Updated as of August 8, 2022
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, THEY CONSTITUTE A BINDING CONTRACT BETWEEN DESIGN MANAGER AND YOU. THEY CONTAIN IMPORTANT PROVISIONS AFFECTING YOUR RIGHTS, INCLUDING BUT NOT LIMITED TO: AN AGREEMENT TO ARBITRATE ON AN INDIVIDUAL (NOT CLASS ACTION) BASIS; LIMITATIONS OF LIABILITY IN DESIGN MANAGER’S FAVOR; A REQUIREMENT OF INDEMNIFICATION BY YOU; AND AUTOMATIC MONTHLY RECURRING FEES CHARGED TO YOUR CREDIT CARD FOR USE OF THE LICENSED SOFTWARE, UNTIL YOU PROVIDE US WITH NOTICE OF CANCELLATION.
Thank you for selecting Services offered by Design Manager, Inc. (“DM,” “Design Manager”, “we,” “our,” or “us”). The person accepting these Terms of Service (through an online acceptance mechanism or otherwise) represents and warrants that he or she is an employee of, owner of, or authorized representative for, the entity which will be using the Licensed Software (“you” or “your”) and represents and warrants that he/she is eighteen years old or older, and duly authorized to enter into this Agreement on your behalf and to bind you to the Agreement, and to any instructions communicated to DM. This Agreement is a legally binding agreement between you and DM. If you do not agree to these Terms of Service, you are not authorized to and you must not use the Services or Licensed Software. To the extent that a person outside your firm accesses the Services on your behalf and with your (and our) permission as provided for below (this may include dealers, accountants, bookkeepers or anyone performing services of any kind that requires usage of the Licensed Software to work with you each an “Advisor”), such Advisor is equally bound by these Terms of Service as if they were “you” and you shall be responsible and liable for all acts and omissions of such Advisor as if such acts and omissions were yours.
This document is referred to as the “Terms of Service”, “License”, or “Agreement”.
1. General. This Agreement applies to your usage of any Design Manager software or Services (including but not limited to applications for iPhone and/or Android, any software as a service (SaaS) products, and any browser extensions (e.g., Product Clipper) (the “Licensed Software” or “Service(s)”) currently accessed via Google Play, the Apple Store, Citrix Workspace, and/or designmanager.com (the “Site”). The definition of Licensed Software includes the current version of any DM application, browser extension, SaaS product offered by Design Manager and/or any Design Manager software product and any accompanying documentation provided in any form. The Licensed Software does not include the source code. The Licensed Software is licensed, not sold, to you by DM for use only under the terms of this License, and DM reserves all rights not expressly granted to you. SaaS products and Apps are not physically delivered to you but rather are accessed via your computer, laptop, or mobile device. The terms of this License will govern any software upgrades provided by DM that replace and/or supplement the original Licensed Software, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
2. Intellectual Property. You do not own the Licensed Software. DM retains ownership of the Licensed Software and all intellectual property rights, including but not limited to copyrights, trademarks, patents, moral rights and all other proprietary rights, associated therewith. You do not obtain title to, or any ownership interest in, the Licensed Software or any intellectual property or proprietary rights associated with the Licensed Software (other than the limited rights of use expressly granted herein). You will have the right to access the Licensed Software as permitted herein so long as you have paid DM all applicable fees and your DM account (“Account”) is in good standing (i.e., no invoices or charges are overdue, and no violations of these Terms of Service).
3. Permitted Uses and Restrictions. This License allows you to access and use the Licensed Software for your own internal business purposes only. Except as and only to the extent expressly permitted in this License or by applicable law, you are not permitted to copy, de-compile, reverse engineer, disassemble, modify, or create derivative works of the Licensed Software and/or Site or any part thereof. You may not sell, transfer, convey, assign, hypothecate, rent, lease, lend or sublicense the Licensed Software or access to the Licensed Software. Accounts shall not be shared—each account is only for the use of the specified Authorized User and shall not be shared with any other person or entity. An “Authorized User” means an individual human being who has been authorized by us to access the Licensed Software hereunder under your Account.
