TERMS & CONDITIONS
YCP will provide:
• Mobile Compatible Website
• Website Hosting (up to 5GB data transfer/month & 1 GB of digital storage)
• Two rounds of revisions to the Client’s website prior to publication of the site on the world wide web (“Website Launch”).
• Ongoing Customer support following the Website Launch , which includes uploading and changing photos and other content on your website
• 1 Hour of content or design changes per month. Additional hours will be priced at $25/hour.
• All edit submissions must be made via email.
• Support is EITHER done via email, text, OR call.
Client is responsible for:
• Supplying its own content
• Purchasing and providing an SSL certificate
• Purchasing and providing a domain name/registration
• Being responsive and available during the implementation of the Client’s website.
• YCP makes no guarantee of any performance of the Client’s website, including but not limited to SEO or sales results.
DBA YCP (“Company”) has agreed to provide to Client the services set forth in the Customer Contract (“Services”). All capitalized terms used herein without definition shall have the meanings set forth in the Customer Contract. In the event of any conflict between any specific terms and conditions in the Customer Contract and these Standard Terms and Conditions, the Customer Contract shall control. The Customer Contract and the Standard Terms and Conditions together shall constitute the “Agreement.”
The Monthly Fees, Video Production Fee (if applicable), Hardware Fee (if applicable), Add-On Fees (if applicable) and any other charges or fees for Services ordered by Client are defined, collectively, as the “Fees.” Client will be responsible for paying any and all applicable sales and use taxes for the Services. Unless otherwise stated in the Customer Contract, Fees are due prior to the performance of the Services. The Agreement term shall begin upon execution of a Customer Contract, and upon such execution, Client shall pay the applicable Video Production Fee, Add-On Fees, and the first Monthly Fee as set forth in such Customer Contract. If Client has elected to pre-pay his/her Monthly Fees and/or recurring monthly Add-On Fees, such prepayments shall be due upon execution of this Customer Contract. Monthly Fees and recurring monthly Add-On Fees shall be due and payable in advance of each calendar month following the contract date. For illustrative purposes only, if Client’s Customer Contract is dated on the fifteenth (15th) of a month, then Client’s Video Production Fee (if applicable), Add-On Fees (if applicable), and first Monthly Fee shall be due and payable to Company upon signing of the Customer Contract and on the fifteenth (15th) of each calendar month thereafter, Customer shall pay the subsequent Monthly Fees and all applicable monthly recurring Add-On Fees. Alternatively, if the Client has elected to pre-pay Monthly Fees and recurring monthly Add-On Fees, such prepaid Fees shall be due and payable upon signing of the contract. Company shall begin production of the products (the “Licensed Products”) ordered by Client in accordance with the specifications set forth in the Customer Contract upon receipt of the Fees. Any amounts not paid within 30 days of the date due will bear a monthly finance charge equal to the lesser of 1.5% of the outstanding balance or the maximum amount allowed by law. In addition, Customer shall be liable for all fees incurred by Company due to payment processing fees resulting from bounced checks, insufficient funds/bank overdraft fees and/or chargebacks.
3. Production and Fulfillment.
Process. Production of the Licensed Products will begin upon receipt of the applicable Fees. Included in your purchase price is two (2) rounds of revisions on your Website prior to launch and one (1) round of edits for your Video (if applicable). Edits and revisions shall be limited to and subject to the Company’s standard policies and procedures. Requests for additional edits and/or revisions, changes and/or services that fall outside of Company’s standard production and fulfillment processes may be subject to an additional charge of: $75/hr for Video edits/revisions/changes, $75/hr website edits/revisions/changes, and $300/hr for services that fall outside of the Company’s standard production and fulfillment processes. Client will be required to approve in writing any edit, revision, change, or service request, beyond the included rounds of revisions specified above.
Client Cooperation. Client agrees to timely respond to Company questions and requests. Any delays in Client responses or delivery of Client materials may adversely affect the timing of delivery and quality of the License Products. Materials presented to Client for review shall be deemed accepted by Client unless Company receives Client’s comments (if any) within 3 business days. In the event Client repeatedly fails to respond to Company during the production and fulfillment process, Company shall have the right to terminate this Agreement with no further obligation to Client, and Client shall have no right or claim for a refund of any Fees.
