Last Updated: June 15, 2026
These Terms and Conditions (these “Terms”) constitute a legally binding agreement between Diamond Media Solutions, Inc., a Florida corporation (“DMS,” “we,” “us,” or “our”), and each person or entity that accesses or uses the website located at https://diamondmediasolutions.com/ or its sub-domains (the “Site”), and/or accesses or uses any software, platform, or service offered by DMS, including without limitation the proprietary EARL platform and any other software-as-a-service offering (collectively, the “Platform”), and/or enters into a Purchase Agreement or other order form with DMS (each, a “Client”). Any person who visits, accesses, or uses the Site or Platform is referred to as a “User.” Throughout these Terms, “you” and “your” refer to you individually, whether you are a User, a Client, an Authorized User, or an Agency Client, as the context may require; a User who is also a Client or Authorized User is subject to these Terms in each capacity. Where a provision applies exclusively to Clients (for example, payment obligations under a Purchase Agreement), these Terms so indicate; all other provisions apply equally to all Users, Clients, and Authorized Users. Where you access the Site or Platform on behalf of a legal entity, such entity shall be bound by these Terms, and you represent and warrant that you have the authority to bind such entity.
By accessing, browsing, submitting any information to or through, or otherwise using the Site or Platform, you acknowledge that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms in their entirety, you are not authorized to access or use the Site or Platform and must immediately cease all access and use.
DMS’s Privacy Policy, available at https://diamondmediasolutions.com/privacy-policy (the “Privacy Policy”), informs you of DMS’s collection and use of your information, including your Personal Information, in relation to your use of the Site, the Platform, and related services. The Privacy Policy is incorporated into and made a part of these Terms by this reference. By accessing or using the Site or Platform, you acknowledge that you have read, understand, and agree to be bound by the Privacy Policy.
The following terms shall have the meanings set forth below when used with initial capitalization throughout these Terms:
2.1. “Agency Client” means a Client that enters into a Purchase Agreement with DMS on behalf of, or for the benefit of, one or more End Clients, including without limitation any marketing agency, advertising agency, media buyer, or other intermediary.
2.2. “Authorized User” means an individual who is authorized by a Client to access and use the Platform under the rights granted to such Client pursuant to a Purchase Agreement, and who has acknowledged and agreed to these Terms.
2.3. “Client” means any person or entity that enters into a Purchase Agreement with DMS for access to and use of the Platform or Services, whether on its own behalf or as an Agency Client on behalf of one or more End Clients.
2.4. “Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of a Client (including an Agency Client on behalf of an End Client) or an Authorized User through the Platform, or that is provided to DMS in connection with the Services, including without limitation audience data, campaign parameters, creative assets, and configuration instructions.
2.5. “Confidential Information” means any non-public information disclosed by one party to the other in connection with these Terms or any Purchase Agreement, whether orally, in writing, or by inspection, including without limitation the Platform (together with its design, features, functions, and architecture), business plans, pricing, customer lists, technical data, and trade secrets.
2.6. “DMS Materials” means the Platform, the Site, all documentation, and any and all other information, data, materials, works, software, methods, processes, and technologies provided or used by DMS in connection with the Services, including any aggregated statistics, analytics, or derivative works thereof. DMS Materials does not include Client Data.
2.7. “End Client” means the ultimate beneficiary of the Services on whose behalf an Agency Client engages DMS, and whose audience data, customers, or business operations are the subject of the Services delivered under the applicable Purchase Agreement.
2.8. “Intellectual Property Rights” means, with respect to any work, material, or technology: (a) any and all worldwide copyrights, trademarks, trade secrets, patents, and any other intellectual property and proprietary rights including all rights under treaties, conventions, and applications related to any of the foregoing; (b) all patent applications, registrations, and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions, or restorations of such rights; (e) all works based upon, derived from, or incorporating such work; (f) all income, royalties, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity, for past, present, or future infringement; and (h) all rights corresponding to each of the foregoing throughout the world.
2.9. “Law” or “Laws” means any applicable federal, state, local, or foreign statutes, ordinances, regulations, rules, orders, judgments, or decrees of any governmental authority.
2.10. “Personal Information” means any information processed by DMS for or on behalf of a Client that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in DMS’s possession or control, or (b) applicable Privacy and Data Protection Requirements otherwise define as protected personal information.
2.11. “Platform” means DMS’s proprietary EARL software platform and any other software-as-a-service offering made available by DMS, together with the Site, services, features, and information made available on or through such platform or Site.
2.12. “Privacy and Data Protection Requirements” means all applicable Laws relating to the processing, protection, or privacy of Personal Information, including without limitation the California Consumer Privacy Act (as amended by the CPRA), state comprehensive privacy laws, the CAN-SPAM Act, the Telephone Consumer Protection Act, and, where applicable, the General Data Protection Regulation, together with the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
2.13. “Processing” (and grammatical variants such as “process” and “processed”) means any operation or set of operations performed on data, whether or not by automated means, including collection, recording, organization, storage, adaptation, retrieval, use, disclosure, dissemination, alignment, combination, restriction, erasure, or destruction.
2.14. “Purchase Agreement” or “PA” means the mutually executed written order form, purchase agreement, or statement of work between DMS and a Client that sets forth the specific Services, fees, payment terms, and any other commercial terms applicable to the Client’s engagement, and which incorporates these Terms by reference.
2.15. “Services” means collectively all services DMS provides to Clients through or in connection with the Platform, as further described in the applicable Purchase Agreement. The Services may include, without limitation: (a) audience data ingestion, identity resolution, deduplication, validation, and delivery of data, match results, and audiences to Client via designated delivery methods (“Data Delivery Services”); (b) access to the Platform’s self-service dashboard for audience creation, pixel management, channel integration configuration, and reporting (“Platform Access”); and/or (c) full marketing program management on Client’s behalf, which may including, without limitation, creative direction, targeting strategy, campaign optimization, reporting, and end-to-end operation of marketing channels including cold email sequences, programmatic display, search advertising, paid social media, direct mail, direct-to-publisher buys, publisher placements, OTT/CTV, audience matching, and other marketing channels as may be offered from time to time (“Managed Services”). The specific scope of Services (whether Data Delivery Services, Platform Access, Managed Services, or any combination thereof) shall be as set forth in the applicable Purchase Agreement.
