Progressive Dental Marketing, LLC
Terms & Conditions
Together with the Order Form(s), these Terms and Conditions constitute a legal and binding agreement between Progressive Dental Marketing, LLC (“PDM,” “Progressive,” or “Progressive Dental”) and Client. Upon Client’s signature on an Order Form, Client and PDM agree to be bound by these Terms and Conditions. Please read carefully.
- Definitions: The following are some terms used in the Agreement. Other terms are defined throughout the Agreement or are otherwise defined in the Order Form(s).
- a. “Agreement” means the Order Form(s) and these Terms and Conditions, collectively. By this reference, the Order Form(s) signed by Client are incorporated into these Terms and Conditions, and the Terms and Conditions are incorporated into the Order Form(s). Notwithstanding, in the event of a conflict, these Terms and Conditions shall govern.
- b. “Campaign Launch Date” means the date a marketing campaign is funded and launched.
- c. “Client” means the individual or legal entity that executes, accepts, or is identified on an Order Form with PDM, together with any affiliates, authorized users, representatives, agents, contractors, or other persons acting on Client’s behalf in connection with the Services, and includes all permitted successors and assigns.
- d. “Website Launch” means the date a website produced by PDM is first publicly accessible online.
- e. “Term” means, collectively, the Initial Term of this Agreement and any Renewal Term as defined in Section 5, below.
- f. “Monthly Marketing Potential Allocation” and “Gross Media Package Spend” refer to the marketing products and services described in Section 2(d). These amounts as listed on the Order Form are a gross amount due to PDM and include the proposed marketing budget plus the Management Fee. See Section 2(d) for further information and detail as to the breakdown of amounts and the calculation of the same.
- Services and Order Form: PDM provides a broad range of services to dental professionals (collectively, “Services”). Order Forms identify the specific Services and scope of work to be provided along with pricing. Some of the Services offered by PDM are contained in this Section. Order Forms may be amended or modified from time to time, but only in writing and signed by both Parties. Any amendment or modification to an Order Form shall be governed by the Terms and Conditions in effect at the time of the amendment or modification.
- a. Website Design and Development: Client is responsible to provide PDM with all requested assets during the website design and development process (the “Website Design Project”). If PDM does not timely receive requested information (or the information is not complete), PDM will provide Client with a fifteen (15) day notice to cure after which time, should Client fail to provide the information, PDM may declare a breach of the Agreement in its sole discretion. If there is a breach by the Client, PDM will have no further obligation to develop or launch the website, and Client will forfeit the Website Development Fee contained in the Order Form. Client shall have up to a maximum of two (2) pre-launch editing rounds to provide PDM with comments or request specific changes or edits. All such comments or requests shall be in writing to the designated account manager. Before the launch of the website, the Client will have the opportunity to review the website to ensure its accuracy. Client will have final approval of the content of web pages. Client shall submit any requested assets (ex: logo, photos, content) that may be necessary to complete the work on the website as requested by PDM. After the Website Launch, any additional website content, color adjustments, or development (“Website Restructure”) will be subject to additional cost as defined by PDM’s hourly rates. PDM is under no obligation to copy or maintain any pre-existing website. Client is hiring PDM for its creative and marketing talents. PDM will use its best efforts to provide a website to meet the needs of the Client. All payments related to website design and development services are non-refundable.
- b. Website Hosting and Domains: If PDM hosts the Client’s website, the website will be hosted on servers of PDM’s choosing and may be changed from time to time at PDM’s sole discretion. Client shall retain ownership of the URL. Our WordPress websites contain Plugins (software components or add-ons designed to extend the functionality of a website). Updating any plugin could (a) make it incompatible with other plugins, or (b). introduce new (more serious) security risks. We strongly advise against making any plugin updates unless you possess prior development experience. We recommend consulting a qualified website developer before proceeding with any updates, as improper modifications may lead to compatibility issues, system instability, or unintended functionality disruptions. Website hosting and domain services, unless otherwise noted in the sales order, are subject to monthly billing arrangements and are non-refundable. Should the Client desire to cancel website hosting and domain services, the customer must provide a written 30-day cancellation notice. The Client will continue to be invoiced until all web assets and licenses have been transferred from PDM’s platforms to another party.