4. Licensed Rights; Aftercare.
Grant of License. Provided that Client has paid all Fees and subject to, and for so long as, Client makes timely payments of all other applicable Fees, Company grants Client the non-exclusive worldwide right (the “License”) to exploit the Licensed Product throughout the world. Upon termination of the Agreement and/or Client’s failure to make timely payments under this Agreement, Client’s License shall terminate. For the sake of clarity, Client shall have no right to the source code of the Licensed Products (including but not limited to the Website). Client acknowledges and agrees, as between Client and Company, that except for content provided to Company by Client, all copyrights and other intellectual property elements and rights contained in or displayed in the Licensed Products (collectively, the “Company IP”), including without limitation design elements, templates, images, scripts, story lines, sound tracks, tag lines, and “look and feel,” object code, source code, and mobile application functionality, music or video, video footage, still photos, still photography elements created or owned by Company (e.g. Company stock footage or photography), or under license and included in the Licensed Product, search engines, Java applets, toolbars and ActiveX controls are owned exclusively by Company. The incorporation of any Client Materials into any Licensed Product in no way will affect Company’s continued and separate copyright ownership in the Licensed Products, and Company’s ownership will not merge with Client’s ownership of the Client Materials nor deprive Company of its copyright ownership. Company retains its rights to such Company IP for use by Company in any manner Company determines, subject to Client’s License to use the Licensed Product pursuant to the terms and conditions herein. Client shall not have the right to use the Company IP except as incorporated as part of the Licensed Product as a whole (for example, Client shall not have any separate right to use any components or source code except in connection with the Licensed Product). Client agrees not to reverse engineer any source code or other element of the Licensed Product or otherwise use or allow others to use the Licensed Product in any manner other than as specifically permitted herein. Client hereby agrees that Company may use the Licensed Product, including but not limited to any materials or content provided by Client, for Company’s marketing and promotional purposes. Client further acknowledges and agrees that Company shall have the right include its logo and other attribution information on Client’s Website, Video and other Licensed Products as determined by Company in its sole discretion.
Aftercare. Where Client is entitled to Aftercare, such Aftercare services shall be limited to basic services which can either be performed by the YCP or are otherwise basic modifications to the Website. Aftercare includes time spent consulting with YCP, as well as YCP time spent on site functionality, the changing of photographs, modifications to text on a page, and similar services. Aftercare does not include creation of additional web pages, creation of copy or other content for the Website, re-editing of Video, Photoshopping or editing of photography or creative design work. The client is entitled to 60 minutes of Aftercare per month. Any unused Aftercare included in a Customer Contract does not rollover or accumulate month to month. Aftercare charges in excess of that provided in the Customer Contract shall be charged to Client at Company’s rate of $75/hr.
5. Legal disclaimers.
Client shall be responsible for timely notifying Company of any copyright, legal notices or disclaimers that Client requires to be included in the Licensed Product.
6. Representations & Warranties.
Client represents and warrants that Client is the true owner or rightful lessee of Client’s locations, and that Client has the right to authorize the production and distribution of the Website, Video and Photography, and Client has the right to include Client’s business and all of its signage and appetences therein, and all individuals included therein at Client’s business, in all media throughout the world in perpetuity. Client shall be responsible for obtaining all necessary consents and approvals (including without limitation with respect to Client provided content and materials) but excluding assets provided by Company. Client represents that Client is authorized to allow entry to Company and its contractors or subcontractors (collectively the “Producers”) to record the Video and Photography. Client hereby grants permission to Producers to enter upon and use the property with personnel, and equipment for the purpose of taking video recordings, motion pictures, still photographs and sound recordings in, on and/or of the property, including without limitation, all people, animals, automobiles and any other objects on the property. In the event any agents, representatives or other persons associated with the Client participates in the Video or the Photography, Client, on behalf of itself and any such agents, representatives and persons, hereby unconditionally grants and releases to Company the irrevocable and perpetual right (but not the obligation) to use throughout the world such persons’ name, voice and/or likeness, in the Website, Video and Photography, as well as in any derivative content created by Company or any of its licensees, assignees, affiliates. Client, on behalf of itself and its agents, representatives and associates, hereby releases Company, its successors, assignees and licensees from any and all claims and demands arising out of or in connection with any such uses including, without limitation, any and all claims for invasion of privacy, infringement of any right of publicity, defamation (including libel and slander) and any other personal and/or other property rights, and Client agrees that it shall not now or in the future assert or maintain any such claim against Company, its successors, assignees and/or licenses. Client understands and agrees that ownership of the Website, Video and Photography is vested in Company and licensed to Client because Company subsidizes its production costs.
Client further represents and warrants to Company that (i) Client’s performance hereunder will not cause a material breach of any agreement to which it is a party; (ii) Client has the right and authority to enter into this Customer Contract and perform the obligations herein and the signatory for Client is at least 18 years old and has the right and authority to bind Client to this Customer Contract; (iii) Client will at all times comply with all applicable laws and regulations; and (iv) Client will not provide to Company, and Client’s Website will not contain, any content that is illegal, obscene, pornographic or otherwise offensive in nature. Client represents, warrants and covenants that, to the best of Client’s knowledge, none of the Client Materials infringe or violate any copyright, patent, trade secret, contractual right of any third party, or any other third-party right.