2.16. “Third-Party Service” means any third-party software application, service, platform, or website that interfaces or integrates with the Platform, including without limitation advertising platforms (such as Google Ads, Meta, LinkedIn, and Simpli.fi), email delivery providers, and other channel vendors.
3.1. Services and Platform Access. DMS provides a data marketing platform and related services through which DMS ingests identity-resolved visitor and audience data, processes such data (including validation, deduplication, and channel-specific transformation), and delivers the resulting audiences, match results, and data products to Clients via one or more delivery methods. The standard and default form of the Services is the delivery of processed data, audiences, and match results to Client through the delivery methods specified in the applicable Purchase Agreement (e.g., gated email, API, SFTP, webhook, ad-platform push, or programmatic display). Direct access to the Platform’s self-service dashboard is not included unless the applicable Purchase Agreement expressly grants Platform Access. The Services may be provided under one or more of the following operational models, as specified in the applicable Purchase Agreement:
3.1.1. Data Delivery Services. DMS ingests audience data, performs processing and channel-specific transforms (including hashing for ad-platform delivery where required), and delivers the resulting audience data or match results to Client via one or more of the following methods, as specified in the applicable Purchase Agreement: (i) gated email delivery (CSV or file attachment to designated recipients); (ii) API access; (iii) SFTP file delivery to Client’s server; (iv) webhook POST to a Client-specified endpoint; (v) push to Client’s ad-platform accounts (Google Ads Customer Match, Meta Custom Audiences, LinkedIn Matched Audiences); (vi) push to a DMS-managed programmatic display account (Simpli.fi); or (vii) such other delivery method as may be agreed in the applicable Purchase Agreement. Under this model, Client (or its End Client or their agency) retains responsibility for campaign execution, creative, targeting decisions, and all downstream use of the delivered data. DMS’s responsibility ends upon confirmed delivery via the applicable method.
3.1.2. Platform Access (Self-Service Dashboard). Where expressly provided in the applicable Purchase Agreement, DMS may grant Client direct access to the Platform’s self-service dashboard, enabling Client to create and manage its own audiences and pixels, configure marketing channel integrations, view reporting and analytics, and otherwise interact with the Platform interface. Platform Access is subject to the license in Section 11.2(b) and all use restrictions in Section 9.
3.1.3. Managed Services (Full Marketing Program Management). DMS operates the entire marketing program on Client’s behalf, which may include campaign setup and management across all supported channels (including cold email sequences, programmatic display, search advertising, paid social, direct mail, direct-to-publisher buys, publisher placements, OTT/CTV, audience matching, and other marketing channels as may be offered from time to time), creative direction, targeting strategy, optimization, and reporting. Under this model, DMS’s responsibility extends across the full campaign lifecycle as specified in the applicable Purchase Agreement. Client may or may not have direct Platform Access under a Managed Services engagement, as specified in the applicable Purchase Agreement.
The specific scope of Services (whether Data Delivery Services, Platform Access, Managed Services, or any combination thereof) and the applicable delivery method(s) shall be as set forth in the applicable Purchase Agreement. Where the Purchase Agreement does not expressly grant Platform Access, Client shall have no right to access the Platform dashboard or self-service features, and DMS shall deliver data and results solely through the delivery methods specified in the Purchase Agreement. All Services are conditioned on Client’s execution of an applicable Purchase Agreement, payment of all applicable fees, and ongoing compliance with these Terms. Client will be responsible for providing the computer hardware, web browser, internet connections, and any other third-party software or services necessary to receive the Services or, where Platform Access is granted, to access and interface with the Platform.
3.2. Purchase Agreements. From time to time, DMS and a Client may enter into one or more Purchase Agreements. Each Purchase Agreement shall set forth the specific Services, applicable fees, payment terms, and any other commercial terms agreed upon by the parties. Upon execution of a Purchase Agreement by both parties, such Purchase Agreement is automatically incorporated into and made a part of these Terms. To the extent any provision in a Purchase Agreement conflicts with these Terms, these Terms shall govern, unless the Purchase Agreement expressly states the parties’ mutual intention that a particular provision of the Purchase Agreement shall control and identifies the conflicting provision of these Terms with particularity.
3.3. Authorized Users. Client may authorize Authorized Users to access or use the Platform in accordance with the Purchase Agreement. Client is responsible for ensuring that each Authorized User complies with these Terms. Client shall be solely responsible for all use of the Platform under its account or by its Authorized Users, whether or not such use was authorized by Client, and any act or omission by an Authorized User that would constitute a breach of these Terms shall be deemed a breach by Client.
3.4. Agency Clients; End Client Obligations.
3.4.1. Agency Authority. Where a Client engages DMS as an Agency Client on behalf of one or more End Clients, the Agency Client represents and warrants to DMS that: (i) the Agency Client has full legal authority, including a binding written agreement with each End Client, to enter into the Purchase Agreement with DMS on such End Client’s behalf, to bind such End Client to these Terms, and to authorize DMS to process End Client data (including any Personal Information or PHI) as contemplated by these Terms and the applicable Purchase Agreement; (ii) the Agency Client has disclosed, or will disclose prior to the commencement of Services, the identity of each End Client and the nature of the End Client’s industry to DMS; (iii) the End Client has consented to the Agency Client’s engagement of DMS and to DMS’s processing of the End Client’s data in accordance with these Terms; and (iv) the Agency Client has provided, or will provide, all notices and obtained all consents from or on behalf of the End Client that are required under applicable Law and applicable Privacy and Data Protection Requirements to enable DMS to lawfully perform the Services.
