Terms Of Service

Last modified: November 16, 2023

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

This Customer Terms of Service agreement outlines the terms under which our clients utilize the services of Top Digital Agency. It is comprised of the following documents:

General Terms: These are the fundamental legal and commercial terms applicable to your use of our products and services. References to 'Master Terms' are to these General Terms.

Product Specific Terms: This section includes additional terms relevant to each of our product offerings, our consulting services, and any third-party services we provide.

Jurisdiction Specific Terms: Depending on your geographical location, certain jurisdiction-specific terms may apply to you. These terms will clarify which entity of Top Digital Agency you are engaging with and the governing laws of our relationship.

Data Processing Agreement (DPA): This document details how we handle your data, including adherence to the EU Standard Contractual Clauses.

Acceptable Use Policy (AUP): This policy outlines permissible and prohibited activities when using our products and services.

We strive to make these documents as clear and readable as possible. However, due to legal requirements, some sections may contain complex legal terminology. By using our Subscription Service or receiving our Consulting Services, you agree to these terms.

For any inquiries or further information, please contact us at tova@topdigitalagency.com.au.

General Terms

1. DEFINITIONS

“Add-Ons” means additional product enhancements (such as Limit increases and other add-ons) available for purchase, as listed in the 'Add-Ons & Limit Increases' and 'Technical Limits and Definitions' sections of our Products and Services Catalog.

"Affiliate" refers to any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. Control, for this purpose, is defined as the direct or indirect ownership or control of more than 50% of the voting interests of the entity in question.

"Agreement" or “Customer Terms of Service” encompasses these General Terms and all referenced or linked materials herein, unless specified otherwise. This Agreement may include links to knowledge base articles to assist in the use of our products and services and in managing your Top Digital Agency Account; however, these articles are for informational purposes only and are not incorporated into this Agreement.

"Authorized Payment Method" means a valid, current payment method accepted by us, subject to updates and potentially including payments through a third-party account.

"Billing Period" refers to the duration for which you agree to prepay fees under an Order Form, which may align with or differ from the Subscription Term specified in the Order Form. For instance, a one-year Subscription Term with a twelve-month upfront payment would have a Billing Period of twelve months.

“Confidential Information” includes all confidential data disclosed by one party ("Disclosing Party") to the other ("Receiving Party"), whether orally or in writing, that is designated as confidential or is reasonably considered confidential. This encompasses information about customers, potential customers, products, marketing strategies, designs, technical data, business plans, and the terms of this Agreement. Confidential Information does not include information that is publicly known, previously known to the Receiving Party, received from a third party, or independently developed by the Receiving Party. Customer Data is considered Confidential Information under this Agreement, subject to these exclusions.

"Contact" means an individual (other than a User) whose Contact Information is stored by you in the Subscription Service.

"Contact Information" includes names, email addresses, phone numbers, online usernames, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you.

"Consulting Services" refers to the professional services provided by us, including training, installation, integration, and other consulting services.

"Customer Data" means all information that you submit or collect via the Subscription Service, excluding Top Digital Agency Content.

"Customer Materials" are all materials that you provide, post, upload, input, or submit for public display through the Subscription Service.

“DPA” refers to the Top Digital Agency Data Processing Agreement.

"Email Send Limit" specifies the maximum number of emails you may send in a given calendar month, as detailed in the Product Specific Terms.

“Free Services” are the Subscription Service or other products or features we offer on an unpaid trial or free basis.

"Top Digital Agency Content" includes all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.

“Jurisdiction-Specific Terms” are additional terms that apply to your subscription based on your location, forming part of the Agreement.

"Order" or "Order Form" is the approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services.

“Personal Data” refers to any information relating to an identifiable individual, contained within Customer Data and protected under applicable Data Protection Laws.

"Privacy Policy" is the Top Digital Agency Privacy Policy, subject to updates.

“Product and Services Catalog” is our catalog of products and services, updated periodically.

“Product Specific Terms" are additional terms related to the use of our products, Consulting Services, and Third-Party Products, forming part of the Agreement.