4.1 Payment and Automatic Renewal. You agree to pay for the Services in US dollars, in advance, at the current advertised price, using a valid credit or debit card or ACH (unless we have agreed to a different payment mechanism), based on the usage limitations and the duration (term) that you chose when signing up for access to the Services. DM will automatically renew your Services FOR SUBSEQUENT RENEWAL PERIODS of THE SAME DURATION AS THE TERM FOR WHICH YOU INITIALLY SIGNED UP (at the then-current rates) on your credit or debit card or using the ach payment information you provided, unless the Services are cancelled or terminated IN ACCORDANCE WITH this Agreement (see Section 5 below for where to send termination/non-renewal notice).
4.2 Updating Your Payment Information. You must notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your Services. If your payment and registration information is not accurate, current and complete, and/or you do not notify us promptly when such information changes, we may immediately suspend or terminate your Account, terminate your license and refuse to allow any further use of the Licensed Software. Notwithstanding the foregoing, we may (and have the right but not obligation to) participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your Account with the updated information that we obtain.
5.1 Term. This Agreement remains in effect (a) until terminated in accordance with these Terms of Service; or (b) for the period for which you initially sign up (e.g., monthly or yearly), and the Agreement automatically renews in accordance with Section 4.1 unless and until you give us at least thirty (30) days’ notice prior to the end of the current term by contacting us at firstname.lastname@example.org OR by sending a letter to Design Manager, Inc., 3681 Cold Spring Creamery Road, Doylestown, PA 18902. Once you give notice of termination/non-renewal, the Agreement will terminate at the end of the current term.
5.2 Termination for Breach. Your rights under this License (and the Agreement) will terminate automatically, at DM’s sole option and without prior notice from DM, if you fail to comply with any term(s) of this License or fail to submit payment in a timely fashion (we will subsequently inform you of such termination). However, notwithstanding the foregoing, at our sole option and discretion, instead of immediately terminating this Agreement upon your default, we reserve the right to suspend your access for failure to timely pay all fees or for any other violation of this Agreement and allow you an opportunity to cure such default (communicated to you via email or within the dashboard of the Licensed Software) for a period of our choosing, in which case your License rights will terminate without further notice if you fail to cure the default within the time period we have stipulated in the notice of default. There will be no refund to you of any fees you have paid if we terminate for your breach.
5.3 Termination without Cause. We may terminate this Agreement and your Account upon thirty (30) days’ prior notice for any or no reason, and if we do so other than for your breach, we will provide a refund of any prepaid amounts you have paid for access to the Licensed Software/Services that you will not receive as a result of such termination and you will have no further payment obligations to us. You may terminate your Account, or terminate one or more of your Authorized User Accounts, at any time without cause but you will not receive any refund of prepaid fees and will owe us any unpaid fees for the unexpired term of your subscription for all Authorized User Accounts.
5.4 Effect of Termination. Any provisions of this Agreement which by their nature should survive termination (e.g., confidentiality, disclaimer of warranties, limitation of liability, indemnity, choice of law) shall so survive. Upon the termination of this License for any reason, you shall cease all use of the Licensed Software (including use by any of your Authorized Users).
6. Trial Period. If you registered for a trial use of the Services (“Trial Period”), you must decide to purchase the Services within the Trial Period in order to retain any Content (defined below) that you have entered into the Software, created within the Licensed Software data file, posted, or uploaded, during the Trial Period. If you do not purchase a paid subscription to the Services by the end of the Trial Period, your Content will no longer be available to you, and DM will not be responsible for any of it. To be clear, after using the Services during the Trial Period, if you decide not to purchase a subscription for the full version of the Services, you will not be able to access or retrieve any of the data you added or created during the Trial Period.