3.4.2. Joint Liability. The Agency Client and each End Client on whose behalf the Agency Client engages DMS shall be jointly and severally liable for all obligations, representations, warranties, and indemnification obligations of “Client” under these Terms, including without limitation payment of all fees, compliance with applicable Laws, and all obligations under Sections 4 (Client Data and Data Quality), 6 (Confidentiality), 7 (Data Processing Terms), 8 (HIPAA Compliance), 9 (User Conduct and Use Restrictions), 14 (Indemnification), and all other Client obligations herein.
3.4.3. Agency Client’s Continuing Obligations; End Client Compliance. The Agency Client’s obligations under these Terms are not diminished or excused by virtue of its acting on behalf of an End Client. The Agency Client remains DMS’s direct contractual counterparty and is primarily liable for all acts and omissions of the End Client and the End Client’s employees, contractors, and agents. The Agency Client shall ensure that each End Client complies with these Terms as if such End Client were a direct Client of DMS, including without limitation all use restrictions (Section 9), data handling obligations (Sections 4 and 7), HIPAA requirements (Section 8) where applicable, and intellectual property restrictions (Section 11). Any breach of these Terms by an End Client shall be deemed a breach by the Agency Client. DMS is not obligated to provide Services directly to, and has no direct contractual relationship with, any End Client except as expressly set forth in a Purchase Agreement.
3.4.4. Indemnification for Agency Representations. Without limiting Section 14.1, the Agency Client shall defend, indemnify, and hold harmless the Indemnitees from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to: (i) any breach of any representation or warranty under this Section 3.4; (ii) the Agency Client’s lack of authority to bind or act on behalf of an End Client; or (iii) any claim by an End Client against DMS arising from the Agency Client’s acts or omissions.
3.5. Ownership and Reservation of Rights. Nothing in these Terms or any Purchase Agreement constitutes a transfer of any proprietary right by DMS to any User or Client. As between the parties, DMS owns and retains all right, title, and interest in and to the DMS Materials, including all intellectual property rights therein, and any enhancements, modifications, or derivative works thereof. All rights not expressly granted herein are reserved by DMS.
3.6. Changes to Platform. DMS reserves the right at any time to alter, modify, update, or discontinue any or all features, functionality, or characteristics of the Platform, provided that DMS shall use commercially reasonable efforts to provide Client with advance notice of any changes that materially limit the features or functionality of the Platform.
3.7. Changes to Terms. DMS reserves the right, at its sole discretion, to modify these Terms at any time. If DMS modifies these Terms, DMS will post the modified Terms on the Site or otherwise provide notice of the modification. Continued access or use of the Site or Platform after such modification constitutes acceptance of the modified Terms. If the modified Terms are not acceptable to you, you must discontinue use of the Site and Platform.
4.1. Client Data Ownership. As between DMS and Client, Client retains all right, title, and interest in and to Client Data. Client hereby grants DMS a non-exclusive, royalty-free license to use, reproduce, process, and display Client Data solely as necessary to provide the Services.
4.2. Data Quality Disclaimer; Data Supplier Limitation. DMS sources certain data from third-party data providers (each, a “Data Supplier”). Data Suppliers endeavor to provide quality data; however, a substantial portion of all data is self-reported and quality will vary. FOR THIS REASON, DMS DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF ANY DATA PROVIDED THROUGH THE PLATFORM OR SOURCED FROM ANY DATA SUPPLIER. ALL DATA IS BELIEVED TO BE COMPLIANT AT THE TIME IT IS RECEIVED BY DMS. DMS can only provide what data is available at the time requested; a valid name and address will be considered a complete record. DMS is not obligated to reach a certain number of visitors, as volumes are restricted by market conditions and Client’s ability to draw traffic to its website. CLIENT ACKNOWLEDGES AND AGREES THAT DMS IS NOT LIABLE FOR, AND CLIENT HEREBY WAIVES AND RELEASES ALL CLAIMS AGAINST DMS ARISING FROM OR RELATED TO, THE ACTS, OMISSIONS, ERRORS, DATA QUALITY, DATA ACCURACY, DATA COMPLETENESS, COMPLIANCE PRACTICES, OR METHODOLOGIES OF ANY DATA SUPPLIER. DMS MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY DATA SUPPLIER’S COMPLIANCE WITH APPLICABLE LAWS, AND CLIENT’S SOLE REMEDY WITH RESPECT TO DATA QUALITY OR DATA SUPPLIER ISSUES SHALL BE LIMITED TO THE REMEDIES EXPRESSLY SET FORTH IN THESE TERMS.
4.3. Prohibited Data. Client shall not submit, transmit, or otherwise make available to DMS through the Platform any of the following categories of data (“Prohibited Data”): (a) Social Security numbers or government-issued identification numbers; (b) credit card, debit card, or bank account numbers or other financial account credentials; (c) specific medical diagnoses, prescriptions, treatment records, or other data constituting PHI (except pursuant to a fully executed BAA under Section 8); (d) biometric identifiers (as defined under applicable Law); (e) data pertaining to children under the age of thirteen (13) or otherwise subject to the Children’s Online Privacy Protection Act (COPPA); or (f) any data the submission of which to DMS would violate applicable Law. Client acknowledges that DMS does not receive from its Data Suppliers, and the Platform is not designed to process, Social Security numbers, government identification numbers, credit card numbers, bank account numbers, or health-record-style PHI (specific diagnoses, prescriptions, or treatment information). Any submission of Prohibited Data in violation of this Section 4.3 shall constitute a material breach of these Terms, and Client shall defend, indemnify, and hold harmless the Indemnitees from any and all losses arising therefrom.
