Digital Media Solutions® Website Terms and Conditions
Each end-user (“User,” “you” or “your”) agrees to the terms and conditions of the Agreement in their entirety, when she/he/it: (a) accesses or uses the Site; (b) accesses and/or views any of the videos, audio, stories, testimonials, text, photographs, graphics, artwork, information and/or other content featured on the Site, as made available by Company (collectively, the “Content”); (c) accesses information pertaining to Company’s various marketing products and/or services (collectively, the “Company Services”) including, without limitation, the TRAX™ Technology platform (“Company Platform”); (d) utilizes the contact form and/or other functionality as a means to request being contacted by Company (collectively, “Contact Services”); (e) accesses information regarding employment opportunities with Company (“Career Opportunity Services”); and/or (f) accesses links to Company’s social media pages/accounts on third-party social media websites, such as Facebook®, Instagram®, LinkedIn®, Glassdoor® and Twitter® (collectively, “Social Media Pages,” and together with the Site, Content, Company Services, Company Platform, Contact Services and Career Opportunity Services, the “Company Offerings”).
By using and/or accessing the Company Offerings, Users agree to comply with and be bound by the Agreement in its entirety. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO ACCESS, DOWNLOAD AND/OR USE, AS APPLICABLE, THE COMPANY OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY AND RELEASES. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
Instagram® and Facebook® are registered trademarks of (“Facebook”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that Company is not in any way affiliated with Facebook, LinkedIn or Twitter, and the Company Offerings are not endorsed, administered or sponsored by Facebook, LinkedIn or Twitter.
- Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between Users and Company with respect to such Users’ use of the Company Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that any amendment or modification to the provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Company Offerings. By your continued use of any of the Company Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).
- Requirements; Necessary Equipment. The Company Offerings are available only to individuals who can enter into legally binding contracts under applicable law and are acting in their capacity as duly authorized representatives of a valid business entity. The Company Offerings are not intended for use by individuals: (a) under eighteen (18) years of age (or the applicable age of majority in their respective jurisdictions, if greater than eighteen (18) years of age); or (b) not acting in their capacities as duly authorized representatives of valid business entities. If a User is under eighteen (18) years of age (or the applicable age of majority in their respective jurisdictions, if greater than eighteen (18) years of age), if that User is unable to enter into legally binding contracts under applicable law, and/or if that User is not in acting in her/his capacity as a duly authorized representative of a valid business entity, that User does not have permission to access or use the Company Offerings.
Users shall be responsible, at all times, for ensuring that they have an Internet connection, computer/mobile device, up-to-date Internet browser version, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the Company Offerings. Company does not guarantee the quality, speed or availability of the Internet connection associated with any mobile device and/or computer. Company does not guarantee that the Company Offerings can be accessed: (i) on all mobile devices; (ii) through all wireless service plans; (iii) in connection with all Internet browsers; and/or (iv) in all geographical areas. Standard messaging, data and wireless access fees may apply to use of the Company Offerings through a wireless device. Users are fully responsible for all such charges and Company has no liability or responsibility to any User, whatsoever, for any such charges billed by any wireless carrier.
- Registration; Compliance with Applicable Law; Termination of Access to the Company Offerings.
(a) Registration. In connection with obtaining access to the Company Offerings and/or otherwise completing the Site registration process, Company will collect the following information applicable to the User: (i) the name of the User’s business entity (“Entity”) (as well as any applicable Entity’s trade name and business entity type (e.g., corporation, limited liability company, partnership, etc.)); (ii) the Entity’s street address; (iii) the Entity’s primary contact’s full name; (iv) the Entity’s primary contact’s e-mail address; (v) the Entity’s primary contact’s telephone number; (vi) the User’s full name, mailing address, e-mail address, telephone number, resume and career-related information (where the User is utilizing the Career Opportunity Services); and/or (vii) any other information requested on the applicable form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete (or if the Registration Data becomes untrue, inaccurate, not current or incomplete), or Company has reasonable grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Company Offerings (or any portion thereof).
