Terms and Conditions
Agreement between Gargle.com, a d/b/a/ of Direct Mail Machine Inc, 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 as well 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 (e mail) 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, e-mail 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; 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 draft/charge the Amount Due (as set forth below) against Customer’s account at the Financial Institution indicated on the signature page.
The following additional terms and conditions apply to 5,000 piece plus full service Postcards Services:
1. General Mailing Terms: During the initial three (3) postcard mailing cycle, the Customer agrees to mail postcards monthly on the dates outlined in the Fulfillment Details section. The Customer can request management approval to change a mailing date to an alternate date up to a week later if there are extenuating circumstances. Additional change fees may apply. Upon completion of the initial three (3) postcard mailing cycle, the Customer will renew for an additional three (3) postcard mailing cycle by approving subsequent artwork and terms, which shall begin each new cycle. Customer has thirty-days (30) between cycles to approve artwork and renew terms or lose Exclusivity.
2. 100% Money-Back Guarantee – General Dentists – applies to every standard mailing. The Company guarantees Customer will get enough calls to be able to make more than they spent 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 in that mailing, or do a new mailing of the same type for free. The Guarantee does not apply to Clients in Canada, or to non-standard mailings.
Risk Free Guarantee (“Guarantee”) – Orthodontists & Pedodontists – applies for each three (3) postcard mailing cycle. Except as provided below in Paragraph 12, the Company guarantees Customer will receive enough calls each three (3) postcard mailing cycle, to equal the money spent by the Customer on each three (3) postcard mailing cycle (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 mail Customer’s fourth (4th) standard postcard mailing without any cost to the Customer. This fourth (4th) mailing will go out approximately 60 days after the customers third (3rd) in home target week. The Guarantee does not apply to Clients in Canada and Hawaii, or to non-standard mailings.
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.
10. Exclusivity (“Exclusivity”). During the Postcard Mailing Cycle the Company will not provide any Postcard Services to a competitor who shares the same Customer’s Specialty (i.e. Orthodontics) within the Customer’s Core Market Area defined as a radius of homes around the practice equal to the ‘quantity per mailing’ listed in the ‘Fulfillment Details’ section below.
11. Loss of Exclusivity. Loss of Exclusivity will occur if Customer fails to mail in accordance with the General Mailing Terms listed in Item One (1) above. No exclusivity is granted hereunder to Customers designating a Postcard Mailing Cycle of less than a three (3) mailing commitment.
12. Minimum Mailing. In the event Customer designates a Postcard Mailing Cycle of less than three mailings, Customer will not receive exclusivity privileges (as indicated above), ongoing staff coaching, or the Risk Free Guarantee.
13. Cancellation Fees. In the event Customer terminates this Agreement prior to the contracted Postcard Services having been delivered by Company, or if Customer fails to mail in accordance with the General Mailing Terms listed in Item One (1) above, then a $1,000 fee will be billed to and paid by Customer.