TERMS & CONDITIONS
This Services Agreement (“Agreement”) is between Dealer Marketing, LLC, a Wyoming limited liability company who does business as Convergo (“Convergo”) and you (“Client”). Accordingly, the parties agree as follows:
Each term defined in the preamble and the recitals of this Agreement has its assigned meaning, and each of the following terms has the meaning assigned to it:
1.1. “Confidential Information” means any confidential information relating to any designs, knowhow, inventions, pricing, technical data, ideas, uses, processes, methods, formulae, research and development activities, work in process, or any scientific, engineering, manufacturing, marketing, business plan, financial or personnel matter relating to the disclosing party, its present or future products, sales, suppliers, customers, client leads, strategic resource vendors, employees, investors or business. Confidential Information also includes any other information in oral, written, graphic, or electronic form which, given the circumstances surrounding such disclosure, would be considered confidential.
1.2. “Effective Date” means the date Client accepts this Agreement.
1.3. “Intellectual Property” means all of the parties’ trade names, trade name rights, trademarks, trademark rights, logos, trade dress, licenses, patents, patent applications, patent rights, inventions (whether or not patentable), licensing rights, trade secrets, customer lists, copyrights (including registrations and applications), technology, computer software source codes, know-how, processes, specifications, projects in development, service marks, computer software, computer software modifications, enhancements and computer software derivative works, other intellectual property rights and other proprietary information, including all rights to, and intellectual property regarding, the party.
1.4. “Service(s)” means any work provided by Convergo to Client, including but not limited to the work described in Section 4.
1.5. “Supplemental Charges” means any further charges for additional work Convergo provides outside the scope of the initial Service.
2.1. Initial Payment. Client shall pre-pay Convergo for the Services at the time of purchase. Client may choose to pay by credit card, debit card or through an invoice sent by Convergo.
2.2. Recurring Fees. Client may select a Service that imposes monthly fees. If Client pays Convergo by credit card or debit card, Client authorizes 2 Service. In the event Client does not pay for the Services with a credit or debit card, Convergo shall send Client an invoice for any recurring fees or Supplemental Charges associated with the Service, and Client shall pay any fees by the due date stated on the invoice.
2.3. Fee Changes. Convergo may change recurring fees in accordance with Convergo’s company policies.
2.4. Late Payment. Convergo shall send Client a notice if any amount due to Convergo by Client becomes past due. If Client does not cure the late payment default within 10 days of Convergo’s notice, Convergo shall charge Client a late fee of 2% or the maximum fee allowable under applicable law. Convergo may, at its option, withhold further Service to Client until all payments are made in full. Convergo may also terminate this Agreement.
2.5. Change in Payment Method. Client shall keep all payment information accurate and current, including but not limited to, credit card and debit card numbers, expiration dates and personal address. Client shall update all payment information as necessary through Client’s account or by providing notice to Convergo.
2.6. Taxes. Client is responsible for and shall pay all federal, state and local sales, use, value added, excise, duty, or other taxes assessed with respect to the Services.
2.7. Banking Fees. Client shall pay for any banking fees associated with the Services including, but not limited to, wire transfer fees, processing fees, returned check fees, nonsufficient funds fees, and credit card chargeback fees. In the event Convergo pays for any baking fees, Convergo shall bill Client for any banking fee charges. Client shall reimburse Convergo within 5 business days after receiving a bill.
3. Effective Date and Term
3.1. Effective Date. This Agreement is effective as of the Effective Date.
3.2. Term and Renewal. This Agreement will automatically renew and will continue until it is terminated as provided in Section 10 of this Agreement.
3.3. Altering Services. Convergo may give the Client the opportunity to alter the Services during the term of this Agreement.
4. Services. Client may engage Convergo to provide one or more of the following Services.
4.1. Website Hosting. Convergo shall provide Client with website hosting, security updates and backups.
4.2. Website Design. Convergo shall provide website development Services. a) Website Revisions. Convergo will provide up to two rounds of website design revisions. If the Client wishes to have Convergo complete additional revision rounds, Convergo shall bill Client Supplemental Charges at the then-current hourly rate. 3 b) Non-Convergo Websites. Client may request Convergo’s website design services for websites Convergo did not original build. Convergo will use its best efforts to generate content and edits to the site. Due to factors beyond Convergo’s control, some unforeseen issues may occur. Convergo will provide Client notice of these issues. Convergo will not bill Client for any additional costs unless Client has approved of such action. c) Website-as-a-Service. Client may apply any points from the website-as-a-service menu to Convergo’s website edits or other design projects. Client may engage Convergo to do work in excess of Client’s point balance, as long as the request does not exceed Client’s point balance for the following quarter. Unused website-as-a-service points will roll over into future quarters. Convergo may change the menu of service and points from time to time. d) Print Design. Client may request Convergo provide any print collateral in printable PDF format.
