The following are the Professional Services Terms that govern the delivery of the Professional Services provided by dotdigital to the Client under a Service Agreement or statement of work (“SOW”) which is executed by and between the parties or as otherwise references these Professional Services Term. These Professional Service Terms shall be in addition to any obligations set out in the dotdigital Terms as located at https://www.dotdigital.com/terms. or as otherwise agreed between the parties, unless otherwise specified.
All capitalised terms in these Professional Services Terms shall have the meaning as prescribed by the dotdigital Terms as located at https://www.dotdigital.com/terms or as otherwise agreed between the parties, unless otherwise specified.
1. Project Authorization and Services
1.1
The “Professional Service(s)” provided under these Terms and Conditions will be those set forth in any Service Agreement, SOW, or as otherwise communicated & made available by dotdigital. The Professional Services may include
(a) configuration, implementation, training or other consultation related to a dotdigital product or service that Client has received rights to use under a separate Service Agreement, and/or
(b) strategic, advisory, design and/or other consulting services related to digital marketing.
For the avoidance of doubt, Professional Services shall be deemed a Service as described under the Terms, subject to the additional terms herein.
1.2
These Professional Services Terms shall remain in force for the duration of the delivery of the Professional Services or SOW until completed.
2. Payment for Professional Services
2.1
The Client acknowledges that Professional Service fees may be agreed on the basis of a scope of work or SOW. Payment for Professional Services shall be as agreed in a Service Agreement or as otherwise agreed between the parties.
2.2
The Client may purchase Professional Service credits under a Service Agreement. Client acknowledges that Professional Services ordered under this basis will result in a deduction of credits attributable to the Client for the quantity of credits communicated by dotdigital for each particular Professional Service.
2.3
If any change affects the time or cost of performance under the applicable SOW, an adjustment in the time and/or compensation (or credits, as applicable) to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective.
2.4
Client is responsible for all applicable taxes due on the Professional Services rendered hereunder. As applicable, dotdigital shall be reimbursed for reasonable travel expenses.
3. Provision of Professional Services
3.1
dotdigital will perform Services based on a schedule mutually agreed to by the parties, as set out in a Service Agreement or SOW. Once booked cancellation and/or reschedule requests must be received at least 7 days prior to any specified date relating to delivery of a Professional Service. Failure to do so will result in forfeiture of the fee or credit.
3.2
Any Professional Service specified in Service Agreement to be redeemed by a Client must be redeemed within the specified period as stipulated by dotdigital, on a date and time to be agreed with dotdigital. Unless due to the availability of dotdigital, any failure to redeem the Professional Service as ordered (in whole or in part) will result in forfeiture of the entirety of the fee or credit and no credits or refunds, pro rata or otherwise, will be provided.
3.3
Services will ordinarily be performed by a dotdigital service representative or other authorized representative of dotdigital. Client agrees, however, that dotdigital, in its sole discretion, may provide the Services through a third-party representative.
4. Access
4.1
Client shall provide dotdigital with access to data, materials, software and hardware as reasonably required for dotdigital to perform the Professional Services (“Client Materials”). Client hereby grants dotdigital a limited right to use such Client Materials solely for the purpose of performing the Professional Services hereunder.
4.2
Client represents and warrants that it has all rights necessary in the Client Materials to provide them to dotdigital for such purpose. The Client shall provide dotdigital with safe access to Client’s environments as reasonably required for dotdigital to perform the Professional Services.
4.3
Dotdigital shall not be responsible for failures or delays in performing Services due to Client’s failure or delay to provide access to Client Materials or Client environments or due to Client-imposed or government-imposed security requirements.
5. Third-Party Platforms and Data
5.1
For certain Professional Services, the Client may provide dotdigital with access to certain data and materials (“Third-party Data”) accessed through Clients’ accounts (“Third-party Accounts”) with Third-party application platforms through which Client offers its Site to end users (“Third-party Platforms”). “Site” means those websites, Third-party Platforms, applications or devices owned or controlled by Client or a Third-party for which Client wishes to, and has the authority to, use the dotdigital tracking code, dotdigital APIs, Third-party APIs, or any other collection methods to collect or upload data in connection with the Professional Services. For these Professional Services, dotdigital will need rights to access, upload and view the Third-party Data by using Client’s credentials to access Third-party Accounts.
5.2
Client acknowledges and agrees that Professional Services related to any Third-party Data or Third-party Platforms are conditioned and dependent upon the applicable Third-party Platform allowing access to Client’s Third-party Account and Third-party Data by dotdigital, as a service provider of Client.
5.3
The Client shall provide dotdigital with timely and appropriate access to its Third-party Account credentials and password (“Third-party Account Information”) to enable dotdigital to access Client’s account on Third-party Platforms.
5.4
The Client acknowledges and agrees that dotdigital’s provision of the Professional Services related to any Third-party Data is conditioned upon dotdigital’s receipt of correct and accurate Third-party Account information from Client, and to the continuing practices, policies, APIs and/or terms of use of applicable Third-party Platform providers making data available in the format necessary to retrieve through the Professional Services free of charge or restrictions.
5.5
dotdigital is not responsible for any changes or dysfunction of the results of the Professional Services arising from any changes to practices, policies, APIs or terms of use of the Third-party Platform providers.
5.6
The Client hereby grants dotdigital the right to, for the sole purpose of providing Professional Services, if such right is necessary to provide the Professional Services as agreed: (a) access Client’s Third-party Accounts, (b) access and retrieve Third-party Data from the Third-party Platforms via Client’s Third-party Accounts, (c) collect, store, use, distribute, copy, modify and process any Third-party Data accessed via its Third-party Account solely to provide the Services’ and (d) take such action with respect to Client’s Third-party Accounts as appropriate in order to provide the Professional Services.