4.4. Client Responsibility. It is Client’s responsibility to ensure all records received from DMS are maintained, secured, and used in compliance with all applicable Laws. Client represents, warrants, and covenants that: (a) Client will use all data and Services provided by DMS in compliance with all applicable Laws, including without limitation all applicable advertising laws, platform-specific policies, and industry-specific regulations (such as FTC guidelines, CAN-SPAM, TCPA, and, where applicable, FCRA, GLBA, ECOA, and FERPA); (b) Client has obtained, and will maintain, all necessary consents, authorizations, and legal bases required under applicable Law for its intended use of the data; (c) Client’s use of the Platform, Services, and data delivered through the Services will not infringe or violate any third-party rights or any applicable Law; and (d) where Client’s industry or use case is subject to Special Ad Category restrictions (including housing, employment, and credit categories on advertising platforms), Client is solely responsible for making all required declarations and ensuring compliance with such restrictions on Client’s own ad-platform accounts. DMS recommends that Clients consult with qualified legal counsel to confirm compliance with all Laws that may limit or restrict the use of audience data in Client’s particular industry and jurisdiction.
5.1. Fees. Client shall pay DMS all fees set forth in the applicable Purchase Agreement without offset or deduction. All fees are exclusive of applicable taxes, and Client shall be responsible for all sales, use, excise, and similar taxes imposed in connection with the Services.
5.2. Non-Cancellable. Upon execution of a Purchase Agreement, Client authorizes and directs DMS to undertake the immediate provision of the Services listed therein. Client understands and agrees that each Purchase Agreement is non-cancellable once executed, and that Client agrees to pay, at a minimum, the amount specified in the Purchase Agreement.
5.3. Late Payment. If Client fails to make any payment when due: (a) DMS may charge interest on the past due amount at the rate of 1.5% per month (or, if lower, the highest rate permitted under applicable Law); (b) Client shall reimburse DMS for all costs incurred in collecting any late payments, including reasonable attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days or more, DMS may suspend Client’s access to the Platform and delivery of Services until such amounts are paid in full.
6.1. Obligations. Each party shall: (a) use and reproduce the other party’s Confidential Information only to the extent necessary to perform its obligations or exercise its rights under these Terms or an applicable Purchase Agreement; (b) restrict disclosure of the other party’s Confidential Information to its employees, contractors, and agents with a need to know, provided such persons are bound by confidentiality obligations at least as protective as those herein; and (c) use commercially reasonable efforts to protect Confidential Information from unauthorized disclosure or access.
6.2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was known to the receiving party prior to disclosure; (c) is rightfully obtained by the receiving party from a third party without restriction; or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
6.3. Permitted Disclosures. A party may disclose Confidential Information to the limited extent required by applicable Law or legal process, provided that such party gives the other party prompt written notice (to the extent permitted by Law) and cooperates with any efforts to obtain a protective order.
6.4. Survival. Each party’s confidentiality obligations shall survive termination or expiration of these Terms and any Purchase Agreement for a period of five (5) years from disclosure; provided that obligations with respect to trade secrets shall survive for as long as such information remains subject to trade secret protection under applicable Law.
7.1. Roles of the Parties. As between DMS and Client, Client is the data controller (or “business” under applicable U.S. state privacy laws) and DMS is a data processor (or “service provider”) with respect to Personal Information processed by DMS on behalf of Client in connection with the Services. DMS processes Personal Information solely on behalf of and in accordance with Client’s documented instructions as reflected in the Purchase Agreement and these Terms. For the avoidance of doubt, DMS’s upstream relationship with its Data Suppliers is governed by separate agreements between DMS and each such Data Supplier. Data Suppliers are data providers to DMS, not third-party processors acting on Client’s behalf, and the data processing terms in this Section 7 govern only DMS’s processing of data on behalf of Client, not the upstream data acquisition by DMS from its Data Suppliers.
7.2. Purpose Limitation. DMS will only process Personal Information to the extent, and in such manner, as is necessary to perform the Services under the applicable Purchase Agreement. DMS will not process, retain, use, sell, share, or disclose Personal Information for any purpose other than performing the Services, including not for any commercial purpose outside of the parties’ direct business relationship, except as permitted by applicable Law.
7.3. Client Obligations. Client retains control of Personal Information and remains responsible for its compliance obligations under applicable Privacy and Data Protection Requirements, including providing any required notices to data subjects, obtaining any required consents, and for the processing instructions it provides to DMS. Client represents and warrants that: (a) it has lawfully collected and disclosed all Personal Information in compliance with applicable Law; (b) it has provided all required notices and obtained all necessary consents to enable DMS to lawfully process Personal Information as contemplated herein; and (c) DMS’s processing of Personal Information in accordance with these Terms and Client’s instructions does not infringe upon any applicable Law or rights of any third party.
7.4. Security Measures. DMS shall implement and maintain reasonable administrative, technical, and organizational security measures to protect Personal Information against unauthorized access, destruction, use, modification, or disclosure, including: (a) encryption at rest (AWS KMS or equivalent) and in transit (TLS); (b) access controls limiting access to personnel with a need to know; and (c) automated monitoring and audit procedures.
7.5. Data Retention and Deletion. DMS retains Personal Information only for as long as necessary to perform the Services or as required by applicable Law. DMS employs TTL-based automatic deletion with the following standard retention windows: (a) identity-resolved audience records in the canonical record store: up to ninety (90) days; (b) validated email subset records: twenty-one (21) to thirty (30) days; (c) delivery staging files: seventy-two (72) hours; and (d) download tokens and temporary access URLs: one (1) to seven (7) days. Operational audit logs (which do not contain Personal Information) may be retained for longer periods for compliance and audit purposes. Upon expiration or termination of a Purchase Agreement, DMS will delete or destroy all Personal Information in its possession or control within a commercially reasonable period (and in any event no later than the expiration of the applicable TTL window), except to the extent retention is required by applicable Law.
7.6. Sub-Processors. Client acknowledges that DMS may engage sub-processors (including channel delivery vendors and infrastructure providers) to assist in performing the Services. DMS shall maintain a current list of sub-processors, which shall be made available to Client upon request. DMS shall impose data protection obligations on each sub-processor that are no less protective than those set forth in these Terms. DMS remains responsible for the acts and omissions of its sub-processors to the same extent as if DMS were performing the services itself.
7.7. Data Subject Requests. To the extent DMS receives a request from a data subject to exercise rights under applicable Privacy and Data Protection Requirements (including access, deletion, correction, or opt-out requests), DMS shall promptly notify Client and provide reasonable assistance to enable Client to respond to such request. DMS will not independently respond to a data subject request except as required by applicable Law or as instructed by Client.
