Last
Updated and Effective as of: June 28, 2021
These
terms and conditions of service (“Terms of Service”) govern your access to and
use of Converseon, Inc.’s(“Converseon”, “us” “we” or “our”) services including
access and use of the Conversus.AI
Platform (“Platform”) located at https://app.conversus.ai
(“Website”), development and use of associated machine learning powered models
(“models”), use of the Converseon API solution (“API”) and any and all text,
graphics, photos, and other materials uploaded, downloaded or appearing on the
services including access to Converseon solutions on third party platforms
(collectively and together with the Platform, Website, models, and API, the
“Service”). Wherever used in these Terms of Service, “you”, “your”, “Customer”,
means the person or legal entity accessing or using the Services. If you are
accessing and using the Services on behalf of a company or other legal entity,
you represent and warrant that you have the authority to bind that company or
other legal entity to these Terms of Service.
YOUR ACCESS AND USE OF
THE SERVICES IS SUBJECT TO THESE TERMS OF SERVICE AND ALL APPLICABLE LAWS. BY ACCESSING OR USING ANY PART OF THE
SERVICES, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS
OF SERVICE, YOU MAY NOT USE ANY PORTION OF THE WEBSITE.
THESE TERMS OF SERVICE
CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM
CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
1.
Privacy Statement: The Terms of Service should be read in
conjunction with our Privacy Policy which is incorporated by reference and can
be found at converseon.com/privacy-statement/
2.
Accessibility: If you are having any trouble accessing
these Terms of Service or the Services, please contact us at 212.213.4297 between the hours of 9:30am and 5:00pm,
Monday through Friday EST.
3.
Services
and Use of Services:
3.1 Services and Support. During the Term (as defined below),
subject to these Terms of Service and your payment of all fees due to us,
Converseon hereby grants you and your Authorized Users a limited, revocable,
non-transferable, non-exclusive, non-assignable, non-sub-licensable license
during the Term to access the Services solely for your internal business
purposes. “Authorized Users” means individuals who are directly accessing the
Services via an online sign-up process, or individual users authorized by you
to use the Services and to whom you have supplied user identifications and
passwords. Authorized Users may include your employees, consultants,
contractors, agents, or your other designees, but shall not include any
employee or agent of any Converseon competitor. Converseon shall use
commercially reasonable efforts to make the Services available to you and your
Authorized Users pursuant to these Terms of Service. Converseon will
provide you with standard support eight hours per day from Monday to Friday,
and between the hours of 9:00 am and 5:00 pm Eastern Time. You may submit a
support request (maximum of 3 requests per day) to support@Converseon.com.
Expected response times after a ticket has been submitted by a Services user
during the support hours shall be 24 hours from the time the ticket is logged.
3.2 Changes to the Services. Converseon may, in its sole
discretion, make changes to the Services and such updates may result in changes
in the appearance and/or functionality of the Services (including the addition,
modification, or removal of functionality, features, or content). Other than in
connection with the addition of entirely new products, Converseon shall
install, maintain and support at its own cost all updates, upgrades,
enhancements, improvements, releases, corrections, bug fixes, patches, and
modifications to the Services (collectively, the “Updates”). You acknowledge
that the Services interoperate with several third party provided platforms
(“Other Platforms”), and that the Services provided are highly dependent on the
availability of such Other Platforms. If at any time Converseon determines in
its sole discretion that the Services will cease to interoperate with any Other
Platform, including in connection with any Other Platforms’ modifying their
products, programs or services, or ceasing to make their products, programs
services available to Converseon on reasonable terms, Converseon may cease to
provide such features to you without entitling you to refund, credit, or other
compensation.
