Terms and Conditions

This agreement is made by and between, Convergo Marketing (”CM”) and purchaser of our services (“You”, “you”, “Your”, or “your”).  This Agreement governs your purchase and use, in any manner, of all web hosting services as contracted by you and describes the terms and conditions that apply to such purchase and use of the Services.  You must sign and accept the terms of this Agreement in order to use the Services. BY ACCEPTING THIS AGREEMENT, AND REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.

CM reserves the right to change or modify any of the terms and conditions contained in this Agreement, and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing and future customers. Any changes or modification will be effective upon posting of the revisions. CM will post a notice of such changes or modifications to this Agreement or the Addendum on the CM website for thirty (30) days. CM may post changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following CM's posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY CM OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION I.2 BELOW.

Definitions

  • “Services” means services related to the hosting and management of a website.
  • “Domain Name” means the domain name(s) specified for the Website by you from time to time.  
  • “CM Work Product” means any tools, both in object code and source code form, which CM has already developed or which CM independently develops or licenses from a third party, including any tools which CM creates pursuant to this Agreement.  
  • “Work Product” means all HTML files, Java files, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other deliverable prepared for you by CM in accordance with the terms of this Agreement.
  • “Website” means the user interface, functionality and Content made available on pages under the Domain Name.
  • “Content” refers to text, images, recordings and similar items placed on the Website.

  I. Term and Payment for Services

  1.  Term This Agreement shall be for 3 months from the date of the contract for the Services. This Agreement will be automatically renewed (the "Renewal Term") for 3 months at the end of the Initial Term unless you provide CM with notice of termination either at least ninety (90) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable.  You must provide CM with your notice of termination in writing. CM must confirm the receipt of said notice of termination.
  2.  Termination Policy Your termination request must be submitted to CM in writing to the address on this agreement. CM may terminate this Agreement at any time and for any reason by providing to you thirty (30) days prior written notice of termination. If CM terminates this Agreement, CM shall refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided herein.
  3.  Liability and Obligations on Termination Should the Agreement expire or be terminated for any reason, CM will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to CM as provided in this Agreement.
  4.  Charges You agree to pay for all charges attributable to your use of the Services at the then current CM prices, which shall be exclusive of any applicable taxes. You shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services. You shall be responsible for paying any banking fees associated with the Services, including but not limited to returned check fees, chargeback fees, wire transfer fees, and processing fees. Your account will be assessed a returned check fee for each returned check associated with your account, a chargeback fee for each credit card chargeback associated with your account, and a wire transfer fee for each payment received by wire transfer. These fees are non-refundable and subject to change without notice.
  5.  Payment All charges for Services must be paid in advance according to the then current price applicable to the Services. You must choose to pay for the Services either by credit card or upon your receipt of an invoice. If you choose to pay by credit card, you thereby authorize CM to charge your credit or debit card to pay for any charges that may apply to your account. You agree that CM may accumulate any supplemental charges, as described in the contract or this agreement incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $10 and then charge your card. You must notify CM of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit CM from charging your account.  CM may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to CM the amount indicated in each invoice by the due date reflected on the invoice. If you fail to pay any fees and taxes within ten (10) days from applicable due date for credit card or invoice payments, late charges of the lesser of two percent (2%) per month or the maximum allowable under applicable law shall also become payable by you to CM. In addition, your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying CM's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstated of Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
  6.  Transfer. In the event that this Agreement is terminated, the client may request the transfer of Content to another web server that meets the specifications set forth by CM.  If you are current on all outstanding payments and the terms of your contract for the website build are fulfilled, we'll provide you with a backup of your website at no cost. If you need our help to set up on your website on the new server or any other support, the cost to transfer the site to the new server will be billed at CM’ current hourly web services rate.  A minimum charge of $500.00 applies. Upon transfer to the new server, CM shall cease to be responsible for maintenance and updates to the Content managed system on which the site is hosted.

II. Use of Services

  1.  Applicable Policies

The CM Acceptable Use Policy governs the general policies and procedures for use of the Services. CM's Privacy Policy governs how CM collects, stores, processes and uses information associated with your use of the Services. The Acceptable Use Policy and the Privacy Policy are posted on CM's web site and may be updated from time to time. YOU SHOULD CAREFULLY READ THE ACCEPTABLE USE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE ACCEPTABLE USE POLICY AND ANY MODIFICATIONS THERETO. CM RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.

