General Terms of Service
CONVERGENT COMMUNICATIONS TECHNOLOGIES TERMS OF SERVICE
Convergent Communications Technologies (hereinafter referred to as “CONVERGENT”) offers a variety of digital services to help with the design and development of websites, and the improvement of websites’ online visibility. Such services include, but are not limited to: Affiliate Marketing, Search Engine Marketing and Optimization, Digital Marketing Strategy, Mobile and Tablet Advertising, Email Lead Generation, Social Media Marketing, Tracking and Analytics, Local Search Marketing, Emerging Technologies, Web Design, and other services on a local, national and international basis.
BY ENGAGING THE SERVICES OF CONVERGENT, YOU AS A CLIENT OF CONVERGENT AGREE TO THE TERMS OF SERVICE (hereinafter referred to as the “TERMS”) SET FORTH BELOW, AND UNDERSTAND THAT THESE TERMS OF SERVICE, WHICH MAY BE MODIFIED FROM TIME TO TIME, COMPRISE A BINDING, LEGAL AGREEMENT BETWEEN YOU (hereinafter referred to as the “CLIENT”) AND CONVERGENT. IT IS UNDERSTOOD THAT THESE TERMS OF SERVICE HAVE BEEN REFERENCED IN THE STATEMENT OF WORK PROVIDED TO AND EXECUTED BY THE CLIENT.
I. CLIENT’s Warranties
By engaging the SERVICES of CONVERGENT, CLIENT makes the following representations and warranties. CONVERGENT shall have the right to terminate its SERVICES to CLIENT, without notice, if any representation or warranty made by CLIENT proves to be untrue in any respect. CILENT represents and warrants that:
- CLIENT is at least eighteen (18) years of age;
- CLIENT has the legal capacity and authority to: (a) enter into binding contracts; (b) be bound by these TERMS OF SERVICE and any ADDITIONAL TERMS; (c) to subscribe to and use the SERVICES of CONVERGENT, including, where applicable, the buying, selling and listing of items, in accordance with these TERMS OF SERVICE and any ADDITIONAL TERMS; and (d) if CLIENT is acting in a corporate capacity, to bind CLIENT’s company;
- CLIENT will not use SERVICES of CONVERGENT for any purpose that is unlawful, or prohibited by these TERMS OF SERVICE, any ADDITIONAL TERMS, or any other related ACTS which govern online commerce and service;
- All information supplied by CLIENT is true and accurate, including information submitted as part of the AGREEMENT and billing process;
- Any products or services advertised, sold or otherwise distributed by CLIENT on or in connection with CLIENT’s website and business are legal for sale or distribution; that CLIENT has all licenses necessary to sell or advertise the goods or services offered for sale or distribution, and that all sales and advertisements will be in compliance with applicable law; and
- CLIENT has and controls all of the intellectual property, proprietary and similar rights necessary for all material located on CLIENT’s website, all submissions, and all products and services sold or otherwise distributed by CLIENT or on CLIENT’s behalf via CLIENT’s website.
II. CONVERGENT’S Warranties
To the fullest extent permitted by applicable law, CONVERGENT offers the SERVICES without warranties of any kind, whether expressed, implied or statutory including but not limited to, any implied warranty of merchantability, fitness of the service for a particular purpose and non-infringement of any third party rights. Furthermore, CONVERGENT makes no warranty of any kind, expressed or implied, regarding the quality, accuracy, or validity of the data and/or information sent or accessed through its site or that the service will be uninterrupted or error-free.
III. CLIENT’s Grant of License
CONVERGENT does not claim ownership of the materials provided by CLIENT (including feedback and suggestions), or posted, uploaded, inputted or submitted by CLIENT in connection with CLIENT’s engaging the SERVICES of CONVERGENT or any website (“CLIENT’s WEBSITE”) created by CLIENT or on CLIENT’s behalf (collectively “SUBMISSIONS”).
However, CLIENT grants CONVERGENT a royalty-free license to use (including, without limitation, the rights to: republish, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, sublicense and reformat CLIENT’s SUBMISSIONS, and to publish CLIENT’s name in connection with CLIENT’s SUBMISSIONS) CLIENT’s SUBMISSIONS in perpetuity in connection with the operation and promotion of CONVERGENT. CLIENT also grants CONVERGENT the right to publish CLIENT’s name in connection with any such use. No compensation will be paid or due to CLIENT with respect to CONVERGENT’s or its sublicensees’ use of the materials as licensed above.
Client agrees to pay CONVERGENT compensation for the SERVICES agreed upon between CLIENT and CONVERGENT as set out in this AGREEMENT or a STATEMENT OF WORK, as applicable. Payments shall be made on the 1ST of each month, collected via credit card charge for SERVICES to be rendered by CONVERGENT in that month. For any new STATEMENT OF WORK that initiates service on any day other than the 1ST of the month, a prorated fee for the remaining days in that month will be charged prior to initiation of SERVICES. Marketing and advertising programs will be paused and late fees applied if payment has not been made by payment due date; re-initiation fees may apply.
Work begins promptly upon receipt of a signed Service Agreement, and expenses begin to incur immediately. Therefore, signed Service Agreements cannot be cancelled once submitted. CONVERGENT may, in its sole discretion, terminate or suspend SERVICES for any late or non-payment.
