Terms and Conditions

Agreement between Gargle.com, a Delaware Corporation (“Company”), and the customer identified on the attached signature page (“Customer”) and dated as of the date accepted by the Customer (the “Effective Date”):

1. Print, Marketing, and Other Services. Company agrees to provide or broker the services purchased by the Customer on Gargle.com, or listed on the signed Customer application, which may be supplemented and amended from time to time during the term of this Agreement and the same is, as so supplemented and amended, made a part of this Agreement (the selected services collectively referred to as the “Services”). When additional Services or changes are added to this Agreement, Company will confirm by email the additional Services and Customer will be required to accept or reject the terms and conditions for the new Services by email signature, work authorization, or approval of proof before they are added to, or changed in the Agreement. All Services and payment for Services are governed by the terms and conditions of this Agreement.

2. Fees and costs. Customer agrees to pay Company for the Services in the amounts set forth on the Schedules or purchased online at Gargle.com from time to time during the term of this Agreement. Specific terms and conditions applicable to the selected Services shall also apply as stated on Schedules. Prices and terms are subject to change upon notification. Current pricing is updated on Gargle.com. Utah State sales tax will be collected for residents of Utah, as well as any other applicable sales tax on a state by state basis.

3. Indemnification. Customer agrees to indemnify, defend and hold harmless the Company and its officers, members, managers, employees, agents and representatives from and against any and all losses and costs resulting from the conduct of Customer’s business and performance under this Agreement, including reasonable attorneys’ fees, except in instances where such loss or cost is incurred directly as a result of the Company’s gross negligence or intentional wrongdoing.

4. General Terms and Conditions.

a. Duration. The term of this Agreement shall commence on the Effective Date and shall continue thereafter in perpetuity, unless and until terminated as provided hereunder (the “Term”).

b. Termination. This Agreement may be terminated only in writing by Customer or Company. Termination will be effective when written notice is delivered as provided by this Agreement. Cancellation fees may apply to certain Services as provided in Schedules.

c. Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not release Customer from any obligation or liability to Company, including any payment obligation that has already accrued hereunder as of the date of notice of termination of this Agreement. Following the termination of this Agreement, the Company will invoice the Customer for any outstanding amounts and expenses due and owing under this Agreement, and the Customer shall pay all such amounts and expenses to the Company upon receipt of such invoice.

d. Entire Agreement. This Agreement, including all schedules and supplements thereto, constitutes the entire understanding and agreement between the parties hereto.

e. Amendments. All amendments to this Agreement shall be delivered by email and signed electronically or in writing by the Customer.

f. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, administrators and executors, as well as permitted successors and permitted assigns. Assignment of this Agreement by Customer shall require the prior written approval of the Company.

g. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be void, invalid or unenforceable under applicable law, such void, invalid or unenforceable term or provision shall be deemed to be stricken from this Agreement and the remaining terms and provisions hereof shall be enforceable by the parties hereto.

h. Waiver. Either party may waive any term or provision of this Agreement if done in writing. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

i. Notices. All notices under this Agreement shall be in writing. The preferred method of providing written notice shall be electronic mail (email) sent to the e-mail addresses set forth below, with receipt thereof confirmed by telephone to the telephone numbers set forth below.

j. Binding Effect. When signed by Customer, this Agreement is a legally binding contract and shall be binding on Customer and its successors, heirs, administrators and executors. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

k. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Utah, without effect of its conflict of laws provisions. The parties consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Salt Lake City, Salt Lake County, Utah for purposes of this Agreement.

l. Legal Advice. Customer is responsible for seeking and the payment of its own legal counsel for all legal matters, including without limitation advice about local rules and regulations, including those governing advertising and Customer’s business generally.

5. Execution; Credit Card/ACH /Check Draft/Credit Authorization. Customer has read in its entirety and agrees to all of the terms and conditions of this Agreement. The undersigned hereby represents that he or she has authority to bind Customer to this Agreement, and hereby authorizes the Company to charge/draft the Amount Due (as set forth below) against Customer’s account at the Financial Institution indicated on the signature page.

6. Data Access. The Customer agrees to provide and facilitate Gargle.com access to the Customer’s Practice Management Software (PMS) data. This is accomplished through the installation of software on the Customers’ server/s. Gargle will use this data to provide the Customer with data and analysis about: the performance of Customer marketing campaigns, potential marketing opportunities, opportunities to maximize Customers’ patient spending, retention and acquisition, for Customers’ employee training, and for other purposes where Gargle sees opportunity to maximize the Customer relationship.