(b) Compliance with Applicable Law. User represents and warrants that it, the Entity that it represents and its respective commercial efforts associated with the Company Offerings, as well as its business practices in general, shall fully comply with all applicable state and federal laws, rules, Federal Trade Commission and Federal Communications Commission implementing regulations, international laws, rules and regulations including, but not limited to (and any state law analogue), the Gramm-Leach Bliley Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended, the California Consumer Privacy Act, Canada’s Anti-Spam Legislation, the EU General Data Protection Regulation, the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time, the Federal Communications Act, the Amended Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(iii), and laws governing the National Do-Not-Call Registry, and any and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”).
(c) Account Security. We do not generally offer or maintain persistent accounts for any individual or group of Users. If applicable, User is responsible for maintaining the confidentiality of User’s account information and password, and for restricting access to the account. User agrees to accept responsibility for all activities that occur by and through User’s account and/or password. We strongly recommend that you exit from your account at the end of each session. You agree to notify Company immediately of any unauthorized access to, loss of data from, and/or use of, your account or any other breach of security.
(d) Termination. Company may terminate a User’s access to the Company Offerings at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where Company believes that such User is: (i) in any way in breach of the Agreement; and/or (ii) engaged in any improper conduct in connection with the Company Offerings.
- Company Platform and Company Services. The Company Platform and Company Services provide an array of marketing solutions, strategies and tools to third-party entities. The Company Platform and Company Services, and their respective features, details, functionality and offerings, are each further described in, and at all times subject to, separate agreements to be entered into by and between Company and the applicable third-party (“Company Offering Agreements”). Company does not guarantee any sales outcome, revenue or other financial or business-related benefit in connection with use of the Company Platform and/or Company Services.
- Content. The Site contains Content which includes, but is not limited to, blog posts, videos, audio, stories, testimonials, text, photographs, graphics, artwork, information pertaining to trade shows and industry events and/or other materials regarding the Company Offerings. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
- Social Media Pages. The Site contains links to the various Company Social Media Pages. The Social Media Pages are hosted and made available on third-party websites (“Social Media Websites”) by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that Company shall not be liable to you or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
- License Grant. As a User of the Company Offerings, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Company Offerings and associated content in accordance with the Agreement. Company may terminate this license at any time for any reason. You may use the Company Offerings on one computer for your own personal, non-commercial use. No part of the Company Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Company Offerings or any portion thereof. Company reserves any rights not explicitly granted in the Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Company Offerings. You may not take any action that imposes an unreasonable or disproportionately large load on Company infrastructure. Your right to use the Company Offerings is not transferable.
- Proprietary Rights. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the Company Offerings are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution, publication or sale by you of any part of the Company Offerings is strictly prohibited. Systematic retrieval of material from the Company Offerings by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company is strictly prohibited. You do not acquire ownership rights in or to any content, document, software, services or other materials viewed by or through the Company Offerings. The posting of information or material on or through the Company Offerings by Company does not constitute a waiver of any right in or to such information and/or materials. The “Digital Media Solutions”, “DMS Engage”, “DMS Consumer Finance”, “DMS Education”, and “TRAX Technology” names and logos, and all associated graphics, icons and service names, are trademarks of Digital Media Solutions, LLC. All other trademarks, including those associated with the Products, are the property of their respective owners. The use of any trademark without the applicable trademark owner's express written consent is strictly prohibited.
