Last updated: March 25, 2019####In addition to agreeing to these Terms of Service, before you are entitled to use the Platform, you must enter into one or more separate orders (“Order(s)”) with the Company governing payment and use parameters for the Platform. If you are subscribing for the Free Edition (as defined below) you are agreeing to the Free Edition Order. These Terms of Service together with such Order(s) are collectively referred to as the “Agreement”.####Conversica (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, specifically 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”). Conversica also provides associated services in connection with the Platform (the “Services”).####The Platform and Services may include certain software and/or services licensed from third parties (“Licensors”) and references to the Platform and Services include such third party services and software (the “Third Party Services”). These Terms of Service apply to any user of the Platform, which includes the entity (“Customer”) completing and submitting the Order and/or registration information (“Registration”) for the Platform account as well as each Authorized User (defined in Section 1). If Customer does not accept all terms of the Agreement and Privacy Policy, then Customer may not use the Platform.####USE OF THE PLATFORM. Company grants Customer and its Authorized Users a limited, nonexclusive, nontransferable license (without a right to sublicense) to access and use the Platform for the term of the applicable Order solely for Customer’s internal business, customer relations, and management purposes in connection with the Permitted Use. “Permitted Use” means use of the Platform and Services to manage leads, transactions, and other customer interactions in connection with the operation of Customer’s business and to assess and enhance the performance of Customer’s marketing efforts, including to send, analyze and respond to communications with Customer’s sales leads. “Authorized Users” are those individuals who are Customer’s employees or contractors and who Customer authorizes to use the Platform. Customer is responsible for all use of the Platform by its Authorized Users and agrees that it will not provide or permit access to the Platform (including without limitation, the user interface and reporting) to anyone other than Authorized Users who require such access to do their job. Customer will enable the Platform to access only those systems of Customer or any third party for which Customer has all necessary right and authority. Customer agrees and acknowledges that its use of the Platform and Services may be subject to certain volume and other limits, if and to the extent specified on the applicable Order. If Customer exceeds those stated usage limits, Customer will be subject to price adjustments or other effects as stated in the applicable Order. Customer shall not, and shall not allow its Authorized Users, to: (i) copy, reverse engineer, modify, decompile or disassemble the Platform; (ii) attempt to probe, scan, penetrate, breach or test the vulnerability of any system or network or the Platform’s security or authentication measures, whether by passive or intrusive techniques; or (iii) monitor the data or traffic on Company’s system or network, other than the data or traffic passing through Customer’s account on the Platform. Customer may use the Platform only for the Permitted Use, in accordance with all applicable laws, rules and regulations (including without limitation, those applicable to privacy, CAN-SPAM, etc.) (collectively, “Applicable Laws”), as well as in compliance with Customer’s applicable privacy policy. All right, title and interest in and to the Platform and the Services (including any updates, improvements, or modifications thereto or derivatives thereof), as well as the message templates supplied by Conversica and used by Company through the Platform (“Company Materials”) will remain Company’s sole and exclusive property. Company will use commercially reasonable efforts to correct material defects in the Platform that have been brought to its attention, provided that such defects: (a) are sufficiently described in writing and reproducible by Company under test conditions at Company’s facility, and (b) are not the result of any use of the Platform that is not consistent with this Agreement and/or user instructions.##DATA. Customer is solely responsible for providing all lead and customer information to the Platform either through batch file delivery or through Customer’s configuration of its compatible client relationship management software with the Platform. Customer is solely responsible for the completeness and accuracy of all information submitted to Company, including through the Platform. Customer must ensure that (X) all content, data and information provided by Customer was collected, stored and used in compliance with the applicable Customer privacy policy and in compliance with all Applicable Laws; (Y) it has all necessary rights and express consents from each of the leads, customers, and other individuals whose information is submitted to the Platform sufficient to entitle Company to contact and interact with such individuals as contemplated hereunder and to operate the Platform and provide the Services; and (Z) the Customer Data (i) does not infringe, misappropriate or violate any intellectual property or other rights of any third-party, (ii) is not defamatory, harmful to minors, obscene or pornographic, (iii) is scanned using industry standard methods to protect it against viruses or programming routines intended to damage the Platform or Services, or surreptitiously intercept or expropriate any data or information; or (iv) is not false, misleading or inaccurate. Licensors are not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Company Data. Company may take remedial action if any Customer Data violates this Section, however neither Company nor its Licensors have any obligation to review any Customer Data for accuracy or potential liability. As between Company and Customer, Customer will own all information and data arising from Customer’s use of the Platform, including the client relationship management data, client systems data and data generated through communications in whatever form or medium between Company and Customer’s sales leads and/or customer interactions and/or Authorized Users through the Platform and/or Services (collectively, the “Customer Data”). For purposes of clarity, Customer Data does not include Company Materials. Notwithstanding the foregoing, Customer hereby grants to Company and its Licensors during the Term of this Agreement and for thirty (30) days thereafter, the right and license to access and use the Customer Data (including the personally identifiable information submitted to the Platform or collected in providing the Services to Customer) as necessary to provide the Platform and the Services to Customer hereunder. In addition, Customer hereby grants to Company and its Licensors the worldwide perpetual, irrevocable, royalty-free right and license to collect, store, access, distribute, sublicense, modify and use aggregate and anonymized data derived from Customer Data (“Derivative Data”) in connection with the Company’s business operations, such as to improve its services, and may combine the Derivative Data with other similar data from other customers.