Last updated: 02/20/23
Service Terms and Conditions
THESE SERVICE TERMS AND CONDITIONS (“SERVICE TERMS”) ARE INCORPORATED IN AND MADE A PART OF THE ORDER BETWEEN DCP AND CUSTOMER WHICH PERTAINS TO THE PROVISION OF DCP SOFTWARE AND SERVICES AS DESCRIBED IN THE ORDER (COLLECTIVELY “SERVICES”). BY EXECUTING THE ORDER AND/OR REGISTERING AN ACCOUNT ON DCP’S WEBSITE, CUSTOMER AND ITS AUTHORIZED USERS AND AGENTS ACKNOWLEDGE THAT THEY HAVE READ THE FOLLOWING TERMS AND CONDITIONS AND HEREBY CONSENT AND AGREE TO BE FULLY BOUND BY SUCH TERMS, INCLUDING THE TERMS OF THE ORDER, DCP’S PRIVACY POLICY AND WEBSITE TERMS OF USE (COLLECTIVELY “AGREEMENT”). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE SAME MEANING AS SET FORTH IN THE ORDER. FOR PURPOSES OF THIS AGREEMENT, CUSTOMER SHALL INCLUDE THE CUSTOMER LISTED ON THE ORDER AND ITS EMPLOYEES, AUTHORIZED USERS AND AGENTS.
ALL PERSONALLY IDENTIFYIABLE AND NON IDENTIFYIABLE INFORMATION ENTERED WHEN REGISTERING AN ACCOUNT OR SUBMITTED OR PROCESSED AS PART OF THE SERVICES SHALL BE SUBJECT TO DCP’S PRIVACY POLICY AS FURTHER SET FORTH IN http://dealcoachpro.com/privacy-policy/WHICH MAY BE UPDATED FROM TIME TO TIME, AT DCP’S SOLE DISCRETION (“PRIVACY POLICY”). THE PRIVACY POLICY, AND ANY UPDATES, ARE HEREBY INCORPORATED IN AND MADE A PART OF THESE SERVICE TERMS.
ACCESS TO DCP’S WEBSITE FOR ACCOUNT REGISTRATION AND USE OF THE SERVICES SHALL BE SUBJECT TO DCP’S WEBSITE TERMS OF USE AS FURTHER SET FORTH IN http://dealcoachpro.com/terms-of-use/ WHICH MAY BE UPDATED FROM TIME TO TIME, AT DCP’S SOLE DISCRETION (“WEBSITE TERMS OF USE”). THE WEBSITE TERMS OF USE, AND ANY UPDATES, ARE HEREBY INCORPORATED IN AND MADE A PART OF THESE SERVICE TERMS.
1. DCP SERVICE ACCOUNTS. Prior to use of the Services, Customer shall register an account(s) with DCP and set up user profiles with a user id and password for each authorized user. Customer shall be solely responsible for updating and maintaining the accuracy of the Account Information and maintaining the confidentiality and security of its User id’s and passwords (“Security Id’s). Failure to timely provide updated or accurate Account Information, maintain confidentiality of Security Id’s, and comply with all the terms of this Agreement may result in Customer’s account being suspended or terminated without notice and without liability to DCP. Customer shall use diligent, prudent efforts to ensure restricted access to Security Id’s and is prohibited from authorizing any other person or third party to use Customer’s Account Information. To the extent Customer believes its Account Information may have been compromised or disclosed to an unauthorized user, Customer shall immediately contact DCP Customer Service for assistance. DCP shall not be liable, in any manner whatsoever, for any damages or losses related to the unauthorized use, compromise or breach of Customer’s Account Information or Security Id’s.
2. LICENSES AND PROPRIETARY INFORMATION. Customer understands and agrees that: i) DCP possesses all rights, title, and intellectual property interests and/or has legal authority in and to the Software and the Services; and ii) Customer shall have no proprietary rights or interest, whatsoever, in the Services or any software, third party software, documentation, processes, knowhow, ideas, source code, object code, algorithms, methodologies, specifications, inventions, designs, interfaces and the like related to the Services, and its improvements and enhancements, including the intellectual property contained (collectively “Proprietary Information”).
