Last modified October 16, 2017
Conversica, Inc. (together with its affiliates, "Company") owns and operates a proprietary Internet-based customer interaction management software solution, as well as any modifications, enhancements, and/or derivative works thereof, including the websites used in connection with the foregoing (the "Platform"). Company offers a full functionality version of the Platform for the Fees described herein and in each Order (such version, the "Conversica Platform"), and a limited functionality version of the Platform which is made available for free (the "Free Edition"). The term Platform includes all versions thereof, including the Free Edition. Conversica also provides associated services in connection with the Platform (the "Services").
- FEES. Customer will pay all fees set forth in the applicable Order (the "Fees"), consisting of fees for baseline use of the Platform ("Subscription Fees"), and fees for any Leads above the monthly Lead Limit as stated in an Order and for any Conversations above the number of included Conversations (the "Overage Fees"), and such other fees identified in the Order. "Lead" means a unique email address provided by Customer per Conversation for use in the Platform and/or Service. "Conversation" means a set of message templates targeting a specific Customer interaction. Any Leads or Conversations included in the edition of the Platform specified in the Order that are not used during the applicable period may not be rolled over into any subsequent period, nor will any refund or credit be provided. No Fees are owed for use of the Free Edition. Fees will be billed/charged commencing on the Subscription Start Date identified in each Order and are payable in advance, except that any Overage Fees will be invoiced and payable monthly in arrears, in each case, in the amount and in accordance with the schedule stated in each Order. Customer will pay Fees using the payment method specified in the Order, including by authorizing payment by a valid credit card by completing and submitting to Company the credit card authorization form attached to the Order. Upon approval by Company of such credit card authorization, the Fees will be charged to Customer's credit card. Any change in payment method will require the parties to execute a new or amended Order, and may require a change in frequency of payment. If invoice payment method is selected in the Order, Fees are due thirty (30) days from invoice date. Except for Overage Fees, all Fees are based on Platform access and Services purchased and not actual usage. All payment obligations are non-cancelable, and Fees paid are non-refundable. Fees are based on Company data and statistics which are determinative for all purposes hereunder, provided that if Customer has a good faith dispute regarding Fees invoiced, Customer must give Company notice of the basis for such dispute within thirty (30) days after the applicable invoice date (fees covered in such notice, the "Disputed Fees"). Disputed Fees will be due within thirty (30) days after resolution of the dispute. A late payment charge equal to the lesser of (i) 1% per month, or (ii) the maximum rate permitted by law shall apply to all amounts due and not received by Company by the due date. Customer agrees and understands that failure to pay all Fees owed when due will entitle Company to suspend access to the Platform, terminate the Agreement and/or refer any past due balance to a collection agency and/or attorney. The Fees do not include any applicable taxes on Customer's use of the Platform and the Services. To the extent it is determined that any taxes, including without limitation, sales or use taxes, ad valorem taxes, duties, licenses, or levies (excluding taxes based on Company's income) are imposed on the sale or use of the Platform and the Services by Customer, (a) Customer shall pay to the taxing authorities all such charges timely as levied by taxing authorities; or (b) if Company has the legal obligation to pay for which Customer is responsible as a result of the license of the Platform and/or Services hereunder, Customer will reimburse Company for the full amount thereof within thirty (30) days of invoice date, and in the cases of clause (a) and (b) without deduction from the Fees owed, or (c) Customer shall timely provide Company with a valid tax exemption certificate acceptable to the relevant taxing authorities.
- TERM; TERMINATION. The term of this Terms of Service (the "Term") will begin on the date of Customer acceptance of these Terms of Service and will continue for the stated term of any Order entered into by the parties, subject to earlier termination as provided herein and/or in an Order. The term of each Order (the "Subscription Term") will begin on the Subscription Start Date and end on the Subscription End Date as stated in such Order (the "Initial Subscription Term"), subject to earlier termination as provided herein and/or in such Order. The Initial Subscription Term shall automatically renew for subsequent term(s) for a duration equal to the Initial Subscription Term ("Renewal Subscription Term"), unless either party gives the other party notice of non-renewal at least sixty (60) days prior to the end of the then-current Initial Subscription Term or Renewal Subscription Term. Company shall have the right to increase the Fees for each Renewal Subscription Term by an amount not to exceed 5% of the applicable Fees for the prior Subscription Term. Either party may terminate the Agreement in the event of a material breach by the other party, which is not cured within thirty (30) days after receipt of notice describing such breach; provided that any breach of Sections 1 or 2 will have a five (5) day cure period. Notices of termination or non-renewal are effective only if given by a Customer employee with authority to make such election. Any attempt by Customer to terminate the Agreement except as permitted herein, will be of no force or effect, Customer will continue to have access to and use of the Platform hereunder and will remain liable for the Fee throughout the Term. Company may disable Customer's access code and suspend its access to the Platform at any time in the event Company reasonably suspects there has been a violation of Section 1 or 2, or if the provision of Services and/or use of the Platform results in high levels of complaints or other negative results, as determined by Company in its reasonable discretion, and in such event, Company will use reasonable efforts to give Customer notice after such suspension. Upon termination or expiration of the Agreement for any reason (a) Customer and its Authorized Users will cease to have access to and use of the Platform and Services; (b) upon receipt of a Customer request within thirty (30) days of termination or expiration, Company will export the Customer Data to Customer in a mutually agreed format; and (c) Sections 2, the last sentence of this Section 4, and Sections 5 - 9 will survive, as well as any other provisions which by their terms or sense are intended to survive.
