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TERMS OF SERVICE
These terms of service are entered into by and between you (“Customer,” “you,” “your”) and DigitalUpline, LLC (“Provider”) (each a “Party,” collectively “Parties”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of the Services (defined below), including any content, functionality, and services offered on or through DigitalCoPilotSystem.com (the “Website”), whether as a guest or a registered user.
The Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Provider and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website.
“Aggregated Statistics” means data and information related to the Customer’s use of the Services that are used by the Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Services.
“Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form.
“Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
“Services” means the software-as-a-service offering provided through the Website, as subscribed to by the Customer.
“Third-Party Products” means any third-party provided with or incorporated into the Services.
3. Access and Use
3.1 Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with this Terms of Service, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.6) right to access and use the Services during the Term, solely for use in accordance with the terms and conditions herein. Such use is limited to the Customer’s internal use.
3.2 Documentation License. Subject to the terms and conditions contained in this Terms of Service, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.6) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
3.3 Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Terms of Service. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
3.4 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Terms of Service. Except for the limited rights and licenses expressly granted under this Terms of Service, nothing in this Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
3.5 Suspension. Notwithstanding anything to the contrary in this Terms of Service, Provider may temporarily suspend Customer’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
4. Customer Responsibilities
4.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Terms of Service.
4.2 Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Terms of Service, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
5. Service Levels and Support
5.1 Service Levels. Subject to this Terms of Service, Provider shall use commercially reasonable efforts to make the Services available with a monthly uptime of at least 99.9%. This does not apply to any Services unavailability or other performance issues: (a) caused by factors outside of Provider’s reasonable control, including any force majeure event or Internet access or related problems; (b) that result from any actions or inactions of Customer or any third party; (c) that result from Customer’s equipment, software or other technology or third party equipment, software or other technology; (d) arising from the suspension and termination of Customer’s right to use the Services; or (e) arising from scheduled downtime for system or network maintenance.
6. Fees and Payment
6.1 Trial Period. Trial users may sign up for a 7-day trial of the Services for a nominal fee. Payment at the chosen plan and rate will automatically occur on day 7 unless you cancel the trial by emailing email@example.com and requesting a cancellation of the service. Your subscription will be automatically billed every four weeks with the information provided on file at sign-up.
6.2 Refunds. Customer may receive a prorated refund on software-only plans (such as the Pro Plan), on any remaining time in the billing period. Only the most recent single payment is subject to this refund policy. Payments prior to the most recent monthly billing are non-refundable. After processing your refund, your account will be cancelled, all sites and data permanently deleted from the system without the possibility of recovery. Coaching, Partner Plans, marketplace templates and event packages are not refundable, but payments may be applied to approved similar programs or events. Such packages are not transferable.
Upgrade Program clients must notify the DigitalUpline team 30 days prior to exiting the program and plan. Refunds are prorated based on any additional time in the program, provided the client has given 30 days notice of intent to exit.
6.3 Fees. Customer shall pay Provider the fees (“Fees”) as set forth in any subscription service order. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five days or more, Provider may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full.
6.4 Usage Fees. Customer shall pay Provider additional “Usage Fees” for emailing and text messaging through the system. Just like sending physical mail, there is a cost to sending email as well text messages, voice broadcasts, calling directly from the system, etc. EMAIL: The cost to you is $0.0014 per email. This means that in order to be billed $10 you'd have to send 7,145 emails. TEXT MESSAGING: The cost to you is $.015 per text message. This means that in order to get billed $10 you would have to send 665 text messages or make 385 phone calls through the system.
6.5 Taxes. All Fees and other amounts payable by Customer under this Terms of Service are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
7. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Terms of Service, including to make required court filings. On the expiration or termination of the Terms of Service, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Terms of Service for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Except where prohibited by law, Customer agrees and covenants that it will not at any time make, publish, or communicate to any person or entity or in any public forum any libelous, harassing, or abusive remarks, comments, or statements concerning Provider’s products or services, or make any maliciously false statements about Provider's employees and officers.
9. Intellectual Property Ownership
9.1 Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
9.2 Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
10. Limited Warranty and Warranty Disclaimer
10.1 Provider warrants that the Services will conform in all material respects to the service levels set forth in Section 5 when accessed and used in accordance with the Documentation. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
10.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.1, PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.1, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
11.1 Provider Indemnification
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Terms of Service, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 11.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data ; or (D) Third-Party Products.
11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Terms of Service, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Terms of Service; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11.3 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Term and Termination
13.1 Term. As to the Services, this Terms of Service will automatically renew every four weeks unless earlier terminated pursuant to this Terms of Service’s express provisions or either Party gives the other Party written notice of non-renewal at least three days prior to the expiration of the then-current subscription month (“Term”).
13.2 Termination. In addition to any other express termination right set forth in this Terms of Service:
(i) Provider may terminate this Terms of Service, effective on written notice to Customer if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 3.3, 7, or 8;
(ii) either Party may terminate this Terms of Service, effective on written notice to the other Party, if the other Party materially breaches this Terms of Service, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Terms of Service, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Terms of Service, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Upon suspension or termination, Provider shall permanently delete Customer’s account data.
13.4 Cold Email Clause. Sending “cold" email otherwise known as “junk” email through the system is strictly prohibited except with the the consent and supervision of the Provider. A “cold" email is any email address that did not “opt-in” or make a purchase with you in the past. If they did not volunteer their information to you by completing a form or purchasing a product from you, it is a cold email address. Sending mass amounts of cold email through the system can damage our "sender reputation” and hurt other users of the system who are sending from the same sub-domain. This means that uploading a list of purchased email addresses (and/or mobile phone numbers for purposes of texting or calling through the system) is strictly prohibited and may result in account termination. If you wish to upload a cold list of emails or mobile numbers let us know by emailing firstname.lastname@example.org to avoid account suspension or termination.
13.4 Survival. This Section 13.4 and Sections 2, 6, 7, 8, 9, 10.2, 11, 12, 13, and any provisions that must survive to meet their essential purpose, survive any termination or expiration of this Terms of Service.
14.2 Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Terms of Service, for any failure or delay in performing its obligations under this Terms of Service, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, telecommunications interruptions, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.3 Amendment and Modification; Waiver. No amendment to or modification of this Terms of Service is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Terms of Service, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Terms of Service will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.4 Severability. If any provision of this Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Terms of Service so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.5 Governing Law; Submission to Jurisdiction. This Terms of Service is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of this Terms of Service or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of Craig and County of Moffat, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14.6 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Terms of Service is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
14.7 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
14.8 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 3.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.