"Sensitive Information" includes financial, government-issued, biometric, health, children's, and other specially protected categories of data under GDPR or other privacy laws.

"Subscription Fee" is the amount paid for the Subscription Service.

"Subscription Service" includes all our web-based applications, tools, and platforms you subscribe to or that we make available to you, along with related services.

"Subscription Term" is the initial and subsequent renewal terms of your subscription, including for Free Services.

"Third-Party Products" are non-embedded products and services from third parties that interoperate with or are used in conjunction with the Subscription Service.

"Third-Party Sites" are external websites linked from within the Subscription Service.

“Total Committed Subscription Value” is the total Subscription Fees for your current Subscription Term(s), excluding fees for renewals, Consulting Services, and taxes.

"Users" are your authorized employees, representatives, consultants, contractors, or agents who use the Subscription Service.

"Top Digital Agency", "we", "us", or “our” refers to the contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.

"You", "your", or “Customer” refers to the person or entity using the Subscription Service or receiving the Consulting Services, identified in the account record, billing statement, subscription process, or Order Form, including your Affiliates.

2. USE OF SERVICES

2.1 Access.

During the term of our engagement, we will provide access to our digital marketing services as outlined in this Agreement and the applicable Order. Some or all elements of our services may be provided through third-party service providers.

You must ensure that all use of our services by your team and any affiliated entities complies with this Agreement. You may extend the benefits of our services to your Affiliates or allow them to receive the Consulting Services purchased under an Order; however, all such use by your Affiliates must comply with the Agreement. You remain liable for your Affiliates' compliance with the Agreement.

2.2 Additional Features. You may subscribe to additional features of our services by placing an additional Order.

2.3 Availability. For details of Top Digital Agency’s service availability commitments, please see the Product Specific Terms.

2.4 Limits. The limits applicable to your engagement will be specified in your Order Form, this Agreement, or in our Product and Services Catalog. Refer to the Product Specific Terms for more information on the limits of our services.

Users must be 18 years of age or older to engage with our services.

2.5 Modifications. We may modify our services from time to time, including adding or deleting features and functions, to improve your experience. For more information on our modification rights, please refer to the Product Specific Terms.

2.6 Customer Support. For information on customer support terms applicable to your engagement with us, please refer to the Product Specific Terms.

2.7 Acceptable Use. You must comply with our Acceptable Use Policy, which will be provided or made available to you.

2.8 Prohibited and Unauthorized Use. You must not use our services in any way that violates the Acceptable Use Policy or this Agreement.

You cannot use our services if you are legally prohibited from receiving or using them under the laws of the country where you reside or from which you access or use the services.

3. FEES

3.1 Service Fees. The fees for our digital marketing services will be detailed in the initial agreement and will remain fixed during the agreed term unless there are changes in the scope of services or additional services are requested. Any adjustments to the fees will be communicated and agreed upon in writing.

3.2 Payment of Fees. We will invoice you for the services rendered as per the terms outlined in the Order Form. Payment is due within thirty (30) days of the invoice date, unless otherwise specified in the Order Form.

3.3 Payment Information. You are responsible for maintaining accurate and up-to-date payment information. Please ensure that your contact and billing details, including any relevant business information, are current.

3.4 Taxes. All fees are exclusive of taxes. You are responsible for all taxes, levies, duties, or similar governmental assessments, including value-added tax (VAT), sales tax, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction. We will invoice you for such taxes if we believe we have a legal obligation to do so and you agree to pay such taxes if so invoiced.

3.5 Late Payment. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

3.6 Invoice Disputes & Resolutions. If you believe an invoice is incorrect, you must contact us in writing within a specified period from the date of the invoice to be eligible to receive an adjustment or credit.

4. TERM AND TERMINATION

4.1 Term of Engagement. Your engagement with us begins upon signing the service agreement (the "Order") and will continue until the completion of the services specified, unless terminated earlier as provided in this section.

