Dinkum Prospect LLC Terms of Service
Dinkum Prospect LLC (“Dinkum Prospect,” “we,” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”). Your Service Agreement (the “Service Agreement”), Service Order (the “Service Order”), or Online Order Form (the “Order Form”) sets forth which Services you are purchasing, the party entering the agreement (the “Client,” “you” or “your” and together with Dinkum Prospect the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term, and other relevant details. As used in this Agreement, the term Service Agreement means any Service Agreement, Service Orders or Online Order Form or any combination of the foregoing. These Terms of Services (the “Terms of Service” or the “Terms”) are incorporated by reference into and made part of any Service Agreement submitted to Dinkum Prospect and govern the relationship between you and Dinkum Prospect. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service, and the other documents incorporated by reference herein are collectively referred to as the “Agreement.” These Terms of Service may be reviewed at any time at dinkumprospect.com/terms.
DINKUM PROSPECT PROVIDES THE SERVICES AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERVICE ORDER OR BY CHECKING THE "ACCEPT" BOX ON THE SIGNUP ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, DINKUM PROSPECT DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY DINKUM PROSPECT, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
The Service Agreement, Service Order, and/or Online Order Form, together with these Terms of Service, the Dinkum Prospect Privacy Policy and payment terms of service located at www.dinkumprospect.com/privacypolicy/, and any other ancillary documents incorporated by reference in these Terms of Service constitute the entire agreement between the Parties. Dinkum Prospect limits acceptance of these agreements and objects to any additional or different terms in the Client’s acceptance.
1. Definitions and Products. The Dinkum Prospect products, services, and other capitalized terms have the definitions as defined in this section or in the section where they first appear. a. Complimentary Promotions. Dinkum Prospect occasionally offers Complimentary Promotions to new Clients signing a Service Agreement or account credits to existing customers. Complimentary Promotions and account credits take the form of funds, credits, or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless otherwise stated, Complimentary Promotions may be used to offset any cost associated with the Service Agreement with the exception of Ad Credits or 3rd Party advertising media buy. Complimentary Promotions are fully contingent on you fulfilling the Initial Term. If you cancel the Service Agreement prior to fulfilling the Initial Term, Client must pay back all Complimentary Promotions spent on Client’s account at the time of cancellation, in addition to any applicable Early Cancellation Fees.
b. Content Marketing. Your monthly Content Marketing budget is used to provide written content, SEO, Creative Services, graphic design, video and photo services and other content for your website or social media profiles. Your Content Marketing budget can be used to execute such things as SEO keyword research, Creative Services, Video/Photography Services, website optimization, title tag and meta description optimization, link quality auditing, disavowing bad links, internal linking optimization, blog architecture optimization, image tag optimization, social media network optimization, Google Business Profile and Google maps listing optimization, page schema markup, page content creation and optimization, blog post writing and optimization, SEO optimized infographic design, guest blog posting for link building, video production and more. Each month Dinkum Prospect will provide content marketing services up to your available monthly Content Marketing budget based on our current Content Marketing price list. Please contact us for current pricing for the Content Marketing options. All Content Marketing efforts will ultimately be determined by Dinkum Prospect based on what we estimate will have the greatest impact on organic growth. Content Marketing services may begin as soon as you are entered into our system, however, in some cases, it might not make sense to use Content Marketing budget until your website has gone live with your approval. Your Marketing Success Manager and/or Content team members will determine the best allocation of your resources depending on your goals. Your monthly Content Marketing budget expires at the end of each month, and there is no roll over or credit for any unused Content Marketing budget. Unless otherwise specified, content will be automatically posted to your website periodically. You are solely responsible for any content that we post as well as the review and approval of all website content, and it is your responsibility to notify Dinkum Prospect of any errors. Upon receiving notice of an error, Dinkum Prospect’s sole responsibility shall be to remove the erroneous content as soon as is practicable. All content will be considered approved unless you provide notice to Dinkum Prospect. You may log into the Dinkum Prospect platform at any time to track Content Marketing efforts and results. Additional Content Marketing budget may be added at any time in order for additional activities to be completed.