- c. Video Production: PDM will supply videographers to travel to the Client’s practice or approved site to film videos and acquire photographs (“Video Filming”). Client is responsible for providing a suitable staff, participants (“Patients”), and location for video production. To the extent the Services include filming Client’s patient testimonials, Client must notify the Patients for the video production in advance and obtain any appropriate or necessary waivers or releases (i.e., HIPAA releases). Client must provide PDM with a minimum of thirty (30) days’ written notice prior to a scheduled video production date to reschedule or cancel. If the Client cancels or reschedules within thirty (30) days of the scheduled production date, the Client will be responsible for travel costs or other expenses incurred by PDM. If the Client cancels within ten (10) days of a scheduled video production, the Client will be responsible for the full cost of the Video Filming. Client understands and agrees that these provisions are reasonable and necessary because (i) PDM expends and reserves valuable resources, including staff time, to dedicate to the Client and its scope of work during the period in which the Agreement is in effect, and (ii) PDM must plan, in advance, for the deployment of those resources, including through staffing levels. PDM is responsible for providing produced deliverables outlined on the Order form or approved production schedule. PDM owns all raw footage obtained from each video production. Client may purchase the raw footage for an additional fee. At any time after the two-year anniversary of the video production date or if Client cancels or terminates PDM’s services prior to the expiration of any Services, PDM may dispose of any raw footage stored by PDM. Subject to Client’s payment in full of all fees owed to PDM under the applicable Order Form, the Parties agree that Client owns any deliverables created by PDM as indicated in the Order Form (excluding raw video footage and other PDM Materials which are and shall remain the property of PDM). PDM shall retain ownership of the copyright in the raw video footage, regardless of whether the client has purchased a copy of such footage. Client shall have up to a maximum of two (2) editing rounds to provide PDM with comments or request specific changes or edits. Changes beyond the scope of the Order Form will be charged at an hourly rate defined by PDM. Client agrees to pay an hourly video editing fee to change any approved video deliverables pursuant to the fee schedule published by PDM from time to time.
- d. Digital Marketing and Traditional Media: PDM uses various digital marketing avenues including social media ads (Instagram, TikTok, Facebook, collectively “Social Media”), Paid advertising searches through a third-party company (“Paid Search”), Search Engine Optimization (“SEO”), and broadcast, cable, radio, etc., (“Traditional Media”). The Order Form will set a potential maximum allocation, less PDM’s Management Fee, which PDM will allocate (in PDM’s sole and absolute discretion) amongst the various digital marketing avenues (“Monthly Marketing Potential Allocation”). PDM prioritizes the security and integrity of our advertising strategies by running all ads through our own business accounts, instead of Client accounts. PDM does not permit access to these accounts by anyone outside of PDM, ensuring that proprietary strategies, including keyword lists, targeting, and ad copy, remain confidential. PDM handles all management and optimization of campaigns on behalf of our clients. PDM has developed a strategy for Paid Search, SEO, Traditional Media, and Social Media campaigns. Client acknowledges that the Monthly Marketing Potential Allocation, sometimes referred to as “budget spend” for Paid Search, SEO, Traditional Media, and Social Media campaigns may fluctuate month-to-month due to variables such as bid competition, seasonal trends, platform algorithm changes, and pacing strategies. Additionally, the creative and strategic development work required to launch and optimize campaigns is heavily front-loaded. Accordingly, the management fee is amortized and spread evenly over the contract term. PDM will use its best efforts to put forth a strategic marketing plan and implement it during the Term. PDM reserves the right to reallocate Monthly Marketing Potential Allocation or the Gross Media Package Spend amounts between the digital marketing tactics listed below in subsections i-iii in the pursuit of achieving peak campaign performance. PDM also reserves the right to adjust Ad copy, creative, targeting, and other marketing methods to achieve optimal results.
- i. Paid Search (formerly known as Pay Per Click) and Social Media: All components of the Paid Search or Social Media Services are subject to the continued availability of the applicable programs and features from each search engine and their related sites. PDM will attempt to comply with all changes to the search engine rules and guidelines, but PDM does not guarantee paid placement results or specific results, and placement in each case will vary.
- Google Ads: Our comprehensive services include ad account setup and configuration, campaign strategy development, ad creation (including graphics, videos, and copy), keyword research and targeting, bid management and budget allocation, performance monitoring and reporting, and ongoing optimization and adjustments. All ads, ad copy, landing pages, and related materials are the property and intellectual property of PDM.