Customer shall have a non-transferable and non-exclusive license to use the Proprietary Information solely in connection with the proper use of the Services. In connection therewith, Customer agrees to not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the Proprietary Information relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent otherwise permitted by DCP in writing); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels thereon. Customer further agrees to not infringe upon, harm, misuse or contest the rights of DCP to any of its patents, trademarks and copyrights in connection with the Services and the Proprietary Information and shall not remove DCP’s or authorized licensor’s marks from any documentation or materials furnished by DCP. With respect to Customer’s Marks, DCP and Customer agree that DCP may publish Customer’s name and approved trademark in DCP’s marketing materials, including on DCP’s web site, unless Customer provides DCP written notice stating otherwise.
Only employees or authorized agents of Customer that have a need to access the Services as part of their job or service responsibilities shall be considered an authorized user of the Services (“Authorized User”). In the event an Authorized User is no longer employed or in a contractual relationship with Customer and/or no longer requires access to the Services to complete its job or service responsibilities, Customer shall immediately deactivate such user from access to the Services.
3. PAYMENT OF FEES AND EXPENSES. Prior to activation of the Services, Customer shall pay DCP a recurring “Services Fee” (based on the number of users on the Order), in addition to certain one-time fees (collectively “Fees”). Payment shall be by credit card, ACH transaction, or check (when payment by invoice approved). For payment by check: i) the Monthly Service Fees will be billed on the first day of each month in advance, commencing on the Order Date and prorated accordingly for the first month of use; and ii) the Annual Service Fee will be billed annually in advance, payable on the first day of the calendar month, following the Order Date and prorated accordingly for the first month of use. Fees for one-time service fees, including without limitation, consulting, training or configuration fees, shall be invoiced and payable prior to commencement of the service. All other fees and expenses will be invoiced as incurred. Payment y credit card or ACH will be charged the day after Services are activated. Invoices are payable net 30
Any changes to the Services Package with regard to number of users shall be requested by Customer online with the monthly Service Fee adjusted on the following day to reflect the new Services Package. For Customers with a prepaid annual service term, DCP will invoice Customer for the additional service fee for a higher user package, to be prorated based on the remainder of the Annual Service Term. No credits or reimbursements will be provided for changes to a lower user package for Customers with Annual Service Terms. DCP reserves the right to change fees for Monthly Service Customers with 30 days written notice, at is sole discretion. Customer’s continued use of the Services after the fee change comes into effect constitutes its agreement to pay the modified Fee amount Fees are non-refundable.
Customer agrees to provide all accurate and complete billing information, including full name, address, state, zip code, telephone number when submitting credit card and ACH billing information. Upon submission, Customer authorizes DCP to automatically charge Customer’s credit card or bank account (ACH) for the Service Fees, which fees shall be reflected in Customer’s monthly statement. Customer agrees to immediately alert and advise DCP of any changes to credit card or ACH information in writing, with the proper authorizations. Customer shall be liable and responsible for any overdraft or other charges imposed by Customer’s card issuer or bank due to insufficient funds in Customer’s account. If DCP determines that Customer’s payment method is no longer valid, Customer understands and agrees that DCP may suspend the Services until proper payment information is provided and verified. For payments approved by Invoice, all invoices shall be payable net thirty (30) days from the invoice date, except as otherwise indicated (“Invoice Due Date”). Outstanding invoices shall accrue interest at the rate of one and one-half percent (1.5%) per month simple interest, up to the maximum rate allowed by applicable law. Customer shall be liable and responsible for all expenses and fees incurred in collecting any past due payments, including without limitation, collection fees and attorney’s fees, which shall be payable immediately upon receipt of the applicable invoice.
Customer shall be responsible for and shall pay (or reimburse DCP if DCP is required to pay), any sales, use, value added or other tax (excluding any tax based on DCP’s net income), assessment, duty, tariff, or any other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Services (“Tax”). To the extent authorized and agreed to, Customer shall reimburse DCP for all reasonable expenses incurred in connection with the Services, including without limitation, any travel related expenses in the event Customer requests DCP to travel to Customer’s site to provide consulting, training or configuration services (“Expenses”).