c. Creative Deliverables. Creative Deliverables shall be defined as the end product of Custom Website Design services, the final delivered logo design, video media in final delivered form, photography media in final delivered form, the final end product of any Content services, the final end product of Social Media Management services, and the end product of any creative services defined in Section 1.b.
d. Creative Services. Our creative services include, but are not limited to, Custom Website Design, logo design, photography services, and general design and development time. All creative services are paid for with your Content Marketing budget. In some cases, we may provide an estimated bid for Creative Services. This estimated bid is provided based on the information received from you at the time of offer but is not a guarantee. If additional Content Marketing funds are required to complete the project, you will be notified before any additional charges, beyond the initial estimated bid, are incurred. In the event of increased costs, we will proceed only after receiving your approval (written or oral). Your approval of any cost increase shall be binding and incorporated into this Agreement. Our Creative Services necessarily require your input and cooperation. You agree to provide materials, direction, information, approvals, authorizations or decisions necessary for us to complete your project. We will work with you to complete your Creative Services project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the Creative Services.
e. Custom Website Design. Custom Website Design shall mean a website not based on one of our preexisting designs and that is developed pursuant to an hourly bid and scope of work signed by the Client. The words Custom Website Design will be prominently listed on any Custom Website Service Agreement.
f. Email Marketing. Email Marketing allows you to design, create, and send targeted marketing campaigns to your email marketing list through the Dinkum Prospect platform. The Email Marketing plan includes 2,500 emails per month at no additional charge. Email messages in excess of 2,500 per month will be charged $.004 per message ($10 per 2500 messages). Any excess charges due will accrue over the month and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused monthly email messages do not rollover from month to month. By using Email Marketing, you agree to the Dinkum Prospect Anti-Spam Policy located at dinkumprospect.com/antispam. The Anti-Spam Policy is incorporated into this Agreement by reference. You represent that you will use Email Marketing in compliance with all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity and defamation, and regulations such as HIPAA and other applicable privacy laws.) You agree not to use Email Marketing in a way that is obscene, harassing, threatening, libelous, or in any way that violates or infringes upon any 3rd Party intellectual property rights. You hereby agree to indemnify and hold harmless Dinkum Prospect against any damages, losses, liabilities, and expenses arising from an alleged violation of the foregoing or otherwise relating to your use of the Email Marketing services.
g. Local Service Ads. Using this program, we will assist you in getting approved, setting up, and running Google Local Service Ads programs. Local Service Ads are governed by the Google Local Service Ads Terms and Conditions. The Local Service Ads program requires a one-time background check as well as ongoing monitoring to ensure that you remain in compliance with the Google Local Service Ads program requirements. Your ability to run Local Service Ads may be revoked, at any time, in Google’s sole discretion. Local Service Ads are run using Ad Credits under the Model A Ad Credit model. All Local Service Ads are run under the Google Local Service Ads terms. If Google issues a refund for any service you offer under the Local Service Ads program, you agree to indemnify Dinkum Prospect from any losses, and immediately reimburse us for the amount of the refund. You further agree that we may offset any refund against your credits on file.
h. Dinkum Prospect Mobile App. Use of the Dinkum Prospect Mobile App (the “Mobile App”) is governed by the Mobile App End User License Agreement located at www.dinkumprospect.com/mobile-app-eula (the (“Mobile App EULA”). The Mobile App EULA is incorporated by this reference. The Mobile App allows you to access certain Marketing 360 Services via your mobile device. All services accessed via the Mobile App will be governed by these Terms and the Mobile App EULA. In the event of a conflict between the agreements these Terms will control.
i. Dinkum Prospect Platforms. The Dinkum Prospect Platforms include all of Dinkum Prospect 's software platforms and product offerings. These include, but are not limited to, Dinkumprospect.com and Dinkum Prospect Payments.
