- Terms and Conditions
TERMS & CONDITIONS
Everything agreed to between the sales contractor and the customer must be in writing. The home office of DigiTouch Media, Inc will not honor verbal agreements.
Published prices obtained from DigiTouch Media, Inc. are subject to change without prior notice. All published prices and/or written quotations will be honored for 60 days after the date of the original quotation.
Shipping and Handling:
Free shipping offer excludes wearables and certain promotional items.
Free shipping only applies to delivery addresses within the 48 Contiguous United States-shipping charges may apply when shipping to Hawaii and Alaska.
If applicable, all shipping and handling charges are additional to the cost of the order and are added at invoicing.
All orders must have a 50% deposit prior commencement of work, with the full balance due with the final proof. Payment may be a company check or by credit card (Visa, Master Card, American Express). There will be a $35.00 fee for all returned checks in addition to the original amount due.
Past Due Invoices:
All past due invoices are subject to a 2% late charge per month plus collection costs.
Payment by Credit Card:
Clients paying by credit card agree to be bound by DigiTouch Media, Inc. Terms and Conditions, as well as design specifications.
Card Holder and Client Responsibilities:
Card Holder and/or Client specifically agree to pay all costs incurred if their order is prematurely canceled and it is understood that no credit will be provided for returned orders. Client agrees to supply copy of the front and back of their credit card if requested for signature comparison. The order amount will be charged to the credit card at the time of the order is submitted.
Returns for Credit:
Orders returned for credit must be done at the Client's expense. No credit will be issued without the prompt return of the entire order. Credit may only be applied to replacement of future orders. No refunds will be provided. Company Credit only.
No order may be canceled after acceptance however, we understand that under certain circumstances this may become necessary in which case a credit will be issued for future orders less payment of all charges for work performed at cancellation point. *NOTE* There is a $35.00 cancellation fee. Any graphic design work completed will be charged at $60 per hour. Any multimedia design work will be charged at $95 per hour.
DigiTouch Media, Inc. at its sole option will repair or reprint any order that contains abnormal imperfections, fails to provide reasonable representation to the approved color proof or where we have failed in adhering to written Client instructions or written approval. DigiTouch Media, Inc. at its sole option may elect to provide a pro-rated credit in lieu of a reprint if the shortage, defective or damaged portion of an order does not exceed 20% of the ordered amount. Claims for defects, damages or shortages must be made by the Client in writing within (10) days after delivery. The Client must receive a written authorization to return a defective order or portion in advance of return. Defective orders must be returned within (30) days after delivery. DigiTouch Media, Inc. sole liability shall be limited to the reprinting of any defective order or portion and in no case shall included special or consequential damages including customer expenses, profits or profit loss.
Client hereby affirms ownership and/or publishing rights to all artwork, photos and other materials submitted for printing and agrees to indemnify and hold harmless DigiTouch Media, Inc. and its affiliates and employees from any and all loss, cost expense and damage on account of any and all manner of claims demands, actions and/or proceedings that may be levied against DigiTouch Media, Inc. on the grounds that said printing violates any copyright or proprietary right of any person, or that it contains any matter that is libelous or scandalous, or invades any person’s right to privacy or personal right. The Client agrees to, at the Client’s own expense, promptly defend and continue the defense of such claim, demand, action or proceeding that may be brought against DigiTouch Media, Inc. provided that DigiTouch Media, Inc. shall promptly notify the Client with respect thereto.
Customer Digital File Uploads and Print-ready Document Uploads:
Documents that qualify as "Print-ready" must meet the specifications listed in each product's "Specifications" tab within the website.
Due to the differences in equipment, paper, inks and other conditions between color proofing and production, a reasonable variation in color between color proofs and the completed job is expected. All postcards are “gang run” not printed as separate individual orders. DigiTouch Media, Inc. will reproduce color from submitted transparencies, slides or photos as closely as possible, but can not exactly match color and density because of limitations in the printing process, as well as neighboring image ink requirements. The accuracy of each color reproduction is guaranteed to be within approximately 80% to 90% of the original image submitted. DigiTouch Media, Inc. accepts no responsibility of color variations between submitted images and the actual artwork or product they represent.
It is standard in the promotional Products Industry and the printing industry to allow up to 10% overrun which you may be billed for after completion of order.
Customer is responsible for any taxes due to any and all taxing entities. We only collect sales taxes in the State of Texas.
DigiTouch Media agrees to provide printing, wearables, and promotional item proofs in a timely manner and customer agrees to return proofs in a timely manner. Customer will be notified two times if proof is not returned, after which time order is placed on permanent hold and customer forfeits all monies paid.