- Social Media: Campaigns encompass ad account setup and configuration, campaign strategy development, ad creation (covering graphics, videos, and copy), audience targeting and segmentation, budget management and bid adjustments, performance monitoring and reporting, as well as ongoing optimization and adjustments. To enable us to provide these services, clients must grant us access to their Facebook Business Account. Failure to do so constitutes a violation of our Agreement. Additionally, clients are required to supply us with all necessary assets, such as logos, images, videos, and branding guidelines.
- ii. SEO: PDM has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Client’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Client agrees to a minimum commitment of twelve (12) months for SEO, with cancellation permitted upon thirty (30) days’ written notice. Notwithstanding early cancellation, no refunds shall be issued for any “budget” amounts allocated or spent prior to the effective date of cancellation, including in cases where cancellation occurs before the end of the full contract term (one year).
- iii. Traditional Media: This includes television, newspaper, billboard, and radio advertising. Traditional media services may be subject to the terms of the third-party agreements between PDM and the respective traditional media providers. Traditional media service agreements generally require an annual commitment, unless otherwise dictated by the third-party terms, with a minimum term of six (6) months. Fees associated with the minimum term for Traditional media services are non-refundable.
3. Cancellation of Digital Marketing and Traditional Media as defined in Section 2(d): Any unused Monthly Marketing Potential Allocation remaining at the end of the Term (“Remaining Allocation”), will roll over into the renewal contract. However, if the contract is not renewed, the Remaining Allocation will be refunded to the Client if it exceeds ten percent (10%) of the gross Monthly Marketing Potential Allocation for the Term. If the gross Monthly Marketing Potential Allocation remaining at the end of the Term is less than ten percent (10%), the Client agrees that such amount is non-refundable but may be applied to future PDM products and services. If, however, the Client cancels the Monthly Marketing Potential Allocation before the completion of the Term, Client agrees to forfeit the Monthly Marketing Potential Allocation already paid and will remain responsible for the Management Fees defined herein for the full term.
4. Management Fees: Management fees are payable to PDM for the services and products contained in Section 2 and cover the administrative, creative, and operational efforts required to execute and optimize marketing and media campaigns utilizing third-party platforms such as Google, Facebook, Instagram, and others. Media Campaigns are front end loaded and therefore, PDM incurs higher management costs in the beginning of the Term. Regardless of the costs incurred by PDM early in the Term, Management Fees are spread out over the Term for the benefit of the Client but are expected to be paid in full to PDM for the full Term. These fees are calculated based on the Monthly Marketing Potential Allocation or the Gross Media Package Spend for specific marketing tactics, ranging from 30% to 50% of the total budget as set forth in the Order Form. Any fee arrangement below 30% must be explicitly outlined in the corresponding Order Form and agreed upon in writing by both parties. Management Fees are due based on the Monthly Marketing Potential Allocation, regardless of the actual Monthly Marketing Spend. By way of example, if the gross budget is $100,000 with the management fee of 30%, the management fee is $30,000 with the net Monthly Marketing Potential Allocation to be $70,000. If the actual Monthly Marketing Spend is less than $70,000 for a month, Client is still responsible for payment of the full management fee of $30,000.
5. Lead Management: PDM utilizes a lead management platform designed to help streamline processes including lead generation, automated follow-up sequences, appointment scheduling, pipeline management, and analytics. Upon a signed Phase 2 (Digital Marketing) Order Forms, Client will be granted access to the lead management platform to manage patient interactions, track leads, and automate marketing campaigns from a single, user-friendly interface. Upon termination of services and products in the Order Form Client’s access will be restricted from the lead management platform. In addition to loss of access to the platform, Client will have 30 days from the last date of services (30 days from last billing date) to export lead data from the platform. After 30 days, the account will be deleted in full.
6. Communications Through SMS, MMS, Telephone, Email:
If Client uses SMS, MMS, email, or calling capabilities, such capabilities will be processed through a third-party platform (“Platform”). If Client uses these features, Client agrees that it is exclusively responsible for all communications sent using the Platform, including compliance with all laws governing those communications such as the federal Telephone Consumer Protection Act (“TCPA”), and implementing regulations; state telemarketing and do-not-call regulations, and the CAN-SPAM Act. Client represents and warrants that it understands and will comply with those laws. Without limiting the foregoing, Client acknowledges that it is the sender of any such communications sent through the Platform, and Client is solely responsible for ensuring that it obtains any required consent under applicable law. PDM makes no representation that any of the template language provided for Client’s consideration is compliant with the law in the jurisdiction in which Client operates. PDM is not responsible for Client’s compliance with laws and does not represent that Client’s use of the Platform will comply with any laws. PDM does not originate, transmit, or deliver any communications to any recipient that Client sends through the Platform or through any other means, whether through SMS, MMS, email, or other communication method. Client controls the content of the message, timing, sending, fraud prevention, and call blocking. Client creates and originates all communications to any person whether sent through the Platform at Client’s direction or through any other means (including through SMS, MMS, email, telephone, or otherwise).
