Terms

A. NOTICE.

Unless otherwise specified below or in the Agreement, any notice required or permitted under the Agreement shall be in writing and shall be deemed given when: (a) personally delivered and upon obtaining a signed receipt; (b) when deposited in the United States mail, first-class, certified or registered, postage prepaid, addressed to the respective party; or (c) provided that e-mail correspondence has been used between the Parties, and further provided that it is delivered to an authorized representative of such Party, then notice shall be deemed given on the date delivered by e-mail if prior to 5:00 pm CST, or if after 5:00 pm CST notice shall be deemed given on the following business day. The address for notices to Dayta shall be the then current contact address available at dayta.com. The address for notices to You shall be Your then current billing or e-mail address as provided to Dayta in writing.

B. PAYMENT. 

1. Timely Payment; Invoice. Amounts due for any Service provided by Dayta will be provided to You on an invoice (“Invoice”) and payment shall be made within 30 days of the Invoice date for same. You may pay by check or direct deposit under the terms of the “Recurring Payment Authorization Form” which is available at www.dayta.com/payment-authorization-form and incorporated into these Standard Terms and Conditions by reference. If payment is not made in full on or before its due date, it shall be a material breach of the Agreement entitling Dayta to refuse any further provision of Services in addition to any other rights or remedies available to Dayta. Accounts not paid within 30 days of the Invoice date are subject to 8% per annum finance charge or the highest rate permitted by law, whichever is lower (the “Default Rate”). Your payments to Dayta will be applied first to any previous balance owed (e.g. Invoices will be paid in the order that they were billed). Any acceptance of a partial or late payment for Services shall not be deemed a waiver of claims by Dayta for amounts that You owe or an accord and satisfaction for amounts owing.
2. Proposal; Charges. Dayta may from time to time revise the Proposal and the charges associated with any of the Services. Any such change in those charges may affect your One Time Fee or Monthly Fee or the Marketing Services that are available to You. You agree to pay Dayta according to the amounts specified on the then current Proposal, provided that Dayta provides You with at least 30 days’ notice of such revisions. Dayta may provide notice of revisions to the Proposal by a separate written notice to You, including without limitation by electronic means, or by a notice on a receipt of payment for any Monthly Fee or other Invoice delivered to You.

C. CESSATION OF SERVICES AND TERMINATION FOR NON-PAYMENT.

In the event that You fail to timely pay as provided herein, or in the Agreement, Dayta may, in its sole discretion elect one or more of the following actions: (a) immediately cease providing Services until You pay in full; or (b) terminate the Agreement by providing written notice to You of such termination. If Dayta elects to cease providing Services but does not immediately terminate the Agreement, Dayta may subsequently terminate the Agreement at any time prior to You rendering full payment. Upon any termination by Dayta hereunder or a termination by You for any reason, the following shall occur: (a) all amounts outstanding shall immediately become fully due and payable and shall accrue interest at the Default Rate, (b) Your obligation to make payment in full, including all accrued interest, shall survive the expiration or earlier termination of the Agreement, and (c) You forfeit and Dayta shall be entitled to keep and retain any and all accumulated tactical budget payments.

D. COLLECTION.

Notwithstanding and regardless if Dayta elects any remedies under paragraph C above, Dayta may pursue any available remedies against You to collect on amounts owed and past due. Additionally, Dayta shall be entitled to recover all collection costs incurred, including reasonable attorney’s fees regardless of whether a lawsuit is initiated.

E. ACCESS.

To provide the Services, Dayta may create and/ or use accounts within Platforms which are owned, accessed, or used by You (the “Accounts”). In the event Dayta needs to access Your software to provide the Services, You grant Dayta, at no charge, the right to access and use any of Your owned or developed software systems. You also agree to allow Dayta to access any of Your Accounts to post, pin, or otherwise enter content on Your Accounts and modify or change settings within Your Accounts consistent with the Services.

1. Required Consents. Client shall obtain and keep in effect all consents, licenses, permits and approvals required to give Dayta the right or license to provide the Services (“Required Consents”) at all times during this Agreement. Upon request, You will provide to Dayta evidence of any Required Consent. Dayta will be relieved of its obligations under this Agreement (and any time for performance of any Services shall be reasonably extended) to the extent that they are affected by Your failure to promptly obtain and maintain and provide to Dayta any Required Consents. You agree that Dayta may accept software terms and conditions and other licenses (“Licenses”) (e.g., end user license agreements), on Your behalf while providing the Services, and You agree to be bound by and adhere to those License terms.