Client is 100% responsible for the accuracy of layouts. Please proofread all proofs carefully. As postal regulations are subject to change, client is also 100% responsible for complying with current mailing restrictions for backside layouts. Check with a local Post Office for specific instructions and regulations. DigiTouch Media agrees to provide digital advertising proofs in a timely manner and customer agrees to return proofs in a timely manner. Customer will be notified two times if proof is not returned, after which time, DigiTouch Media reserves the right to place order on hold or publish a generic advertisement to digital screens and customer forfeits all monies paid and customer is liable for graphic design fees and multimedia fees.
Graphics and Digitized file(s) Property Rights:
All graphic files created by our graphic designer(s) are the property of DigiTouch Media Inc and/or its subsidiaries.
All digitized files are the property of DigiTouch Media Inc and/or its subsidiaries.
When giving us your email address you hereby allow us to send you periodic email notices of closeouts and specials we offer. We do not rent or sell your name or adress. You also grant your permission for our tagline on product and use of piece in our advertising. You may opt out of our email list at any time.
When ordering from us you grant us permission to use your printed product for advertising our services to others.
By Placing an order you acknowledge that you have read and agree to all terms and conditions of sale as presented and on the order form. You understand that there are no refunds (credits or reprints only) and orders cannot be cancelled.
SMS MARKETING TERMS & CONDITIONS
This Agreement (the “Agreement”) is entered into by and between DigiTouch Media Inc. and (“Customer”), and shall be effective as of the date of purchase.
DigiTouch Media Inc. will provide the services set forth in this agreement. DigiTouch Media Inc. will use commercially reasonable efforts to provide a secure transmission of customer data to and from the DigiTouch Media Inc. database located on DigiTouch Media Inc. Internet computer network. The services and all related software and intellectual property are hereinafter referred to as the “Services.”
Customer shall pay the fees set forth during the Term of this Agreement. DigiTouch Media Inc. will invoice Customer for these fees on a 28-day billing cycle. Customer agrees to pre-pay for every month of service. Customer acknowledges that all text message overages are charged in arrears at the rate designated in their existing monthly plan. Customer shall pay all invoices within thirty (30) days of the date of invoice. There may be an additional one time set-up fee billed with the first month of service. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder. Except for taxes on DigiTouch Media Inc.'s net income, Customer shall be liable for and pay all such taxes and other levies, regardless of whether included on any invoice. DigiTouch Media Inc. is prohibited from changing the amount, structure, method and/or basis of the fee at any time during the term of this Agreement. Customer has the exclusive right to upgrade or downgrade their service plan at anytime with 15 days notice in writing to DigiTouch Media Inc.
If Customer has been unable to utilize the services provided by DigiTouch Media Inc. for any reason that is the fault of DigiTouch Media Inc., Customer shall have the right to cancel all services provided by DigiTouch Media Inc., and DigiTouch Media Inc. will provide to Customer a full refund of all monies previously paid to DigiTouch Media Inc. from Customer for the period that services were not provided. Should Customer choose to cancel service and seek a refund, Customer must provide written notice to DigiTouch Media Inc. within fifteen (15) days prior to the completion of the three month of service. Said notice must include a detailed basis for the cancellation.
4. LICENSE; RESTRICTIONS:
a) DigiTouch Media Inc. hereby grants Customer a non-exclusive, non- transferable license to access and use the Services at Customer's place of business. Customer is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, Customer may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of DigiTouch Media Inc.. Customer further agrees not to modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from the Services or related software, or to permit or authorize a third party to do so. Title to the Services, and all related software, technical know-how, and intellectual property rights therein are and shall remain the exclusive property ofDigiTouch Media Inc.. Customer shall not take any action to jeopardize, limit or interfere in any manner with DigiTouch Media Inc.'s ownership of, and rights with respect to any licensed software and/or Services. b) COMPLIANCE. Customer acknowledges and agrees that, as between Customer and DigiTouch Media Inc., Customer is responsible for compliance with all federal, state or other applicable laws governing the use of the Services, including but not limited to laws applicable to direct marketing and privacy. Customer further acknowledges and agrees that DigiTouch Media Inc. merely provides a routine conveyance,” as that term is defined in 15 U.S.C. § 7702 (CAN SPAM Act), in connection with the transmission of any electronic mail messages on behalf of Customer in connection with the Services. Customer also agrees to comply with DigiTouch Media Inc.'s polices and rules for use of the Services, including its e-mail transmission services, as made available to Customer and as amended by DigiTouch Media Inc. from time to time in its sole discretion.