Company represents and warrants that: (i) Company’s performance of the services hereunder will not breach any agreement Company has with another party; and (ii) Company shall comply with all applicable laws and regulations in its performance of the Services hereunder. Company represents that it has the right to grant to Client the intellectual property rights set forth in Section 4 above and that except for any “Client Materials” (i.e., materials supplied by Client, Client’s own clients or their agents or principals to Company for inclusion in the Licensed Product) no portion of any Licensed Product shall, to the best of Company’s knowledge, infringe or violate any copyright, patent, trade secret or contractual right of any third party, or any other third-party right.
Company agrees to defend, indemnify and hold Client and its directors, officers, employees and agents harmless from and against all claims, defense costs (including reasonable outside attorneys’ fees), judgments and other expenses arising out of (i) any breach of the Agreement by Company (except as otherwise expressly provided in Exhibit A (Service Level Agreement)), including but not limited to breaches of the representations made herein by Company, and (ii) any claim that the Licensed Product violates the copyright or any other intellectual property right of any person (except to the extent that such claim relates to Client Materials or a breach of any representation or warranty by Client). Client agrees to defend, indemnify and hold Company and its directors, officers, employees and agents harmless from and against all claims, defense costs (including reasonable attorneys’ fees), judgments and other expenses arising out of (a) any breach by Client of the Agreement, (b) the use, display, public performance reproduction, distribution of the Licensed Product by Client or Client’s assigns, licensees or any party to whom Client delivers the Licensed Product (except to the extent that such claims are covered under Section 7(ii) of this above), and (c) any modifications to the Licensed Product made by Client.
8. Limitation of Liability.
Company’s liability under this Customer Contract shall be limited to the total amounts paid by Client to Company in the aggregate during the twelve month period prior to the date the cause of action arose, and neither party shall be liable for any special, indirect, exemplary, incidental, punitive or consequential damages, including without limitation, lost profits or business or damages arising (whether in contract, tort, strict liability or otherwise) out of the Agreement even if it has been advised of the possibility of such loss or damage. Any cause of action arising out of or related to the Services or Licensed Products must be commenced within one (1) year after the cause of action accrues; otherwise such cause of action shall be permanently barred.
IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES FOR ANY USE OF THIS SITE, OR USE OF ANY OTHER LINKED SITE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE SITE AT YOUR OWN DISCRETION. YCP WILL NOT BE LIABLE FOR ANY COPYRIGHT INFRINGEMENTS BECAUSE CLIENT IS SUPPOSED TO PROVIDE THEIR OWN CONTENT.
In order to cancel your subscription with Daniel DBA Your Creative Penguin. Please fill out this form (HERE)
Upon termination, Client shall have no further use of the YCP Products, nor shall Client receive a refund for any Fees paid.
YCP reserves the right to cancel any subscription at anytime.
If client payment fails 3 times, YCP has the right to take down website. There will be a fee of $199 to republish website.
EXCEPT AS EXPRESSLY PROVIDED IN EXHIBIT A, CLIENT ACKNOWLEDGES AND AGREES THAT COMPANY’S SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS, AND COMPANY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. THERE IS NO WARRANTY THAT THE LICENSED PRODUCTS OR SERVICES WILL BE ERROR FREE, WILL BE ON TIME, WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH OR IS SUPPORTED BY ALL OPERATING SYSTEMS AND/OR INTERNET BROWSERS, WILL FULFILL CLIENT’S PARTICULAR PURPOSES OR NEEDS OR MEET ANY LEVEL OF SALES, PURCHASES, CLICKS, LEADS OR OTHER PERFORMANCE METRIC. COMPANY MAKES NO WARRANTY AS TO STORAGE OF CLIENT MATERIALS AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF OR DAMAGE TO CLIENT MATERIALS. TO THE EXTENT THAT COMPANY CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. Other Terms.
Company is acting solely as an independent contractor and not as an agent, partner, joint venturer, or employee of Client. Where agreement, approval, acceptance, or consent by either party is required by any provision of the Agreement, such action shall not be unreasonably delayed or withheld. If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Neither party shall be liable to the other for delays to the other or failures to perform (other than with respect to confidentiality and payment obligations) under the Agreement if the delay or failure is caused by shortage of labor, labor disputes, war, act of enemies, riots, insurrection, civil commotion, federal, state or municipal action, statue ordinance, or regulation, fire, flood, earthquake, accident, storm, explosions, acts of God, the inability to obtain essential materials, services or other resources, or other causes beyond the party’s reasonable control (“Force Majeure”). If after payment of any Fee, Company in its sole good faith discretion determines not to proceed with production of the Licensed Product, then Company may terminate the Agreement.
Client may not assign this contract without the written consent of Company.
Client acknowledges that Company may suffer great harm from misuse of the Licensed Product or Company IP licensed hereunder, and accordingly Client agrees to take reasonable precautions to prevent such misuse by Client. Company may seek injunctive or other equitable relief against the breach or threatened breach of this Customer Contract regarding material, uncured misuse of Company IP, in addition to any other legal remedies that may be available. Client’s rights and remedies in the event of a breach of this Customer Contract by Company shall be limited to the right, if any, to recover damages in an action at a law and Client shall not be entitled to any equitable relief to restrict or interfere with Company’s rights pursuant to this Customer Contract.