  1.  Account Information

You agree to provide CM with accurate and updated account information. This includes but is not limited to name, address, phone number, e-mail address, and payment information. It is not CM's responsibility if we are unable to contact you as a result of inaccurate account information.

  1.  Bandwidth

You agree that use of the Services hereunder will not exceed the bandwidth usage limits (connected to the internet at operation capacity) of 20 gigabytes per month and 10 gigabytes of storage.  If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, CM may, in its sole discretion, assess you with additional charges which you agree to pay, suspend the performance of the Service, or terminate this Agreement. In the event that CM elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees.

  1.  Domain Names

As part of the Services, you will provide CM with a registered Domain Name or names or CM will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any registration services' policies, or any law or regulation. You agree to promptly reimburse CM for any fees paid by CM to registration services with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request CM will attempt to register an alternative domain name chosen by you. You agree to be bound by the terms of the then current domain name policy and/or the policies of the national DNS registration authorities to which you are subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by CM of any fees paid with respect to the registration of such unusable domain name.

III. Support

  1.  Server, Content Management System and Security Updates

The site is hosted on a server on an open source Content Management System (CMS).  CM will maintain the CMS with necessary security updates. CM will provide server, CMS and security support to ensure that the site remains online.

  1.  User Training

Websites are hosted on a content management system that makes it easy for authorized users designated by the Client to edit the site.  Upon the launch of the site, Client will receive training on how to administer and edit the site in a web meeting. Going forward, the Client will have access to unlimited online self-paced training through the training page on the Convergo Marketing website (www.convergomarketing.com/training).  The training page will be accessible to the site administrator and any other users they set up with access to the support area.  As a part of the hosting agreement CM will provide client with up to 4 hours per calendar year of end user training and support by email or phone.  Support topics include questions on how to add/edit content on the site, add products to the product catalog, add users and other site functionality questions. Additional support is available at the rate of $150/hour billed in 15-minute increments.

  1.  Technical Support

Our normal support hours are from 7am to 6pm mountain standard/daylight time. If you need support outside of those hours for anything other than a down website, the service rate is a standard $250 per hour billed in 15 minute increments.

  1. Timing

The support contract begins immediately.

  1. Site Updates

The client may elect to engage CM to provide graphical or content updates to their website.  Small updates will be provided at the hourly rate of $149 billed in 15-minute increments. Larger updates may require a statement of work. We'll assume that when you make a support request in any form, you authorize the time for us to offer support unless you ask for a quote first. As a result, we'll not send a support quote before we begin work unless you specifically ask for a quote.

  1. Email Deliverability and SPAM

Your website, blog, and/or product catalog may have forms that email contact information when visitors submit a form. Due to circumstances beyond CM's control such as SPAM filters, changes to your email addresses and other email server issues, there may be times when form emails are not delivered. If we host your website on our Drupal CMS, form data will be stored on the server and can be easily accessed by logging into the site. Should you experience email deliverability issues, we will work with you to resolve the solution by recommending third party applications. Forms may also generate unwanted email. At your request, we can add SPAM reduction technologies such as CAPTCHA to reduce unwanted email. Any third party services used may result in nominal additional costs to you.

  1.  Support Call Submission

Support can be submitted via the Convergo Marketing website (www.convergomarketing.com/support).  If the site is not available support calls may be submitted via phone (214-224-0050 ex 200) or email (support@convergomarketing.com.)

  1.  Requirements

Client will need to have signed the Managed Marketing Services agreement signed prior to receiving support.

IV. Search Engine Optimization Service

  1. Measuring Search Engine Optimization   

Measuring for search engine optimization is, by far, the easiest metric to monitor.  We will take the top keyword phrases identified in your marketing plan and monitor their rankings in the search engine.  Over the course of your marketing campaign, we will chart the progress of their placement in the search engine results.