4.3. Website Updates. Client may engage Convergo to update material on Client’s website. Convergo shall bill Client at its then current hourly rate, in 15-minute increments, for any website updates. Convergo will not send Client a work quote before starting any updates, unless Client requests a quote.
4.4. Search Engine Optimization. Convergo shall provide Client with an analysis of search engine optimization. The time needed to see measurable results can vary and Convergo requires a minimum of 180 days to properly analyze the results. Convergo cannot guarantee each keyword or phrase will have a successful result, however, Convergo will attempt to keep a positive trend at all times. This Service will include the following: a) Measuring Search Engine Optimization. Convergo shall identify keyword phrases in Client’s marketing plan and Convergo shall monitor the phrase rankings in the search engine. b) Measuring Traffic Generation. Convergo shall use a web analysis tool, such as Google Analytics, to monitor Client’s website traffic. Convergo will evaluate and monitor the dominant referrer driving traffic to the website.
4.5. Conversion Optimization. Convergo shall measure all of Client’s conversion points. Conversion analysis will include comparing the number of form completions with total traffic volume.
4.6. Hubspot and Other Third-Party Platforms. Client may engage Convergo to support content and campaigns on third-party platforms such as Hubspot or Salesforce.com. These campaigns may include landing pages, forms, emails and other components. Convergo may bill Client for Supplemental Charges associated with third-party platform software updates or other changes that adversely affect a Client’s campaign.
4.7. Blogs. Client may engage Convergo to regularly provide website blog articles. Convergo may only use custom written blog articles. In the event Client is not satisfied with a blog post, Convergo shall replace one article with new content per quarter at no charge to Client. Convergo 4 shall bill Client for Supplemental Charges associated with replacing more than one blog post in any given quarter.
4.8. Social Media Management. Client may engage Convergo to manage Client’s social media accounts. Convergo shall make social media posts for any platforms Client requests. Convergo will bill Client a Supplemental Charge if Client wishes to review content before it is posted to an account. In the event Client does not approve of a specific post, Convergo shall remove the post as quickly as reasonably possible. Convergo will use reasonable efforts to comply with the rules and policies of a specific social media platform. However, Convergo is not responsible for flagged social media posts or the termination or suspension of a Client’s social media account.
4.9. Product Catalog. Client may engage Convergo to manage Client’s product catalog database. Client retains control over which products appear on Client’s website. Client is responsible for accurately publishing the availability or unavailability of products. Convergo makes no warranties for the accuracy of any product information.
4.10. Newsfeeds. Client may engage Convergo to publish press releases and other relevant news information from the client’s technology partners on their website or blog. In the event Client does not approve of a specific post, Convergo shall remove the post as quickly as reasonably possible.
4.11. Sales Training. Client may engage Convergo to train Client’s sales team or other employees. If Client requests on-site training, Client shall pay for all travel expenses associated with the training. In the event of an illness or other circumstance causing Convergo’s inability to perform the training, Convergo shall take all necessary steps to reschedule the event as soon as reasonably possible.
5. Convergo Policies
5.1. Website Backup. As long as Client is not in default under this Agreement, Convergo shall provide Client with a website backup at no additional cost.
5.2. Use Policy. Client agrees to abide by Convergo’s website terms of service policy. Client can find the acceptable terms of service on the Convergo website. The terms of service are incorporated to this Agreement by reference and may be amended from time to time.
5.3. Security Breach. Convergo shall establish and maintain data security procedures and other safeguards designed for protection against the destruction, corruption, loss, alteration or the unauthorized access of Client data and Confidential Information. In the event Convergo’s systems is compromised in a way that Client data or Confidential Information has been acquired or is reasonable believed to be at risk of becoming acquired by an unauthorized party, Convergo shall inform Client of such breach as soon as reasonably possible. Client agrees to release Convergo from any punitive, nominal or consequential, damages Client may occur in association with a security breach of Convergo’s systems.
5.4. Violation of Use Policy. If Client violates Convergo’s acceptable use policy, violates and local, state, or federal law, or uses Convergo’s Services in an inappropriate manner, Convergo may 5 immediately take corrective action, including but not limited to: issuing warnings to Client; suspending or terminating the service; restricting or prohibiting any uses of content hosted on Convergo’s systems; remove any of Client’s content distributed or make available for distribution through the Services; or disable or remove any hypertext links to third-party websites.