The Customer Contract and the Standard Terms and Conditions (including all Exhibits) constitute the entire agreement between the parties with respect to the Services and supersedes all prior or contemporaneous agreements or representations of the parties, whether express or implied, oral or written, with respect to the subject matter hereof. Accordingly, Client shall not rely on any representations or warranties that are not expressly set forth in the Agreement. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by both parties.
From time to time Company may adjust it business practices and/or amend or modify these Standard Terms and Conditions. The revised Standard Terms and Conditions shall be posted on Company’s Website and/or sent to Client. Client agrees to maintain a current and operational email address on file with Company and Client further agrees that any correspondence or notification sent by Company to the email address that Client has on file with Company, shall be deemed delivered. Client acknowledges and agrees that Company may from time to time send surveys and other marketing-related correspondence to Client via electronic or standard mail, and that Client may opt-out from receiving such correspondence in the future. In addition, Client will be liable for any attorneys’ fees and costs (including collections costs) if Company takes any legal action to enforce the Agreement. The laws of the State of California (excluding the laws and principles with respect to conflicts of law) govern the Agreement. In connection with any dispute or claim arising out of or in connection with the Agreement, Client and Company agree exclusively to arbitrate such dispute before a single arbitrator mutually agreed upon by the parties, under the auspices of Judicial Arbitration and Mediation Services (JAMS). If the parties are unable to agree upon an arbitrator, the parties agree to the designation of an arbitrator by JAMS. The arbitration shall take place in Los Angeles, California or in the office of JAMS closest to that city. The arbitrator shall apply California law. The arbitrator’s award will be final and non-appealable, and judgment may be sought thereon in any court with jurisdiction. In the event that arbitration is necessary, the prevailing party shall have its costs associated with the arbitration, including its reasonable attorneys’ fees, paid by the other party. Any dispute resolution proceedings will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative, or private attorney general action unless Client and Company agree to do so in writing. The terms and conditions of this Agreement may not be modified or amended other than as set forth in this paragraph or by a writing signed by an authorized officer of Company.
Any notice to be given by Company to Client may be effected by email as set forth above, or either party may send notice to the other party via certified or registered mail, postage prepaid, return receipt requested, or by first class mail postage prepaid and email, in either case addressed to Client at the address on the Customer Contract, or to Company as follows: CML Media Corp., 7700 Irvine Center Drive, Suite 400, Irvine, CA 92618, Attention: General Counsel. Notice shall be deemed given upon receipt or, if sooner, three (3) days following deposit in the U.S. mails. Each party may change its address by written notice given in accordance with this paragraph.
Money back guarantee is only valid for the initial payment of the package (1st month). There will be no refunds as long as website is hosted on YCP servers. Client is responsible for requesting features for the website and other services, if there is no request client cannot request refund.
YCP agrees to honor and not increase the Monthly Fee rate quoted on this page for the term of this Agreement.
YCP will update or upgrade website from the initial design for a fee of $299
Exhibit A – Service Level Agreement
This Exhibit A is subject to the terms of and is hereby incorporated by this reference to the Agreement. The terms of this Exhibit A shall control if there is a conflict with the terms of the Agreement.
1. Service Level Agreement (SLA). The hosting of the Website (the “Hosting Services”) by Company will meet the Performance Objective set forth in Section 2 below. Failure by the Company to meet this SLA will result in the issuance of a credit to Client in accordance with Section 3 below.
2. Performance Objective. During the term of the Agreement, Company will provide uptime hosting of the Website of 99.8% (“Hosting Uptime”) of available time. Total Hosting Uptime shall be solely determined by Company and shall be calculated on a monthly basis. For purposes of calculating such Hosting Uptime, the service interruptions caused by the following shall not be included:
a. periodic scheduled maintenance or repairs Company may undertake from time to time;
b. changes to the Licensed Products or Services requested by Client;
c. errors caused by Client from custom scripting or coding;
d. outages that do not affect the appearance of the Website but merely affect access to the Website such as FTP and email;
e. causes beyond the control of Company or that are not reasonably foreseeable by Company;
f. problems with Client’s domain registrar;
g. suspension of the Services by Company in accordance with the Agreement; and
h. outages related to the reliability of certain programming environments.