3.3 Acceptable Use and Unauthorized Practices. You shall (i) be solely and fully
responsible for you and your Authorized Users’ use of the Services and
compliance with these Terms of Service, including not engaging in Abusive
Practices or Unauthorized Practices; (ii) be solely responsible for the
accuracy, quality, integrity, and legality of any materials or content that you
provide and the means of their acquisition, including any required licenses,
consents and permissions; (iii) prevent unauthorized access to or use of the
Services, including keeping your password and user name confidential and not
permitting any third party to access or use your user name, password, or
account for the Services in accordance with Section 3.7; (iv) be solely
responsible and liable for all activity conducted through your account in connection
with the Services; (v) promptly notify Converseon if you become aware of or
reasonably suspect any security breach, including any loss, theft, or
unauthorized disclosure or use of your (or any Authorized User’s) user name,
password, or account; (vi) use the Services and any data or information
collected, accessed, stored, transmitted or used in connection therewith only
in accordance with applicable laws and government regulations; (vii) comply in
all respects with all applicable terms of any third party services, including
Other Platforms, or websites that you subscribe to or otherwise access in
connection with your use of the Services. You must not engage in any of the
following (collectively, “Unauthorized Practices”): (a) make the Services available
to anyone other than to your Authorized Users; (b) allow more than one
individual to share log-in credentials; (c) sell, trade, or otherwise transfer
your log-in credentials to another party; (d) use the Services to store or
transmit any content, including Customer Content, that may be infringing,
defamatory, threatening, harmful, or otherwise tortious or unlawful, including
any content that may violate intellectual property, privacy, rights of
publicity, or other laws, or send spam or other unsolicited messages in
violation of applicable law; (e) upload to, or transmit from, the Services any
data, file, software, or link that contains or redirects to a virus, Trojan
horse, worm, or other harmful component, or use or take any action to interfere
with, or disrupt, the Website or any other user's use of the Website,
including, without limitation, via means of overloading, “flooding”,
“mailbombing” or “crashing” the Services, circumventing security or user
authentication measures or attempting to exceed the limited authorization and
access granted to you under these Terms of Service; (f) attempt to reproduce,
modify, reverse engineer, de-compile, hack, disable, interfere with, translate,
adapt, disassemble, copy, create derivative works of, or disrupt the integrity
or the performance of the Services, any Third Party Services, or any third
party data contained therein (except to the extent such restrictions are
prohibited by applicable law); (g) use spiders, robots, data mining techniques
or other automated devices or programs to catalog, download or otherwise
reproduce, store or distribute content available on the Services; (h) use any
such automated means to manipulate the Services, such as automating what are
otherwise manual or one-off procedures; (i) frame any portion of the Website or
Services within another website; (j) access the Services or any Converseon IP
in any way in order to build a competitive product, or machine learning models
outside of Converseon services or copy any ideas, features, functions, or
graphics of the Services; (k) attempt to gain unauthorized access to the
Services or its related systems or networks, or use the Services in any manner
that intentionally damages, disables, overburdens, or impairs any of our
websites or interferes with any other party's use of the Services; (l) use the
Services to process (including provide Converseon with or access to) personally
identifiable information, or otherwise associate a cookie, web beacon or other
mechanism with personally identifiable informational; (m) breach, disable,
tamper with, or develop or use (or attempt) any workaround for, or otherwise
damage the Services or any security measure thereof; or (n) authorize, permit,
or encourage any third party to do any of the above. As used herein, “Customer
Content” means all information and data (including text, images, photos,
videos, audio, and documents) or any other content in any media and format
provided by you or made available to Converseon on your behalf in relation to
the use of the Services.
3.4 Effect of Abusive Practices. Converseon may immediately suspend
your access to the Services for abusive practices that degrade the performance
of the Services for you and/or other customers of Converseon (“Abusive
Practices”) without prior notice. This may include exceeding your contracted
amount of mentions for any month.
3.5 Third Party Products and Services. You acknowledge that the Services may
enable or assist you to access, interact with, and/or purchase services from
Other Platforms and other third parties via third party websites or
applications (collectively, the “Third Party Services”). When you access the Third-Party
Services, you will do so at your own risk. Any use of Third-Party Services is
governed solely by the terms and conditions of such Third-Party Services (and
you shall comply with all such terms and conditions), and any contract entered
into, or any transaction completed via any Third-Party Services, is between you
and the relevant third party, and not Converseon. Converseon makes no
representation and shall have no liability or obligation whatsoever in relation
to the content or use of, or correspondence with, any such Third-Party Services
or any transactions completed, and any contract entered into by you with any
such third party.
3.6 Non-Exclusivity. You acknowledge that the rights
granted to you under these Terms of Service are non-exclusive and that nothing
in these Terms of Service will be interpreted or construed to prohibit or in
any way restrict Converseon’s right to license, sell, or otherwise make
available the Services to any third party or perform any services for any third
party.