2. Software Licenses and Other Agreements; Privacy Policy. You shall enter into, maintain, comply with, and be bound by any Licenses applicable to the Services. You have the sole responsibility to manage Your ownership and use of any software provided with the Services, including but not limited to complying with any License terms, maintaining an online privacy policy or statement, retaining copies of License agreements and other ownership documentation, monitoring License renewal and expiration dates, and renewing or terminating such Licenses.

F. RESTRICTION ON PERSONAL INFORMATION.

Other than as needed or appropriate in the course of providing Services, or as needed for billing purposes, Dayta will not share or sell Your usernames, passwords, or other information used to access Your Accounts or billing information without Your consent unless compelled to do so by a person or entity with lawful authority. You understand and agree that Dayta has and reserves the right to use Your logo and/or marketing materials or other content that you provide to Dayta or that Dayta creates for You in Dayta’s marketing and sales materials.

G. CONTENT.

Except as set forth in paragraph F above, You will retain all rights to any Content created during the term of this Agreement by Dayta on Your behalf. The term “Content” under these Standard Terms and Conditions includes, without limitation, logos, trademarks, tradenames, or other intellectual property, images, videos, posts, tweets, messages, or other information, data or material that is provided to Dayta or is taken, created, drafted, or disseminated by Dayta on Your behalf in the course of providing Services under this Agreement. You affirm, represent, and warrant that you own or have all necessary licenses, rights, consents, and permissions required to authorize Dayta to use, and You do hereby authorize Dayta to use, such Content in the provision of the Services. You represent and warrant that all Content You provide to Dayta does not violate the intellectual property or other rights of any third party. You grant Dayta the worldwide right to copy, store, record, transmit, display, view, print, create, modify, or otherwise use in any way all such Content as Dayta deems appropriate in the course of providing the Services. You are solely responsible for all aspects of the Content, including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness, and protection of all such Content.

H. WEBSITE HOSTING MANAGEMENT.

Dayta does not provide any in-house servers and Dayta does not own any servers to host Your websites. Dayta may provide a hosting management service for Your websites. Any hosting service You engage is at your sole discretion, risk, and liability and Dayta disclaims any and all representations, warranties, and covenants, related thereto and Dayta shall not be responsible for any costs, damages, or liabilities of any kind arising out of such services.

I. INTERACTION WITH DAYTA CUSTOMERS, EMPLOYEES.

1. Audience Targeting. In the event that You acquire a prospective customer list (“Prospect List”) from Dayta for Audience Targeting or other purposes, You must comply with the following:
2. Prospect List can only be used for a maximum period of six months and shall be limited to the following prospect marketing activities: e-mail, telemarketing, direct mail, and digital advertising.
3. You must comply with all applicable regulations regarding the use of the Prospect List, such as but not limited to, suppressing names listed in the Do Not Call registry for telemarketing and the CAN-SPAM Act for e-mail marketing and any other rules or regulations set forth by Dayta or any governmental authority.
4. You must use all appropriate safeguards to protect the Prospect List from misuse and unauthorized access or disclosure and You may not share a Prospect List with any other parties.
5. Non-Solicitation; Non-Disparagement. You may have access to agents, employees, customers, and other business relationships of Dayta during the course of the Term. You hereby covenant and agree that, during the Term and during the 12 month period following the Term, You will not, and You will not permit Your affiliates, representatives, employees, agents, or anyone else under Your control, to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients, customers, prospective customers, suppliers, agents, or employees of Dayta for purposes of diverting their business or services from Dayta, including through hiring or attempting to hire, or disparagement of Dayta, its Services, or its business. You understand and agree that Your obligations under this Section I.2 are a material part of this Agreement and without this Section I.2, Dayta would be unwilling to enter into this Agreement with You or offer the Services to You.

J. NON-CONTENT PROPRIETARY INFORMATION; DAYTA PROPERTY.

Notwithstanding anything herein to the contrary, Dayta will retain all rights to any tangible products, software, processes, or other proprietary rights or information developed or created by Dayta and which may have been used when creating content on Your behalf or when otherwise providing Services to or for You. In addition, if Dayta has purchased and used any stock photos for use in providing You the Services, such stock photos are Dayta’s property and cannot be reused or altered by You. Similarly, if Dayta has purchased a list of potential clients or customers for You, such lists Dayta’s property and cannot be used or sold by You.