7. Content; Code of Conduct; Privacy; Feedback.
7.2 Code of Conduct. You agree not to use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law. You are not permitted to use the Services to do any of the following, and you acknowledge that if you violate this “Code of Conduct” we may immediately suspend or terminate your Account/this Agreement without refund, and furthermore that we may cooperate with the authorities in prosecuting any violations of applicable law:
1 You shall not upload, post, distribute, link to, publish, reproduce, or transmit (collectively “disseminate”) any of the following: Any material that is illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, racist, sexist, misogynistic, targeted at persons under 13 years of age, inappropriate, unprofessional, or otherwise objectionable;
2 You shall not behave in any way that is unprofessional or abusive to any other person (including any of our employees);
3 You shall not engage in any activities or conduct that would encourage or constitute an incitement to harass or threaten any other person (e.g., “doxxing”) nor in any activity that could lead to criminal or civil liability under any local, state, federal or foreign law;
4 You shall not disseminate Content that impersonates someone else or falsely represents your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);
5 You shall not disseminate advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication, nor engage in spamming;
6 You shall not disseminate any virus, trojan horse, worm or other disruptive or harmful software or data; and
7 You shall not disseminate any Content which is not legally yours and may be protected by a third party’s copyright or other proprietary right, nor any derivative works thereof, unless you have permission from the copyright owner/intellectual property rights owner.
7.4 Community forums. The Services may include a community forum or social media channels to exchange information with other users of the Services and the public. Please use respect when you interact with other users. DM does not support and is not responsible for the accuracy of others’ content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which DM is not responsible.
7.5 DM may freely use feedback you provide. You agree that DM may use your feedback, suggestions, pictures, or ideas which are intended for us (i.e., not Content or data you enter into the Licensed Software) in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant DM a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to DM in any way.
7.6 DM may monitor your Content. DM may, but has no obligation to, monitor Content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect DM or its customers, or operate the Services properly. DM, in its sole discretion may: refuse to post, edit, remove, or refuse to remove in whole or part, any Content deemed by DM (or alleged pursuant to a DMCA violation) to be unacceptable, undesirable, inappropriate, or in violation of this Agreement, and may treat any posting of inappropriate Content as a violation of this Agreement.
8. DM does not give accounting, legal, or other professional advice. DM is not in the business of providing legal, financial, accounting, real estate or other professional services or advice of any kind or related to any matter other than the operation of our own Licensed Software/Services (“Out of Scope Discussions”). Any such advice which may be given as part of Out of Scope Discussions, including but not limited to anything related to Third Party products or services (even if offered by or through us), is given simply as a courtesy, is given without warranty of any kind, and you should not rely on it, but rather you should consult the services of a competent professional in the area about which you inquired when you need this type of assistance. Any advice/Out of Scope Discussions given by DM technical support is “as is” and should be confirmed by a competent professional. We expressly and completely disclaim any warranties on any Out of Scope Discussions and we expressly are not responsible for any results you may achieve or any consequences of your reliance on any information disclosed as part of Out of Scope Discussions.
9. Other Services.
11. Passwords. You are responsible for securely managing your password(s) for access to the Services and for any results of use of the Services (including, for example, use by your Advisors, Authorized Users and/or any use resulting from your failure to protect a password or access to your Account). If you become aware of any unauthorized access to your Account, theft or loss of your password, you agree to contact DM as soon as possible and to take prompt steps, to the extent within your power, to cause cessation of such unauthorized access.