7. Term: For Digital Marketing and Traditional Media Services, and all other periodic or recurring Services, the Initial Term of the Agreement will be twelve (12) months commencing, unless otherwise stated on the Order Form, on the Campaign Launch Date. Upon completion of the Initial Term, this Agreement shall automatically renew for consecutive 12-month terms (“Renewal Term”) unless Client or PDM gives notice of non-renewal (“Non-Renewal Notice”). Any Non-Renewal Notice must be in writing and transmitted to PDM or Client, as the case may be, no earlier than ninety (90) days before the end of the Term and no later than thirty (30) days before the end of the Term.
8. Payment and Fees: Payment terms will be set forth on the Order Form(s).
- a. Acceleration of Payments. In the event Client breaches this Agreement, including, but not limited to: (i) failing or refusing to make any payment when due, or (ii) seeking to “chargeback” or cancel any payment made pursuant to this Agreement, PDM may, in its sole and absolute discretion, immediately accelerate all payments due for the entirety of the Term, subject to the limitations of Sections 3 and 4. The accelerated payment amount shall be paid to PDM by Client within fifteen (15) days of PDM’s issuing written notice to Client of a breach and demand for the accelerated payment. Any past due balance shall bear interest at the highest rate allowed by law. Client’s payment obligations are independent from any claim, defense, or counterclaim Client may have against PDM.
- b. Automatic Debit of Payments. By signing the Order Form, Client authorizes PDM to automatically debit monthly payments from Client’s provided form of payment. Valid payment information will be provided to PDM upon Client signing the Order Form and will be updated by Client to reflect any changes (i.e., changes to “valid thru” date or credit card identification number) within five (5) business days from the date of any such change. Client expressly represents, agrees, and warrants that it has no right to and will not “chargeback” or otherwise cancel any payment debited by PDM pursuant to this Agreement. To the greatest extent allowed by law, Client waives any right Client may have to chargeback or otherwise cancel any such payment.
- c. Installment Payments: Notwithstanding anything herein to the contrary, PDM may, at its sole discretion, offer Clients the option to pay for certain services provided herein by interest-free installment payments for a period not exceeding eighteen (18) months. In the event a Client chooses to pay via installment payments, ownership of deliverables (e.g. websites, videos, branding assets) shall not transfer to the Client until all associated fees are paid in full. Client will not receive ownership of any products or services until the final payment is satisfied.
- d. Forbearance. If the Client requests to pause services under a monthly recurring contract (including but not limited to digital marketing and traditional media), such pause shall be subject to the sole discretion and approval of PDM and requires a written Request to Temporarily Pause Amendment signed by both parties. Any approved pause shall not cancel, shorten, or otherwise alter the original contract term, total agreement value, or payment obligations unless explicitly stated in writing by PDM. Payments may be deferred during the pause period but will resume immediately upon conclusion of the pause. The Pause Amendment shall extend the Term by an amount equal to the time paused. Services will automatically resume on the agreed reinstatement date. The Client may request an earlier resumption with written notice, subject to PDM approval. The approval of a pause shall not constitute a waiver of any rights or obligations of either party under the original agreement. Notwithstanding any pause, Client will continue to timely pay PDM’s Monthly Management Fee for the remainder of the Term.
9. Administration Fee: For products and services offered pursuant to Section 2(d), PDM shall apply a three percent (3%) administrative fee to the Client’s total marketing budget to cover costs associated with technology, administrative support, and account operations. In addition, PDM shall apply a $369 monthly fee (“Social Media Fee”) to social media advertising for social media platform management provided by PDM for the maintenance and upkeep of the Client’s designated social media pages with social media platform changes and updates, as governed by the respective social media platforms. The Social Media Fee is only applicable if the Client is utilizing social media advertising services. These fees will be deducted prior to determining the amount allocated to advertising expenditures, including Paid Search and social media advertising.