6. Convergo Support
6.1. Server, Content Management System and Security Updates. Convergo will maintain the server and content management system with all necessary security updates. Convergo will provide Client with the necessary support for the server, content management system and security updated to ensure Client’s website remains online.
6.2. User Training. Convergo shall provide Client with website administration and editing training through the Convergo training webpage. Convergo shall provide Client with 2 hours of support via phone or e-mail each calendar year. If Client requests additional training, Convergo will bill Client Supplemental Charges at its then-current hourly rate.
6.3. Technical Support. Client may request Convergo technical support. Convergo will bill Client Supplemental Charges for technical support. Convergo support hours are from 7am to 6pm mountain time. Convergo bills $150 and hour, in 15-minute increments, for support during support hours. Convergo bills $250 an hour, in 15-minute increments, for support outside of support hours.
6.4. Form Submission Issues. If Client’s website uses contact information submission forms, emails may not be delivered due to circumstances beyond Convergo’s control such as SPAM filters, changes to your email address, or other email server issues. Additionally, form submissions on Client’s website may generate unwanted emails. Client may contact Convergo if any of these issues occur. Convergo may suggest third party applications to solve email delivery issues and spam reduction technologies, such as CAPTCHA, to reduce unwanted emails. Client may incur charges associated with third-party technology.
6.5. Americans with Disabilities. Convergo shall use its best efforts to make Client’s website accessible to visually impaired individuals when using third party software applications. Convergo may make recommendations to improve specific website areas to better provide access to the visually impaired. Convergo will bill Client for work done to achieve these recommendations.
6.6. Support Information. Client may submit a support request on the Convergo website at www.convergomarketing.com/support or by calling Convergo at 214-224-0050 ex 200, or by emailing email@example.com.
7. Client Responsibilities and Restrictions
7.1. Accurate Account Information. Client shall maintain accurate and complete account information including but not limited to, name, address, phone number, e-mail address, and payment information. Convergo is not responsible for a disruption in Service or any associated damages caused by Client’s failure to maintain accurate account information.
7.2. Domain Name. Client shall provide Convergo with a registered domain name or with a list of desired domain names, provided that the domain names are available, and those desired names shall not violate any laws, regulations or registration services policies. If Client wishes for Convergo to register the domain name, Client shall pay Convergo for any fees associated with registering or maintaining the domain name. Client shall comply with all terms of the then current domain name policy and the then current policies of the national Domain Name Services registration authorities. In the event a domain name cannot be registered, Client may request Convergo register an alternative domain name. Domain name registration fees are nonrefundable. Client may request a domain name change. Convergo shall bill Client Supplemental Charges for any work done to association with a domain name change 7 sends emails on behalf of the Client, the Client shall ensure all email contacts have authorized the use of their email.
7.3. Images. Client is responsible for securing any and all authorizations, copyrights, permissions, royalties, permits, licenses or approvals to use, media and images, including but not limited to, video, photography, graphic design, illustrations, and audio, on Client’s website.
7.4. Third-party Platforms. In the event Client requests Convergo’s Service on a website Convergo does not host, Client is responsible for any and all authorizations or approvals for Convergo’s access to the platform. Client recognizes there may be unforeseen issues while Convergo is working on a third-party platform.
8. Intellectual Property Rights and Confidentiality
8.1. Convergo’s Intellectual Property. Convergo shall own all of Convergo’s Intellectual Property. Convergo shall maintain and own all internet protocol numbers and addresses that may be assigned to Client by Convergo. Convergo may change or remove any and all of Client’s internet protocol numbers and address.
8.2. Right to Use Client’s Intellectual Property. Client grants Convergo a revocable, nontransferable, non-exclusive, royalty-free license to use Client’s Intellectual Property solely in connection with rendering the Services contemplated in this Agreement. Client expressly grants Convergo a license to cache materials distributed or made available for distribution through the Services, including but not limited to, content supplied by third parties. Client represents and warrants that Convergo’s use of Client’s Intellectual Property or Convergo’s caching does not violate any third party’s Intellectual Property rights.
8.3. Confidentiality. Both parties acknowledge that during the term of this Agreement each may receive Confidential Information from the other party. The receiving party shall protect Confidential Information to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information.
8.5. Survival of Confidentiality. The provisions of Section 8 shall survive the expiration or termination of this Agreement.