5.7
The Client shall ensure that the optimization, collection, uploading, transmission, processing and storage of Third-party Data and any other data provided by Client in connection with Client’s use of the Professional Services at all times comply with (i) Client’s own policies regarding privacy and protection of user information, (ii) all applicable third-party terms and privacy policies, including all applicable Third-party Platform terms, and (iii) all applicable laws, rules and regulations, including those related to optimization, processing, storage, use, reuse, disclosure, security, protection and handling of Third-party Data.
6. Intellectual property rights
6.1
The Client has and will retain sole and exclusive right, title and interest in and to all Client Confidential Information, Client Materials, Third-party Data, and Third-party Account Information (collectively, “Client Materials”), including any and all intellectual property rights therein.
6.2
dotdigital has and will retain sole and exclusive right, title and interest in and to all dotdigital Confidential Information, dotdigital products, dotdigital service, and all dotdigital technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein. However, dotdigital’s ownership rights do not extend to Client Materials embedded or incorporated in the foregoing items.
6.3
Unless expressly stated otherwise, dotdigital will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Professional Services, excluding any and all Client Materials, including any and all intellectual property rights therein (“Deliverables”).
6.4
Upon full and final payment of all fees and expenses owing to dotdigital, dotdigital hereby grants to Client the same rights to use the Deliverables as the rights granted to Client under the Service Agreement and Terms with respect to the dotdigital Services to which such Deliverables pertain.
6.5
If applicable, based on the description included in the applicable Service Agreement, SOW or otherwise, upon full and final payment of all fees and expenses owing to dotdigital, dotdigital hereby grants to Client a non-exclusive, worldwide, non-transferable, royalty-free license to access and use the Deliverables provided to Client for the duration of the Initial or Renewal Term where dotdigital is providing Services to the Client (as specified in a Service Agreement).
7. Warranty
7.1
The Professional Services are provided “as is” and dotdigital expressly disclaims any and all other warranties of any kind or nature whether express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, noninfringement, design or suitability, or quality of service. Where applicable, where Client approves any Deliverable, Client is confirming that Deliverable conforms to any requirements as communicated and as agreed between the parties.
7.2
dotdigital does not guarantee in any way that the results of any analysis and reports it produces are accurate. No warranties shall arise under these Professional Services Terms from course of dealing or usage of trade.
7.3
Notwithstanding anything herein to the contrary, none of dotdigital’ representations, warranties or obligations under these Professional Services Terms shall apply with respect to Third-party Data or Third-party Platforms. dotdigital makes no warranties or representations and will have no liability or responsibility for any Third-party Data, including the accuracy or legality of the same.
8. Liability
8.1
Notwithstanding anything in these Professional Services Terms to the contrary, the entire liability of either party to the other arising out of these Professional Services Terms for the Professional Services performed hereunder shall be limited to the amount actually paid by the Client to dotdigital for the Professional Services. In no event shall either party be liable for any indirect, special, exemplary, incidental or consequential damages (including loss of profits or data) whether based on contract, tort (including negligence), strict liability or any other legal theory, even if such party was advised of the possibility of such damages in advance.
8.2
The parties agree that the limitations specified in 8.1 will survive and apply even if any limited remedy specified in these Professional Services Terms is found to have failed of its essential purpose.
9. General
9.1
These Professional Services Terms shall not be deemed to create any partnership or employment relationship between the parties. dotdigital is, and throughout the term of these Professional Services Terms shall be, an independent contractor, and not an employee, partner or agent, of Client.
9.2
Each party agrees to these Professional Terms being subject to the applicable law of the country or state where the relevant dotdigital entity to a Service Agreement is located, without regard to choice of law or conflict of law rules. Further, the courts of the country or state where the relevant dotdigital entity is located shall have exclusive jurisdiction to determine any disputes arising under the Professional Service Terms.
9.3
dotdigital may at its reasonable discretion, change or modify the Professional Service Terms or Professional Services to comply with a change in any applicable law upon giving the Client 30 (thirty) days’ notice of the same either by email or notification on the website (www.dotdigital.com) . Within a further 14 (fourteen) days from the expiry of such 30 (thirty) days’ notice, the Client may notify dotdigital in writing that it wishes to terminate these Terms with effect from the date of any proposed change to the Terms or Services. dotdigital may then choose to either accept the notice of termination from the Client, alter the Terms or Service or withdraw its notice to the Client. If no such notice is received from the Client, the Client shall be deemed to have accepted the changes made by dotdigital.
9.4
Each party warrants to the other that it has the power and authority:
(a) to enter into these Professional Service Terms; and
(b) to perform its obligations under these Professional Service Terms.
9.5
Nothing contained in these Professional Services Terms is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.
9.6
No act, failure or delay to act, or acquiescence by dotdigital or the Client in exercising any of its rights under these Professional Services Terms shall be deemed to be a waiver of that right or in any way prejudice any right of dotdigital or the client under these Professional Services Terms, and no waiver by dotdigital of any breach of these Professional Services Terms by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation whether partly or wholly of any of the terms or conditions of these Professional Services Terms shall be valid only if in writing and signed by or on behalf of dotdigital and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of these Terms.
9.7
If any provision of these Professional Services Terms is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from these Professional Services Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Professional Services Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Professional Services Terms.