j. Onboarding Package. All Dinkum Prospect Base Platform accounts, come with an Onboarding Package. This Onboarding Package includes, as applicable, work to customize your Dinkum Prospect Platform account for your business, either the design of a new website or the integration of your existing website into the platform, and basic training for you or you or your employees on the use of the platform. The amount of your Onboarding Package is defined in your Service Agreement. If your Service Agreement does not define the Onboarding Package it shall be equal to $750.00. Dinkum Prospect may agree to waive some or all of the Onboarding Package with your agreement to an Initial Term of six (6) months or more. If you fail to complete your Initial Term you acknowledge that you must repay any previously waived Onboarding Package. See Section 6.c. for more information about early cancellation of your Service Agreement. In some earlier Service Agreements, the Onboarding Package may be referred to as the “Setup Fee.”
k. Print and Merchandise Services. Print and Merchandise Services are provided through partnerships with third party providers. All print services will be available for pickup at a to-be-determined location or will be shipped to Client at an address provided by Client. Your price and included Print Services will be included on your Service Agreement or otherwise communicated to you by your Marketing Success Manager. The timing and location of the delivery depends on the availability of the respective service.
l. Services. For the purposes of this Agreement, Services means any and all Products and Services offered by us pursuant to these Terms of Service.
m. SMS Marketing. Use our SMS Marketing platform to manage your text message marketing to engage new and existing clients and increase sales. The SMS platform can be used to create trackable, customized, and automated SMS campaigns. SMS Marketing requires a one-time $20 carrier registration fee and a recurring $2/mo carrier fee. For all active SMS Marketing Accounts, the Dinkum Prospect Base Platform payment allows you to send 250 messages per month to your subscribers at no additional cost. Messages in excess of 250 per month will be charged $.04 per message. Any excess charges due will accrue over the month, and you will be billed for these charges in arrears with your regular monthly marketing payment. Unused messages do not rollover from month to month. By using SMS Marketing, you agree to the Dinkum Prospect Anti-Spam Policy located at dinkumprospect/antispam. The Anti-Spam Policy is incorporated into this Agreement by reference. You are solely responsible for complying with all associated laws and regulations in conjunction with your SMS Marketing account including, but not limited to, CAN-SPAM and the TCPA. Further, you are solely responsible for validating and keeping accurate records of your SMS number list and confirming that all recipients have consented to receive SMS alerts from your business. You are solely responsible for the content of all SMS messages sent and agree to indemnify Dinkum Prospect in all matters related to SMS Marketing.
n. Social Media Posts and Social Media Management Services. You may use the dinkum prospect Platform to connect up to 10 social media profiles within Dinkum Prospect (additional profiles are an additional $1 per month) for self publishing. You may self publish 500 social media posts per month at no additional charge. Self published posts in excess of 500 each month will incur an additional fee of $.02 per post. If you have standard Social Media Management services added to your account, we will provide a dedicated Social Media Manager to help you manage your business’ social presence across your social media platforms. Your Social Media Manager will work with you to help engage and interact with your followers, optimize your profiles, and work to create more visibility and loyalty to your brand. Included in each standard plan are strategy research, up to 1 hour per month of engagement on each profile (engagement includes regular monitoring and communication on platforms to engage with followers, and response to comments, messages, posts and spam), content scheduling on your included profiles, and optimization and reporting on your profiles. The standard plan costs $300 per included profile per month. For example if you have three connected profiles (e.g. Facebook, Instagram, and Google Business) your monthly Social Media Management charge will be $900. There are custom Social Media Management Services, outside of the scope listed above, additional services that include chat bot management, influencer outreach, page admin dispute, event/giveaway management, and user-generated videos. Please consult your Marketing Success Manager or Social Media Manager for current prices on these additional services. All Social Media related ads or services are also governed by the terms of service of the platform in question (Instagram, Facebook, Twitter, LinkedIn, etc.).