4.2 Termination for Convenience. Either party may terminate the agreement at any time upon providing written notice to the other party. If you choose to terminate the agreement early, you are responsible for any fees incurred for services rendered up to the date of termination.

4.3 Termination for Cause. Either party may terminate this agreement for cause if the other party materially breaches any of its terms and fails to cure such breach within thirty (30) days after receiving written notice of the breach.

4.4 Effects of Termination. Upon termination or expiration of this agreement, all rights and obligations of the parties under this agreement will immediately cease, except that any terms or conditions that by their nature should survive termination will continue in effect after such termination.

4.5 Payment upon Termination. In the event of termination, you will be obligated to pay for all services performed up to the date of termination, as well as any costs incurred by us in anticipation of providing the services agreed upon.

4.6 Dispute Resolution. In the event of any disputes arising from the termination of this agreement, both parties agree to engage in good faith negotiations to resolve such disputes before resorting to litigation.

5. CUSTOMER DATA

5.1 Customer’s Proprietary Rights. You retain all rights to any data, information, or material that you provide to us in the course of using our services ("Customer Data"). This Agreement does not grant us any ownership rights to Customer Data. You grant us permission to use the Customer Data solely as necessary to provide the services to you under this Agreement.

5.2 Use of Customer Data. We will not use Customer Data for any purpose other than to deliver the services agreed upon under this Agreement. We will handle Customer Data in accordance with applicable laws and this Agreement.

5.3 Data Protection. We commit to protecting your Customer Data with appropriate administrative, physical, and technical safeguards. We will process any personal data included in the Customer Data in accordance with applicable data protection laws and our Privacy Policy.

5.4 Privacy Policy. Our handling of all Customer Data is subject to the terms of our Privacy Policy, which provides more detailed information on our data practices.

5.5 Data Hosting and Transfers. Customer Data will be stored and processed in [specify location or region, if applicable]. In cases where data is transferred internationally, we will ensure such transfers are compliant with relevant data protection regulations.

5.6 Retention and Deletion of Customer Data. We will retain Customer Data for as long as necessary to provide our services or as required by law. Upon termination of our services, Customer Data will be deleted in accordance with our data retention policy, which is detailed in our Privacy Policy.

5.7 Access to Customer Data. You have the right to access your Customer Data. Requests for access to or retrieval of Customer Data should be made in accordance with our procedures outlined in our Privacy Policy.

6. INTELLECTUAL PROPERTY

6.1 Ownership and Use. This Agreement pertains to the provision of [Your Service Name] and related services, and does not grant a license to any software. We retain all intellectual property rights to the content, materials, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on our content or services, in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks and any other intellectual property we own are protected, and you may not use any of these without our prior written permission.

6.2 Feedback and Suggestions. We welcome and encourage feedback from our customers regarding our services. You agree that any comments, suggestions, ideas, or feedback provided by you are non-confidential and that we have the right to use and incorporate these into our services without any obligation for compensation or attribution.

7. CONFIDENTIALITY

7.1 Obligations of the Receiving Party. The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, except as permitted under this Agreement, and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule, or regulation, subpoena, or legal process. However, the Receiving Party will: (i) provide the Disclosing Party with prompt notice of any such requirement, to the extent legally permissible, to allow the Disclosing Party to seek a protective order or other appropriate remedy, (ii) disclose only the minimum amount of Confidential Information required by law, and (iii) cooperate with the Disclosing Party, at the Disclosing Party's expense, in any lawful action to contest or limit the scope of such required disclosure.

8. PUBLICITY

8.1 Default Inclusion. By entering into this Agreement, you grant us the right to include your name and company logo in our customer list, on our website, and in other promotional materials. We believe that featuring our valued clients showcases the strength of our professional relationships and services.

8.2 Opt-Out Process. If you prefer not to be included in our promotional materials, you are welcome to opt-out at any time. To opt-out, please send an email to tova@topdigitalagency.com.au with the subject line "Publicity Opt-Out." Upon receiving your opt-out request, we will promptly remove your name and logo from our promotional materials and refrain from future use.