7.8. Data Breach Notification. In the event DMS becomes aware of a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information processed on behalf of Client, DMS shall notify Client without undue delay and in any event within seventy-two (72) hours of becoming aware of the breach. DMS shall provide Client with sufficient information to enable Client to comply with its own notification obligations under applicable Law, and shall cooperate with Client’s reasonable requests for additional information regarding the breach.
7.9. Audits. Upon Client’s written request (no more than once per twelve-month period, unless required by a supervisory authority or following a data breach), DMS shall make available to Client information necessary to demonstrate compliance with this Section 7. DMS may satisfy audit requests through the provision of certifications, audit reports, or other documentation from independent third-party assessments.
7.10. California-Specific Terms. To the extent DMS processes Personal Information subject to the California Consumer Privacy Act (as amended): (a) DMS is a “service provider” and Client is a “business” as those terms are defined therein; (b) DMS shall not sell or share Personal Information; (c) DMS shall not retain, use, or disclose Personal Information outside of the direct business relationship between DMS and Client; and (d) DMS certifies that it understands and will comply with the restrictions in this Section 7.
8.1. General Prohibition. The Platform is not designed to store or process protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended (collectively, “HIPAA”). Clients (including Agency Clients and their End Clients) shall not submit or transmit PHI through the Platform unless a separate Business Associate Agreement (“BAA”) has been executed between DMS and Client (or, in the case of an Agency Client, between DMS and the Agency Client on behalf of the applicable End Client).
8.2. BAA Requirement. Where a Client’s (or End Client’s) use of the Services may involve the processing of PHI, including without limitation where Client or End Client operates in the healthcare, durable medical equipment, chiropractic, therapy, or other HIPAA-regulated industry, a BAA must be executed with DMS prior to commencing Services. DMS’s standard BAA is available upon request. No Services involving PHI shall commence, and DMS shall have no liability with respect to any PHI, until a BAA is fully executed by both parties.
8.3. Agency Client BAA Obligations; End Client Bound. Where an Agency Client engages DMS on behalf of an End Client whose use of the Services may involve PHI, the Agency Client represents and warrants that: (a) the Agency Client has full authority from the End Client (as a HIPAA “covered entity” or “business associate,” as applicable) to execute a BAA with DMS on the End Client’s behalf and to bind the End Client to the terms thereof; (b) the End Client has authorized the Agency Client to direct DMS’s handling of PHI in accordance with the BAA and applicable Purchase Agreement; (c) the Agency Client has obtained, or will obtain prior to commencement of Services, all authorizations and consents required under HIPAA to permit DMS to process PHI as contemplated herein; and (d) the End Client acknowledges and agrees that it is bound by the BAA as if it were a direct signatory thereto. The Agency Client shall notify DMS of the identity and regulated-industry classification of each End Client for whom PHI may be involved before any PHI is submitted to or processed through the Platform. The Agency Client shall ensure that each such End Client has received a copy of, or access to, the BAA and these Terms, and shall obtain the End Client’s written acknowledgment and agreement to be bound thereby. Upon request, the Agency Client shall provide DMS with evidence of such acknowledgment. DMS may, in its sole discretion, require a direct BAA with the End Client in addition to or in lieu of the Agency Client-executed BAA.
8.4. Enhanced Safeguards. For Clients (or End Clients) subject to a BAA, DMS implements enhanced safeguards, which may include: stripping of URL, referrer, and event-timestamp fields at ingest; restrictions on certain delivery channels (such as cold email); consent-level requirements; and small-cell suppression for audience segments below minimum thresholds. The specific safeguards shall be determined by DMS based on the regulated industry and nature of the data, and may be further specified in the applicable BAA or Purchase Agreement.
8.5. Client Acknowledgment; No Liability Absent BAA. Client (including any Agency Client and End Client) acknowledges that DMS’s obligations under HIPAA arise solely from the execution of a BAA and that, absent a fully executed BAA, DMS has no obligation to comply with HIPAA requirements with respect to any data provided by or on behalf of Client or End Client. IN THE EVENT THAT CLIENT OR ANY END CLIENT SUBMITS PHI TO DMS WITHOUT A FULLY EXECUTED BAA IN PLACE, CLIENT (AND, WHERE APPLICABLE, AGENCY CLIENT) SHALL BE SOLELY LIABLE FOR ANY AND ALL CONSEQUENCES ARISING THEREFROM, AND CLIENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES FROM AND AGAINST ANY AND ALL LOSSES ARISING OUT OF OR RELATED TO SUCH UNAUTHORIZED SUBMISSION OF PHI.
9.1. Acceptable Use. All Users shall: (a) comply with these Terms and all applicable Laws; (b) take all necessary steps to prevent unauthorized access to or use of the Platform; (c) notify DMS immediately of any unauthorized access or use; and (d) use the Platform only for lawful purposes and solely in accordance with DMS’s instructions.
9.2. Prohibited Conduct. Users shall not, and Clients shall cause their Authorized Users not to: (a) copy, modify, adapt, translate, or create derivative works of the DMS Materials; (b) reverse engineer, disassemble, decompile, or decode any portion of the Platform; (c) rent, lease, lend, sell, sublicense, assign, distribute, or otherwise make the Platform or any DMS Materials available to any third party; (d) use the Platform for timesharing, service bureau, or outsourcing operations; (e) bypass or breach any security device or protection; (f) input, upload, or transmit any harmful code, virus, worm, or malicious software; (g) access or use the Platform for competitive analysis or to develop a competing product; (h) use manual or automated means to scrape, crawl, or spider the Site or Platform; (i) use the Platform for any purpose that infringes any intellectual property or other right of any third party or that violates any applicable Law; (j) use the Platform or any DMS Materials for training or developing any machine learning, artificial intelligence, or generative AI system; or (k) otherwise access or use the Platform beyond the scope of the authorization granted herein.
