Converge Vendor Terms and Conditions (“Agreement”)

Representations and Warranties

1. You represent and warrant to Converge that (i) You have the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) this Agreement has been duly authorized by You; (iii) this Agreement is valid and binding upon You and enforceable against You in accordance with its terms; (iv) its execution, delivery and performance of this Agreement does not and will not (A) conflict with, or cause a breach of, any other agreements or obligations to which it is a party or by which it is bound or (B) violate with any applicable laws, rules or regulations; and (v) You have received all applicable government and regulatory authorizations, licenses or other approvals necessary to enter into, and perform Your obligations under, this Agreement.
2. You agree to comply with all applicable foreign, federal, state and local laws, rules and regulations in connection with the performance of its rights, duties and obligations under this Agreement.
3. You shall maintain all necessary licenses, permits or approvals required to be maintained by it or any of its employees or subcontractors permitting or authorizing them to perform its obligations under this Agreement in each and every jurisdiction having authority over such Party or over the performance of such obligations.
4. You agree that Converge is not liable for the acts and omissions by You or any subcontractor or vendor that You utilizes to perform the service or deliver the product listed in Converge’s Purchase Order or any of Your its other obligations under this Agreement or any SOW.
5. You represent and warrants to Converge that all Seller personnel, including any independent contractors, assigned to perform Seller’s obligations under this Agreement have the proper skill, training and background to perform in a competent and professional manner all of Seller’s obligations hereunder.
6. Converge represents, warrants that its Marks (including those of its clients and related parties) and all content provided by Converge to be used in connection with Your performance under this Agreement do not, and will not, violate any copyright, trade secret, trademark, patent, invention, privacy or non-disclosure rights (collectively, “Intellectual Property Rights”) of any third party.

Ownership of Work Product, Licensed Marks

1. All work product and any output listed in any Purchase Order (or Statement of Work) as a deliverable by You will belong to Converge.
2. Converge hereby grants You a non-exclusive, non-transferable, non-sub-licensable license to use the logo, trademarks or trade names of the Client (the “Converge Marks”) solely in connection with its performance of its rights and obligations under this Agreement.

Confidentiality

1. During the course of performance of this Agreement by the Parties, a disclosing Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) certain trade secrets, training material, telephone scripts, methodology, customer and supplier lists, processes, documentation, marketing and development plans, data, know-how, business strategies, information concerning the operations, affairs and businesses of the Disclosing Party or its affiliates, the financial affairs of the Disclosing Party or its affiliates, and the relations of the Disclosing Party or its affiliates with its or their employees and service providers and other confidential and proprietary information not generally known to the public (including, without limitation, the terms of this Agreement) owned or used by the Disclosing Party (all such materials, whether or not in writing or specifically designated as proprietary or confidential, collectively and individually hereinafter referred to as “Confidential Information”); provided, however, that “Confidential Information” does not include any data or information that:
   