9. Representations and Warranties
9.1. Convergo’s Representations and Warranties. Convergo represents and warrants to Client each of the following: a) Authority. Convergo has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated in this Agreement. b) Non-Contravention. Neither the execution and delivery of this Agreement by Convergo nor the consummation by Convergo of the transactions contemplated in this Agreement are (i) a violation of any agreement or commitment to which Convergo is a party; and (ii) in violation of any law or statute any judgment, decree, order, regulation or rule of any court or governmental or regulatory authority relating to Convergo. c) Litigation. There are no actions, suits, proceedings or investigations pending or threatened against Convergo which question the validity of this Agreement or challenges any of the transactions in this Agreement.
9.2. Client’s Representations and Warranties. Client represents and warrants to Convergo each of the following: a) Authority. Client is at least 18 years of age and has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. b) Lawful Purposes. Client will only use the Services for lawful purposes. c) Third Party Rights and Approvals. Client’s website content does not infringe on any third-party’s rights. Client shall acquire all necessary authorizations and approvals for any products listed on Client’s website, for the use of hypertext links to third-party websites, and for any other content for which Client does not own the Intellectual Property. d) Accuracy of Information. Client has verified the accuracy of all information on Client’s website and all information made available to Convergo, including but not limited to, content, descriptive claims, warranties, guarantees, nature of business and business address. e) Non-Contravention. Neither the execution and delivery of this Agreement by Client nor the consummation by Client of the transactions contemplated in this Agreement are (i) a violation of any agreement or commitment to which Client is a party; and (ii) in violation of any law or statute any judgment, decree, order, regulation or rule of any court or governmental or regulatory authority relating to Client. f) Litigation. There are no actions, suits, proceedings or investigations pending or threatened against Client which question the validity of this Agreement or challenges any of the transactions in this Agreement.
10.1. Termination by Convergo. Convergo may terminate this Agreement; a) If Client becomes past due on any amount owed to Convergo as described in Section 2.4; 9 b) If Client exceeds the storage or bandwidth limits as described in Section 7.4; c) If Client’s representations and warranties under Section 9.2 are not true in all material respects on the Execution Date; d) If Client fails to fulfill its obligations under this Agreement; or e) By providing Client with 90 days written notice.
10.2. Effective Date of Convergo Termination. If Convergo terminates this Agreement under Section 10.1, the termination is effective 90 days after Convergo sends written notice of termination. Client acknowledges termination of this Agreement may result in the removal of Client’s website from the internet and the inability for third parties to access Client’s website. Convergo is not liable for any damages associated with the removal of Client’s website from the internet.
10.3. Termination by Client. Client may terminate this Agreement: a) If Convergo’s representations and warranties under Section 9.1 are not true in all material respects on the Execution Date; b) If Convergo fails to fulfill its obligations under this Agreement; or c) By providing Convergo with 90 days written notice.
10.4. Effective Date of Client Termination. If Client terminates this Agreement under Section 10.3, the termination is effective 90 days after the Client sends written notice of termination.
10.5. Payment. Upon termination of this Agreement, Client shall pay Convergo all outstanding payments within 90 days of sending or receiving a written termination notice. In the event Client has paid Convergo for Service not rendered at the time of termination, Convergo shall issue Client a pro-rata refund, unless otherwise provided in this Agreement.
10.6. Transfer. If Convergo is hosting Client’s website at the time of termination, the Client may request a transfer to another web server that meets adequate specifications for hosting the website. Client may request Convergo’s assistance in establishing Client’s website on a new server and Convergo will bill Client at its current web services hourly rate, with a minimum charge of $500. Convergo is not responsible for any lost information during the transfer. All of Convergo’s duties and obligations under this Agreement will cease after a transfer.
11. Release of Liability
11.1. Interruption of Service. Client agrees to release Convergo from any liability associated with any temporary delay, outage or interruption of Services.
11.2. Third Party Platform. Client agrees to release Convergo from any liability associated with Convergo’s Service on a website hosted on a third-party platform. Additionally, Client agrees to release Convergo from any liability associated with Convergo’s Service involving a third-party provider. Convergo does not warrant that Services will be uninterrupted or error free; nor does Convergo make any warranty as to the results that may be obtained from the use of the Services.
11.3. Damages. Client agrees to release Convergo from any damages Client may occur in association with the interruption of service, or expiration or termination of this Agreement, including but not limited to, punitive or consequential damages, loss of prospective profits, anticipated sales, goodwill, investments, leases or commitments to 3rd parties. This release of liabilities in no way effects Client’s obligation to pay Convergo for any remaining fees or Supplemental Charges still outstanding at the time of expiration or termination.