o. Video Production Services. Your Content Marketing budget may be used to pay for Video Production Services. Before your Video Services project begins, we will provide you with a project bid which is an estimation of the Content Marketing budget required for your project based on the information you have provided. This would include, but not limited to; the time used by the project manager, designers, and video producer for the purpose of planning, designing, and production as herewith covered in this agreement. Unless specifically stated, Video Production Services do not include filming or media capture. In the event that additional video production and design time is required, either due to additional client requests, increased scope of the project, or design changes you will be charged an additional rate. The additional hourly charges, if any, will apply to the client’s project in excess of the estimated bid. In the case of time overruns, you will be notified before any additional charges, beyond the initial cost estimate, are incurred. We will proceed only after receiving your approval (written or oral). Your approval shall be binding and incorporated into the terms of this Agreement. Once completed, all media will be delivered through email. If you have a marketing services contract, the media may also be incorporated into the Client’s website, social media profile, or in an advertisement. Delivery of the finished media will only occur if the client has paid in full under the terms of this agreement. Finished media is considered a Creative Deliverable, but all raw footage, raw audio, or raw media capture is considered Dinkum Prospect work product. We do not store or provide raw video footage after delivery of the completed project. All raw video footage will be deleted 30 days after the delivery of the finalized media. If you want us to deliver the raw video footage it is available for an additional cost. You will also need to provide the removable storage drive for transport of raw footage. Video Production services necessarily require your input and cooperation. You agree to provide materials, direction, information, approvals, authorizations, or decisions necessary for us to complete your project. We will work with you to complete your video project on your timeline. However, if we do not hear from you for over one year, we may cancel your project and you will forfeit any amounts paid for the Video Production Services.
p. Website Hosting. Website hosting for up to one website is included with the Dinkum Prospect Platform for Marketing Clients upon request. Hosting for additional websites or for non-Marketing Clients is available at an additional charge. If your hosting services continue after the cancellation of marketing, such hosting services will continue to be governed by these Dinkum Prospect Terms of Service. BigCommerce, Shopify, and some other 3rd Party e-commerce site design files must be hosted on their respective servers. Upon cancellation of marketing, BigCommerce and Shopify sites will continue to be hosted on these platforms. If you have issues with your 3rd party website hosting, you must contact those entities directly.
q. Website Setup Fee. A one-time set up fee of $500 will be added to your first invoice if we develop a website for you.
2. Compliance with Laws/Prohibited Content. You shall not use nor permit the Services to be used in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, you may not use any of Dinkum Prospects’ Services for any illegal activity including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. This includes, but is not limited to, pirated software, copyrighted data or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Dinkum Prospect servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited. Dinkum Prospect may terminate this agreement if it determines, in its sole discretion, you have violated this policy.
3. Client Obligations. In addition to making all required payments, you shall (a) cooperate with Dinkum Prospect in all matters relating to the Services and provide access to your advertising accounts including your Google Adwords and Analytics accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Dinkum Prospect to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Dinkum Prospect may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Dinkum Prospect is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement.
4. Payment. Once you have executed your Service Agreement, Service Order or Online Order Form, you will be responsible for payment in full of all associated fees. Unless otherwise stated in your Service Agreement, all fees are due in US dollars. Unless otherwise stated, you will pay all fees due under this Agreement monthly, in advance. Fees for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date each month is the 25th. If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your Service Agreement. Dinkum Prospect shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to Dinkum Prospect and acknowledges that Dinkum Prospect is entitled to debit Client’s account for any ACH fees charged to Dinkum Prospect due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. Dinkum Prospect uses a credit card updating service that automatically updates credit card numbers when a credit card has expired or been replaced. You acknowledge that Dinkum Prospect has a right to charge any credit card updated in this manner in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.
5. Term/Termination.
a. Term. The Agreement shall begin on the Effective Date and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such periods. Unless otherwise stated in the Service Agreement, all Dinkum Prospect Site Only plans or website hosting plans have a twelve (12) month Initial Term, and all other plans have a six (6) month Initial Term. Your Initial Term may be extended by any added Service Order or Online Order Form. If there is a conflict the most recent agreement’s Initial Term shall control. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Term will be automatically renewed for successive six-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
b. Cancellation. You may cancel the services by providing no less than 30 days’ written notice of cancellation via mail or email addressed to your Marketing Success Manager or Project Manager, as applicable. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the current Renewal Term and will then be cancelled.
c. Early Cancellation. You acknowledge that Dinkum Prospect requires an Onboarding Package for all Dinkum Prospect Platform Accounts. Dinkum Prospect may waive some or all of this Onboarding Package for all accounts that sign up for an Initial Term of six (6) months or more. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both (1) written notification of cancellation and (2) any previously waived Onboarding Package.