   1. Is now or subsequently becomes generally available to the public through no fault or breach of confidentiality obligations on the part of the Receiving Party;
   2. The Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure to the Receiving Party by the Disclosing Party;
   3. Is independently developed by the Receiving Party without the use of any of the Disclosing Party’s Confidential Information; or
   4. The Receiving Party rightfully obtains on a non-confidential basis from a third party who has the right to transfer or disclose it.
2. The Receiving Party agrees that, for the purposes of this Agreement, all Confidential Information it receives from or on behalf of the Disclosing Party in connection with this Agreement constitutes confidential, proprietary information of the Disclosing Party. The Receiving Party agrees that, for the purposes of this Agreement,  the Confidential Information of the Disclosing Party is the property of the Disclosing Party (or of third parties that have provided such Confidential Information to the Disclosing Party for use by the Disclosing Party) and that the Receiving Party will, and will cause its directors, officers, managers, members, employees, agents and contractors to, hold such Confidential Information in a confidential fashion and the Receiving Party will use the same degree of care (by instruction, agreement or otherwise) to maintain the confidentiality of such Confidential Information that the Receiving Party uses to maintain the confidentiality of its own Confidential Information (and, at a minimum, at least a commercially reasonable degree of care).  If requested by the Disclosing Party, all Confidential Information of the Disclosing Party will either be returned to the Disclosing Party or destroyed, at the option of the Receiving Party, at the end of the Term (or earlier upon the Disclosing Party’s written request).  The Receiving Party further agrees that it will use the Confidential Information of the Disclosing Party only as required to perform its obligations under this Agreement.  The Receiving Party further agrees that it will limit the dissemination of the Confidential Information of the Disclosing Party within its own organization to such individuals whose duties justify their need to know such information, and then only provided that there is a clear understanding by such individuals of their need to maintain the confidential and proprietary nature of such Confidential Information and to restrict its uses to the purposes specified in this Agreement.
3. In the event the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar legal process) to disclose any of the Confidential Information of the Disclosing Party or take any other action with respect thereto prohibited by this Section, the Receiving Party will provide the Disclosing Party with prompt written notice, if permitted by applicable law, so that the Disclosing Party may seek a protective order or other appropriate remedy with respect to such disclosure. In the event that such protective order or other remedy is not obtained, the Receiving Party will furnish only that portion of such Confidential Information or take only such action that is legally required and, if reasonably requested by the Disclosing Party, will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any such Confidential Information so furnished at the Disclosing Party’s expense.  Breach or threatened breach of the confidentiality obligations set forth in this Section may have no adequate remedy in damages and may cause irreparable damage to the Disclosing Party and, therefore, the Disclosing Party will have the right to seek equitable and injunctive relief without the need to post a bond or other security, and to recover the amount of damages (including, without limitation, reasonable attorneys’ fees and expenses) incurred in connection with such breach or threatened breach, in addition to any other rights it may have in law or equity.
4. The terms of this Section will be effective during the Term and for a period of one (1) year after the end of the Term.

Limitations on Warranties

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PARTY OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN TO THE OTHER PARTY IN THIS AGREEMENT.  EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS ON WARRANTIES AS SET FORTH IN THIS SECTION ARE A MATERIAL INDUCEMENT TO THE OTHER PARTY TO ENTER INTO THIS AGREEMENT.

Limitations on Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES, PROFITS, SAVINGS OR BUSINESS) OR LOSS OF RECORDS OR DATA, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SUCH PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY, AND WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE. EXCEPT IN THE CASE OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY, A PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY CLAIM, LOSS OR OTHER LIABILITY ARISING OUT OF, OR CONNECTION WITH THIS AGREEMENT, THE SERVICES CONTEMPLATED HEREUNDER, AND WHETHER BASED UPON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, WILL IN NO CASE EXCEED THE AGGREGATE AMOUNTS PAID BY CONVERGE TO YOU UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING IN THIS SECTION TO THE CONTRARY, THIS SECTION DOES NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITIES AS SET FORTH IN THIS SECTION ARE A MATERIAL INDUCEMENT TO SUCH PARTY TO ENTER INTO THIS AGREEMENT.

Indemnification

Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its affiliates and their respective members, managers, officers, directors, employees, agents, representatives and permitted successors and assigns (collectively, the “Indemnified Party”) against and from all losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs and expenses), attributable to any third-party claim, proceeding, action, lawsuit or investigation (a “Claim”) related to or arising out of (i) any breach by the Indemnifying Party of any representation, warranty or covenant of the Indemnifying Party contained in this Agreement; (ii) the negligence or willful misconduct by or on behalf of the Indemnifying Party in connection with the performance or lack of performance of the Indemnifying Party’s rights or obligations under this Agreement; or (iii) the Indemnifying Party’s infringement of any third-party Intellectual Property Right.