7. HIPAA Policy. Gargle is committed to the highest level of trust and commitment in maintaining our Customers patient Protected Health Information (PHI). Gargle adheres to the requirements of the HIPAA Privacy Rule and the HIPAA Security Rule. The Security Rule governs all information acquired, maintained or transferred electronically. The Privacy Rule addresses the acquisition, storage, transfer and retention of Protected Health Information, in both paper and electronic formats.

Gargle complies with business associate obligations related to HIPAA/HITECH, allowing us to service our Customers with confidence and exceptional service. Gargle follows the policies and practices outlined in HIPAA addendum A below. This addendum includes such areas as training for Gargle staff, technical safeguards in Gargle systems, and physical security for the equipment and systems used to store, access, or acquire Protected Health Information.

8. Billing Policy.

Gargle Inc Billing Policy

All Gargle.com clients are billed on the 1st business day of the month in one combined bill for their membership, and their products or services. You do not need to pay any of the Gargle vendors independently.

If you sign up during the month for the first time or for additional products, then you will be billed at that time, a prorated amount calculated through the end of the month depending on your membership, and product or service. After that you will be billed the first of each month for everything.

Our membership, products and services have no long-term contracts after your initial application is approved. All of our products and services, including the Gargle membership, are billed on a month-to-month recurring basis.

You may cancel your membership, or any product and service, for the following month by notifying us in writing, or by email, by the last day of the prior month. No 30-day notice is necessary!

For example, if you notified us on October 25th that you want to cancel your membership for November, then we would complete all services in October, and would cancel your membership at the end of October, and then not bill you a November billing.

This keeps it simple and gives you all the flexibility that you need to run your practice without being stuck in long term contracts.

Gargle Membership

The Gargle Membership will be billed on the first business day of each month, and any premier partner or seasonal specials will be applied at that time.

DentalMarketing.net – Full Neighborhood/Route, New Move-In, & Recall Postcards

Billing for all print products happens on the first business day of the month in which the postcards are printed.

Full Neighborhood/Route Postcards will generally be in homes by USPS delivery two weeks after their scheduled print date. (based on the time for us to deliver to your local USPS sorting center and the USPS delivering to the homes)

Example 1 – Full neighborhood/route list:

 

  • If your cards are scheduled to print the second week of November, your payment will be processed on November 1st and cards will be in-homes the fourth week of November.

 

Postcards mailing to individually targeted homes (new move-in, recall/reminder cards, and specialty lists) will generally be in homes by USPS delivery one week after their scheduled print date. This is because these batches do not have to be prepared and shipped off to each local post office sorting center for processing.

Example 2 – Individually targeted home list (New Move-in, Recall, and Specialty Lists):

 

  • If your cards are scheduled to print the second week of November, your payment will be processed on November 1st and cards will be in-homes the third week of November.

 

For New Move-In and Recall cards: Due to fluctuating card quantities each month, we all agree up front at application signing to an estimated number of cards to bill you for each month on the 1st. At the end of the 6-month period we will reconcile the actual number of cards that we printed and mailed for you against the up-front estimate. We will then refund/bill you for any differences.

If the monthly fluctuation is ever more than 400 cards, then your account director will reach out to you by email to see if you would like to make any changes to the overall estimated quantity plan moving forward. This limits the reconciliation amount at the end of the 6 month period.

The following additional terms and conditions apply to the Gargle Membership:

1. General Terms: The Gargle Membership provides the Customer access to all vendors and services, along with their included or discounted pricing as outlined on Gargle.com, including any services or products provided directly by Gargle.com or its subsidiaries. All vendors and pricing are subject to change without notice and are always accurate as outlined on Gargle.com. The Membership is billed on the first of the month as a month-to-month evergreen membership. The Customer can cancel the membership at any time by notifying the Company in writing before the end of any month.

All payments for the Gargle membership or any vendor product or service contracted by the Customer through the Gargle platform, are collected by Gargle each month, and NOT directly paid to each vendor.
The following additional terms and conditions apply to the Payment Depot vendor relationship:

1. General Terms: The Payment Depot pricing on the Gargle site includes up to 100 transactions each month included in the Gargle membership at no additional charge to the membership fee. All transactions above 100 each month are billed to the customer at the rate of nine cents (.09) per transaction, billed by Gargle on the first of the following month.

The following additional terms and conditions apply to Postcards Services:

1. General Mailing Terms: The Customer agrees to mail postcards monthly on a month-to-month evergreen agreement. All postcard services are billed in advance on the 1st of each month for the print dates that month. Then the bundling, shipping, and post office delivery usually takes two plus weeks before the postcard arrives at the consumers place of residence, based on the delivery timing and performance of the post office, over which Gargle has no control.