The amount of your Onboarding Package is defined in your Service Agreement. If your Service Agreement does not define the Onboarding Package it shall be equal to $750.00. The Onboarding Package payment is in addition to your monthly payments to date and may not be paid with credits on file or any prior payment. No early cancellation of a Service Agreement will take effect until the previously waived Onboarding Package has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Onboarding Package, as applicable. Upon execution of this agreement, Dinkum Prospect will be investing considerable work into your business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term or any subsequent Renewal Term. Client recognizes the aforementioned investment, up-front sales, setup, and opportunity costs that Dinkum Prospect bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Dinkum Prospect for early cancellation of the Services. Clients who signed a Service Agreement prior to May 2021 do not have an Onboarding Package, but instead may cancel prior to the end of the Initial Term only by paying a Setup Fee or an Early Cancellation Fee. The Setup Fee or Early Cancellation Fee, if applicable, will be defined in your Service Agreement. You acknowledge the aforementioned investment, up-front sales, setup, and opportunity costs that Dinkum Prospect bears in connection with your Service Agreement, and you acknowledge that this Early Cancellation Fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Dinkum Prospect for early cancellation of the Services.
d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation after you have made a cancellation request, in which case the Service Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.
e. Dinkum Prospects’ Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect at the end of the then-current billing period. Written notice may be provided to you via email. If we terminate this Agreement pursuant to this Section 5.e, we will reimburse you for any unused credits and funds within 30 business days from the effective cancellation date.
f. Pause or Downgrade of Service. During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in Dinkum Prospects’ sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade will be effective without a signed written confirmation from both Dinkum Prospect and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. After the Initial Term a downgrade that fully eliminates the recurring portion of certain services (e.g., Content Marketing, Ad Credits, Social Media Management, etc.) shall be deemed a cancellation of such services and will terminate all Dinkum Prospect obligations related to that service at the end of the then current billing cycle. Further, the Parties agree that any downgrade that eliminates the Dinkum Prospect Base Platform Fee (e.g., a downgrade to hosting services only) will terminate all Dinkum Prospect obligations related to those removed services. The Parties agree that the preceding two sentences shall not apply to temporary downgrades accompanied by a signed agreement. You may upgrade or reinstate services at any time with a written or oral request.
g. No Refunds and Unused Credits. Unless we cancel the agreement pursuant to Section 5.e., no refunds will be provided for any amounts already paid to Dinkum Prospect. Upon cancellation of this agreement by you for any reason, any and all unused funds, credits or creative hours will be forfeited. If you downgrade to hosting-only services or any other recurring services that do not include the Dinkum Prospect Platform License Fee, any and all unused funds, credits, or creative hours remaining in your account at the time of the downgrade will be forfeited. The preceding sentence does not apply to temporary downgrades with a signed agreement.
h. Account Records on Termination. Upon termination, at your election, we will preserve an archive of your account records and data for an annual fee. If you do not elect to archive your account records, we are under no obligation to maintain any customer records after your account is terminated, and we may delete your account records at any time. Notwithstanding the foregoing, we will preserve account data to the extent necessary for us to comply with our own document retention obligations.
