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Acceptance of Partner Terms
These Partner Terms (these “Terms”) are entered into by and between you and Dieselmatic Digital, Inc. (“Dieselmatic”, “we”, “us” or “our”). These Terms govern your access to and use of Dieselmatic’s digital marketing services. By clicking to accept or agree to these Terms and/or by using Dieselmatic’s services, you accept and agree to be bound by these Terms and our Privacy Policy, found at https://www.dieselmatic.com/utility/privacy-policy, incorporated herein by reference. Further, you agree that these Terms supersede in their entirety all prior versions of the Partner Terms between you and Dieselmatic and agree that by clicking to accept or agree to be bound by these Terms, any requirement in prior versions of the Partner Terms that any changes or modifications to such Partner Terms be in writing and signed by both parties is satisfied by your clicking to accept and agree to be bound by these Terms.
1. Online Advertising and Marketing Services
Dieselmatic offers a variety of services to improve the online visibility and digital marketing efforts of heavy-duty truck repair shops. Principal among these services are Dieselmatic’s subscription plans advertised on our website, including the Start Plan, Grow Plan, Turbo Plan, Turbo Beast Plan and any other plans we may offer from time to time (each, a “Dieselmatic Plan”). If you have questions, or if we may be of any service, please do not hesitate to contact us.
Dieselmatic provides search engine marketing, optimization and associated services on a local, national and international basis. As such, we submit information on your behalf to search providers for whom you must agree to their terms and conditions. These providers may include, but are not limited to: Google, MSN/Bing, Yelp, Meta (Facebook), LinkedIn, YouTube and other providers. The terms and conditions of these providers all apply to the services we provide and you agree to cooperate with Dieselmatic in any efforts to secure your affirmative consent to the terms of conditions of these providers.
You are directly responsible for any third-party fees associated with the search engine marketing and search engine optimization services provided by Dieselmatic, such as fees associated with paid advertising through Google Ads, Meta Ads, or LinkedIn Ads or other platforms. You agree to establish an account with any third parties that Dieselmatic uses in its services and agree that periodic third-party fees will be billed to you directly from such account and are not included in your monthly subscription fees. You agree to pay such third-party fees directly when and as due and understand that such fees may change at any time in the discretion of the applicable third parties.
Dieselmatic will assist you in obtaining the web domains needed for Dieselmatic to perform its services. Such domains will be purchased from an account that you establish with a domain registrar, and you agree to cooperate with Dieselmatic in setting up such account. Such domains will be owned directly by you, and you agree to pay all fees charged by the domain registrar to maintain such domains during the term of your subscriptions.
2. Advertising Material
Dieselmatic has the right to place information pertaining to your business on any of the publisher and search provider websites that Dieselmatic determines is reasonable to provide its services to you, including those listed above, and you authorize Dieselmatic to develop content both independently and based on the Customer Materials (defined below), including copy, form, size, text, graphics, names, addresses, phone numbers, URLs, logos, trade names, trademarks, service marks, endorsements, photographs or likenesses, and videos. The content that Dieselmatic may develop includes, but is not limited to, articles, press releases and blog postings. You represent and warrant that the Customer Materials are truthful, not misleading, and that you have the authority to provide the Customer Materials to Dieselmatic. You represent and warrant that you have and will continue to have the absolute and unrestricted right to publish and use all Customer Materials, that the Customer Materials do not infringe on the rights of any third party and that the Customer Materials comply with all local, state and federal laws and regulations. You grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties the Customer Materials for the purpose of providing services to you. You agree to indemnify, defend and hold harmless Dieselmatic and its affiliates, service providers and personnel against all costs (including attorney fees), damages and liabilities arising from negligent or intended acts on your part constituting the violation of any copyright, trade secret, trademark, service mark, patent, invention, proprietary information or nondisclosure rights of any third party. To the full extent of the law, you will pay any expenses or damages to Dieselmatic resulting from claims made by third parties with regard to usage of the Customer Materials, even after termination of your relationship with Dieselmatic. “Customer Materials” means information or other content provided by you or your designees to Dieselmatic for use in the services that Dieselmatic provides to you.
If so contracted, you authorize Dieselmatic to contact your customers for the purpose of gaining endorsements and reviews of your products and services for publication and for the purpose of marketing your services through email marketing campaigns conducted through the Dieselmatic App. You authorize Dieselmatic to utilize tracking phone numbers, and record calls on your behalf, for customer service purposes, and upon automatic notification to all incoming callers on tracking phone numbers if/when that service is contracted.