1. The conditions for the indemnity set forth in paragraph (a) above are that (i) the Indemnified Party must notify the Indemnifying Party in writing promptly upon notice of the Claim; provided, however, that the failure to provide such notice will not relieve the Indemnifying Party of its indemnification obligations to such Indemnified Party unless the failure to provide such notice unduly prejudices the Indemnifying Party’s ability to defend the Indemnified Party); (ii) the Indemnifying Party will be permitted, through counsel mutually acceptable to the Indemnified Party and the Indemnifying Party (such acceptance not to be unreasonably withheld, conditioned or delayed), to answer and defend such Claim; and (iii) the Indemnified Party will provide the Indemnifying Party information and reasonable assistance, at the Indemnifying Party’s expense, to help the Indemnifying Party to defend such Claim.
2. The Indemnifying Party may, upon written notice of any Claim to the Indemnified Party, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it also will undertake all other required steps or proceedings to settle or defend such Claims, including, without limitation, the employment of counsel which must be reasonably satisfactory to the Indemnified Party, and payment of all expenses.  The Indemnified Party will have the right to employ separate counsel and participate in the defense of any claims at the Indemnified Party’s expense.  The Indemnifying Party must reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims in respect to any damages related to any Claim under this Section.  The Indemnifying Party may not settle any Claim under this Section on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission will not be unreasonably withheld, conditioned or delayed.  In the event that the Indemnifying Party and the Indemnified Party agree to settle a Claim, each such Party agrees not to publicize the settlement without first obtaining the other Party’s written permission.

Force Majeure

Neither Party will be responsible for any failure to perform its obligations under this Agreement, other than obligations to pay money, if caused by an event reasonably beyond its control, including, without limitation, wars, riots, labor strikes, acts of terrorism, natural disasters, or any law, regulation, ordinance, or other act or order of any court, government, or governmental agency.  Obligations hereunder, however, will in no event be excused but may be suspended only until the cessation of any cause of such failure.  If such force majeure should obstruct performance of this Agreement for more than thirty (30) days, the Parties must consult with each other to determine whether this Agreement should be modified or terminated.  A Party experiencing an event of force majeure must notify the other Party as soon as possible after its occurrence.

Relationship of the Parties

You shall be an “independent contractor” for all purposes under this Agreement.  Neither Party, nor any of its employees or other agents, shall be deemed to be an “employee,” “agent,” “servant,” or “joint employee” of the other party.  Neither Party will have control or influence over any of the other Party’s employees or other agents.  In that regard, each Party hereto shall have the sole discretion to hire and fire, discipline, evaluate, manage, train, maintain records of hours, handle payroll, provide insurance, and determine all other terms and conditions of employment for its employees.  Employees and other agents of each Party will not be eligible to participate in any of the other Party’s employee or fringe benefit programs, including, but not limited to, any bonus, pension, profit sharing, stock option, vacation, disability, retirement, deferred compensation, or insurance which such other party may maintain for its own employees.  Each Party and its directors, officers, employees and agents may not represent that they are employees or agents of the other Party, nor may they in any manner hold themselves out to be employees or agents of the other Party.

Entire Agreement, Amendment, Captions

This Agreement, and any SOWs entered into in connection with this Agreement, contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all previous agreements and understandings between the Parties with respect to such subject matter.  No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement have been made by either Party which are not set forth expressly in this Agreement.  This Agreement may be amended, supplemented or otherwise modified only upon written agreement by the Parties.  The captions of this Agreement are solely for reference and have no legal effect whatsoever and will not in any way affect the interpretation or construction of this Agreement.

Assignment

You may not assign any rights or delegate any of Your obligations under this Agreement without Converge’s written consent.  Any attempted assignment or delegation by You in violation of this Agreement will be null and void.

Waivers

Except as otherwise expressly provided herein, no waiver or purported waiver by Converge of any breach by You of Your obligations, representations, warranties, covenants or other agreements under this Agreement will be effective unless made in writing by Converge. No failure by Converge to pursue or elect any remedy with respect to any default under, or breach of, any provision of this Agreement will be deemed to be a waiver of any subsequent, similar or different default or breach by such You.