6. Intellectual Property.
a. Your License Grant to Dinkum Prospect. During the Term, you hereby grant to Dinkum Prospect a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing Dinkum Prospect to perform the Services. This license will terminate upon termination of the Service Agreement.
b. Ownership of Creative Deliverables and Content. Upon receipt by Dinkum Prospect of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. Dinkum Prospect will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and Dinkum Prospect reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes.
c. Ownership of non-custom Website Design. Notwithstanding Section 6.b. and Section 6d, Dinkum Prospect retains all copyrights in all non-custom website designs delivered under this Agreement in accordance with Section 1.i. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by Dinkum Prospect for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty-free, revocable, non-transferable license to use, copy, and publish any website design and related materials delivered to Client under this Agreement. Dinkum Prospect reserves the right to revoke this license only if either (1) Client does not fulfill the Initial Term and/or pay the waived Setup Fee or (2) Client initiates a payment dispute for any past payment.
d. Dinkum Prospect License. Dinkum Prospect grants Client, during the Term for which Client has paid the applicable Fees, a non-exclusive, non-transferable and revocable license, subject to this Agreement and any qualifications contained herein, to access and use the Dinkum Prospect Service for displaying a Dinkum Prospect website design on our website servers. This license is limited, non-sublicensable, and intended solely for the purpose of accessing and using the Dinkum Prospect Service in connection with the creation of Client websites hosted by Dinkum Prospect. This license to access the Dinkum Prospect will terminate upon cancellation or non-payment of any applicable fees.
e. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns or other information (collectively, “Work Product”) developed in whole or in part by Dinkum Prospect during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of Dinkum Prospect.
f. Trademarks. All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the Dinkum Prospect trademarks without the express written consent of Dinkum Prospect is prohibited.
7. Authorization and Limited License to the Access Dinkum Prospect Software Platforms. Upon execution of a marketing Service Agreement, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive limited license to access the Dinkum Prospect Software Platforms. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the Dinkum Prospect Platforms, software, data, applications, methods of doing business, or any other content provided through Dinkum Prospect whether expressly, by implication, estoppel, or otherwise. All rights, title, and interest in and to the Dinkum Prospect Platforms and Services, are and will remain with Dinkum Prospect. You may only access the Dinkum Prospect Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the Dinkum Prospect Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of Dinkum Prospect Platform or Services;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Dinkum Prospect Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Dinkum Prospect systems, in whole or in part;
(d) bypass or breach any security device or protection used by the Dinkum Prospect Platforms or Services, or access or use the Dinkum Prospect Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Dinkum Prospect’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Dinkum Prospect’s systems or Dinkum Prospect’s provision of services to any 3rd Party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other Dinkum Prospect materials, including any copy thereof;
(h) access or use the Dinkum Prospect Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Dinkum Prospect or any 3rd Party or in a way that violates any applicable law;
(i) access or use the Dinkum Prospect Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Dinkum Prospect’s detriment or commercial disadvantage. In addition to the other remedies Dinkum Prospect may have, Dinkum Prospect may terminate the foregoing license and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this license.
8. Representations. By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. You further represent that you have the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to Dinkum Prospect for use in conjunction with the services.
9. Agency. If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by these Terms of Service.
10. DISCLAIMER OF WARRANTIES. DINKUM PROSPECT PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, DINKUM PROSPECT’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DINKUM PROSPECT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, DINKUM PROSPECT MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
11. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DINKUM PROSPECT SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO DINKUM PROSPECT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, DINKUM PROSPECT IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S DINKUM PROSPECT ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
12. Dispute Resolution.
a. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
b. Exceptions to Agreement to Arbitrate. Dinkum Prospect may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties' agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Prince George’s County, Maryland. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
c. Costs and Attorney’s Fees: You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by Dinkum Prospect in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). If you dispute any payment with your credit card company or bank, and such dispute is resolved in Dinkum Prospect’s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Dinkum Prospect for the additional costs incurred in defending your payment dispute. Except as otherwise provided in this Section, the Parties will be responsible for their own costs and legal fees.
d. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
13. Indemnification. You agree to indemnify, defend, and hold Dinkum Prospect harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any claims it may have against Dinkum Prospect arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Dinkum Prospect against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
14. Non-Solicitation. You agree not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of Dinkum Prospect or its subsidiaries, or induce the termination of employment of any Dinkum Prospect employee during the Term and for a period of three (3) years following the termination of this Agreement.