- LIMITATION OF LIABILITY. EXCLUDING THE PARTIES' INDEMNIFICATION OBLIGATIONS AND EXCLUDING CUSTOMER'S BREACH OF THIS AGREEMENT RESULTING IN THE PLATFORM OR SERVICE BEING "BLACKLISTED", "GREYLISTED" OR OTHERWISE RESTRICTED FROM NORMAL BUSINESS OPERATIONS BY ANY THIRD PARTY (TOGETHER, THE "EXCLUDED MATTERS"), NEITHER COMPANY, NOR ITS AFFILIATES, MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES, OR ANY LICENSOR (COLLECTIVELY, "COMPANY ENTITIES"), ON ONE HAND, NOR CUSTOMER, OR ITS AUTHORIZED USERS ("CUSTOMER ENTITIES"), ON THE OTHER HAND, WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA OR DOWNTIME COSTS), ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ANY WARRANTY OR LIMITATION SHALL FAIL OF ITS ESSENTIAL PURPOSE. EXCEPT WITH RESPECT TO THE EXCLUDED MATTERS, IN NO EVENT WILL THE TOTAL LIABILITY OF THE COMPANY ENTITIES, ON THE ONE HAND, AND CUSTOMER ENTITIES, ON THE OTHER HAND, ARISING OUT OF THIS AGREEMENT EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, AND (B) $50,000. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, therefore the above limitation may not apply to Customer to the extent prohibited by such local laws and instead liability will be limited to the maximum extent permitted by law.
- WARRANTY DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY ENTITIES DO NOT MAKE ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY DATA COLLECTED OR TRANSMITTED VIA THE PLATFORM AND/OR SERVICES; COMPATIBILITY OR INTEROPERABILITY OF THE PLATFORM WITH CUSTOMER'S SYSTEMS, INCLUDING WITHOUT LIMITATION CUSTOMER'S CLIENT RELATIONSHIP MANAGEMENT SOFTWARE; OR FOR THE QUALITY OR EFFECTIVENESS OF ANY COMMUNICATIONS THROUGH THE PLATFORM OR SERVICES. COMPANY ENTITIES MAKE NO REPRESENTATION THAT THE OPERATION OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY ENTITIES PROVIDE NO ASSURANCES THAT CUSTOMER WILL ACHIEVE ANY SPECIFIC BUSINESS RESULTS FROM USE OF THE PLATFORM AND/OR SERVICES. CUSTOMER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
- INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless the Company Entities from and against any and all damages, losses, costs (including reasonable attorneys' fees), or other expenses arising from third party claims, actions, suits or proceedings against any Company Entity (a) alleging Customer's or its Authorized Users' breach of this Agreement, including allegations of use of the Platform or Services in any manner not permitted hereunder; or (b) in connection with the Customer Data when used by Company as permitted hereunder. Company agrees to indemnify, defend and hold harmless Customer Entities from and against any and all damages, losses, costs (including reasonable attorneys' fees), or other expenses arising from third party claims, actions, suits or proceedings against any Customer Entity (x) alleging that the Platform when used by Customer and its Authorized Users solely as permitted by this Agreement infringes any U.S. copyright, trademark or trade secret, or (y) alleging Company's breach of Section 2 of this Terms of Service. The party seeking indemnity ("Indemnified Party") will give the party from whom indemnity is sought ("Indemnifying Party") timely written notice of the claim for which indemnity is sought and control of the disposition thereof; provided, that failure to give timely notice will not relieve the Indemnifying Party of its obligations except to the extent that such untimely notice materially impairs the Indemnifying Party's ability to defend such claim. The Indemnified Party will cooperate with the Indemnifying Party's reasonable requests (at the Indemnifying Party's expense) in connection with the defense and settlement of such claim. Neither party will settle any claim for which indemnity is sought unless: (i) such settlement includes an unconditional release of the other party from all liability on the claim, or (ii) the other party gives its prior written consent, not to be unreasonably withheld.