  1.  Measuring Traffic Generation   Typically we will use a web analysis tool like Google Analytics to monitor your traffic volume.  We will pay close attention to which sources are the dominant referrer in driving traffic. Over the course of your marketing campaign, we will take into account your overall traffic volume and the number of referrers.
  2. Measuring Conversions   

After you initial strategy session and development of your marketing plan, we will measure the conversions of all your conversions points that have been identified.  We will count the number of successful conversions and divide this number by the total traffic volume. This number provides us with your conversion rate. For example if 25 people make a purchase and 100 people visited, your conversion rate is 25%.  The inverse of this number is considered to be your defect rate. In the example above you have a 25% conversion rate, and a 75% defect rate.

  1. Client Expectations   

The expectations you have for marketing your websites should be in line with “the strategies” and “the measurable results” which correspond to your campaign.  Depending on several factors, like competition and budget allowances, the time needed to see measurable results can vary greatly. As a general guideline, we would suggest that results for any marketing campaign will not be accurately quantifiable until ninety (90) days from the campaign commencement.

  1. Search Engine Optimization Expectations   

There are three motions each keyword phrase can take in a search engine results page: up, down, or neutral.  While certain phrases may have unique motions, we will look at the overall average motion of your campaign. In other words if one keyword phrase drops from #11 to #12, while another keyword phrases increases from #13 to #8, we will consider your campaign to have a positive trend.

Because of factors outside of our control (competition, new algorithms, different servers sending results), we cannot guarantee that each keyword phrase in your campaign will move higher.  Our goal overall, however, is to keep a positive trend at all times.

V. Other Marketing and Sales Training Services

  1. HubSpot and Other Third Party Platforms

From time to time, you may engage CM to support content and campaigns on third-party platforms like HubSpot or Salesforce.com. These campaigns may include landing pages, forms, emails, and other components. Should the third party platform make software updates that disable or adversely affect a specific campaign we have built, CM reserves the right to charge you for any necessary changes at the hourly support rate.

  1. Blogging

You may engage CM to regularly provide blog articles to their website. CM agrees to only put custom-written blog articles on the website. Should you not like a specific article, CM agrees to replace up to one article per quarter with new content at no charge.

  1. Social Media Management

You may engage CM to manage their social media. Client gives permission to CM to post social media content to company social media pages. If client would like to review content before it is posted, an extra charge will be applied. Should client not like a specific post, CM agrees to pull it down quickly.

  1. Product Catalogs

You may engage CM to manage their product catalog database. CM's goal is to maintain a current database of products and related brochures. Should a product not be in the catalog, CM will work to add any publicly available products to the product to the catalog quickly. You have control over which products appear on their website and is responsible for publishing or unpublishing products. CM will provide you training on how to do this. CM makes no warranties on the accuracy of product information.

  1. Newsfeeds

You may engage CM to publish press releases and other relevant news information from the clients’ technology partners on their website or blog. CM will work to only publish relevant information. Should the client not want a specific article on their website, we will work to unpublish it quickly.

  1. Sales Training

You may engage CM to train their sales team or other employees. Should the client request on-site training, you agree to pay for reasonable and modest travel expenses. Should travel interruptions or health issues keep CM from conducting a training event every effort will be made to reschedule the event quickly.

Website Design

  1. Revisions

We are happy to work with you to achieve design work that you love. All website, print, and other graphic design work includes up to two rounds of design revisions after delivery of the first design proof. Should you want additional design work, we are happy to help at our hourly support rate or by using additional points inside your Growth Driven Design program.

  1. Website Projects

We are happy to make graphic, content, and other edits to websites that are built by CM and hosted on our servers. Website edits will be done at our hourly support rate or based on a statement of work. For websites CM did not build, we may be able to make content, graphic, and or other edits to the site. However, due to factors that may be beyond our control, you acknowledge that additional unforeseen costs may be involved. If these extra costs exceed 3 hours of additional work we will communicate with you to secure your approval for the billable hours.

  1. Growth Driven Design

Points from the Growth Driven Design menu in your statement of work can be applied to edits on your website and other design projects as needed. You may engage CM to do work in excess of your point balance for any given quarter as long as it does not exceed the total point balance for the following quarter. If you do not use Growth Driven Design points, they will roll over to a future quarter. The menu of services and points may change at CM's discretion.

  1. Print Design

We will deliver any print collateral in printable PDF format. We are happy to provide source files (typically in Adobe Illustrator and/or Photoshop format) upon request.