3. Remedies for Service Outages:
a. In the event Client requests a credit and Company determines that it has failed to meet the Performance Objective, then Company will issue to Client a credit to be applied towards the next monthly invoice for Hosting Services provided under the Agreement, equal to 5% of the recurring Monthly Fee associated with such Hosting Service.
b. Any claims for a credit pursuant to this Section 3 shall be made by Client within thirty (30) days after the alleged failure to meet the Performance Objective and will be made to Company’s customer support organization via email or any other mutually agreed upon means. Claims made thirty (30) days after the event will not be eligible for any of the remedies described in this Exhibit.
c. Credits shall only apply to Hosting Services and will not apply to any other Service provided by Company. Client’s account will not be credited more than once per month under this Exhibit. Client’s sole and exclusive remedy, and Company’s sole and exclusive liability, in the event Company fails to meet the Performance Objective in Section 2 above, shall be to receive a credit in accordance with the terms of this Section 3.
Client will have access to front-end of the website. This does not include having access to the Admin backend or FTP files.
Please read these Terms carefully before using our Google Ads service.
1.) We are not affiliated with Google Ads.
2.) We are not responsible for your actions and their consequences
3.) We do not guarantee any results as far as leads or sales.
4.) We do not share ad setup (keywords, targeting, etc)
5.) Once campaign is launched there is no refunds on this service.
Please read these Terms carefully before using our Instagram Marketing Service.
It is up to you to read the our new user guide before using the service. By signing up, you agree that you have read the guide and agree to follow these guidelines.
- We are not affiliated with Instagram, Facebook or any Instagram third-party partners in any way.
- It is your sole responsibility to comply with Instagram rules and any legislation that you are subject to. You use our service at your own risk.
- We are not responsible for your actions and their consequences. We are not liable if your Instagram account is blocked or banned for any reason.
- We require your Instagram username and password to obtain required information for Instagram. We don’t store, give away, or otherwise distribute your password to any third parties.
- The expected amount of followers, likes and comments is not guaranteed to you in any way. It all depends on the quality of your content.
- We bring attention of real users to your feed, but we can’t protect you from spam, fake, inactive followers. It’s not possible to stop them, but you can remove unwanted followers by yourself or with special services.
- We can’t guarantee the continuous, uninterrupted or error-free operability of our services.
- You agree that upon purchasing our service, that you clearly understand and agree what you are purchasing and will not file a fraudulent dispute.
- We offer no refunds after payment is made.
- We reserve the right to modify, suspend or withdraw the whole or any part of our service or any of its content at any time without notice and without incurring any liability.
- It is your sole responsibility to check whether the Terms have changed.
- We do not tolerate spam activity. If you are using our service to spam you will be banned.
- You may cancel our service at anytime but no refunds will be made on prior payments.
Content and Site
5.1 Intellectual Property Guarantee. User guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to YCP for the Subscription or Services are owned by User, or that User has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protects, and defend YCP and its subcontractors from any liability or suit arising from the use of such elements. YCP may terminate any Account for copyright or trademark infringement, or for any other reason YCP deems appropriate as it may relate to Client’s use of another’s intellectual property.
5.2 Content. It is the responsibility of our users to create, maintain and police the content of their websites, including obeying all local, regional and national laws. Sites found in violation of any laws may be terminated at any time without notice or refund. If you have questions you may contact us to inquire. User agrees that it holds YCP harmless, and warrants that User will protect, and defend YCP and its subcontractors from any liability or suit arising from the use of such elements.
5.3 Forbidden Content. Due to policies set forth by the major search engines, YCP does not accept sites that fall into the following categories: sites that promote or facilitate online gambling; sites that promote or facilitate copyright violations; sites that sell prescription medication; sites that sell fake or replica products; sites that sell guns and ammunition, sites with pornography or sexually explicit material.
5.4 Third Parties. YCP has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. User’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory. YCP is not responsible for changes made to the web site by other parties that adversely affect the search engine rankings of the User’s website.
Project Management Software
NOTE: Daniel is a DBA of Your Creative Penguin. All references made to Daniel or Your Creative Penguin are interchangeable.
Thank you for being a Daniel member and using Your Creative Penguin’s Daniel Platform (the “Service”).
These Terms of Service (“TOS”) contain the terms under which Your Creative Penguin provides the Service to you and describe how the Service may be accessed and used.
Your Creative Penguin provides a variety of different services, including the Daniel Academy and the Certified Advisor Program, which are not covered by your Daniel membership. To the extent that you also subscribe to or become involved with these additional services, additional service-specific terms and policies, including rules and guidelines (“Additional Terms”), may apply, and those Additional Terms become a part of your agreement with us. We refer to the combination of these Terms of Service and any applicable Additional Terms collectively as these “Terms“.
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1. Fees and Payments
1.1. Fees for Services. You agree to pay to Your Creative Penguin any fees for the Service in accordance with the pricing and payment terms presented to you when you registered.
1.2. Subscriptions. The Service is billed on a subscription basis. This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly and begin on the day that you first signed up for Daniel. Your subscription to the Service (“Membership”) will automatically renew at the end of each billing cycle unless you cancel your membership in the manner specified below.