10. Client Representations: Client makes the following representations and warranties to, and for the benefit of, PDM.
- a. All elements of text, graphics, photos, designs, trademarks, or other artwork furnished by Client to PDM for use in Client’s website and/or marketing or other Services are owned by Client, or Client has permission from the rightful owner to use any such elements. Client will hold harmless, protect, indemnify, and defend PDM from any claim or suit arising from the use of such elements.
- b. Client will immediately provide PDM with written notification of any non-compliance or restrictions related to, or which may impact, any Services.
- c. Client is solely responsible for complying with any laws, taxes, and tariffs affecting or related to Internet electronic commerce, and will hold harmless, protect, indemnify, and defend PDM from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
- d. Client represents that all licenses and certifications that Client advertises are in good standing with the appropriate governing agencies and licensing boards.
11. Client’s Responsibilities: During the term of their Agreement with PDM, the Client shall:
- a. Cooperate with PDM in all matters relating to the Services and provide such access to Client’s premises, and such offices, and other facilities as may be reasonably requests by PDM for the purposes of performing the Services; and
- b. Respond promptly to any request by PDM to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for PDM to perform Services in accordance with the requirements of the Agreements. Failure to comply with this Section 11(b) constitutes a failure of Client’s obligations and may result in the consequences set forth in Section 13.
12. PDM’s Responsibilities: During the term of this Agreement, PDM will use reasonable best efforts to deliver the Services and Products contained herein in a commercially reasonable manner. PDM will deliver Products and Services as defined in the Order Form and subject to the terms and conditions herein.
13. Client Non-Responsiveness; Deemed Performance: Client acknowledges that PDM’s ability to perform the Services is dependent upon Client’s timely cooperation, communication and provision of information, approvals and decisions. Client’s failure to respond to PDM’s communications or otherwise cooperate as required under this Agreement shall constitute Client’s Non-Performance.
- a. If Client fails to respond to PDM’s communications or fails to provide required information, approvals, authorizations, or feedback for a continuous period of six (6) months, PDM shall be deemed to have fully performed and satisfied all of its obligations under this Agreement, notwithstanding that the Services may not have been completed as a result of Client’s non-responsiveness. In such event, Company shall have no further obligation to perform the Services, and Client shall not be entitled to any refund, credit, or offset.
- b. Beginning after three (3) months of Client non-responsiveness, PDM shall provide written notice via electronic message to Client no less frequently than every thirty (30) days requesting a response. Client’s continued failure to respond following such notices shall conclusively evidence Client’s non-performance.
- c. For purposes of this Section and Section 11(b), an automated response, out-of-office reply, or other non-substantive acknowledgement shall not constitute a response. Company shall not be responsible for any delay, failure to perform, or inability to complete the Services arising from Client’s non-responsiveness, and all applicable timelines shall be tolled during any period of such non-responsiveness.
14. Copyright Notice; Right Upon Termination: Notwithstanding Client’s ownership of all website deliverables produced by PDM, upon Client’s full payment of the Order Form, as provided above rights to licensed works, including photos, graphics, source code, work-up files, and computer programs, which have not previously been transferred to the Client, will remain the property of their respective owners, including PDM. To the extent Client’s use of such property is restricted by the owner or subject to a license fee, transfer, or other charge, such arrangements and costs shall be Client’s responsibility. If the website is transferred to a server that is not hosted by PDM, PDM is not responsible for site functionality or performance during or after such transfer. PDM reserves the right to display graphics used for the Client as examples of their work in their respective portfolios, including on PDM’s website. Client agrees to allow PDM to use their testimonial statements for promotional purposes. All Website Design Projects will contain a reference to PDM as the website designer with a link to PDM’s website.
15. Confidentiality: Regardless of whether the Services, content, programs, and material are copyright or trademarked, the Parties agree that they are the proprietary and/or confidential information of PDM (the “Confidential Information”), and the information would not be disclosed to Client or its employees absent Client’s agreement to hold and maintain the information in strict confidence, including the restrictions on use set forth herein. Confidential Information shall include, but is not limited to, programs and materials, log-in credentials (i.e., usernames and passwords), trade secrets and other Confidential Information that may not necessarily qualify as a “trade secret” as defined by statute, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Confidential Information shall not be used for any purpose other than as specified in this Agreement. Client agrees to hold and maintain all Confidential Information in strict confidence, and to not, directly or indirectly, disclose, share, or disseminate any such information unless specifically authorized in writing by PDM. Nothing in this Agreement is intended to preclude any Party from disclosing Confidential Information if required to do so by legal process, court order, or in response to a governmental inquiry; however, in such event and unless otherwise precluded by law, the Party required to disclose such information shall give the other Party immediate notice of such disclosure request or requirement so that it may interpose objections to the legally required disclosure.