If Customer fails to pay DCP the applicable Fees, Expenses, Taxes, Interest, or any incurred collection or attorney fees (“Total Fees”) on the applicable Due Date, DCP, may, at its option, and without notice to Customer, terminate the Services, with the understanding that Customer shall still be obligated and remain liable for all Fees accrued through the remainder of the Services Term. THE PARTIES AGREE AND UNDERSTAND THAT IN NO EVENT SHALL DCP BE LIABLE, IN ANY MANNER WHATSOEVER, TO CUSTOMER, OR ANY THIRD PARTY, AGENT OR REPRESENTATIVE, FOR ANY ACTIONS IT MAY TAKE TO EXERCISE ITS RIGHTS AS AGREED HEREUNDER.
4. TERMINATION, CANCELLATION OR MODIFICATION OF SERVICES. The Services shall commence on the earlier of the Order Date and the date Customer’s account is registered and shall continue through the Services Term. The Services Term shall automatically renew on the Service Term Anniversary Date, unless otherwise terminated or cancelled pursuant to the terms herein. DCP reserves the right to change the Services with 30 days written notice, at its sole discretion.
Monthly Services may be cancelled with 30 days prior written notice to DCP with billing to be terminated 30 days following the written notice of termination. Prepaid Annual Service may be cancelled with 30 days written notice prior to the end of the then current Service Year. Monthly and Annual Services fees will automatically renew for the next applicable period unless the Services have been cancelled with the proper notice as set forth herein. If Customer cancels the Services outside of the applicable cancellation period, Customer shall remain fully liable for any and all outstanding fees and Service Fees through the then current term and authorizes DCP to process any outstanding Fees using Customer’s then current form of payment. In such event, Customer acknowledges and agrees that it shall not be entitled to a refund for any unused portion of the Services during the Service Term. Any termination of this Agreement shall not affect or impair Customer’s obligations to pay all amounts owed DCP under this Agreement, including without limitation, all fees due DCP through the term of the Agreement. DCP’s right to terminate this Agreement shall be in addition to any other rights or remedies available to DCP at law or in equity, including damages and injunctive relief. DCP may terminate this Agreement with 30 days written notice to Customer if Customer breaches a non-material term of this Agreement and fails to cure within the 30 days’ notice period; provided however that a breach for failure to pay or violation of any confidentiality and intellectual property obligations herein may result in immediate suspension or termination of Services without any notice to Customer. Upon termination or expiration of the Agreement, Customer agrees promptly erase, destroy, or return to DCP and all of the Confidential Information in its possession or control.
5. CONFIDENTIAL INFORMATION. The Services and all documentation, designs, websites, specifications, algorithms, methodologies, business, financial, and marketing plans, orders, pricing, contracts, specifications, trade secrets, Proprietary Information, and all other information pertaining to the Solution whether in oral, written, graphic or electronic form, are and shall remain the confidential and the proprietary ownership of DCP (collectively, the “Confidential Information”). Customer shall: (1) disclose Confidential Information to only those employees, directors, authorized agents and professional service providers of Account Holder (collectively “Affiliates”) whose duties justify their need to know such information and who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information; and (2) use the Confidential Information solely for the purpose of accessing and using the Services, and never for any purpose which would be detrimental to DHP. Customer shall treat the Confidential Information as strictly confidential and shall use the same care to prevent disclosure of such information as Customer uses with respect to its own similar confidential and/or proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Neither Company nor any of its Affiliates shall copy any Confidential Information without the prior express written consent of DCP. Customer shall promptly return, destroy or delete all Confidential Information, and any copies thereof, in its possession or control, upon the request of DCP or upon termination of the Services.