12. Updates and Modifications/Customizations.
a Updates. The Services may periodically be updated with tools, utilities, improvements, Third Party Products/applications or interconnections/links to same, or general updates to modify, improve, and/or enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services if they are provided at no additional charge. However, you acknowledge that: you have not purchased a subscription to the Services based on any promised future improvements, and furthermore that we are not obligated to provide any future improvements or updates. We reserve the right to modify the Services at any time and in our sole discretion.
b Modifications and customizations. [This Section only applies to those customers who received modifications and/or customizations to our Licensed Software in the past; modifications/customizations are no longer supported by DM]. Should you be among the customers that have prior customizations or modifications to the Design Manager software or custom changes to your environment, updates to our Services will not be provided to you. Should you desire to move to a non-customized software/environment (in order to receive updates and use the more current version of our Services), you will be migrated at no additional charge to the standard implementation upon your request, but will lose any modifications/customizations and related data that may have been implemented for you in the past. Without limiting the general nature of the foregoing, if you had a custom field in your customized database, you will lose all data related to this field in moving to a standard implementation. All modifications to the Design Manager software are “as is”. In no event shall we be liable to you or any other entity for any lost profits, loss of data, damage to property or for any other indirect, incidental, special or consequential damages under any form or theory of action whatsoever as a result of modifications to the Licensed Software.
13. DM operates under agreements that it makes with third party software providers. DM may change this Agreement and the pricing of the Service if the agreements with its third party providers (e.g., Microsoft or Citrix) change. This includes required updates, removal of certain features, etc., in order to become compliant with the third party agreements. We do not own or control any third parties; their software is used by us and provided for your use pursuant to licensing arrangements, and their trademarks belong solely to them.
14. Disclaimer of Warranties.
14.1 General. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ACCESS TO AND USE OF THE LICENSED SOFTWARE/SERVICES, IS AT YOUR SOLE RISK, INCLUDING IN RESPECT OF RISKS AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE/SERVICES IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DM HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DM OR ANY DM REPRESENTATIVE SHALL CREATE A WARRANTY.
14.2. Compatibility Disclaimer. We do not guarantee compatibility of the Services with any specific customer configuration of hardware or software or any third party programs. You are solely responsible for: providing all hardware, software, internet access/telephone connections, power, cooling, and all other network equipment (collectively, “your network”) necessary to appropriately access and use our Services; for the interoperability, licensing, maintenance, security, operations and support, of your network; all costs related to your network; and for proper licensing and operation of your network. We do not provide any support for your network and have no responsibility for your network whatsoever.
15. Limitation of Liability and Indemnity.
15.1 No Consequential or Incidental Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DM OR ITS AFFILIATES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR PERSONAL INJURY OR DAMAGE TO PROPERTY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, DISSEMINATION OF OR UNAUTHORIZED ACCESS TO DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE/SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE) AND EVEN IF DM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 limitation of total liability. TO THE EXTENT PERMITTED BY LAW, In no event shall DM’s total liability to YOU for any and all damages of every type and nature resulting from any acts, omissions or breaches arising out of or related to the LICENSED SOFTWARE or any products or services furnished or rendered hereunder, exceed the fees paid by YOU for the LICENSED SOFTWARE or Services. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
15.3 Indemnification. You shall indemnify and hold DM and its affiliates harmless from and against any costs, losses, claims, court costs and legal defense expenses, damages, judgments and other losses of any kind we may suffer as a result of any third party claim made against us that relates to your use of our Services in violation of this Agreement.
16. Force Majeure. Under no circumstances shall DM be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, or causes beyond its reasonable control, including without limitation, Internet failures, computer equipment failures, telecommunication or other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, pandemics or wide-spread diseases or public safety issues (including but not limited to COVID-19 or any future SARS, coronavirus, or other communicable disease), shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, terrorism, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning (each an event of “force majeure”).
17. Understanding Technical Support that is included in your monthly fees, versus Training and other Support that incurs additional fees.
1 Initial Setup and Technical Support is included at no additional charge, but training is not.
a We will use commercially reasonable efforts to assist you with setting up and configuring your Account at no additional fee; however, any training you request (e.g., a training session or product demo) will incur additional charges at our discretion.
b This License includes Technical Support for the Licensed Software (excluding non-SaaS implementations, which have been deprecated and are no longer offered) at no additional charge. Technical Support is limited to questions pertaining only to the use and operation of the Services and any failures of the Services to function as designed (“Included Technical Support”). Our technical support response time depends on the complexity of the inquiry and support request volume.