- Representations and Warranties. User hereby represents and warrants to Company as follows: (a) this Agreement constitutes the legal, valid and binding obligation of User and the Entity that she/he represents, which is fully enforceable against User and that Entity in accordance with its terms; (b) User understands and agrees that User and the Entity that she/he represents has independently evaluated the desirability of utilizing the Company Offerings and that neither User, nor the Entity that she/he represents, has relied on any representation and/or warranty other than those set forth in the Agreement (as well as any applicable Company Offering Agreement(s)); (c) the execution, delivery and performance of the Agreement by User and the Entity that she/he represents will not conflict with or violate: (i) any order, judgment or decree applicable to User and/or the Entity that she/he represents; (ii) any provision of the Entity’s corporate by-laws, certificate of incorporation or other organizational documents, if applicable; or (iii) any agreement or other instrument applicable to User and/or the Entity that she/he represents; and (d) the performance under this Agreement, the use of the Company Offerings and any and all other material, content, products and/or services of User and/or the Entity that she/he represents, will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable Law; and/or (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
- Indemnification. Each User and the Entity that she/he represents agrees to indemnify, defend and hold Company, its employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) that User’s/Entity’s improper and/or unauthorized use of the Company Offerings; (b) that User’s/Entity’s breach of the Agreement in any manner whatsoever; and/or (c) that User’s/Entity’s violation of any rights of another individual and/or entity. The provisions of this Section 10 are for the benefit of Company, its parent, subsidiaries and/or affiliates, and each of their respective members, officers, directors, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
- Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Company Offerings is a violation of criminal and civil law and Company will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
- Disclaimer of Warranties. THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMPANY MAKES NO WARRANTY THAT THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL MEET ANY USER’S/ENTITY’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC SALES, REVENUE OR BUSINESS RELATED BENEFIT OR OTHER FINANCIAL OUTCOME; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE COMPANY OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM COMPANY OR OTHERWISE THROUGH OR FROM THE COMPANY OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
- Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE TO THAT USER, THE ENTITY THAT SUCH USER REPRESENTS OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FOR: (A) THE USE OR INABILITY TO USE THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE COMPANY OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS, ENTITIES AND/OR THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S AND/OR ENTITY’S REGISTRATION DATA; (E) THE FAILURE TO REALIZE ANY SPECIFIC SALES, REVENUE OR BUSINESS RELATED BENEFIT OR OTHER FINANCIAL OUTCOME; AND (F) ANY OTHER MATTER RELATING TO THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER, ON HER/HIS BEHALF AND ON BEHALF OF THE ENTITY THAT SHE/HE REPRESENTS, HEREBY RELEASES COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF COMPANY TO ANY USER AND/OR ENTITY UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE COMPANY OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY USER, ENTITY OR COMPANY MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER, ENTITY AND COMPANY. ACCESS TO THE COMPANY OFFERINGS WOULD NOT BE PROVIDED TO ANY USERS AND/OR ENTITIES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF COMPANY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Third-Party Websites. The Company Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Social Media Websites. Company does not control the information, products or services made available on or through these third-party websites. The inclusion of any link does not imply endorsement by Company of the applicable website or any association with the website’s operators. Because Company has no control over such websites and/or resources, each User/Entity agrees that Company is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any User’s/Entity’s data privacy by third parties. Each User/Entity further agrees that Company shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such website.
- Editing, Deleting and Modification. Company reserves the right, in its sole discretion, to edit and/or delete any documents, information or Content appearing on the Site.
- Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). In the event that any suit, action or other legal proceeding shall be instituted against any User or Company (each a “Party” and collectively, the “Parties”) in connection with the Agreement and/or Company Offerings, each Party hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State Court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction. If any litigation, action or other proceeding is threatened and/or commenced between the Parties or their personal representatives arising out of, concerning and/or related to any provision of the Agreement and/or the Company Offerings, or the assertion and/or protection of any issue, interest, right and/or duty of any person in relation thereto, whether or not litigation is actually initiated, the prevailing Party shall be entitled to recover from the non-prevailing or defaulting Party, in addition to other relief as may be granted, its reasonable attorneys’ fees in either prosecuting and/or defending such threat, actual litigation, mediation and/or settlement efforts including, but not limited to, pre-litigation, litigation, trial, post judgment collection, appellate and bankruptcy-related legal fees and costs.
- Miscellaneous. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Company Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Notwithstanding the foregoing, to the extent that there is any inconsistency between these Terms and Conditions and the Company Offerings Agreement, insofar as the applicable Company Offerings are concerned, the Company Offerings Agreement shall govern. Company’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement.Company may, with or without notice to you and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third-party for any purpose. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- Electronic Signatures. You acknowledge and agree that by clicking on the opt-in, contact us, or other button used to submit information, or taking such other action as may be designated by Company as a means of accepting all or a portion of the Agreement, you are submitting a legally binding electronic signature and entering into a legally binding contract. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by the Agreement. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE AND/OR OTHER COMPANY OFFERINGS. Further, you hereby waive any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which require(s): (a) an original signature; (b) delivery or retention of non-electronic records; and/or (c) payments, or the granting of credits, by other than electronic means.
- Contact Us. If any User has any questions about the Agreement, Company Offerings or the practices of Company, that User can email us as at: [email protected]; call us at: (877) 423-1366; or send us mail to the applicable office location listed on our “Contact Us” page.