Use of Comvergence Services:
These general terms and conditions are part of the contract to which they are attached (the “Agreement”) and apply to your use of any marketing or platform Service or other services provided by Comvergence Technologies, LLC or its affiliated companies (“Comvergence”), which Service or services are referred to collectively as the “Service.”
(a) The term “Comvergence Property” means all programs, files, systems, documentation, information, content, graphics, page layouts, site designs, user interfaces utilized or provided by Comvergence, work product produced by Comvergence, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by Comvergence, any HTML programming performed as part of providing you with Service and any other special programs,functionalities, interfaces and other work product, ideas, concepts or techniques which Comvergence may develop, use or rely upon in providing theService to you.
(b) All Comvergence Property shall be and will remain the property of Comvergence.
(c) As between you and Comvergence, Comvergence shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Comvergence Property and the Service.
2. Limited License.
Upon your execution of the Agreement and the payment of all amounts due Comvergence, you are granted a personal, nontransferable and nonexclusive license to use the Service solely for your direct marketing,market research and customer prospecting purposes, in strict accordance with the terms of the Agreement. Upon expiration or termination of the Agreement,you shall discontinue use of the Service and, as requested by Comvergence,either (a) return the Service to Comvergence without retaining any copies thereof or any notes or other information thereon or (b) provide a certificate,executed by you, in form and substance satisfactory to Comvergence, that theService has been ceased in such a manner to render the Service permanently unreadable and unrecoverable.
3. Limitations on Use.
(a) Unless specifically authorized in advance and in writing by Comvergence, you will not share, sell, transfer or otherwise make theService available to any third person or entity and you will use your best efforts to prevent the misuse or unauthorized use of the Service by any third person or entity.
(b) You will not name or refer to Comvergence or your use of the Service in any of your advertisements or promotional or marketing materials.
(c) You will not use the Service for consumer credit purposes, underwriting consumer insurance, employment purposes, tenant screening purposes, for any other purpose covered by the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by theAgreement.
4. YourResponsibilities; Use of Service; Review and Audit by Comvergence.
(a) Your use of the Service will comply with all applicable federal, state, local and foreign laws, statues, rules and regulations (“Laws”), including Laws regarding telemarketing, email and facsimile marketing, and customer solicitation.
(b) Your use of any Service will comply with all applicableLaws, including the CAN-SPAM Act, COPPA, and any State Registry laws.
(c) Comvergence reserves the right to review your use of theService to ensure compliance with this Agreement, but any failure of Comvergence to review such use will not constitute acceptance of such use or waive any of Comvergence’s rights hereunder or limit any of your obligations with respect to the Service. At any time upon at least 3 days’ notice, Comvergence may audit your records to determine whether you are in compliance with this Agreement and you will make available to Comvergence or its representatives all records necessary for the conduct of such an audit.
5. Disclaimer of Warranties; Limited Warranty.
THE SERVICE IS PROVIDED ON A STRICTLY “AS IS” BASIS. COMVERGENCE DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE SERVICE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, COMVERGENCE DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE 14 DAYS FROM YOUR RECEIPT OF THE SERVICE TO INSPECT IT AND NOTIFY COMVERGENCE OF ANY PROBLEMS OR MISTAKES IN THE SERVICE AND IF YOU SO NOTIFY COMVERGENCE WITHIN THAT 14-DAY PERIOD, THE PROBLEM OR MISTAKE WILL BE CORRECTED AT NO ADDITIONAL CHARGE TO YOU.
6. Limitation of Liability.
Except as provided in the last sentence of Section 5, Comvergence will not be liable for any claim, demand, loss, liability, damage,injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of theService or any alleged or actual failure by Comvergence to comply with the terms of the Agreement, whether or not any such damages were foreseeable or whether Comvergence was advised of the possibility of such damages.Comvergence’s maximum liability under the last sentence of Section 5 will not exceed the amount you paid Comvergence under the Agreement within the 12 months preceding the event which gave rise to Comvergence’s liability.
7. Your Indemnification of Comvergence.
You shall indemnify, defend and hold harmless Comvergence, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Service or any violation of the Agreement or any violation of Laws.
8. Interruption ofService.
You acknowledge that, given the technical nature of resources Comvergence requires to provide the Service to you, temporary interruptions may occur in the provision of Service and that any such interruptions shall not result in Comvergence having any liability to you or others and shall not suspend or eliminate your payment obligations to Comvergence or provide you with any refund rights for amounts previously paid to Comvergence.
9. No Assignment byYou.
You may not assign your rights or obligations under theAgreement to any other person or entity without the prior written consent of Comvergence, whether by operation of law or otherwise, and any attempt to do so shall be void.
10. Additional Remedy of Termination.
In addition to all other legal rights and remedies available to Comvergence for any apparent, threatened or actual breach or violation of the Agreement by you, Comvergence has the right to terminate the Agreement and demand immediate termination of the Service at any time if Comvergence believes you are not complying in full with the Agreement.
11. Governing Law; Jurisdiction.
The Agreement shall be governed by and construed under the laws of the State of Florida, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located in Seminole County, Florida and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
12. Payment for Non-Invoiced Products.
(a) Payment: You agree to pay Comvergence a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are nonrefundable. In the case of subscription products, the subscription term shall be effective for the agreed upon period, after which the subscription term shall automatically renew for the specified renewal period (if any) at the then current subscription price.
(b) Recurring Billing: Your acceptance of these terms constitutes your authorization to Comvergence to automatically charge the credit/debit card provided by you, and in the case of subscription products, to continue charging the credit/debit card at the agreed-upon intervals during the term of the subscription. You agree to provide Comvergence with complete and accurate billing and contact information and to update that information with thirty (30) days of any change to the billing information. Failure of the recurring payment process does not absolve your payment obligations.
(c) Interest Charges: There will be interest charges on any amounts which you fail to pay when due at the rate of 1.5% a month, or such lower rate as may be equal to the maximum rate allowed by applicable law, on the unpaid amount.
13. Entire Agreement; Amendment or Waiver.
The Agreement contains the entire understanding between you and Comvergence and supersedes any prior understandings or agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and Comvergence. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
14. Execution; Counterparts.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.