5. INTELLECTUAL PROPERTY RIGHTS:
It is the intent of the parties that DigiTouch Media Inc. shall own the Services, as well as all patents, copyrights, trademarks, trade secrets and other intellectual property rights associated with or appurtenant to the Services. Neither Customer, nor its subsidiaries, affiliates, agents, or employees shall have any right to use the Services other than for the purposes set forth herein. In all cases, the Services are and shall remain the sole and exclusive property of DigiTouch Media Inc.. Customer covenants to take no action nor commit any omission that would be adverse to DigiTouch Media Inc.'s sole and exclusive ownership of the Services. If Customer, its subsidiaries, affiliates, employees or any third parties obtain any rights of ownership in or use of the Services through operation of applicable law or otherwise, Customer agrees to and hereby transfers, grants, conveys, assigns and relinquishes exclusively to DigiTouch Media Inc. any and all right, title and interest it has or may acquire in the Services under patent, copyright, trade secret, trademark or other law relating to intellectual property in perpetuity or for the longest period otherwise permitted by law.
a) Customer acknowledges that the Services are the trade secrets of DigiTouch Media Inc.. b) Each party agrees to use good faith efforts and at least the same care that it uses to protect its own confidential information of like importance, but in no event less than reasonable care, to prevent unauthorized dissemination or disclosure of the other party's confidential information both during and after the Term of this Agreement (including without limitation, the Services). In addition, each party shall use the other party's confidential information solely as necessary for the performance of this Agreement. Confidential information will include, but is not necessarily limited to (i) non-public financial information concerning either party; (ii) information concerning either party's product line (both current and planned), research, development, customers, and pricing and marketing plans, unless and until publicly announced; and (iii) any information designated as confidential in writing at or prior to disclosure. c) Except as required by law, DigiTouch Media Inc. will not disclose to any non-affiliated third party any non-public individually identifiable customer data received from Customer without Customer's prior approval. DigiTouch Media Inc. shall maintain at all times during the Term appropriate and reasonable safeguards to protect such individually identifiable customer data using measures no less rigorous than those used to protect DigiTouch Media Inc.'s own customers' individually identifiable data. d) The restrictions in this Section 5 Confidential Information shall not apply to information which: (i) has become publicly known without breach of this Agreement or any other confidentiality obligation by the receiving party; (ii) has been given to the receiving party by a third party with a legal right to so disclose; (iii) was known to the receiving party at the time of disclosure as evidenced by its written records; (iv) was independently developed by the receiving party without reference to the other party's confidential information; or (v) is necessary to establish the rights of either party under this Agreement; or must be disclosed by the receiving party to comply with any requirement of law or order of a court or administrative body (provided that the receiving party will endeavor to notify the disclosing party of the issuance of such order and reasonably cooperate, at disclosing party's expense, in its efforts to convince the court or administrative body to restrict disclosure).
7. LIMITED WARRANTY; LIMITATION OF LIABILITY:
a) DIGITOUCH MEDIA INC. PROVIDES THE SERVICES AND SOFTWARE “AS IS”AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORYAND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. b) DIGITOUCH MEDIA INC. SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, DIGITOUCH MEDIA INC. SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT SHALL DIGITOUCH MEDIA INC.'S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO DIGITOUCH MEDIA INC. UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
a) Customer assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold DigiTouch Media Inc. and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys' fees, from third parties (“Claims”), arising out of or in any way related to (i) Customer's use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by Customer of this Agreement. b) If a preliminary or final judgment shall be obtained against Customer's use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, DigiTouch Media Inc. shall at its option and expense either procure for Customer the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in DigiTouch Media Inc.'s sole judgment, DigiTouch Media Inc. shall cease providing the Services to Customer and refund to Customer any pre-paid license fees paid by Customer for the remainder of the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE DigiTouch Media INC.'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9. TERMS AND TERMINATION:
a) The term of this agreement shall commence upon acceptance herein . Thereafter, this Agreement shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term. b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided however, such cure period shall not apply if Customer is in breach of Section 3 License; Restrictions of this Agreement, or if either party is in breach of Section 5 Confidentiality, and further provided, however, that the cure period for the breach of an obligation to pay fees when due shall be ten (10) days. DigiTouch Media Inc. may terminate this Agreement at any time without cause upon thirty (30) days written notice to Customer. Page 2 VOID IF ALTERED - Rev: 01/21/09 c) This Agreement shall be immediately terminated upon the dissolution or bankruptcy of Customer, the filing of a bankruptcy petition by or against Customer or a general arrangement or assignment by Customer for the benefit of creditors. d) Following expiration or termination of this Agreement for any reason, all rights and licenses granted herein shall terminate and Customer shall immediately cease use of and certify to DigiTouch Media Inc. that it has destroyed all copies of the Services and related software. e) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration. f) DigiTouch Media Inc. reserves the right to suspend the Services or terminate this Agreement in the event that a payment due remains unpaid three (3) business days after Customer has been notified of such non-payment.