10.1. General. The Platform may link, interface, or integrate with Third-Party Services that are not operated or controlled by DMS. You acknowledge and agree that DMS is not responsible for the content, practices, availability, or performance of any Third-Party Service. You are solely responsible for any required third-party account setup, fees, and compliance with the terms of service of any such Third-Party Service.
10.2. Channel Vendors. DMS delivers audience data to channel vendors via the delivery channels described in Section 3.1(a), pursuant to such vendors’ own terms of service. Where DMS delivers data to an advertising platform (for example, Google Ads Customer Match, Meta Custom Audiences, LinkedIn Match Audiences, or the like) via such platform’s programmatic API or audience-upload interface, DMS hashes the data per such platform’s specifications prior to delivery, and the delivered audience cannot be reversed to recover plaintext records. This hashing representation does not apply to plaintext files delivered to Client for Client upload. DMS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CHANNEL VENDOR’S OR THIRD-PARTY SERVICE’S HANDLING OF DATA AFTER DELIVERY, NOR FOR ANY INTERACTION BETWEEN YOU AND ANY THIRD-PARTY SERVICE, WHETHER OR NOT DMS OPERATES THE CHANNEL ON YOUR BEHALF UNDER A MANAGED SERVICES ENGAGEMENT.
10.3. Upstream Data Suppliers. Client acknowledges that DMS sources data from third-party Data Suppliers (as defined in Section 4.2) under separate contracts between DMS and such Data Suppliers. Data Suppliers are not sub-processors of Client Data; they are independent data providers that furnish raw audience data to DMS. DMS does not control and is not responsible for the data collection, identity-resolution, or compliance practices of any Data Supplier. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS, DMS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ACTS, OMISSIONS, ERRORS, INTERRUPTIONS, OR NONCOMPLIANCE OF ANY DATA SUPPLIER, INCLUDING WITHOUT LIMITATION ANY INACCURACY, INCOMPLETENESS, OR UNLAWFULNESS IN THE DATA AS COLLECTED OR FURNISHED BY SUCH DATA SUPPLIER PRIOR TO DMS’S RECEIPT THEREOF. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM ARISING FROM OR RELATED TO DATA SUPPLIED BY A DATA SUPPLIER SHALL BE AS SET FORTH IN SECTION 13 (LIMITATION OF LIABILITY).
11.1. DMS Intellectual Property. The Site, Platform, and all DMS Materials, including all associated Intellectual Property Rights, are the exclusive property of DMS and its licensors (collectively, “DMS Intellectual Property”). As between the parties, DMS owns and retains all right, title, and interest in and to the DMS Intellectual Property, including any enhancements, modifications, derivative works, or work product conceived, originated, or prepared in connection with the Platform. You acknowledge the proprietary rights of DMS and its licensors and agree that you will not remove, alter, or obscure any proprietary rights notices incorporated in or accompanying the Platform or DMS Materials. All trademarks, trade names, and source identifiers of DMS used on or in connection with the Platform are trademarks or registered trademarks of DMS. Nothing in these Terms grants you any right, title, or interest in or to any DMS Intellectual Property except for the limited license in Section 11.2. No User or Client may use any DMS Intellectual Property without DMS’s prior written consent, which may be withheld in DMS’s sole and absolute discretion.
11.2. License Grant. Subject to and conditioned on your compliance with these Terms (and, for Clients, execution of an applicable Purchase Agreement and payment of applicable fees), DMS grants: (a) to all Users, a limited, non-exclusive, non-transferable, revocable license to access and use the Site and to view DMS content made available thereon, solely for personal or internal business use; and (b) to Clients and their Authorized Users whose applicable Purchase Agreement expressly includes Platform Access, a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Platform (including the self-service dashboard, API, audience creation tools, pixel management, and channel integration features) corresponding to the Services purchased, solely during the term of such Purchase Agreement and solely for Client’s internal business purposes. Clients whose Purchase Agreement provides only for Data Delivery Services or Managed Services without Platform Access are not granted a license to access the Platform dashboard or self-service features, but remain entitled to receive deliverables through the delivery methods specified in their Purchase Agreement. You acknowledge that access is provided under license and no DMS Materials have been sold to you. You acquire no ownership interest in any DMS Materials. No licenses or rights are granted by implication, estoppel, or otherwise, except as expressly set forth herein. You agree not to use, copy, modify, prepare derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Platform, Site, or DMS Materials, except as expressly permitted in these Terms.
11.3. Non-Assertion. You agree that you shall not assert, nor will you authorize, assist, or encourage any third party to assert, against DMS or any of its affiliates, business partners, licensors, licensees, or transferees, any patent infringement or other Intellectual Property Rights infringement claim with respect to the Platform, the Site, or any DMS Materials.
11.4. Compliance Measures. The Platform may employ technological copy protection or other security features designed to prevent unauthorized use, including features to protect against use of the Platform beyond the scope of the license granted herein or prohibited under Section 9. You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to any such copy protection or security features.
11.5. Aggregated Statistics. DMS may monitor Client’s use of the Platform and compile aggregated, de-identified statistics regarding platform usage and performance (“Aggregated Statistics”). As between DMS and Client, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained exclusively by DMS. Client acknowledges that DMS may compile Aggregated Statistics based on Client Data input into the Platform. DMS may (a) make Aggregated Statistics publicly available in compliance with applicable Law and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable Law, including for improvement of the Platform.
11.6. User Content License. To the extent DMS permits you to submit, post, upload, or transmit any content through the Site or Platform (“User Content”), you hereby grant to DMS a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, display, create derivative works from, and otherwise exploit such User Content on, through, or in connection with the Platform. You represent and warrant that you are the sole owner of all User Content you make available or that you have all rights, licenses, consents, and releases necessary to grant DMS the foregoing rights. All derivative works resulting from User Content that are created by DMS or its affiliates or contractors shall become the property of DMS.