- CONFIDENTIALITY; PUBLICITY. "Confidential Information" means: (i) business or technical information, including product plans, designs, source code, finances, marketing plans, business opportunities, personnel, research, development or know-how of the disclosing party and third party information that the disclosing party is obligated to keep confidential; (ii) information designated as "confidential" or "proprietary" or which, under the circumstances taken as a whole, reasonably should be understood to be confidential; and (iii) the financial terms of this Agreement. In addition, the Platform, all details about the uses, functionalities or other aspects of the Platform (including user interface, screenshots and specific features of the Platform) are Company's Confidential Information, and Customer Data is Customer’s Confidential Information. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (c) is developed independently by the receiving party without use of the disclosing party's Confidential Information and by persons without access to such information. The receiving party shall use measures at least as protective as those it uses for its own confidential information (but no less than reasonable measures) to keep confidential and not to disclose to any third party any Confidential Information of the disclosing party, except to those of the receiving party's agents, representatives and employees (collectively, "representatives") who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by terms of confidentiality at least as protective as those in this Agreement. The receiving party shall not use any Confidential Information, directly or indirectly, for any purpose other than as necessary to perform its obligations and exercise its rights under this Agreement. Each party shall be responsible for any breach of this Agreement by its representatives, which for purposes of Customer will include its Authorized Users. If a receiving party becomes legally compelled to disclose any Confidential Information, it shall provide the disclosing party with prompt prior written notice to the extent legally permitted and assistance (at the disclosing party's expense) in obtaining a protective order. Customer grants Company the right without compensation to use Customer comments relating to the Platform and Service in connection with testimonials, quotes, for publication, and to use Customer's name and logo in Company's client list and marketing materials.
- MISCELLANEOUS. (a) The Company may modify these Terms of Service at any time and in its sole discretion and will notify Customer of such modification via (i) email to the contact email provided by Customer; (ii) by presenting the new Terms of Service in its entirety at the time Customer next logs into the Platform; or (iii) by posting the revised Terms of Service within the Platform. Changes to these Terms of Service shall be effective five (5) days after provision of notice by any of the methods provided above regardless of whether Customer actually receives any notification. Customer is responsible for checking its account on the Platform on a regular basis and for ensuring that any contact information, credit card information or other information that it provides to the Company is current and accurate. Customer's continued use of the Platform after notice of modifications as provided above shall be deemed to be Customer's continued acceptance of these Terms of Service, including any amendments and modifications. If a modification is unacceptable to Customer, Customer may terminate the Agreement by giving notice within the five (5) day period specified above. (b) Neither party will be liable for, nor considered in breach of or default under this Agreement on account of any delay or failure to perform its obligations under this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. (c) The failure of either party to enforce any provision of this Agreement will not constitute a waiver of such party's rights to subsequently enforce the provision, and a waiver of breach shall not be a waiver of any other or subsequent breach. A party's remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity. (d) Customer may not assign any of the rights granted under this Agreement without Company's prior written consent, and any attempted assignment without such consent will be null and void. (e) This Agreement represents the entire agreement between the parties with respect to the matters set forth herein, and supersedes any prior or contemporaneous agreements relating thereto, including without limitation any non-disclosure agreement, PO, vendor registration etc. If any provision of this Terms of Service conflicts with an Order, the terms of the Order will prevail with respect to the Services ordered under such Order. (f) This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Each party agrees that any and all actions brought to enforce this Agreement or resolve any dispute arising out of or relating to this Agreement, the Platform or the Services shall be settled by binding arbitration before the American Arbitration Association ("AAA") in accordance with the then current Commercial Arbitration Rules of the AAA, with such proceeding to be conducted in San Mateo County, CA. Any award shall be final and binding and judgment thereon may be entered in any court of competent jurisdiction. Each party will bear its own cost of arbitration. The foregoing will not preclude any party from seeking injunctive relief in order to protect its rights pending arbitration. (g) If any provision of this Agreement is held invalid, such determination will not affect the remaining portions of this Agreement, and the affected provisions shall be interpreted and enforced to the full extent possible to carry out the intent of such provision. (h) Any notice to Company must be in writing and sent to Conversica, Inc., 950 Tower Lane, Suite 1200, Foster City, CA 94404, Attn: Legal, or such other address as Company may give notice of pursuant to this section, and such notices shall be sent by U.S. first class registered mail, overnight delivery service or in person. Company may provide electronic notices to Customer by general notice via the Platform and may give electronic notices specific to Customer by email to Customer's email address(es) on record in Customer's account information for the Platform.