15. Miscellaneous.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Maryland without giving effect to conflict of laws principles.
b. Entire Agreement. These Terms of Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Dinkum Prospect limits acceptance of these agreements, and objects to any additional or different terms in the Client’s acceptance.
c. Amendment/No Waiver. We may update and change any part or all of these Terms of Service. If we update or change the Terms of Service, the updated Terms of Service will be posted at http://dinkumprospect.com/terms and we will let you know via email and/or via notification in the Dinkum Prospect Platforms. You will be asked to agree to the updates in the Dinkum Prospect Platforms. If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your Initial Term or your current Renewal Term. Upon renewal, the Terms of Service published on our website will apply. Any material amendment to your Service Agreement must be contained in writing and executed by the Parties. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party's right to require performance at any time thereafter.
d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
f. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon written notice to the other Party.
g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third-party website or product does not mean we endorse, support or warranty the 3rd Party site or product. We do not warranty the performance of any third-party product or service.
i. HIPAA. If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Dinkum Prospect makes no claims or warranties regarding compliance with HIPAA.
j. EU/EEA Data Processing. To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, such processing will be undertaken knowing that in all cases Dinkum Prospect acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and consent to process any GDPR data shared with Dinkum Prospect under this Agreement.
k. Google Third Party Disclaimer. Dinkum Prospect resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s “Working with a Third-Party Disclaimer” located at http://www.google.com/adwords/thirdpartypartners/.
l. Facebook Advertising Guidelines. Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time).
m. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created.
n. Referrals. Dinkum Prospect may provide incentives to 3rd parties to introduce potential Clients to Dinkum Prospect. From time to time, Dinkum Prospect may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Dinkum Prospect.
o. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Dinkum Prospect as of the effective date of termination.
p. Subcontracting. Dinkum Prospect may, without your consent, subcontract to any party the performance of all or any of Dinkum Prospect’s obligations under this Agreement provided that Dinkum Prospect remains primarily liable for the performance of those obligations.
q. Taxes. Sales tax and/or VAT tax may be added to certain products or services in certain states and countries. Sales and VAT taxes are automatically calculated based on Client’s billing address and the product or services on Client’s invoice. Client is responsible for any sales, use or VAT taxes not collected by Dinkum Prospect.
r. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.
s. CCPA Contract Clauses. If we are processing data for you that is protected by the California Consumer Privacy Act (CCPA) such data will be processed in accordance with CCPA Contract Clauses. If you are covered by the CCPA, it is your obligation to inform us of those obligations so that we can provide you with the CCPA Contract Clauses to sign.
t. Trade Name. Dinkum Prospect is a federally registered trademark.
u. Communication Preferences. You consent to receiving electronic and telephone communications from us relating to your account or the Services during and after the Term. These communications may involve telephone calls to any number you provide, SMS text messages to a phone number you provide, sending emails to any email address you provide, and posting communications to you in the Dinkum Prospect Platforms. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new features and content, special offers, promotional announcements and customer surveys via email or other methods. Please review our Privacy Policy for further detail on our marketing communications.
v. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section.
w. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
x. Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.
y. ADA Compliance. You are solely responsible for all accessibility obligations related to your website including, but not limited to, maintaining your website’s compliance with the Americans with Disability Act (ADA). We recommend you consult with an attorney versed in ADA compliance or with third-party ADA website compliance service provider to ensure that your website is suitably accessible.
z. Opt out of Messages
You can cancel the SMS service at any time. Simply text "STOP" to the shortcode. Upon sending "STOP," we will confirm your unsubscribe status via SMS. Following this confirmation, you will no longer receive SMS messages from us. To rejoin, sign up as you did initially, and we will resume sending SMS messages to you.
If you experience issues with the messaging program, reply with the keyword HELP for more assistance, or reach out directly to 301-900-2735. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for messages sent to you from us and to us from you. Message frequency varies. For questions about your text plan or data plan, contact your wireless provider. For privacy-related inquiries, please refer to our privacy policy: www.dinkumprospect.com/privacypolicy/.