  VI. Intellectual Property Rights

  1.  Your License Grant to CM

You hereby grant to CM a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your Content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to CM a license to cache materials distributed or made available for distribution via the Services, including Content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

  1.  Your Warranties and Representations to CM

You warrant, represent, and covenant to CM that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party web sites or other Content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your Content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

  1.  CM Materials and Intellectual Property

All materials (excluding software on which your Content is hosted), including but not limited to any computer software (in object code and source code form), data or information developed or provided by CM or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by CM to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of CM or its suppliers. CM shall also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that may be assigned to you by CM. CM reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.  You have rights to your Content subject to the terms and conditions set forth herein.

VII. Enforcement

  1.  Investigation of Violations

CM may investigate any reported violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. CM will not access or review electronic communications except as required or permitted by applicable law or legal process.

  1.  Actions

CM reserves the right and has absolute discretion to restrict or remove from its servers any Content that violates this Agreement or related policies, or is otherwise objectionable or potentially infringing on any third party's rights or in potential violation of any laws. In the event of becoming aware of any possible violation by you of this Agreement, any related policies, third party rights or laws, CM may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of Content hosted on CM's systems, and/or (d) disabling or removing any hypertext links to third-party web sites, any of your Content distributed or made available for distribution via the Services, or other Content not supplied by CM which, in CM's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes CM to civil or criminal liability or public ridicule. It is CM's policy to terminate repeat infringers. The above-stated rights of action, however, do not obligate CM to monitor or exert editorial control over the information made available for distribution via the Services. In the event CM takes corrective action due to such possible violation, CM shall not be obligated to refund to you any fees paid in advance of such corrective action.

  1.  Disclosure Rights

To comply with applicable laws and lawful governmental requests, to protect CM's systems and customers, or to ensure the integrity and operation of CM's business and systems, CM may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and Content residing on CM's servers and systems. CM also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of CM's Privacy Policy and CM's right to disclose under this section, CM's right to disclose under this section will control.

VIII. Disclaimed Warranties

You acknowledge and agree that CM exercises no control over, and accepts no responsibility for, the Content of the information passing through CM's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CM DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

IX. Limitation and Exclusion of Liability

  1. Limitations

IN NO EVENT SHALL CM OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER CM NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO CM's OBLIGATIONS UNDER THIS AGREEMENT, THE ADDENDUM OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF CM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF CM AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO CM BY YOU UNDER THIS AGREEMENT AND THE ADDENDUM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY CM HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE CM AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION VI.1.

  1.  Interruption of Service

You hereby acknowledge and agree that CM and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services. Further, CM shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

  1.  Indemnification

You hereby release and hold harmless, and agree to indemnify, CM and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by CM or its suppliers, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, any Addendum or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).

X. Miscellaneous Provisions

  1.  Entire Agreement

This Agreement and all policies incorporated herein by reference constitutes the entire agreement between you and CM with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement and the related policies.

  1.  No Fiduciary Relationship; No Third-Party Beneficiaries

CM is not the agent, fiduciary, trustee or other representative of you. Except for the rights of CM's suppliers under sections 6 and 7 hereof, nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

  1.  AmenCMents

Except as expressly provided in this Agreement, no amenCMent, change, waiver, or discharge hereof shall be valid unless in writing and signed by the parties.

  1.  Identification

CM may, free of any obligation to pay compensation, use your name and identify you as a CM client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.

  1.  Choice of Law and Forum

THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF ARKANSAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN PULASKI COUNTY, ARKANSAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

  1.  Compliance with Laws

You shall at all times comply with all applicable laws and regulations and shall indemnify and save CM harmless from your failure to so comply. You agree that CM shall not have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.

  1.  Non-Assignment

You may not assign this Agreement or any right or obligation hereunder, by operation of law or otherwise, without CM's prior written consent. CM may assign its rights and obligations under this Agreement, and may utilize affiliate and/or agents in performing its duties and exercising its rights hereunder, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

  1.  No Waiver

CM's failure to enforce the strict performance of any provision of this Agreement or the Addendum will not constitute a waiver of CM's right to subsequently enforce such provision or any other provisions hereunder or thereunder.

  1.  Severability

Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement and the Addendum, if applicable, shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

  1.  Headings

The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

  1.  Survival

All provisions of this Agreement and the Addendum relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.

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