Effective: February 22, 2023
These Conversica API Terms of Service (the “API Terms”) describe your rights and responsibilities when accessing our application programming interface, software development kits, sample code, command line tools, developer tools and other related documentation and materials made available by Conversica, including, without limitation, through the Conversica API website (collectively, “API”).
These API Terms, together with our Prohibited Use Policy form a binding agreement between you and us (“Contract”). “We,” “our” and “us” refers to Conversica, Inc. and “you,” and “your,” refers to the individual, company or legal entity that you represent. The Contract does not grant you any right to access or use our online revenue digital assistants and platform (the “Services”), which will be governed by a separate agreement with us (e.g., our Terms of Service).
Access to Our APIs and the Rules: Subject to the restrictions below, we grant you a non-exclusive, worldwide, non-transferable (subject to the section titled “Assignment”), limited license to access our APIs only as necessary to develop integration code (your “Application”) which will enable you to utilize the API for its intended purpose (e.g., to share lead and customer information with our platform). Your Application only may be used for your benefit or the benefit of a mutual customer so long as you or the mutual customer has a current authorized customer account with us. Before utilizing your Application, you agree to cooperate with us by testing the Application as we designate for quality assurance and approval, and you agree to not use nor enable an Application prior to our approval. You may not charge Conversica for your Application, and you may not sell, rent, lease, sublicense, redistribute, or syndicate access to any of our APIs. You must use the APIs only in accordance with this Contract. Further, you will not: (A) access our APIs in violation of any law or regulation; (B) access our APIs in any manner that (i) compromises, breaks or circumvents any of our technical processes or security measures associated with the Services, (ii) poses a security vulnerability to customers or users of the Services, or (iii) tests the vulnerability of our systems or networks; (C) access our APIs in order to replicate or compete with the Services; (D) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of our APIs or Services; or (E) attempt to use our APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage.
Transparency & Compliance: If you offer your Application for use by others outside your organization, you must maintain a user agreement and privacy policy for your Application, which is prominently identified or located where users download or access your Application. You are required to follow applicable legal requirements if the use of your Application will result in the international transfer of personal data. Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our websites and products.
Monitoring: You agree that we may monitor your use of our APIs to ensure quality, improve our Services, and verify your compliance with these terms. If you do not demonstrate full compliance with this Contract, we may restrict or terminate your access to the APIs without notice to you.
Ownership and Proprietary Rights: You retain your ownership rights in your Application and we own and will continue to own our APIs and Services, including all related intellectual property rights therein. All of our rights not expressly granted by the Contract are hereby retained. We welcome your feedback. If you send us any feedback or suggestions regarding the APIs, you grant us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to you.
Confidentiality: Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party. The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
Termination: You may terminate the Contract by discontinuing use of our APIs. We may terminate the Contract with or without cause, and without notice to you. Upon termination of the Contract, all rights and licenses granted to you will terminate immediately. You understand that any APIs that are not made generally available but that are otherwise made available to you are the confidential information of Conversica. Upon termination of the Contract, you will promptly destroy copies of any documentation and any other Conversica information in your possession or control that was received under the Contract.
Representations; Disclaimer of Warranties: You represent and warrant that you have validly entered into the Contract and have the legal power to do so. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE APIS AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE APIS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Limitation of Liability: IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED US$100. IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU OR THE THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Contract between the parties, and the parties have relied on these limitations in determining whether to enter into the Contract. In addition, because our APIs are intended for organizational use, you hereby acknowledge and agree that consumer laws do not apply. If however any consumer laws do apply and cannot otherwise be lawfully excluded, nothing in these API Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability is limited (at our option) to the replacement or repair of the APIs.
Indemnification: You will defend us from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your violation of the Contract or your violation of your user agreement or privacy policy (a “Claim Against Us”), and will indemnify us for all reasonable attorney’s fees incurred and damages and other costs finally awarded against us in connection with or as a result of, and for amounts paid by us under a settlement you approve of in connection with, a Claim Against Us. We must provide you with prompt written notice of any Claim Against Us and allow you the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting your defense and settlement of such matter. This section states your sole liability with respect to us, and our exclusive remedy against you for, any Claim Against Us. Notwithstanding anything contained in the preceding section, (a) we will always be free to choose our own counsel if we pay for the cost of such counsel; and (b) no settlement may be entered into by you, without our express written consent (such consent not to be unreasonably withheld), if: (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions, (iii) the settlement does not include a full release of liability, or (iv) the settlement includes terms other than a full release of liability and the payment of money.
Survival: The sections titled “Monitoring,” “Ownership & Proprietary Rights,” “Confidentiality,” “Termination,” “Representations; Disclaimer of Warranties,” “Limitation of Liability,” “Your Indemnification of Us,” “Limitations on Indemnifications,” and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.
General Provisions
Force Majeure: Neither we nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third Party Beneficiaries: The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.
Notices: Except as otherwise set forth herein, all notices under the Contract will be by email. Legal notices must be sent to Conversica at [email protected]. Notices will be deemed to have been duly given the day after they are sent.
Export Controls & Sanctions: Applications made available on the Conversica platform may be subject to United States’ and other jurisdictions’ export control and sanctions laws and regulations. You agree to comply strictly with all such export control and sanctions laws and regulations that apply to your distribution or use of the APIs and Applications.
Changes to APIs: In the future we may need to make changes to on or more of our APIs, including backwards incompatible changes. We will try to give 30 days prior notice of these changes, but reserve the right, without notice, to modify our APIs, cease to offer support for them, or require you to use them in a different manner at any time.
Changes to API Terms: We retain the right to update and change the API Terms at our sole discretion with notice of such changes provided by posting the changed terms on our website under Legal Info. Your continued use of our APIs after we post such changes will constitute your acceptance of the changed API Terms.
If you access our APIs after the effective date, that access will constitute your acceptance of any revised terms and conditions.
Waiver: No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability: The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Assignment: Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Disputes: The Contract, and any disputes arising out of or related hereto, will be governed exclusively by California law, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in San Mateo, CA will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Entire Agreement: The Contract constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the API Terms and any other documents or pages referenced in these API Terms, the API Terms will take precedence.