8.3 Rejoining. Should you decide to be featured again in our promotional materials after opting out, please contact us, and we will gladly reinstate your inclusion.

9. INDEMNIFICATION

9.1 Your Indemnification Obligations. You agree to indemnify, defend, and hold harmless our company and our affiliates, officers, agents, employees, and partners from any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to:

(a) Your use of our services or products in a manner not authorized by this Agreement, and any other agreements governing your use of our services or products;

(b) Your violation of this Agreement or any other terms and conditions related to our services or products;

(d) Any other party’s access and use of our services with your unique username, password, or other appropriate security code.

9.2 Notification and Cooperation. In the event of any potential indemnity claim, we will promptly notify you in writing. You will have sole control of the defense and all related settlement negotiations. We will provide, at your expense, the necessary information and reasonable assistance to handle the defense or settlement. Any settlement requiring us to admit liability, affecting our rights, or imposing obligations on us will require our prior written consent, not to be unreasonably withheld or delayed.

10. DISCLAIMERS; LIMITATION OF LIABILITY

10.1 Service Performance Warranty. We warrant that our services and products will be provided with reasonable care and skill in accordance with industry standards. We will not knowingly introduce any harmful or malicious code into our services. This warranty does not apply to any free or trial services we may offer.

In the event of a breach of this warranty, we will make commercially reasonable efforts to rectify the issue. If we are unable to do so within a reasonable timeframe, either party may terminate the relevant service agreement, and we will refund any fees paid in advance for services not rendered.

This warranty does not cover issues caused by: (i) integration with any hardware, software, or systems not supplied by us; (ii) unauthorized modification of our services; or (iii) use of our services in a manner contrary to our instructions or this Agreement.

10.2 Disclaimer of Warranties. Except for the warranty provided above, our services and products are provided "as is" without any warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement.

10.3 Limitation of Liability. Neither party shall be liable for any indirect, incidental, special, consequential, or punitive damages, including loss of profits, data, or business opportunities, arising out of or related to this Agreement, regardless of the legal theory. This limitation does not apply to any liability that cannot be excluded or limited by law.

10.4 Cap on Liability. Our total liability to you for all claims arising out of or relating to this Agreement will be limited to the amount you have paid us for the services in the twelve months preceding the claim. This cap does not apply to our obligations under the indemnification clause or to liability for breach of intellectual property rights.

10.5 Third Party Products. We disclaim all liability for any third-party products or services that you may use in conjunction with ours.

10.6 Acknowledgement of Liability Limit. You acknowledge that this limitation of liability is a fundamental part of the basis of the bargain between you and us and reflects a fair allocation of risk, without which we would not have provided our services or products.

11. Miscellaneous

11.1 Amendment; No Waiver- Modifications: The agreement can be modified by posting a revised version online.

Notification: Notification of changes will be via email or in-app notification.Opt-Out: If you disagree with a modification, you must notify within 30 days.Waiver: Delay or failure to exercise rights is not a waiver of those rights.

11.2 Force Majeure

Exemptions: Neither party is responsible for delays/failures due to uncontrollable events like natural disasters, government restrictions, etc.Exclusion: This does not apply to payment obligations.

11.3 Actions Permitted

Time Limit for Claims: Actions related to the agreement must be brought within one year of the cause of action, except for nonpayment or breach of proprietary rights.

11.4 Relationship of the Parties

No Partnership: This agreement does not create a joint venture, partnership, employment, or agency relationship.

11.5 Compliance with Laws

Legal Compliance: Both parties will comply with all applicable laws, including export laws and recording consent laws.

11.6 Severability

Validity of Agreement: If any part is invalid or unenforceable, the rest remains effective.

11.7 Notices

To the Company: Notices should be sent to the contact address set forth in the agreement.To Top Digital Agency: Notices will be sent to your account information or via email to tova@topdigitalagency.com.au.

11.8 Entire Agreement

Supersedes Previous Agreements: This agreement, including privacy policy and order forms, is the entire agreement between the parties.Rejection of Additional Terms: Any additional or different terms proposed by you are rejected.