3. Payment, Renewal & Cancellation
You agree to pay Dieselmatic the monthly fees and charges for the Dieselmatic Plan that you have subscribed for, as set forth in your monthly billing statement. All monthly fees and charges are due and payable in advance. Dieselmatic may change the fees and charges for the Dieselmatic Plans and its other services from time to time upon at least 15 days’ prior notice to you, and your continued use of the Dieselmatic Plan or other services after any such change will constitute acceptance of the new fees and charges. If you are a monthly subscriber, changes will come into effect at the beginning of the next month. If you are an annual or multi-year subscriber, changes will take effect at the start of the next annual or multi-year term. All fees and charges are billed monthly, are due via credit card or ACH auto payment and are not refundable.
You must pay any initial setup fee or professional services fee before Dieselmatic is obligated to perform such setup or professional services.
All payments owed to Dieselmatic must be made in United States dollars (USD).
All monthly subscriptions will automatically renew at the end of each month unless we elect in our sole discretion to cancel your subscription at the end of any month. If you are a monthly subscriber, you can cancel your subscription by providing 30 days’ written notice after the completion of the initial month of your subscription. Email accounts@dieselmatic.com to let us know that you’d like to cancel your subscription.
All annual or multi-year subscriptions will automatically renew at the end of your subscription term for successive annual or multi-year periods, as applicable, unless either party gives written notice to the other party of non-renewal at least 30 days prior to the end of your then-current subscription term. Email accounts@dieselmatic.com to let us know that you’d like to cancel your subscription.
We may cancel your monthly, annual or multi-year subscription upon notice to you if you breach these Terms and do not cure such breach within five days of our notice to you of such breach.
If an account becomes 14 days past due, Dieselmatic reserves the right to pause all campaign activities until payment is made and the account is current. If an account becomes 30 days past due, Dieselmatic reserves the right to cancel your subscription and all other access to Dieselmatic’s services and may turn the past-due balance on your account over to a collection agency. You assume responsibility for all cost outlays by Dieselmatic in all collections of unpaid fees and of legal fees necessitated by default in payment. Invoices in default will include but are not limited to fees for collection and legal costs.
An interest charge of 5% per month is payable on all overdue balances.
4. Changes
Upon your verbal or written request, Dieselmatic will apply add-on services to your account. You agree to the increased monthly cost for the add-on service. The charge for the add-on services will be prorated for the first month in which it is added and will then be billed monthly along with fees and charges for your Dieselmatic Plan.
You may, with 30 days’ notice, request to change your monthly subscription to another available Dieselmatic Plan. Any add-on services applied to your account will remain in effect until you request to discontinue the add-on service, which also requires 30 days’ notice.
5. Effect of Cancellation
Upon cancellation of your subscription, (1) your access to and use of our services will be terminated, (2) all hosting related to the website(s) we designed for you will be revoked and DNS records will be removed and such website(s) will no longer be publicly accessible, (3) you will retain ownership of any domain names that were established in your name in connection with our services and any domain names shared with us will be returned to you, (4) you will retain ownership of any Google Ads account or similar accounts with other providers that were established in your name in connection with our services and the credentials and administrative authority associated with any such accounts will be returned to you; (5) we will retain all right, title and interest in the Dieselmatic Materials (defined below), (6) you will retain all right, title and interest to the Customer Materials and Customer Data (defined below) but we will not return copies of Customer Data on our systems to you and we will not export any data to you and (7) you will promptly pay us any unpaid fees or charges for services we provided before the cancellation date of your subscription.
6. Intellectual Property
All right, title, and interest in and to the Dieselmatic Materials, including all intellectual property rights therein, are and will remain with Dieselmatic and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to any of the Dieselmatic Materials except as expressly set forth in these Terms or the applicable third-party license. All other rights in and to the Dieselmatic Materials are expressly reserved by Dieselmatic. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to Dieselmatic an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto.
As between you and Dieselmatic, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted in these Terms. You are responsible for keeping a copy of the Customer Data on your own systems as we do not return copies of the Customer Data to you upon cancellation of your subscription.
You hereby irrevocably grant all such rights and permissions in or relating to Customer Data as are necessary or useful to Dieselmatic to perform its obligations pursuant to these Terms and exercise its rights under these Terms.
“Customer Data” means information, data, and other content that is collected, downloaded, or otherwise received from you or your customers related to our services. For the avoidance of doubt, Customer Data does not include Resultant Data or any information, data, or other content derived from Dieselmatic's monitoring of your and your customers’ access to or use of the website(s) and other digital marketing materials that Dieselmatic provides.
“Dieselmatic Materials” means the website(s) and other digital marketing materials that Dieselmatic provides to you as a service and includes the website designs and all content added to the website(s) (including all copyrightable material, photography, graphics, images, animations, videos, audio files, fonts, articles and blog posts). For the avoidance of doubt, Dieselmatic Materials includes Resultant Data and any information, data, or other content derived from Dieselmatic's monitoring of your and your customers’ access to or use of the website(s) and other digital marketing materials that Dieselmatic provides.