6. OWNERSHIP OF DATA. Customer warrants and represents to DCP that Customer is the legal and rightful owner and/or legal custodian of all customer information that is entered, used, disclosed, or processed in connection with the Services, in addition to any data that is directly generated in connection with the Services (“Customer Information”) and that Customer has full authority to process the Customer Information without liability or penalty, whatsoever. In connection therewith, the parties agree that Customer shall own all right, title and interest in the Customer Information with the understanding, that: i) Customer shall be fully liable and responsible in all respects to the Customer Information, including without limitation, compliance with all applicable laws, rules and regulations concerning use, privacy, and transmission; ii) DCP shall not be liable, in any manner whatsoever, in connection with the integrity, correctness, availability, use, loss or breach of the Customer Information; and iii) Customer shall grant DCP a perpetual, royalty-free license to access and use the Customer Information during and after the term of this Agreement, provided it is done for internal purposes and complies with DCP’s Privacy Policy. Customer Information will not be accessible to Customer after termination or expiration of this Agreement; if Customer wishes to retain such data, Customer shall be responsible for exporting the Customer Information using the export function provided in the DCP Software prior to termination of the Services.
7. COMMUNICATIONS. DCP shall communicate with Customer by website or via email. These communications shall, include without limitation, revisions to agreements and policies, notices regarding Customer’s account (e.g., password change confirmation, emails and other transactional information) and information concerning or related to the Services. Customer consents to receipt of communications by email and agrees that any such notices, agreements, disclosure or other communications that DCP sends to Customer electronically will satisfy any and all legal communication requirements, including that such communications be in writing.
8. WARRANTY AND DISCLAIMER. Subject to the terms of this Agreement, including payment of applicable Fees, DCP will use commercially reasonable efforts to provide, maintain, and support the Services as set forth in the Order in accordance with DCP’s policies and in a manner which minimizes errors and interruptions. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by DCP or by third-party providers, or because of other causes beyond DCP’s reasonable control, but DCP shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING THE FOREGOING, DCP does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS. DCP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN CONNECTION THEREWITH, CUSTOMER UNDERSTANDS AND AGREES THAT IF IT IS DISSATISFIED WITH THE SERVICES OR THE TERMS OF THIS AGREEMENT, IT’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES
9. INDEMNITY. Customer agrees to fully indemnify and hold harmless DCP and its officers, directors, employees, third party service providers, contractors, licensors, representatives, agents and affiliates (collectively “Related Parties”) for any liability, cost, expenses (including expenses and reasonable attorneys’ fees through and including appellate litigation), losses or claims arising out of or in connection with the Services, including without limitation, Customer’s use of the Services, a claim involving the use, disclosure or processing of Customer Information, or any claim or action that arises from an alleged breach, violation, or non-performance in connection with the DCP’s Policies or the Agreement.
10. LIMITATION OF LIABILITY. DCP’S LIABILITY, IF ANY, TO CUSTOMER, ITS AGENTS, AFFILIATES, CLIENTS, AUTHORIZED USERS, EMPLOYEES, OR ANY THIRD PARTY, FOR ANY CAUSE WHATSOEVER IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION, DCP’S NEGLIGENCE, SHALL BE LIMITED TO DCP’S OBLIGATION TO REPAIR OR REPLACE THE DEFECT OR TO RE-PERFORM THE SERVICES IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DCP AND/OR ITS RELATED PARTIES BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY INCLUDING WITHOUT LIMITATION: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA OR CUSTOMER INFORMATION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF FEES, BUSINESS OR PROFITS, NO MATTER THE CAUSE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ARISING FROM THE USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) FOR ANY MATTER BEYOND DCP’S REASONABLE CONTROL. IN THOSE STATES WHERE THE EXCLUSION OR LIMITATION OF LIABILITY MAY NOT APPLY, ANY LIABILTY OF DCP AND ITS RELATED PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW BUT SHALL IN NO EVENT EXCEED ONE MONTH OF SERVICE FEES FOR THE MONTH IMMEDIATELY PRECEEDING THE MONTH A CLAIM IS MADE.
11. CUSTOMER COMPLIANCE. Customer represents and warrants that it will: i) comply with these Service Terms and DCP’s published policies and procedures then in effect, including without limitation, DCP’s Privacy Policy and Website Terms of Use (collectively “Policies”); ii) comply with all applicable, laws, rules and regulations in connection with the Services; iii) be responsible for obtaining and maintaining any devices and or ancillary services, at its own cost, which is required to connect to, access or otherwise use the Services, including, without limitation, devices capable of internet access, high speed internet access transmission, and any other technology in connection therewith; and iv) complete all requirements required by DCP as a prerequisite to use of the Services.