V. Intellectual Property
CLIENT acknowledges that CONVERGENT shall retain all right, title and interest under applicable contractual, trade secret, trademark, copyright, patent and related laws as regards CONVERGENT services, software, email database, artwork, marketing materials, and all other expressions which fall under the laws and regulations of Intellectual Property Law and Rights.
CLIENT acknowledges and agrees that it will not use SERVICES for purposes of gaining a competitive advantage against CONVERGENT, or in any capacity to further efforts to reverse engineer same. CLIENT acknowledges and agrees that SERVICES are unique and the result of millions of dollars of investment and years of development, and that any breach of CONVERGENT’s rights in and to the Intellectual Property would be irreparable.
CONVERGENT acknowledges and agrees that CLIENT’s advertising plans, logos and other marks are the property of CLIENT, and accordingly CONVERGENT shall not use such Intellectual Property other than in the performance of SERVICES. However, CONVERGENT shall be entitled to re-use the aforementioned in accordance with Section III above, and CONVERGENT shall have the right to list CLIENT in the CONVERGENT customer list.
VI. Bulk or Commercial E-Mail
CLIENT shall obtain CONVERGENT’ advance approval in writing before sending any bulk or commercial e-mail, which will not be given unless CLIENT is able to demonstrate, at a minimum, that (a) its intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure, (b) CLIENT’S procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given, (c) CLIENT retains evidence of the recipient’s consent in a form that may be promptly produced on request, and (d) CLIENT honors CONVERGENT’ requests to produce consent evidence within 72 hours of receipt of the request.
CLIENT may not obscure the source of its e-mail in any manner. CLIENT’S e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail.
These policies apply to messages sent using the SERVICES, or to messages sent from any network by CLIENT or any person on CLIENT’S behalf that directly or indirectly refers to the recipient to a site hosted via the SERVICES.
CONVERGENT may, in its sole discretion, modify, suspend, or terminate SERVICES at any time for any reason, including but not limited to reasons mentioned under these TERMS. CLIENT’s right to SERVICES terminates automatically upon CLIENT’s breach of any of the TERMS, including but not limited to those detailed in Sections I, III, and IV.
To the greatest extent authorized by law, CLIENT agrees to indemnify, defend, and hold harmless CONVERGENT, its employees, officers, directors, affiliates, agents, and associates from and against any and all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting directly or indirectly from or arising out of (a) CLIENT’s violation of these Terms, (b) CLIENT’s use and/or receipt of any SERVICES, and/or the SUBMISSIONS made available by CLIENT in conjunction with SERVICES, and/or (c) any other claim related to a breach of any of the foregoing warranties.
IX. Limitation of Liability
Under no circumstance shall CONVERGENT or its subsidiaries, directors, employees or affiliates be liable for any indirect, incidental, special, punitive or consequential damages (including, without limitation, lost profits) whether or not foreseeable, that result in any way from a CLIENT’s engagement of the SERVICES, or CLIENT’s customer’s reliance on information provided, or that result from mistakes, omissions, interruptions, deletions or any failure of performance, even if CONVERGENT has been advised of the possibility of such damages.
In any case, CONVERGENT’s entire liability under or existing out of this agreement is limited to the sum total of HALF (1/2) of payments made by CLIENT to CONVERGENT for any SERVICES provided preceding the event for which damages are claimed. No action or proceeding against CONVERGENT may be commenced more than ONE (1) year after SERVICES giving rise to the claim are rendered.
X. Governing Law and Equitable Relief
This Agreement shall be governed and construed in accordance with the laws of the United States and the State of Florida and the parties consent to the exclusive jurisdiction of the state courts and U.S. federal courts located in Broward County, Florida, for any dispute arising out of this Agreement. The parties agree that in the event of any breach or threatened breach by a party, the non-breaching party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect non-breaching party against any such breach or threatened breach, including but not limited to injunctive relief. In the event any legal action must be taken, whether or not litigation is instituted, to enforce the terms of this Agreement, in addition to any amounts recovered by judgment, order and/or decree, the prevailing party to said action shall be entitled to an award of all reasonable attorneys’ fees and costs incurred, including all costs and fees incurred in investigation, trial preparation and court, and/or on appeal and in any collection effort of any kind, including all post-judgment litigation and other post-judgment collection efforts.
If any part of these Terms is held to be invalid or unenforceable by any law or regulation or final determination of a competent court or tribunal, that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
XII. Integration and Modification
These TERMS constitute the entire agreement between CLIENT and CONVERGENT relating to this subject matter and supersede any and all prior communications and/or agreements between CLIENT and CONVERGENT relating to any and all SERVICES. These TERMS may be amended or modified only by a writing executed by both parties.
- Successors and Assigns. These TERMS shall be binding on and inure to the benefit of the parties hereto and their respective heirs, legal or personal representatives, successors, and assigns.
- Delay in Performance. Convergent will not be liable to CLIENT for any delay or failure in its performance of SERVICES if and to the extent that such delay or failure arises beyond the reasonable control of CONVERGENT, including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, internet downtime, material or component shortages, supplier failures, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes.
- No Waiver. No waiver of any provision of this Agreement shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver in any other instance.
- Notices. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services at the normal company address of each party.