2 Issues which are not deemed to be “Included Technical Support”.
a Included Technical Support does not include help on accounting methods or any other type of consulting beyond the operation of the Licensed Software. If we provide any consulting on these matters, it is provided solely as a courtesy and all warranties are expressly and fully disclaimed.
b Included Technical Support does not include assistance on any questions/issues related to third party software such as Microsoft Office. If we provide any consulting on third party software, it is provided solely as a courtesy and all warranties are expressly and fully disclaimed.
c Support personnel cannot spend any substantial amount of time teaching the operation of the Licensed Software, which would be considered training (incurring an additional fee), as opposed to Technical Support.
d Time spent on incidents that are initially deemed by you to be Licensed Software-related issues, but which through investigation turn out to be issues relating to software or hardware licensed from or owned by other entities (e.g., Microsoft or Stripe) will be billable to you at our current hourly rate (currently $195 per hour); however, all warranties are expressly and fully disclaimed.
e Training on using the Licensed Software is available at an additional charge at our current hourly rate; timing should be arranged in advance.
f Support can be limited at our sole discretion to 1 hour per day or a total of 3 hours per week.
g No support is provided for non-SaaS implementations (stand-alone software versions of our Software are no longer offered, but some are still in use).
h Additional charges may result from requests for restoration of data or adding databases.
3 How Support is provided. Support will be available via e-mail from the hours of 9AM to 5PM Eastern Time Monday through Friday excluding holidays or periods of unavailability due to maintenance, or any force majeure event. Response times may vary. Technical Support prices (for anything which goes beyond Included Technical Support) and available times are subject to change at any time.
18. Access to data, online tools.
1 Subject to any limitations we may impose from time to time, you may choose to provide an Advisor whom you designate (and who must be authorized by us and become an Authorized User) with access to Licensed Software and permission to modify your data on your behalf. You agree that granting access to your Licensed Software data is voluntary and that you are responsible for revoking any permissions to access your Licensed Software and data from such Advisors.
2 Advisors are only authorized to use the Licensed Software to support your business and not for their own use. Should an Advisor wish to have access to the Licensed Software for its own use, it must enter into a separate agreement with (and pay a separate fee to) us.
3 You agree that from time to time you and your Authorized Users may opt to use certain tools available from within the software that facilitates online communication and collaboration; such as Client Connect or other client access functionality. All Authorized Users using these online tools are subject to these Terms of Service.
19. Controlling Law and Severability. These Terms of Service, any questions pertaining to them, and all disputes arising under or related to them, will be governed by and construed in accordance with the internal laws of the State of Illinois, excluding any rules, regulations, or laws to the extent they would require application of the law of any other jurisdiction. If for any reason a court of competent jurisdiction (or arbitrator) finds any provision, or portion thereof, to be unenforceable, the unenforceable provision (or part of a provision) shall be deemed stricken and the remainder of these Terms of Service shall continue in full force and effect.
20. Disputes. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE LICENSED SOFTWARE, SERVICES, OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision; the arbitrator shall apply Illinois law to all matters to the extent not inconsistent with the FAA. The arbitration shall take place in the city, county, and state, of Illinois under the then-current Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”), in front of a single arbitrator chosen in accordance with the AAA Rules. Discovery shall be permitted in such arbitration, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. Production of electronic documents shall generally be limited to those located in sources that are used in the ordinary course of business. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side. Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort. She shall have no power to award damages inconsistent with this Agreement, and the parties expressly waive their right to obtain such damages in arbitration. All aspects of the arbitration shall be treated as confidential. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing party (should there be one) in any such arbitration. Notwithstanding the foregoing, nothing in this Agreement shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient. THE PARTIES EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND DM ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT (OTHER THAN IN THE LIMITED CIRCUMSTANCES SET FORTH IN THIS PARAGRAPH) AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
21. Complete Agreement; Governing Language. These Terms of Service and any document incorporated herein by reference, constitute the entire agreement between the parties with respect to the use of the Licensed Software/Services and supersede all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of these Terms of Service (other than by DM) will be binding unless in writing and signed by DM.