11.7. Feedback. If Client or any User provides suggestions, recommendations, comments, or feedback regarding the Platform (“Feedback”), Client or User hereby assigns to DMS all right, title, and interest in, and DMS is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in or embodied by the Feedback, for any purpose whatsoever, although DMS is not required to use any Feedback. You represent that you have not, and will not, knowingly provide Feedback that is subject to any third-party Intellectual Property Rights.
12.1. Warranty Disclaimer. THE SITE, PLATFORM, AND DMS MATERIALS ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE,” AND “WITH ALL FAULTS” BASIS. DMS MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DMS DOES NOT WARRANT THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, COMPLETE, OR SECURE.
12.2. No Guarantee of Results. DMS DOES NOT GUARANTEE ANY SPECIFIC RESULTS, REVENUE, PERFORMANCE, OR RETURN ON INVESTMENT FROM USE OF THE PLATFORM OR SERVICES. YOU ACKNOWLEDGE THAT RESULTS DEPEND ON NUMEROUS FACTORS OUTSIDE DMS’S CONTROL, INCLUDING MARKET CONDITIONS, YOUR MARKETING STRATEGY, AND CONSUMER BEHAVIOR.
12.3. Data Supplier Disclaimer. WITHOUT LIMITING THE GENERALITY OF SECTION 12.1, DMS MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OR SUITABILITY OF ANY DATA FURNISHED BY ANY DATA SUPPLIER AND EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO SUCH DATA. CLIENT ACKNOWLEDGES THAT DMS RELIES ON DATA SUPPLIERS FOR THE RAW DATA INGESTED INTO THE PLATFORM AND THAT DMS HAS NO CONTROL OVER SUCH DATA SUPPLIERS’ COLLECTION METHODS, IDENTITY-RESOLUTION PROCESSES, OR UPSTREAM COMPLIANCE PRACTICES. CLIENT ASSUMES FULL RESPONSIBILITY FOR EVALUATING THE SUITABILITY OF ALL DATA FOR CLIENT’S INTENDED USE AND FOR ENSURING COMPLIANCE WITH ALL APPLICABLE LAWS IN CONNECTION WITH SUCH USE.
13.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DMS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF DMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. Cap on Liability. IN NO EVENT WILL DMS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, ANY PURCHASE AGREEMENT, OR THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT TO DMS UNDER THE APPLICABLE PURCHASE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.3. Site Users. WITH RESPECT TO USERS WHO ACCESS THE SITE BUT ARE NOT CLIENTS UNDER A PURCHASE AGREEMENT, DMS’S AGGREGATE LIABILITY SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00).
13.4. Application. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 13 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS.
13.5. Statute of Limitations. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF THESE TERMS, ANY PURCHASE AGREEMENT, OR RELATING TO THE SITE OR PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
14.1. Your Indemnification. You shall defend, indemnify, and hold harmless DMS and its officers, directors, employees, contractors, affiliates, and its third-party suppliers and licensors (including Data Suppliers) (each, an “Indemnitee” and collectively, the “Indemnitees”), from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (a) your (or, in the case of a Client, any Authorized User’s) access to or use of the Site, Platform, or Services in a manner not authorized by these Terms or in violation of any applicable Law; (b) any content you submit, post, or transmit through the Site or Platform, including Client Data and User Content, or any claim that such content infringes or violates a third party’s rights; (c) your failure to obtain required consents or provide required notices under applicable Privacy and Data Protection Requirements; (d) your breach of any representation, warranty, or obligation under these Terms; (e) any claim by you or any third party arising from your use of data sourced from a Data Supplier, including any allegation that such data was inaccurate, incomplete, or improperly collected, to the extent such claim does not arise solely from DMS’s willful misconduct; or (f) any act, omission, or misconduct by you or any person accessing the Site or Platform through your account. DMS will promptly notify you of any claim which DMS becomes aware of and which DMS believes to be subject to indemnification under this Section; provided that DMS’s failure to promptly notify you shall not affect your indemnification obligations hereunder except to the extent that such failure materially prejudices your ability to defend the claim.
14.2. DMS Indemnification. DMS shall indemnify, defend, and hold harmless Client from and against any losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) resulting from any third-party claim that the Platform, as provided by DMS and used by Client in accordance with these Terms, infringes such third party’s United States intellectual property rights, provided that Client promptly notifies DMS in writing, cooperates with DMS, and allows DMS sole authority to control the defense and settlement.
15.1. Term. These Terms are effective upon your first access to or use of the Site or Platform and shall continue until terminated. With respect to Clients, the term of Services shall be as set forth in the applicable Purchase Agreement.
15.2. Termination by DMS. DMS may, in its sole discretion, for any reason or no reason, terminate or suspend any User’s or Client’s access to the Site or Platform, in whole or in part, at any time, with or without notice. Without limiting the foregoing, DMS may terminate or suspend your access: (a) for any breach of these Terms; (b) if you are a Client and fail to pay any amount when due and such failure continues for thirty (30) days after written notice; (c) for any activity that has, or is likely to have, an adverse effect on the Site, Platform, or DMS’s other customers or users; or (d) as required by applicable Law. DMS will have no liability for any damage, liabilities, losses, or other consequences that you may incur as a result of any such termination or suspension.
15.3. Effect of Termination. Upon termination or expiration: (a) all rights and licenses granted herein shall immediately terminate; (b) you shall immediately discontinue all access to and use of the Site, Platform, and DMS Materials; (c) with respect to Clients, all unpaid fees shall become immediately due and payable; and (d) with respect to Clients, DMS shall delete Client Data and Personal Information in accordance with Section 7.5.
15.4. Survival. Sections 2 (Definitions), 3.4 (Agency Clients; End Client Obligations), 3.5 (Ownership and Reservation of Rights), 4 (Client Data and Data Quality), 6 (Confidentiality), 7 (Data Processing Terms), 8 (HIPAA), 11 (Intellectual Property and License), 12 (Disclaimers), 13 (Limitation of Liability), 14 (Indemnification), 15.3–15.4 (Effect of Termination; Survival), and 16 (General Provisions, including Section 16.3 (Dispute Resolution; Arbitration)) shall survive termination or expiration of these Terms.