K. NO WARRANTIES. 

Dayta makes no representation or warranty of any kind, express or implied, statutory or otherwise, including merchantability or fitness for a particular purpose regarding: (a) the Services, (b) the content created, posted, used, or disseminated on Your behalf while providing the Services; or (c) the accuracy or legality of such content. The Services provided by Dayta are provided on an “as-is” basis.

L. LIMITATION OF DAMAGES. 

In the event Dayta is found liable to You for any costs, damages, or other liabilities related to the Agreement or the Services, the aggregate amount of such liability shall not exceed the amount You paid to Dayta for the specific Services giving rise to such claim less all third party costs and expenses incurred by Dayta in connection with the provision of such Services. In no event shall Dayta be liable for consequential or incidental damages in connection with the Services or the Agreement. This paragraph L is a material inducement to Dayta agreeing to provide the Services.

M. INDEMNIFICATION.

You agree to indemnify, defend and hold Dayta and its employees, owners, governors, agents, and representatives harmless from and against any and all claims, losses, damages, liabilities, or other costs related to or arising out of your breach of these Standard Terms and Conditions, including violation of any relevant laws, or the Agreement or the provision of Services to You.

N. COMPLIANCE WITH LAWS.

You agree to at all times comply with all applicable local, state, national and foreign laws, regulations, and guidelines in connection with your use of the Services, including without limitation with respect to the Content provided to Dayta, and all relevant data privacy and cybersecurity laws. 

You understand that Federal Law requires that government and some business websites to be compliant with the American with Disabilities Act (“ADA”) and accessible to all individuals, including individuals with disabilities. You understand that Dayta does not provide ADA compliance measures and you will need to obtain this service from another provider. You should consult with an attorney that specializes in ADA compliance to ensure your website complies. YOU HOLD HARMLESS AND RELEASE FROM LIABILITY DAYTA FROM ANY CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING OUT OF YOUR WEBSITE’S NON-COMPLIANCE WITH THE ADA OR ANY WEB CONTENT ACCESSIBILITY STANDARDS OR GUIDELINES.

O. COUNTERPARTS AND ELECTRONIC SIGNATURE.

You and Dayta may sign separate copies of the Agreement and those signatures taken together shall be deemed one fully signed document. Digital images of signatures (i.e. Portable Data Format, Tagged Image File Format, etc.) or images of signatures sent by facsimile are acceptable to, and may be relied upon by, the parties. You and Dayta may also execute the Agreement using electronic signature software which sufficiently verifies the date and identity of the signer.

P. WAIVER.

Unless Dayta agrees otherwise in writing, Dayta’s failure or election to not enforce any provision under the Agreement or these Standard Terms and Conditions shall not be deemed a waiver of such rights or a waiver of any other rights under this Agreement and any waiver by Dayta shall only be valid if in a writing signed by an authorized representative of Dayta.

Q. SEVERABILITY.

In the event that any provision of the Agreement, including its incorporated attachments (e.g. the Proposal, the Service Schedule, these Standard Terms and Conditions), is deemed unenforceable, then that unenforceable provision shall be stricken from the Agreement and the remaining provisions of the Agreement shall be enforceable to the extent possible. Such unenforceable provision shall be automatically modified to the minimum extent required to be enforceable and shall thereafter be fully enforceable.

R. ASSIGNMENT.

You are not permitted to assign Your rights under the Agreement without Dayta’s written consent, which will not be unreasonably withheld. Dayta shall be permitted to freely assign its rights under this Agreement.

S. CHOICE OF LAW; VENUE.

The Agreement has been made and shall be interpreted under the laws of the State of Minnesota. Venue for any dispute under or related to the Agreement or otherwise related to the Services provided by Dayta shall exclusively be Hennepin County, Minnesota and You hereby consent to the jurisdiction of such courts. You and Dayta each hereby irrevocably and unconditionally waives any and all right to trial by jury in any legal proceeding arising out of or related to the Services, this Agreement or the transactions contemplated hereby.

T. SURVIVAL.

This Section 2 and all of its subparts shall survive the expiration or earlier termination of the Agreement.

U. AMENDMENTS.

Dayta may add, subtract, or otherwise revise or modify the Standard Terms and Conditions from time to time in its sole discretion. You hereby agree to be bound such updated version, provided that Dayta provides You with at least 30 days’ notice of the changes. Dayta may provide notice of updates to the Standard Terms and Conditions by a separate written notice to You, including without limitation by electronic means, or by a notice on Your Invoice for Services or any bill for Services or other correspondence.