##THIRD PARTY SERVICES. Access to or use of any Third Party Services by Customer may be subject to a separate agreement between Customer and Company relating to those Third Party Services (each, a “Third Party Service Agreement”). Use of the Third Party Services is governed by and subject to the Agreement and, if entered into, any Third Party Service Agreement, provided that the terms of any Third Party Service Agreement will control with respect to the applicable Third Party Service in the event of a conflict between the Agreement and such Third Party Service Agreement. Each Licensor retains all right, title and interest in and to its Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Licensor will be a third party beneficiary under the Agreement as to the Third Party Services provided by such Licensor, including the right to enforce the Agreement against Customer.##TERM; TERMINATION.. The term of this Agreement (the “Term”) will begin on the Order Effective Date of the first Order and will continue for the stated term of any Order entered into by the parties, subject to earlier termination as provided herein. Either party may terminate the Agreement in the event of a material breach by the other party, which is not cured within fifteen (15) 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. Company may disable Customer’s Access Code and suspend its access to the Platform 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 Conversica 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) upon receipt of a request from the Customer within thirty (30) days of such termination or expiration, the Company will export the Customer Data to Customer in a mutually agreed format, provided that Customer has fully paid all Subscription Fees and other charges owed to Company; and (b) the following Sections will survive: 2, the last sentence of this Section 4, and Sections 5 – 10, as well as any provisions, which by their terms or sense are intended to survive.##SUBSCRIPTION FEES. No Subscription Fees are owed for use of the Free Edition. Customer shall pay the Subscription Fees for the Conversica Platform in advance, except that any Overage Fees will be invoiced and payable in arrears, in each case, in the amount and in the manner set forth in the Order. Subscription Fees will be billed and payable with the frequency stated in each Order and referred to as the “Billing Period”. Subscription Fees are based on Conversica data and statistics and are determinative for all purposes hereunder, provided that if Customer has a good faith dispute regarding Subscription Fees invoiced, Customer must give Company notice of the basis for such dispute within fifteen (15) days after the applicable invoice date (fees covered in such notice, the “Disputed Fees”). Disputed Fees will be due within fifteen (15) days after resolution of the dispute. Subscription Fees are non-refundable except as may be expressly stated in the applicable Order. 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 the Company by the due date. Customer agrees and understands that failure to pay all Subscription Fees owed when due will entitle Company to suspend access to the Conversica Platform, terminate the Agreement and/or have the right to refer any past due balance to a collection agency or attorney (or both). The Subscription Fees do not include any applicable taxes on Customer’s use of the Conversica Platform and the Services. To the extent it is determined that any income taxes, sales or use taxes, ad valorem taxes, duties, licenses, or levies imposed on the sale or use of the Conversica Platform and the Services, Customer shall pay all such charges timely either as levied by taxing authorities or as invoiced by Company without deduction from the Subscription Fees owed, or, in lieu thereof, Customer shall provide an exemption certificate acceptable to the relevant taxing authorities.##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 CONDUCTING NORMAL BUSINESS OPERATIONS BY ANY THIRD PARTY (THE “EXCLUDED MATTERS”), NEITHER COMPANY, NOR ITS AFFILIATES, MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES, OR ANY LICENSOR (COLLECTIVELY, “COMPANY ENTITIES”), ON ONE HAND, NOR CUSTOMER, 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, 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 AND ITS LICENSORS EACH DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY AND ITS LICENSORS 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 AND ITS LICENSORS MAKE NO REPRESENTATION THAT THE OPERATION OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER COMPANY NOR ITS LICENSORS GUARANTEE 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. Some jurisdictions do not allow limitations on certain warranties, so the above limitation or exclusion may not apply to Customer to the extent prohibited by such local laws.##INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless Company, its affiliates, Licensors, and their respective officers, directors, members, employees, agents and representatives (the “Company Entities”) from and against any and all claims, 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; (b) alleging Customer’s or its Authorized Users’ use of the Platform or Services in any manner not permitted hereunder; or (c) in connection with the Customer Data when used by Company as permitted hereunder. Company agrees to indemnify, defend and hold harmless Customer, its affiliates, and their respective officers, directors, employees, agents and representatives 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 Customer (x) alleging that the Platform when used by Company and its Authorized Users is 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 Agreement. 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 ability of the Indemnifying Party 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, which will not 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; (iii) the financial terms of this Agreement. In addition, for purposes of clarity, 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. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) 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 (iii) 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 (A) 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; and (B) 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 User. 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 Terms of Service by giving notice within the five (5) day period specified above. (b) Neither party will be liable for, nor will be considered to be 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) If the parties have previously or simultaneously herewith entered into a separate non-disclosure agreement (an “NDA”), then such NDA, together with the confidentiality provisions of this Agreement will govern all information exchanged in connection with this Agreement. This Agreement together with any NDA, and/or Third Party Service Agreement represents the entire agreement between the parties with respect to the matters set forth herein. (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 provided hereunder shall be brought solely in the federal or state courts situated in San Mateo County, CA, and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts. The prevailing party in any litigation hereunder will be entitled to receive payment from the non-prevailing party of the prevailing party’s costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by it in connection with such action. (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.