1.3. Credit and Debit Cards. Your Creative Penguin accepts debit cards and the following credit cards as means of paying for the Service: American Express, Master Card, Discover and Visa. Should you opt at registration to pay by debit or credit card, you authorize Your Creative Penguin to charge your credit card or bank account for all fees payable during each billing cycle. You further authorize us to use a third party to process payments, and consent to the disclosure to and storage of your payment information by such third party (Your Creative Penguin does not store your credit card information on or within its servers or databases). If your credit card is declined, Your Creative Penguin will instruct its third-party payment processor to attempt to charge the card on file for 10 days while at the same time attempting to notify you. It is your responsibility to provide Your Creative Penguin with a current email address, phone number and credit or debit card number and expiration date.
1.4. Taxes. Unless otherwise stated, you are responsible for any taxes (other than any taxes based upon Your Creative Penguin’s gross revenues or net income) or duties associated with the sale of the Service, including any related penalties or interest (collectively, “Taxes”). You will pay Your Creative Penguin for the Service without any reduction for Taxes. If Your Creative Penguin is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Your Creative Penguin with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged.
1.5. Price Changes. Your Creative Penguin may change the fees charged for the Service at any time, provided that the change will become effective only at the end of the then-current billing cycle of your membership. Your Creative Penguin will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your membership before the change becomes effective.
1.6. Disabled Account. All Memberships 10 days past due will be disabled until the full balance is paid. During this period all access will be suspended and all data will be unavailable. If a Membership remains delinquent for more than 45 days, it will be terminated and the associated account is closed.
1.7. Charge Backs. If you initiate a charge back, Your Creative Penguin will suspend your Membership until the matter is resolved. Charge backs on your Membership that are made by you to avoid payment will result in a $75 fee to you.
1.8. Refunds. Your Creative Penguin does not issue refunds unless the request for a refund is received during any designated money back guarantee period. Your Creative Penguin does not monitor your use of the Service and will not issue refunds for non-use or limited use of the system.
1.9 Free Trials. If you register for a free trial, we will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of your paid subscription. Unless you purchase a subscription to the Service before the end of the free trial, all of your data in the Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those terms will apply as well.
2. Content and IP Rights
2.1. Your Content. In the course of using the Service, you may submit content to Your Creative Penguin (including your personal data and the personal data of others) or third parties may submit content to you through the Service (your “Content”). You retain ownership of all of your intellectual property rights in your Content. Your Creative Penguin does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Service, and as otherwise described in these Terms.
2.2. Limited License to Your Content. You grant Your Creative Penguin a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise utilize your Content, but only for the limited purposes of providing the Service to you and as otherwise permitted by Your Creative Penguin’s privacy policies. This license for such limited purposes continues even after you stop using our Service, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Your Creative Penguin’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Service to you. If you provide Your Creative Penguin with feedback about the Service, we may use your feedback without any obligation to you.
2.3. Your Creative Penguin IP. This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service is protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Service or any content provided by Your Creative Penguin Content, in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission.
2.4. User Content. The Service displays content provided by others that is not owned by Your Creative Penguin. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Service. Your Creative Penguin is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Service unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
2.5. Content Review. You acknowledge that, in order to ensure compliance with legal obligations, Your Creative Penguin may be required to review certain content submitted to the Service to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, Your Creative Penguin otherwise has no obligation to monitor or review any content submitted to the Service.
2.6. Third Party Resources. Your Creative Penguin may publish links in its Service to internet websites maintained by third parties. Your Creative Penguin does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Service are the property of their respective owners.
2.7. Marketing and Advertising. Your Creative Penguin may identify you, by name and logo, as a Daniel customer on Daniel’s website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit. If you do not wish for your name and logo to be a part of these marketing efforts, you must notify us in writing and allow Your Creative Penguin up to thirty days to remove this information.
2.8. Copyright Claims (DCMA Notices). Your Creative Penguin responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify a Your Creative Penguin representative.
2.9. Other IP Claims. Your Creative Penguin respects the intellectual property rights of others, and we expect our users to do the same. If you believe a Your Creative Penguin user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.
3. Customer Data
3.2 Certified Advisors. If you have partnered with a Certified Advisor that participates in our Daniel Certified Advisor Program, we may monitor that advisor’s activity within your Membership and make information related to your Membership available to the advisor based on your express authorization.
3.3 Aggregated and Anonymous Data. We may monitor use of the Service by all of our customers and use any data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not specifically identify you or any of your customers.
3.4 Security. We will maintain commercially reasonable and appropriate administrative, physical, and technical safeguards to protect Customer Data. For purposes of complying with any relevant privacy, cybersecurity or breach notification laws, you agree that the processing of Customer Data by Your Creative Penguin will all be deemed to have occurred in the state of Florida.