11.9 Assignment

Restrictions on Transfer: You cannot transfer this agreement without prior written consent, except in cases of mergers, reorganizations, etc.

11.10 No Third Party Beneficiaries

Exclusivity: The agreement does not confer benefits on third parties.

11.11 Contract for Services

Service Contract: This is a contract for services, not goods, and excludes certain laws like the UCC and UCITA.

11.12 Authority

Authority to Enter Agreement: Each party confirms its authority to enter this agreement.

11.13 Insurance

Insurance Requirements: The company must maintain specified insurance coverage.

11.14 U.S. Government Entities

Government Customers: Special terms apply if the customer is a U.S. government entity.

11.15 Survival

Post-Termination: Certain sections will continue to apply after the agreement ends.

11.16 Precedence

Order Precedence: In case of conflict, terms of an individual order prevail over general agreement terms for that order.

APPENDIX 1

ADDITIONAL COVERAGE TERMS

1. Indemnification by Top Digital Agency

Top Digital Agency will indemnify, defend, and hold you harmless against any action brought against you by a third party not affiliated with you to the extent that such action is based upon or arises out of an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright, or our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement.

You will notify us in writing within thirty days of becoming aware of any such claim, give us sole control of the defense or settlement of such a claim, and provide us with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that imposes an obligation on you, requires you to make an admission, or imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.

We will not have any obligation or liability under this section if the alleged claim is caused by or based on any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, use of the Subscription Service in violation of or outside the scope of this Agreement, an allegation that the Subscription Service consists of a function, system or method traditionally utilized in marketing, sales or services software that is not commercially unique to the Subscription Service, and the commercially unique aspects of the Subscription Service are not identified in the allegation giving rise to the claim, or user interface or related user design elements not provided by us.

In the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense, modify the Subscription Service or provide you with substitute Subscription Service that is non-infringing, obtain a license or permission for you to continue to use the Subscription Service, at no additional cost to you, or if neither option is commercially practicable, terminate your access to the Subscription Service and refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement. This section states our entire liability and your sole and exclusive remedy with respect to any claim provided for under this section.

2. Limitation of Liability

The 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms is revised to read as follows:

"Except for your liability for payment of fees, your liability arising from your obligations under the ‘Indemnification’ section, our liability arising from our IP Indemnification obligations under the ‘Indemnification by Top Digital Agency’ section and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this Agreement, either party or its affiliates is determined to have any liability to the other party, its affiliates or any third party, the parties agree that the aggregate liability of a party and its affiliates will be limited to a sum equal to the total amounts paid or payable for the Subscription Service in the twelve month period preceding the event giving rise to a claim."

APPENDIX 2 U.S. GOVERNMENT CUSTOMER ADDITIONAL TERMS

1. Government Customer Purpose

If you are a U.S. local, state, or federal government entity, including public institutions of higher education (referred to as a “Government Customer”), these specific terms apply. These terms are applicable only when the Subscription Service and Consulting Services are used for governmental-related purposes. They do not apply if the services are used for private, personal, or non-governmental-related purposes.

2. Indemnification

The obligations of the Government Customer under the ‘Indemnification’ section of the General Terms will apply only to the extent permitted by applicable law.

3. Limitation of Liability

The 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms is applicable to the extent permitted by law. Additionally, the following sentence is added to this sub-section: “Also provided however, this limitation will not apply to either parties’ liability arising from its negligence that results in bodily injury, death, or damage to tangible property.”

4. Contracting Entity and Applicable Law

For Government Customers, the contracting entity is Top Digital Agency, and this Agreement is governed by the laws applicable to the Government Customer. If no specific laws are applicable, then the laws of the Commonwealth of Massachusetts, U.S.A., without reference to conflicts of law principles, will govern. The Government Customer agrees that Top Digital Agency has the standing and privity of contract to bring a claim directly against the Government Customer in a court or body of competent jurisdiction.