2. Guarantees. The Customer understands that although Gargle does not require any long-term contracts, Gargle believes that, much like radio advertising, mailing a single mailing to a one-time carrier route or internal customer list is the least effective way to achieve successful results. Gargle currently recommends 3-mailing cycles for saturated mailings to residential neighborhoods, and 6-mailing cycles for specialized new move-in lists, and 6-mailing cycles for internal recall and hygiene reminder card types.

In addition, in order to qualify for the guarantee, Customer agrees to install the marketing data software widget on their server. This allows Gargle to put new patient and production data up on your Gargle dashboard to calculate the performance of your marketing campaigns.

100% Money-Back Guarantee – General Dentists – applies to every standard and new move-in mailing. Doesn’t apply to specialty practices or mailings.

a. For 5,000 piece or more standard saturated residential mailings this guarantee applies to all mailings beginning with mailing number three, and is retroactive back to mailings one and two.

The Company guarantees Customer will get enough calls to be able to make more than they spend on every mailing based on an average closing ratio of 55% and first year revenue to the practice of $1,000 per patient. If not, the Company will return the Client’s full investment for that mailing, or do a new mailing of the same type for free. The Guarantee does not apply to non-standard mailings.

b. For 500 piece or more new move-in mailers this guarantee applies to all 6-mailing cycles.

The Company guarantees Customer will get enough calls to be able to make more than they spend on the cycle of 6 mailings based on an average closing ratio of 55% and first year revenue to the practice of $1,000 per patient. If not, the Company will return the Client’s full investment for that cycle, or do a new mailing of the same type for free.

c. The Company believes that a 3-mailing cycle for standard or 6-mailing for new move-in mailers is required for us to have enough data and traction for us to be able to guarantee performance offering 100% money back guarantees.

d. All guarantees are measured and paid out 60 days after the completion of each mailing for saturated mail (beginning with mailing #3) and at the end of the 6-mailing cycle for new move-in mailers.

3. Fulfillment. The completion of the “Fulfillment Details” in the attachment shall constitute Fulfillment by the Company.

4. Color Matching. Customer understands and acknowledges that variances may exist between press ready portable document format (“.pdf”) files (an “Electronic Proof”) and a printed postcard, and that such variances are common, unavoidable and expected, and that any such variances shall not be deemed to constitute a breach of this Agreement by the Company.

5. Authorized Proofs. Customer must authorize each Electronic Proof prior to printing and shall solely be responsible for authorizing the same. Authorization may be provided via e-mail provided receipt of the e-mail is acknowledged by the Company in writing or by phone.

6. “In Home” Target Week. The “In-Home” Target Week(s) set forth in the Agreement is an estimate of the week(s) upon which the Company anticipates postcards will be received “In-Home” by target patients. Actual “In-Home” weeks are beyond the Company’s control and are affected by numerous variables, many of which the Company does not control, including without limitation such things as Customer requirements, holidays, equipment breakdowns, acts of God, and USPS shortcomings.

7. Right to Decline Customer’s Order. The Company reserves the right, in its sole and absolute discretion, to refuse any Customer order or to print any material requested by Customer to be printed on postcards.

8. Ownership of Design Files. All copyrights related to postcards and their content, and all designs and materials produced in connection with or in furtherance of this Agreement shall remain the exclusive property of the Company.

9. Quantity Variance. Customer understands and acknowledges that variances may occur between the quantity of postcards that are ordered and the number of postcards actually mailed, and that variances of plus or minus 3% of the number of postcards that are ordered and mailed are common, unavoidable and expected, and that any such variances shall not be deemed to constitute a breach of this Agreement.

Saturated list 5,000+ piece postcard mailings with static data: Services include the following:

• Custom Creative Design
• Printing
• Postage
• Saturated Mailing List
• Addressing
• Office Staff Coaching
• 100% Money Back Guarantee Each Mailing based on our access to your PMS data
• Call Scoring
• List Deduplication on Demand
• Call Tracking
• Call Analyzation
• Instant Missed Call Alerts
• ROI Reporting Dashboard

New Move-in mailer postcard mailings with variable data: Services include the following:

• Custom Creative Design
• Variable Data Printing
• Postage
• New Move-in Mailing List
• Addressing
• Office Staff Coaching
• 100% Money Back Guarantee each 6-month period based on our access to your PMS data
• Call Scoring
• Call Tracking
• Call Analyzation
• Instant Missed Call Alerts
• ROI Reporting Dashboard

Small quantity 4” x 6” postcard mailings (recall, reminder, event cards): Services include the following:

• Custom Creative Design
• Variable Data Printing and Addressing
• Postage
• Use of Your Mailing List based on our access to your PMS data
• 500 card minimums for small quantity 4”x 6” postcard mailings
• Call Scoring
• Call Tracking
• Call Analyzation
• Instant Missed Call Alerts
• ROI Reporting Dashboard