10. INJUNCTIVE RELIEF:
Each party acknowledges that the Services are unique property, and that the unauthorized use or disclosure thereof shall cause DigiTouch Media Inc. irreparable harm that could not be adequately compensated by monetary damages. Accordingly, in addition to any other remedies available to it at law or in equity, DigiTouch Media Inc. will be entitled to injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or disclosure of confidential information or the Services.
11. GOVERNING LAW; DISPUTE RESOLUTION:
a) This Agreement will be construed in accordance with and governed by the laws of the State of Texas, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Walker County, Texas. In the event that the Dispute Resolution section is invalidated, the parties hereto consent to the jurisdiction of any local, state or federal court in which an action is commenced and located in accordance with the terms of this Section and that is located in Walker County, Texas. The parties further agree not to disturb such choice of forum, and if not resident in such state, waive the personal service of any and all process upon them, and consent that such service of process may be made by certified or registered mail, return receipt requested, addressed to the parties as set forth herein. b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Walker County, Texas, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the appointed arbitrator must be a former or retired judge or attorney at law with at least ten (10) years experience in the substantive area of this Agreement; (iii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter. c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney's fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment. In addition, if Customer or Customer's account is referred to an attorney or collection agency for collection, Customer will pay for all collection fees, costs and expenses incurred by DigiTouch Media Inc., including attorneys' fees and fees of collection agencies.
a) Press Releases. DigiTouch Media Inc. may issue press releases and other marketing and promotional material describing the relationship created by this Agreement. Customer shall have final authority to authorize such release. DigiTouch Media Inc. may use specific information previously reviewed for public release by Customer, without further approval. b) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement or to such alternative address as either party may furnish in writing to the other from time to time. If to DigiTouch Media Inc., Attention: Legal Department. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail, or (iv) upon verification of receipt via facsimile. c) Force Majure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs. d) Severability. If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. e) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party's remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party's exercise of any other remedy. f) Entire Agreement. This Agreement and related exhibits and attachments represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and al prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein. g) Service Enhancements. DigiTouch Media Inc. reserves the right to add or delete programs or services as part of our continued enhancement of the Services. DigiTouch Media Inc. will give Customer thirty (30) days notice of any such changes and any fee increases or decreases related thereto. h) Amendment. Except where otherwise provided herein, this Agreement may not be amended or otherwise modified except by an Addendum signed by the parties hereto. i) Assignment. Customer may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of DigiTouch Media Inc.. Page 3 VOID IF ALTERED - Rev: 01/21/09 j) Aggregate Reports. Notwithstanding anything to the contrary contained in this Agreement, DigiTouch Media Inc. may track, analyze, and/or create reports related to aggregate activity in connection with Customer's use of the Services and share such information with its affiliated companies. DigiTouch Media Inc. and such companies may utilize such information to create, market, and sell products and services. Customer has the right to grant DigiTouch Media Inc. and such companies the foregoing rights. k) Independent Contractors. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other. l) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement. m) Precedent. The preprinted terms and conditions of any purchase order or other document issued by Customer in connection with this Agreement shall not be binding on DigiTouch Media Inc. and shall not be deemed to modify this Agreement. n) Ownership of Data: Databases collected via text, web, or paper are the sole and exclusive property of Customer. This data can be downloaded and used by Customer only, and cannot be sold, transferred, used, or disseminated by any other party without the express written permission from Customer.
a) Do not accept this contract before you read it IN WITNESS WHEREOF, the parties have caused this Agreement to be accepted by their duly authorized representative.
14. MOBILE SUBSCRIPTION:
A) By signing this agreement gives DigiTouch Media Inc. the express written permission to send sms, mms, or email to user. DigiTouch Media Inc. can send up to 8 text messages per month. These come with the ability to opt-out of the database at any time by replying STOP to the message. Notifications might take the form of MMS, SMS, or even video feeds that pertain to mobile marketing, your account, or other products and services offered by DigiTouch Media Inc. Message and Data rates may apply.