12. MODIFICATION TO SERICE TERMS AND POLICIES. DCP reserves the right, at its sole discretion, to modify, add to, or remove provisions of the Policies and Service Terms, at any time, and to change, delete, discontinue, or revise conditions on any feature or aspect of the Services, which notice of material changes may be published on DCP’s website, at its discretion (“Notice”). Customer is solely responsible for reviewing any and all revisions to the Policies and Service Terms as they are made and published from time to time. Customer’s access and/or use of the Services after publication of the Notice regarding changes to the Policies and Service Terms shall constitute its nonrevocable acceptance of the terms, as modified.
13. MISCELLANEOUS. The parties represent and warrant that each has adequate power and authority to enter into the Order for Services and that this Agreement constitutes a valid, legal and binding agreement of the parties; b. Customer shall not assign, sublicense, or transfer its rights, duties, and obligations under this Agreement without the prior written consent of DCP, which consent shall not be unreasonably withheld; c. Neither party shall be responsible for delays caused by, but not limited to, any act of God, war, fire, natural disaster, accident, riots, acts of terrorism, acts of government, viruses, shortage of materials, supplies, or resources, delay or failure of any transportation, transmission, or communication system, non-performance of any agents or third-party providers or any other causes beyond a party’s reasonable control; d. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective legal representatives, successors and permitted assigns; e. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind DCP in any respect whatsoever; f. The terms herein, with the exception of payment obligations, shall apply to any Free Trial offered by DCP to Customer. DCP reserves the right to: (i) modify the terms and conditions of any Free Trial offer, or (ii) cancel such Free Trial offer, at any time, and without notice; g. All provisions regarding payment, confidentiality, warranty, liability, termination, and indemnification in addition to any other sections which by their express terms or nature and context are intended to survive termination or cancellation of this Agreement, shall survive any termination or cancellation of this Agreement; h. No remedy herein conferred upon any party, is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or hereafter existing at law or in equity or by statute or otherwise; i. No delay, failure or single or partial exercise by any party of any right, power or remedy hereunder shall be deemed to constitute a waiver of that right, power or remedy; j. Should a dispute arise with respect to any aspect of this Agreement, the parties agree to engage in good faith, informal dispute resolution discussions for a minimum period of thirty (30) days to resolve the dispute. Should the parties fail to resolve their dispute informally, the parties agree to engage in confidential binding arbitration with JAMS in Palm Beach County, Florida, with arbitration to be in front of a single arbitrator and conducted in accordance with JAMS’ Optional Expedited Arbitration Procedures. Arbitration fees assessed by JAMS shall be at the parties’ joint and equal expense, with attorneys’ fees and expenses incurred by the prevailing party to be paid by the non-prevailing party, upon conclusion; any action under this Agreement shall be commenced within one year after the cause of action has accrued; k. If any provision of this Agreement is legally held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be impaired thereby; l. Any notices required herein shall be sent to the addresses listed in the Order form and shall be deemed duly delivered when sent by certified registered mail, by overnight delivery service, by delivery in person, or by email with written confirmation of receipt by the applicable party.
Any questions about these Service Terms should be addressed to DCP at support@dealcoachpro.com.
CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE SERVICE TERMS, UNDERSTANDS ALL ASPECTS OF THE SERVICE TERMS, AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. DCP RESERVES THE RIGHT TO CHANGE ITS SERVICE TERMS, AT ANY TIME AND AT ITS SOLE DISCRETION. UPDATED VERSIONS OF THE SERVICE TERMS WILL APPEAR ON DCP’S WEBSITE AND ARE EFFECTIVE IMMEDIATELY. CONTINUED USE OF THE WEBSITE OR THE SERVICES AFTER ANY SUCH CHANGES CONSTITUTES CUSTOMER’S CONSENT TO SUCH CHANGES.
THESE SERVICE TERMS WERE LAST UPDATED ON: 02/20/23
