correct and accurate Third Party Account information from Client, and to the continuing practices, policies, APIs and/or terms of use of applicable Third Party Platform providers making data available in the format necessary to retrieve through the Products and Services free of charge or restrictions. Provider is not responsible for any changes or dysfunction of the results of the Products and Services, including, without limitation, any data visualization dashboard and/or the data contained in the data visualization dashboard, arising from any changes to practices, policies, APIs or terms of use of the Third-Party Platform providers. Client hereby grants Provider the right to, for the sole purpose of providing Products and Services, if such right is necessary to provide the Products and Services: (a) access Client’s Third Party Accounts, (b) access and retrieve Third Party Data from the Third Party Platforms via Client’s Third-Party Accounts, (c) collect, store, use, distribute, copy, modify and process any Third-Party Data accessed via its Third-Party Account solely to provide the Products and Services’ and (d) take such action with respect to Client’s Third-Party Accounts as appropriate in order to provide the Products and Services. Client shall ensure that the optimization, collection, uploading, transmission, processing and storage of Third-Party Data and any other data provided by Client in connection with Client’s use of the Products and Services at all times comply with (i) Client’s own policies regarding privacy and protection of user information, (ii) all applicable third-party terms and privacy policies, including all applicable Third-Party Platform terms, and (iii) all applicable laws, rules and regulations, including those related to optimization, processing, storage, use, reuse, disclosure, security, protection and handling of Third-Party Data.
12. Intellectual Property Rights. Client has and will retain sole and exclusive right, title, and interest in and to all Client Confidential Information, Client Materials, Third- Party Data, and Third-Party Account Information (collectively, “Client Property”), including any and all intellectual property rights therein. Provider has and will retain sole and exclusive right, title and interest in and to all Provider Confidential Information, Provider products, Provider service, and all Provider technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, “Provider Property”). However, Provider’s ownership rights do not extend to Client Property embedded or incorporated in the foregoing items. Unless expressly stated otherwise in the Solution Proposal, , Provider will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas,
concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Products and Services, including any and all intellectual property rights therein (“Configuration Services Results”), excluding any and all Client Property,. Upon full and final payment of all fees and expenses owing to Provider under the applicable Solution Proposal, Provider hereby grants to Client the same rights to use the Configuration Services Results as the rights granted to Client with respect to the Provider software or
“software as a service” product to which such Configuration Services Results pertains. Unless expressly stated otherwise in the applicable Solution Proposal, Provider hereby assigns to Client, upon full and final payment of Fees due hereunder, all right, title and interest in and to the data delivered or made available to Client as result of Services of the type described above (“Client Data”). Unless expressly stated otherwise in the applicable Solution Proposal, Provider will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described above, including all intellectual property rights therein (“Digital Marketing Services”), but excluding all Client Property and all Client Data. If applicable, based on the description included in the applicable Solution Proposal, upon full and final payment of all fees and expenses owing to Provider under the applicable
Solution Proposal, Provider hereby grants to Client a non-exclusive, worldwide, non-transferable, royalty-free license to access and use the Digital Marketing Services provided to Client, during the term specified in the applicable Solution Proposal, for the purpose of accessing and viewing Client Data.
13. Warranty. Provided that Client performs its obligations to Provider under these Terms and Conditions and the applicable Solution Proposal, Provider warrants to Client that the Services performed by Provider will be performed consistent with generally accepted industry practice. Provider’s warranty shall expire 30 days after the applicable Services completion date or earlier termination. Provider’s warranty shall only be effective if Client notifies Provider of the breach of warranty within 30 days after the applicable Services completion date. Provider’s sole and exclusive obligation for breach of warranty shall be, at Provider’s option, to (a) use commercially reasonable efforts to perform the Services in a manner that conforms to the warranty, or (b) refund to Client
the fees paid by Client to Provider for the nonconforming Services. The warranty as to Products shall be solely that provided by the manufacturer of the Product. The remedies set forth in this paragraph are Client’s exclusive remedies for any breach of warranty.
14. Exclusion of Warranties. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THESE TERMS AND CONDITIONS, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS”. PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE PROJECT OR ANY GOODS, PRODUCTS OR SERVICES OR OTHER MATERIALS DELIVERED BY PROVIDER. PROVIDER DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF PROVIDER’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD- PARTY DATA OR THIRD-PARTY PLATFORMS. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURANCY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MAY BE DISCONTINUED AT ANY TIME BY PROVIDER.
15. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO PROVIDER UNDER THE APPLICABLE PROPOSAL SOLUTION FOR THE APPLICABLE TERM. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Provider is willing to enter these Terms and Conditions and the Solution Proposal and perform Products and Services for Client only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting Provider’s exposure to liability, including but not limited to the provisions contained herein. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the Solution Proposal and have been reflected in the consideration specified therein.
16. Independent Contractor. Provider is, and throughout the term of these Terms and Conditions and the Solution Proposal shall be, an independent contractor, and not an employee, partner or agent, of Client. Provider shall not be entitled to nor receive any benefit normally provided to Client’s employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Client shall not be responsible for withholding income or other taxes from the payments made to Provider employees or authorized representatives.
17. Confidentiality. As a part of performing the Solution Proposal, each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to (a) patent and patent applications, (b) trade secrets, and (c) proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software
programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, pricing, discounts, procurement requirements, purchasing, manufacturing, Client lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature. Each party agrees not to: a) make Confidential Information available in any form to any third party, except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions, or b) to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party’s rights, or is already known in the relevant industry. This Section will survive termination.
18. Assignment. Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the Solution Proposal to any third party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a “change of control” transaction shall not be deemed assignment or delegation under these Terms and Conditions, unless the change in control is to a competitor of the non-assigning
party that will then gain access to Confidential Information of the non-assigning party.
19. Governing Law and Venue. These Terms and Conditions shall be governed by and construed under the laws of the State of Florida, except as governed by federal law. Any controversy or claim arising out of or in any way connected with the Solution Proposal or these Terms and Conditions, or the alleged breach thereof shall be brought in the state and federal courts located in the State of Florida, Counties of Escambia or Santa Rosa. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any
proceeding brought in accordance with this paragraph.
20. Entire Agreement. These Terms and Conditions, together with all Solution Proposals executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any
provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. There is no fiduciary agreement implied or existing.
21. Security and Hold Harmless. Client agrees to follow Provider’s recommendations to mitigate risks. Client is responsible to safe guard its systems and data. Provider is not liable for and Client shall hold Provider harmless for any of Client’s employees or other parties that Client has allowed to access Client’s systems that results in a breach of Client’s security or damage to Client’s system. Provider is not responsible and will hold Provider harmless for any actions, damages or causes that are a result of action or inaction taken by Client or Client’s employees or agents that are outside of or contrary to Provider’s recommendations. Client will promptly inform Provider in writing in advance if Client will be adding components, devices or access to Client’s system.
22. Management. If Client desires for Provider to assist Client in managing third-party software and Provider agrees to try do so, Provider will use reasonable efforts to do so, but cannot warrant that it can do so effectively or in a manner that is free from error. Client will hold Provider harmless for any liability related to third party software management.
23. Attorney’s Fees and Interest. In the event of default by Client, Provider is entitled to collect from Client reasonable attorneys’ fees and costs. All monies owing by Client to provider shall bear interest at the maximum rate allowed by law from the date due until paid.
24. Guaranty. The principal of the client is ______________, which principal agrees to personally guarantee payment and performance of the Solution Proposal and Terms and Conditions.