3.5 Data Storage. Subject to Section 6.3 below concerning the cancellation or termination of your Membership, we agree that most of your Customer Data will remain on our servers and be accessible to you while your Membership remains active and in good standing. However, certain types or categories of data are only maintained on our servers for a finite period of time. GPS waypoints used to plot breadcrumb trails are stored for six months. Waypoints used to identify location at the time of clock in time / clock out time are stored indefinitely.
3.6. Data Loss. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over the Internet to various networks or devices; and (b) changes to conform and adapt to technical requirements of connecting to the Internet or to various networks or devices. Your Creative Penguin is not responsible for the restoration of any Content or Customer Data lost as a result of these Internet transfers, your actions or your use of any and all “delete” functions within the system, nor through deletion of any data by you within any systems which integrate and transfer data to our system, including, without limitation, QuickBooks. Your Creative Penguin, at its sole discretion, may assist in retrieving and restoring deleted information and may choose to charge and bill you for the associated services, including time and materials involved.
4. Account Management
4.1. Keep Your Password Secure. If you have been issued an account by Your Creative Penguin in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Your Creative Penguin, are responsible for any activity occurring in your account (other than activity that Your Creative Penguin is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Your Creative Penguin immediately. Accounts may not be shared and may only be used by one individual per account.
4.2. Keep Your Details Accurate. Your Creative Penguin occasionally sends notices to the email address registered with your account. You agree that you must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
4.3. Remember to Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Your Creative Penguin will not be liable for any failure to store, or for loss or corruption of, your Content.
5. User Requirements and Acceptable Uses
5.1. Legal Status. If you are an individual, you may only use the Service if you are old enough to have the power to form a contract with Your Creative Penguin. The Service is not intended for use by individuals less than 13 years old. If you are under 13 years old or you are not old enough to have the power to form a contract with Your Creative Penguin, you may not use the Service. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Service.
5.2. Legal Compliance. You must use the Service in compliance with, and only as permitted by, applicable law.
5.3. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Service. You must comply with the following requirements when using the Service:
(a) You may not purchase, use, or access the Service for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Service by interfering with its normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not circumvent or attempt to circumvent any limitations that Your Creative Penguin imposes on your account.
(d) Unless authorized by Your Creative Penguin in writing, you may not probe, scan, or test the vulnerability of any Your Creative Penguin system or network.
(e) Unless authorized by Your Creative Penguin in writing, you may not use any automated system or software to extract or scrape data from the websites or other interfaces through which we make our Service available.
(f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Service, or attempt to do so.
(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Service.
(h) You may not engage in abusive or excessive usage of the Service, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Service for other users. Your Creative Penguin will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Your Creative Penguin.
(i) You may not use the Service to infringe the intellectual property rights of others, or to commit an unlawful activity.
(j) Unless authorized by Your Creative Penguin in writing, you may not resell or lease the Services.
(k) If your use of the Service requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Your Creative Penguin has agreed with you otherwise. You may not use the Service in a way that would subject Your Creative Penguin to those industry-specific regulations without obtaining Your Creative Penguin’s prior written agreement. For example, you may not use the Service to collect, protect, or otherwise handle “protected health information” (as defined in the Health Insurance Portability and Accountability Act of 1996, 45 C.F.R. §160.103) without entering into a separate business associate agreement with Your Creative Penguin that permits you to do so.
(l) To the extent that you use the Service to process credit card payments from your customers, you agree not to keep credit card information in plain text or unencrypted form in the body of notes fields, custom fields, to dos, calls, etc. within the Service. All credit card data must be stored within secure credit card forms. It is your responsibility to comply with all credit card security standards, including but not limited to the Payment Card Industry Data Security Standards (“PCI-DSS”).
(m) YOU MAY NOT USE YOUR MEMBERSHIP TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. Your Creative Penguin WILL NOT INCUR ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
(n) You have the ability to send text or email messages through the Service (the “Communication Services”). To the extent that you use the Communication Services, you agree to comply with the United States CAN-SPAM Act. You further acknowledge that we do not control the content, messages or information found in your communications and that we will not incur any liability with regards to your use of Communication Services or any actions resulting therefrom.
6. Suspension and Termination of Services
6.1. By You. For security reasons, including without limitation, fraudulent cancellations, we cannot accept a request for termination via email. All requests for termination must be initiated verbally by contacting a Your Creative Penguin customer service representative. The representative will then email you a short online cancellation form. Once you complete the form, your Membership will be terminated and your account will be immediately closed. Cancelling a credit card does not constitute a cancellation.
6.2. Termination in the Middle of a Billing Cycle. If you terminate a Membership in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating these Terms (a) because we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing, or (b) a refund is required by law.