16.1. Governing Law. These Terms shall be governed by and construed under the laws of the State of Florida, without reference to its principles of conflict of laws.
16.2. Jurisdiction and Venue. For any Dispute that is not subject to binding arbitration under Section 16.3, or for any action in which a party retains the right to seek injunctive or other equitable relief pursuant to Section 16.3(d), such Dispute or action shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Pinellas County, Florida. The parties irrevocably consent and submit to the personal jurisdiction of such courts and waive any defense related to venue, including forum non conveniens.
16.3. Dispute Resolution; Arbitration.
16.3.1. Informal Negotiations. To expedite resolution and control costs, you and DMS agree to first attempt to negotiate any dispute, claim, or controversy arising out of or relating to these Terms, any Purchase Agreement, or the access to or use of the Site or Platform (each, a “Dispute”) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one party to the other.
16.3.2. Binding Arbitration. If you and DMS are unable to resolve a Dispute through informal negotiations within thirty (30) days, either party may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect. The Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision. The arbitration shall be conducted by a single arbitrator who shall be a retired judge or attorney licensed to practice law in the State of Florida, selected in accordance with the AAA Rules. Unless the parties otherwise agree, the arbitration shall be conducted in Pinellas County, Florida. The arbitrator shall render a written decision, and judgment on the arbitration award may be entered in any court of competent jurisdiction. The arbitrator’s award of damages must be consistent with the limitations set forth in Section 13 (Limitation of Liability). The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
16.3.3. Class Action Waiver. You and DMS agree that arbitration shall be limited to the Dispute between DMS and you individually. To the fullest extent permitted by Law: (i) no arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
16.3.4. Exceptions to Arbitration. Notwithstanding the foregoing, the following Disputes are not subject to the provisions concerning informal negotiations and binding arbitration and may be brought directly in a court of competent jurisdiction: (i) any Dispute in which DMS seeks injunctive or other equitable relief to enforce or protect, or concerning the validity of, DMS’s Intellectual Property Rights, including without limitation claims relating to the unauthorized use, infringement, or misappropriation of the Platform, Site, or DMS Materials; (ii) any Dispute in which DMS seeks injunctive or other equitable relief arising from a breach or threatened breach of Sections 6 (Confidentiality), 7 (Data Processing Terms), or 9 (User Conduct and Use Restrictions); (iii) any Dispute related to or arising from allegations of theft, piracy, invasion of privacy, or unauthorized access to or use of the Platform; (iv) any claim for injunctive relief to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on an arbitration award; and (v) any action brought by DMS to recover unpaid fees. DMS shall be entitled to seek such injunctive or equitable relief without the obligation of posting any bond or surety, and you irrevocably waive any requirement for the securing or posting of any such bond or surety.
16.3.5. Equitable Remedies. You acknowledge that the rights granted and obligations made hereunder to DMS are of a unique and irreplaceable nature, the loss of which will irreparably harm DMS and which cannot be replaced by monetary damages alone. Except as expressly provided in these Terms, you irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages, subject to the limitations set forth in Section 13.
16.4. Force Majeure. DMS shall not be liable for any failure or delay in performing its obligations under these Terms to the extent caused by circumstances beyond its reasonable control, including without limitation acts of God, natural disasters, pandemics, epidemics, war, terrorism, riots, government action, power outages, internet failures, or labor disputes.
16.5. Assignment. These Terms are neither assignable, transferable, nor delegable by you, whether by operation of Law or otherwise, without DMS’s prior written consent. You may not assign or transfer any Purchase Agreement without DMS’s prior written consent. DMS may assign these Terms or any Purchase Agreement at any time without notice to you. Any attempted assignment, transfer, or delegation in violation of this Section shall be null and void and of no effect. Any sale of all or substantially all of your assets, business, or a majority of your voting securities, or any merger or other change of control with respect to you, shall be deemed an assignment for purposes of this Section.
16.6. Severability. If any provision of these Terms is determined to be invalid, illegal, or unenforceable, such provision shall be reformed to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall continue in full force and effect.
16.7. Waiver. No failure or delay by DMS in exercising any right hereunder shall constitute a waiver thereof. No waiver shall be effective unless in writing and signed by DMS.
16.8. Entire Agreement. These Terms, together with the Privacy Policy, any applicable Purchase Agreement (and any exhibits, schedules, or attachments thereto, including any BAA), and any other documents or policies incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, and communications, whether written or oral.
16.9. Notices. DMS may provide notices hereunder to you by email (to the address you provide), regular mail, or postings on the Site or Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. Notice posted on the Site or Platform is deemed given twenty-four (24) hours following the initial posting. Notice to DMS shall be provided in writing to: Diamond Media Solutions, Inc., 40946 US Highway 19 N, #424, Tarpon Springs, Florida 34689.
16.10. Relationship of the Parties. Nothing in these Terms creates any agency, partnership, joint venture, franchise, or employment relationship between you and DMS. Neither you nor DMS is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other or to bind the other in any manner whatsoever.
16.11. Eligibility. The Site and Platform are intended for use by persons who are 18 years of age or older. By accessing the Site or Platform, you represent and warrant that you are at least 18 years of age.
16.12. Insurance. DMS agrees to maintain commercially adequate insurance coverage throughout the term of any Purchase Agreement, including general liability and cyber liability insurance. Upon written request by a Client, DMS shall furnish such Client with certificates of insurance evidencing the required coverage.
16.13. Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than DMS and you, except that the Indemnitees identified in Section 14.1 are intended third-party beneficiaries of such Section.
If you have any questions regarding these Terms, please contact us at:
Diamond Media Solutions, Inc.
40946 US Highway 19 N, #424
Tarpon Springs, Florida 34689
Email: info@emaildms.com;
Telephone: 727-942-7117
These Terms and Conditions are published at https://diamondmediasolutions.com/ and are incorporated by reference into each Purchase Agreement executed between Diamond Media Solutions, Inc. and its Clients.
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