Notices

All notices or other communications required or permitted to be given under this Agreement must be sent by overnight recorded mail to: 

2 Depot Plaza, Suite 401
Bedford Hills, New York 10507

AND by email to: 

BTCNotices@convergedirect.com

Governing Law, Venue, Waiver of Jury Trial

This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, will be governed by, and its terms and conditions will be construed, interpreted and enforced in accordance with, the laws of the State of New York without regard to conflict of law principles.  Each Party hereby consents and agrees that the courts of the State of New York located in Westchester County, New York or the United States District Court for the Southern District of New York are the exclusive forums for litigation of any claim or counterclaim by the Parties arising under this Agreement.  EACH PARTY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT.

Severability

If any provision of this Agreement is be determined by a court of competent jurisdiction to be invalid or unenforceable, such provision, to such extent it is so determined to be invalid or unenforceable, will be reformed without further action by the Parties to the extent necessary to make the provision valid and enforceable and no other provision of this Agreement will be affected or impaired thereby, unless such reformation would result in such a material change so as to cause performance of the obligations of the Parties under this Agreement to be unreasonable.

Counterparts

This Agreement may be executed by the Parties in any number of counterparts, including, without limitation, by facsimile transmission or by transmission of a .PDF or other similar file via e-mail, each of which will be deemed to be an original, including, without limitation, those sent by facsimile transmission or by transmission of a .PDF or other similar file via e-mail, but all such counterparts will together constitute one and the same instrument.

Non-Exclusivity and Non-Solicitation of Third-Party Partners

Converge is not obligated directly or indirectly to utilize your services or purchase goods from you on an exclusive basis. You do however expressly agree that this Agreement does confer a non-solicitation obligation upon You in respect of third parties as defined below.  You recognize that Converge has proprietary relationships with its clients and business partners (“Third-Party Partners”).  You agree not to knowingly circumvent Converge’s relationship with such Third-Party Partners for a minimum of two (2) years from the date of Your acceptance of any Purchase Order or Scope of Work with Converge. Converge may make certain exceptions, from to time, at its sole and absolute discretion to this Section which shall not prejudice this Section. You agree that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that Converge shall also be entitled to: (a) injunctive relief (including temporary and preliminary relief); (b) liquidated damages from You in the amount equal to one hundred percent (100%) of the revenue that it would have received from any Third-Party Partner for a minimum of twenty four (24) months (c) any and all other remedies available to Converge at law or in equity. 

Operational Terms

You will make all reasonable efforts to execute fully and within the time frame set out the service or products orders contained in the Purchase Order or statement of work. Time is of the essence of the Purchase Order. For media related orders, if a media vehicle is to start before or later than the date set out in any Purchase Order then you are required to notify Converge immediately. In the event that any critical dates set forth in any Purchase Order or statement of work is not met, You will reimburse Converge (within thirty (30) days) for any costs of and occasioned by this missed deadline which will include, but not be limited to, actual and documented printing and shipping costs for any printed materials, creative etc. You at all times shall provide Converge with an accurate and up to date order status verifying distribution quantities for any form of media. Invoicing and payment will be based solely on the verifiable quantities of any media circulation that is confirmed by Converge. Converge reserve the right to request and be supplied by You documents and details of any media circulation as part of the reconciliation process.

Cancellations

Any Purchase Order of statement of work may be cancelled for convenience (for printed media orders) sixty (60) days prior to the printed media mail date without any cancellation charges unless the Parties have expressly agreed to any variation within the Purchase Order or any statement of work.

Payment Terms

Payment Terms for any Purchase Order shall be set out within the Purchase Order itself and shall be at minimum twenty-eight (28) days from any invoice date. Invoices may only be furnished once all of the services or goods are fully executed. All invoices shall be subject to any reconciliations by Converge based on any performance data requested.

First Right of Refusal

In the event that a particular media program or vehicle has a limit on the number of competitive advertisers, You will ensure that Converge has the first right of refusal and option to bid for any exclusive inventory within a media program or media vehicle that you offer ahead of any other third party advertiser or agency before any inventory is offered to others.

Converge Direct, LLC (and affiliates) 22 November 2019