12.1. Convergo’s Indemnity Obligations for Intellectual Property Infringement. Convergo agrees to defend, indemnify and hold harmless Client from and against any and all claims, losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs brought or alleged by a third party that the trademarks or any products sold infringe any U.S. patent, trademark or copyright damage; provided that Convergo is promptly notified in writing of the claim and given complete control of the defense and settlement of the claim. This indemnity shall not cover any claims in which Client fails to provide Convergo with prompt written notice which lack of notice prejudices the defense of the claim.
12.2. Client’s Indemnity Obligations for Intellectual Property Infringement. Client agrees to defend, indemnify and hold harmless Convergo from and against any and all claims, losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs brought or alleged by a third party that the trademarks or any products sold infringe any U.S. patent, trademark or copyright damage; provided that Client is promptly notified in writing of the claim and given complete control of the defense and settlement of the claim. This indemnity shall not cover any claims in which Convergo fails to provide Client with prompt written notice which lack of notice prejudices the defense of the claim.
12.3. Client’s Indemnity Obligations to Covergo. Client shall defend, indemnify and hold harmless Convergo, its affiliates and their respective officers’ directors, employees and agents from and against all claims: a) arising out of Client’s violation or breach of any term, condition, representation or warranty of this Agreement; b) arising out of Client’s improper or illegal use of the Services; c) related to Client’s violation, alleged violation, or misappropriation of any Intellectual Property rights of a third-party; or d) arising from Client’s unauthorized use of third-party images, information, material, links, or products.
13.1. Requirement of a Writing; Permitted Methods of Delivery. Unless provided elsewhere in this Agreement, each party giving any notice or demand in accordance with this Agreement shall give the notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: i. Personal delivery. ii. E-mail communication. iii. Registered or Certified Mail (in each case, return receipt requested and postage prepaid).
13.2. Addressees. Any party giving notice shall address the notice to the appropriate person at the receiving party’s address as designated by that party.
13.3. Effectiveness of a Notice. Except as provided elsewhere in this Agreement, a notice is effective only if the party giving the notice has complied with Section 13 and if the addressee has received the notice.
14. General Provisions
14.1. Waiver. No waiver of any term or right in this Agreement is effective unless in writing and executed by the parties. The failure of either party to enforce any clause of this Agreement does not constitute a waiver or modification of such clause, and the non-breaching party may enforce the clause at a later date.
14.2. Assignment and Delegation. Client may not assign any rights, in whole or in part, or delegate its performance under this Agreement without Convergo’s prior written consent. Convergo may assign or delegate, in whole or in part, any of its rights or obligations under this Agreement. This Agreement is binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
14.3. Relationship. Under this Agreement, the parties are not and will not be deemed to be an employee, legal representative, general agent, joint venture, or partner of each other for any purposes. Neither Convergo nor Client has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Each party shall be solely responsible for payment of its employees’ salaries, workers compensation, and all other employment benefits.
14.4. Force Majeure. Neither party shall liable here-under for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within three business days of its occurrence.
14.5. Amendments. No amendment to this Agreement is effective unless it is in writing and executed by both parties.
14.6. Changes to Policies. From time to time, Convergo may change or modify its policies or guidelines. Any changes or modifications will be effective upon posting of the revisions. The 12 continued use of the Services after any policy or guideline changes will constitute the acceptance of the changes or modifications. If Client does not agree to the changes or modifications Client’s exclusive remedy shall be to discontinue the use of the Services and to terminate this Agreement in accordance with Section 10.
14.7. Headings. The section headings used in this Agreement are for reference purposes only.
14.8. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain legal and enforceable. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to give effect to the original intent of the parties as closely as possible.
14.9. Entire Agreement. This Agreement, including any related exhibits, schedules, attachments and appendices constitutes the entire transaction between the parties regarding the subject matter of this Agreement. Further, this Agreement supersedes all prior and contemporaneous understandings, representations and warranties, both written and oral, regarding such subject matter. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement.
14.10. Arbitration. In the event any dispute, controversy, or claim arises under this Agreement, the parties shall enter into good faith negotiations. If the dispute cannot be resolved through good faith negotiations the dispute will be settled by arbitration in Denver, Colorado, pursuant to the then current rules of the American Arbitration Association. Any award shall be final, binding and conclusive upon the parties and a judgment rendered thereon may be entered in any court having jurisdiction thereof.
14.11. Governing Law. The laws of Wyoming, without giving effect to its conflicts of law principles, govern all matters arising out of or relating to this Agreement, including torts.
14.12. Attorney’s Fees. If either party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other party.
BY ACCEPTING THIS AGREEMENT, REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.