22. Copyright Infringement. Notice and Take Down Procedures.
We respond to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act (DMCA). If any person believes that its work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following written information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your name, address, telephone number, and e-mail address; (v) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our copyright agent for notice of claims of copyright infringement on the Site can be reached as follows: Copyright Agent, Design Manager, Inc., 3681 Cold Spring Creamery Road, Doylestown, PA 18902. If you become aware that material appears on this Site in violation of a copyright please notify us by email at email@example.com. We maintain a log of DMCA notices, act on same, and have adopted and implemented a policy that provides for notification to Site users of claims of infringement and for the termination of Site users who are repeatedly and credibly accused of copyright infringement, and we may terminate this Agreement as against anyone who is a repeat infringer.
Restoration of Removed Content: If a person which posted content believes that their content was removed or disabled by mistake or misidentification, the person challenging the removal (the “challenger”) may send us (via mail or email at the addresses in the preceding paragraph) a written counter-notification which includes the following: (i) challenger’s electronic or physical signature; (ii) a description of the content that was removed and where the material that has been removed or disabled was located on the Site before it was removed/disabled; (iii) the challenger’s name, address, telephone number, and e-mail address; (iv) a statement by the challenger, made under penalty of perjury, that he/she has a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (v) a statement that: 1) the challenger consents to the jurisdiction of the Federal District Court in which challenger’s address is located, or in Chicago, IL if challenger’s address is outside the United States, and 2) that challenger will accept service of process from the person who provided notification of infringement or an agent of such person. We may, after investigation and based upon our findings, restore the removed or disabled content following ten (10) business days from the date that we received a proper written counter notification, but will not do so if (among other potential reasons) our copyright agent first receives notice that a court action has been filed to restrain us or you from engaging in infringing activity related to the removed or disabled content.
23. Data Management
• Data Restoration from Back-Up Request. We conduct regularly scheduled backups related to the Services but do not guarantee their availability to you. Server backup scope and scheduling is at our sole discretion. Data restore requests initiated by you may be initiated through creating a technical support incident, subject to availability of the relevant Data; you will be invoiced for the technical support personnel time required to handle the incident at our then-current hourly rate. WE DO NOT MAINTAIN HISTORICAL BACK-UP COPIES FOR THE PURPOSE OF POINT IN TIME DATA RECOVERY.
• Data Retention. We will not be responsible for retaining any of your Data after termination of your Account. Your Data may be deleted promptly after your Account is terminated and from backups during scheduled backup rotation. We will not restore, provide on any storage media, or send out, any Data pertaining to terminated Accounts.
24.1 Scheduled Maintenance. In order to maintain performance and security of the Services, we perform scheduled maintenance within our published maintenance windows, which may change from time to time. This may require specific Services to be suspended during the maintenance period.
24.2 Emergency Maintenance. We may from time to time need to perform emergency maintenance, including security patch installation or hardware replacement. We will not be able to provide you with advanced notice in case of emergency maintenance.
25. Improvements. We maintain sole ownership of all improvements, modifications, changes and work product (“Improvements”) created as part of any Services (including any professional services), and you are granted only a limited license to use such Improvements only while this Agreement is in effect, only in support of the Services for your internal business purposes, and subject to all limitations applicable to the License granted above and any applicable service orders.
26. Changes to the Agreement or Services. We may change this Agreement from time to time, and the changes will be effective when posted on our Site or when we notify you by other means. Please review the Agreement periodically on the designmanager.com website for changes. We may also change or discontinue the Services, in whole or in part, including but not limited to, the Internet-based services, pricing, technical support options, and other product-related policies. Your continued use of the Services after DM posts or otherwise notifies you of any changes indicates your agreement to the changes.