The Parties acknowledge and agree that a breach or threatened breach of this provision constitutes immediate and irreparable injury, loss, or damage such that in the event of a breach or threatened breach of this provision, in addition to any other legal or equitable remedy that may be available, the non-breaching Party shall be entitled to immediate temporary and permanent injunctive relief to remedy or prevent the breach or future breach. Such relief may be sought with or without notice. To the greatest extent allowed by law, the Parties waive any requirement of the posting of a bond.
16. Non-solicitation of Staff: Client hereby agrees that during the term of this Agreement and for a period of one (1) years following the termination of this Agreement, whether the termination shall be voluntary or involuntary, with or without cause, or whether the termination is solely due to the expiration of this Agreement, Client will not solicit, hire or attempt to hire any employee or independent contractor of PDM or otherwise encourage or attempt to encourage any employee to resign from PDM.
17. Non-Disparagement: During the term of this Agreement and for one year following the termination of this Agreement, no Party will disparage, denigrate, or comment negatively upon the other Party or its business, management, or employees. This non-disparagement agreement extends to all communications, including verbal, written, and electronic communications, including Social Media. The Parties agree that damages arising from a violation of this non-disparagement provision are difficult if not impossible to quantify; thus, in any litigation arising from this provision, if a Party establishes a violation of this non-disparagement provision the non-breaching Party shall be entitled to injunctive relief (including temporary, preliminary, and permanent injunctive relief) without the need to prove actual damages, in addition to any other remedies available at law or in equity.
18. Indemnity and Limitation of Liability: Client agrees to defend, indemnify, and hold PDM, its officers, directors, employees, agents, and successors harmless from and against any and all claims, suits, expenses, costs, losses, and liability including attorneys’ fees that relate to, or arise from, (1) Client’s use of the website, (2) any content and materials provided or approved by Client, (3) a breach of this Agreement by Client, and/or (4) compliance with applicable laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA). PDM shall not be liable to Client or any third party for internet connectivity issues or website issues including downtime or outages that interrupt the Services unless such downtime or outage is caused by the willful and intentional misconduct of PDM.
IN NO CASE SHALL PDM, ITS AGENTS, ASSIGNS, EMPLOYEES, CONTRACTORS, OR REPRESENTATIVES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES SUFFERED BY CLIENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFIT, OR PUNITIVE OR SPECIAL DAMAGES, AND REGARDLESS OF THE CAUSE AND REGARDLESS OF WHETHER PDM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In any case where PDM is held to be liable, its aggregate liability for any claims shall be limited to the monthly fee for products and services paid to PDM by Client in the three (3) months preceding the incident(s) giving rise to the Claim(s).
19. HIPAA Warranty: In addition to, and without in any way limiting any other warranty or representation made by Client, Client warrants and represents that the existence, content, and operation of its website are in compliance with the provisions of HIPAA, and in particular, the HIPAA Privacy Rule (45 CFR Part 160 and Subpart A and E of Part 164). Accordingly, Client specifically warrants that it does not and shall not disclose “protected health information” (as that term is defined by HIPAA) of any person, except as may be expressly permitted in accordance with the provisions of HIPAA, whether on its website or otherwise.
20. Disclaimer of All Warranties: PDM DOES NOT AND CANNOT WARRANT OR GUARANTY RESULTS OF ANY ADVERTISING, MARKETING, OR OTHER SERVICE. PDM DOES NOT WARRANT THAT ANY SERVICES WILL MEET CLIENT’S EXPECTATIONS OR REQUIREMENTS. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, PDM PROVIDES ITS PRODUCTS AND SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (1) THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (2) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, OR INABILITY TO PERFORM UNDER THIS AGREEMENT.