6.3. By Your Creative Penguin. Except for non-payment of Membership fees (discussed in Section 1.6 above), Your Creative Penguin may terminate your Membership at the end of a billing cycle by providing at least 30 days’ prior written notice to you. Your Creative Penguin may suspend performance or terminate your Membership because (a) you have materially breached these Terms and failed to cure that breach within 30 days after Your Creative Penguin has so notified you in writing, (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days, or (c) you inflict verbal, written or other abuse (including threats) on any Your Creative Penguin employee or representative or any other Daniel member. Additionally, Your Creative Penguin may limit or suspend the Service to you if you fail to comply with these Terms, or if you use the Service in a way that causes legal liability to us or disrupts others’ use of the Service. Your Creative Penguin may also suspend providing the Service to you if we are investigating suspected misconduct by you. If we limit, suspend, or terminate your use of the Service, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from the Service. However, there may be time sensitive situations where Your Creative Penguin may decide that we need to take immediate action without notice. Your Creative Penguin will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. Any of your Content that is stored in a canceled or terminated account will be deleted after 60 days from the cancellation date. After that time, Your Creative Penguin has no obligation to retain your Content.
6.4. Further Measures. If Your Creative Penguin stops providing the Service to you because you have repeatedly or egregiously breached these Terms, Your Creative Penguin may take measures to prevent the further use of the Service by you, including blocking your IP address.
7. Changes and Updates
7.1. Changes to Terms. Your Creative Penguin in its sole discretion may change these Terms at any time for any of a variety of reasons, such as to reflect changes in applicable law or updates to the Service, and to account for new services or functionality. The most current version will always be posted on the Daniel website. If an amendment is material, as determined in Your Creative Penguin’s sole discretion, Your Creative Penguin will notify you by email. Notice of amendments may also be posted to Your Creative Penguin’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Your Creative Penguin to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for the Service, you should stop using the Service, because by continuing to use the Service you indicate your agreement to be bound by the updated terms.
7.2. Changes to Services. Your Creative Penguin is constantly working to change and improve the Service. In that regard, Your Creative Penguin may add, alter, or remove functionality from the Service at any time without prior notice. Your Creative Penguin may also limit, suspend, or discontinue the Service at its discretion. If Your Creative Penguin discontinues the Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from the Service. Your Creative Penguin may remove content from the Service at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
7.3. Beta Services. From time to time, we may provide beta access to new features associated with the Service or completely new subscription based services (the “Beta Services”) to you. With respect to these services, (a) the Beta Services are provided “as is” and without warranty of any kind, (b) we may suspend, limit, or terminate the Beta Services for any reason at any time without notice, and (c) we will not be liable to you for damages of any kind related to your use of the Beta Services. If we inform you of additional terms and conditions that apply to your use of the Beta Services, those will apply as well. We may require your participation to be confidential, and we may also require you to provide feedback to us about your use of the Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
7.4. Monthly Rate Changes. Daniel reserves the right to alter the price of the subscription. The subscriber will be notified with a proper 30 day notice to the increase or decrease in subscription price.
8. Disclaimers, Limitations of Liability and Indemnification
8.1. Disclaimers. While it is in Your Creative Penguin’s interest to provide you with a great experience when using the Service, there are certain things we do not promise about them. We try to keep our online Service up and running, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND Your Creative Penguin DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
8.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Your Creative Penguin, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF Your Creative Penguin HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF Your Creative Penguin, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO Your Creative Penguin FOR USE OF THE SERVICE AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US $2000.00.
8.4. Consumers. We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
8.5. Businesses. If you are a business, you will indemnify and hold harmless Your Creative Penguin and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with (a) the unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, or (d) the unauthorized use of the Service by any other person using your account information.
8.6 Cooperation by Your Creative Penguin. With respect to claim described in 8.5 above, we will (a) notify you in writing within 30 days of our becoming aware of any such claim; (b) give you sole control of the defense or settlement of such a claim; and (c) provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim.
8.7. Settlement. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
9. Other Terms
9.1. Assignment. You may not assign these Terms without Your Creative Penguin’s prior written consent, which may be withheld in Your Creative Penguin’s sole discretion. Your Creative Penguin may assign these Terms at any time without notice to you.
9.2. Entire Agreement. These Terms (including any applicable Additional Terms) constitute the entire agreement between you and Your Creative Penguin, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Service, do not override or form a part of these Terms, and are void.
9.3. Applicable Law and Forum/Venue. You are contracting with Your Creative Penguin and this Agreement is governed by the laws of the State of Texas, U.S.A. without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of the state and federal courts in Dallas, Texas, U.S.A. for all disputes arising out of or relating to the use of the Service or this Agreement.
9.3. Independent Contractors. The relationship between you and Your Creative Penguin is that of independent contractors, and not legal partners, employees, or agents of each other.
9.4. Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
9.5. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
9.6. Precedence. To the extent any conflict exists, any relevant Additional Terms will prevail over these TOS with respect to the services to which the Additional Terms apply.
9.7. Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of the terms will remain in full effect.
9.8. Third Party Beneficiaries. There are no third party beneficiaries to these Terms.
9.9. Survival. The following sections will survive the termination of these Terms: 1, 2.2, 6, 8, and 9.