“Resultant Data” means data and information related to your use of our services or your or your customers’ use of the website(s) that Dieselmatic provides to you as a service, in each case that we use in an aggregate or anonymized manner, or that we otherwise use internally to improve our services and service offerings, including to compile statistical and performance information related to the provision and operation of our services.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to our services that are not proprietary to us and are obtained by us from third parties in connection with our performance of services.
7. No Guarantees
You acknowledge and agree that Dieselmatic makes no specific guarantee or warranty regarding the search providers and publishers to which it submits advertising on your behalf, including placement of paid search advertising or any specific results. Dieselmatic does not warrant the number of calls, clicks, impressions or website visits or that paid search advertising will appear in response to any particular query. Dieselmatic does not warrant that Dieselmatic’s performance of services will be error-free but will promptly act to correct errors once they have been identified.
ALL SERVICES AND DIESELMATIC MATERIALS ARE PROVIDED "AS IS." DIESELMATIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DIESELMATIC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DIESELMATIC MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8. Limitations and Disclaimers
IN NO EVENT WILL DIESELMATIC OR ANY OF ITS LICENSORS OR AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR THE SUBJECT MATTER OF THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
DIESELMATIC’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THESE TERMS OR THE SERVICES PROVIDED BY DIESELMATIC WILL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO DIESELMATIC FOR THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO WHEN ANY CLAIM OR CAUSE OF ACTION AROSE.
YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION WHICH YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES DIESELMATIC PROVIDES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OR THE CLAIM OR CAUSE OF ACTION WILL FOREVER BE BARRED.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Dieselmatic will not be liable for failure or delay in performing services or other obligations under these Terms if the failure or delay is due to circumstances beyond Dieselmatic’s control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, pandemic, epidemic, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunication or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in equipment needed for the provision of the services.
Some features of our services may provide template terms of use or privacy policies, suggested contractual language or sample agreements for use on your website(s) or in your business. Dieselmatic does not guarantee the enforceability or effectiveness of such templates, contractual language or sample agreements. You acknowledge and agree that all templates, suggested contractual language and sample agreements are provided solely for your information and convenience. It is your responsibility to consult with your own legal counsel to determine the suitability and legality of such templates, contractual language and sample agreements in the context of your business operations and to modify the same as the context of your business requires and as advised by your own legal counsel.
9. Governing Law; Dispute Resolution
All matters relating to these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without giving effect to any choice or conflict of law provision or rule.
Any legal suit, action, or proceeding arising out of, or related to, these Terms shall be instituted exclusively in the courts of the Province of British Columbia, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
At Dieselmatic’s sole discretion, we may require you to submit any disputes arising from these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules and you agree to submit to and be bound by the results of such arbitration should we require it.
10. Assignment
Dieselmatic may assign, delegate or subcontract any rights or obligations under these Terms. You may not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent.
11. Authority
The person signing the Contract or submitting the Dieselmatic Plan subscription certifies that (s)he is lawfully authorized to purchase services on behalf of your company.
12. Amendments
These Terms may be amended or supplemented by Dieselmatic in its sole and absolute discretion. Any such amendments or supplements will be effective immediately upon Dieselmatic’s posting of the same by hyperlink to the login page for the Dieselmatic Dashboard or the Dieselmatic App, which posting shall be deemed reasonable and adequate notice to you of the amended or supplemented Terms and which posting will bind you to these Terms as amended or supplemented. If you do not agree to any amendment or supplement to these Terms, your sole remedy is to cease using our services and cancel your subscription.
13. Miscellaneous
These Terms, together with any forms completed by you in subscribing to our services, constitute a single, integrated, written contract expressing the entire understanding and agreement between and among the parties with respect to the subject matter of these Terms, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Neither party has relied on any statement, representation, warranty, or agreement of the other party or of any other person on such party’s behalf, that are not set forth in these Terms. If a court of competent jurisdiction determines that any provision of these Terms is invalid, unenforceable or void for any reason whatsoever, such provision shall be severed from the remaining provisions of these Terms and shall not affect the validity or enforceability of any remaining provisions of these Terms. No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of these Terms shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences. No waiver of any provision of these Terms shall be effective unless made in writing and signed by an authorized representative of the party against whom such waiver is sought. Titles and headings are included solely for convenient reference and are not part of these Terms. These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Subject to the express exclusions and limitations set forth in these Terms, all remedies set forth in these Terms are cumulative and in addition to and not in lieu of any other remedies of any party at law or in equity. No person or entity is intended to be a third-party beneficiary of any provision of these Terms. The parties represent and warrant that they have full authority to enter into and deliver these Terms and to perform their obligations under these Terms.