21. Advertising Agency or Other Client Representative: If the Order Form is signed by an advertising agency, then the advertising agency shall be deemed to have executed the Agreement as an agent for the Client receiving the benefit of the products and Services. Payment to the advertising agency by the Client shall not constitute payment of any amount owed under this Agreement to PDM, unless such sums are actually remitted to PDM. In any case where an advertising agency or other third-party agent or representative of the Client executes the Order Form, PDM shall be entitled to rely on the representations made by such agent or representative that such agent or representative has actual authority to execute and enter into this Agreement on behalf of the Client, and such agency shall be equally responsible as Client for the payment of any amounts due to PDM.
22. Notices: Any notice required or permitted to be given hereunder shall be sufficient if delivered by e-mail. If notice is required to be provided by Client, Client shall provide such notice by e-mail to the designated account manager or practice growth consultant assigned to the client. A notice is required to be provided by PDM, PDM shall provide notice to Client’s e-mail on file. Client is solely responsible for updating Client’s contact information as may be necessary.
23. Ownership of Non-Client Property: Title and full ownership rights in and to the Website Design Project (including all copyrights and other intellectual property rights), together with any and all ideas, concepts, campaign optimizations, computer programs, and other technology supporting or otherwise relating to PDM’s operation of the PDM network, and website(s) (collectively, the “PDM Materials”), shall remain at all times solely with PDM and/or with the respective outsourced service provider or author. Client acknowledges that it has not acquired any ownership interest in the PDM Materials and will not acquire any ownership interest in the PDM Materials by reason of this Agreement.
Any Website Content transferred to Client will NOT include working files (e.g. Photoshop, website structural layouts, etc.), search engine optimization beyond the keywords in the written content, or any other back end confidential marketing, directing, or strategies performed by PDM.
24. Assignability: PDM may assign its obligations under this Agreement upon thirty (30) days written notice to Client. Client may not assign or transfer this Agreement to any third party without the prior, express written consent of PDM. A sale or a change in control of all or a part of Client or its business shall constitute an assignment or transfer as it pertains to this Section.
25. Agreement Binding on Successors: The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto; their heirs, administrators, successors, and permitted assigns.
26. Governing Law; Venue; Jury and Attorneys’ Fees: This Agreement shall be governed by Florida law. Exclusive venue and jurisdiction for any dispute arising from this Agreement or any services or programs provided or offered by PDM shall be in the state courts located in Pinellas County, Florida; and the Parties specifically acknowledge and agree that they are waiving any right to claim that such venue is inconvenient or inappropriate or to raise any other objection to such venue.
TO THE GREATEST EXTENT ALLOWED BY LAW, THE PARTIES WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY ACTION ARISING FROM AN ALLEGED BREACH OF THIS AGREEMENT OR RELATED IN ANY WAY TO ANY SERVICES OR PROGRAMS OFFERED BY PDM.
In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including any such fees and costs incurred on appeal or in enforcement of any judgment.
27. Waiver for Breach: Waiver by one Party of a breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver. No waiver of any breach or default shall be a waiver of any other breach or default of this Agreement.
28. Force Majeure: Where performance under this Agreement is delayed due to strikes, acts of God (including severe weather conditions like hurricanes), war, terrorist attacks, epidemics, pandemics, or actions or inactions on the part of local, state or federal governmental authorities, such performance shall be abated until such Force Majeure event is resolved. However, in no event shall performance be abated or delayed for more than thirty (30) days from the date performance would have been due in the absence of the Force Majeure event.
29. Severability: In the event that any clause, term, or provision of this Agreement is found to be unenforceable under law or public policy, then the same shall be severed from this Agreement and the remainder of the Agreement shall remain in full force and effect, and applied in a manner which most closely fulfills the original intent of the Parties.
30. Entire Understanding: This Agreement, with any other materials, documents, understandings, or agreements incorporated by reference herein, and any exhibit, schedule, or other supplementary document attached hereto, constitutes the entire understanding and agreement of the parties related to the Services listed in the Order Form, and any and all prior oral agreements, understandings, and representations regarding this Agreement are hereby terminated and cancelled in their entirety and are of no further force and effect. Subsequent Order Forms are hereby merged as discussed above as they relate to additional services and do not replace or terminate prior services unless expressly stated in the Order Form.
31. Read and Understood: The Parties have carefully read and fully understand this Agreement, including the Order Form and these Terms and Conditions, and agree to be bound by this Agreement.
Terms and Conditions Updated January 2, 2026