3.7 Log-in Credentials for Authorized User.
Converseon shall authorize individual employees of Customer
as designated by Customer from time to time (each an “Authorized User”), who
will have access to the Services. You will also be asked to choose a username
and a password for each Authorized User. Converseon may change any username and
password for any Authorized User at any time, with notice to Customer following
any such change. Each Authorized User must use his or her own username and
password and shall not disclose them to anyone else. You are solely responsible
for maintaining the security and confidentiality of your password and other
account information and for updating any information that you provide to us
that is associated with your account. Customer shall immediately notify
Converseon of any unauthorized disclosure. Customer is responsible for (a) each
Authorized User’s compliance with this Agreement and (b) any person who gains
access to Customer’s Services as a result of your failure to use reasonable
security precautions, even if such use was not authorized by you.
3.8 No Financial, Health or Other
Professional Advice:
The Services we provide you are not intended to be used as individual
financial, health, investment, legal or other professional advice. Any results,
analysis, data, models, predictive algorithms or other information or tools
provided through the Services are solely meant for broad informational and
research purposes, and should not be relied on as a substitute for advice from
a qualified professional.
4.1 Converseon Services. As between you and Converseon,
Converseon retains all right, title, and interest in and to the Services,
including all associated algorithms, copy, software, graphics, designs and all
copyrights, trademarks, service marks, trade names, logos, and other
intellectual property or proprietary rights contained therein, and any copy,
translation, modification, adaptation, or derivation of the Services. Nothing
herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely
affect the Services, or any of Converseon’s rights or interests therein or any
other Converseon intellectual property, brands, information, content,
processes, methodologies, products, goods, services, materials, or rights,
tangible or intangible (“Converseon IP”). All rights, title, and interest in
and to the Services not expressly granted in these Terms of Service are
reserved by Converseon. You will not remove or obscure any copyright, trademark
or patent notices that appear on the Services or any of its output. You shall take no position contrary to, or
that would diminish, Converseon’s ownership rights set forth herein. Further, you may not use any of the
trademarks, trade names, service marks, copyrights, or logos of Converseon or
any of its affiliates or subsidiaries in any manner which creates the
impression that such items belong to or are associated with you or are used
with Converseon’s consent, and you acknowledge that you have no ownership
rights in and to any of such items. Except as expressly
set forth in these Terms of Service, no license is granted to you and no rights
are conveyed by virtue of accessing or using the Services. All rights not granted under these Terms of
Use are reserved by Converseon.
4.2 Feedback.
You may from time to time provide suggestions, comments or other feedback to
Converseon with respect to the Services (“Feedback”). You understand that,
Feedback, even if designated as confidential by you is not submitted in
confidence and Converseon assumes no obligation, expressed or implied, by
considering it. You further understand that Feedback is hereby irrevocably
assigned to Converseon, and that Converseon shall be the sole, exclusive and
incontestable owner of such Feedback, and all known or hereafter existing rights
thereto, everywhere in the world.
Without limiting the foregoing, to the extent any such assignment is
deemed unenforceable, you hereby grant Converseon, an exclusive, royalty-free,
worldwide, transferable, sublicensable, irrevocable, and perpetual license to
use or incorporate into the Services (or any other services or platforms
belonging to Converseon) any Feedback so provided in Converseon’s sole
discretion, without compensation to you.
4.3 Customer Content. You grant Converseon a limited,
worldwide, non-exclusive, non-transferable license, without a right of
sublicense, to access, use, reproduce, electronically distribute, transmit,
perform, format, display, store, archive, and index the Customer Content for
the purpose of supporting your use of the Services and providing Services to
you. Converseon may also use Customer Content for the purpose of supporting,
developing and improving the Services, provided that when doing so, Converseon
shall only use Customer Content in an anonymized and aggregated way. Subject
only to the limited license expressly granted herein, you and your Authorized
Users shall retain all right, title and interest in and to the Customer Content
and all intellectual property rights therein. Nothing in these Terms of Service
will confer on Converseon any right of ownership or interest in the Customer
Content or the intellectual property rights therein.
5. Converseon Products and Fees:
5.1
Purchases
By Order Form. If an
Order Form (or Statement of Work) is issued for the purchase of Services, you
agree to pay all fees as and when described per the Order Form(s) or SOW (s).
“Order Form” and “Statement of Work” means a document issued by Converseon and
executed or otherwise agreed upon by authorized representatives of the Parties
which specifies, among other things, a description of the Services, the Fees
payable, the Term, and any other details specifically related to the Services.
Unless otherwise stated on the Order Form or Statement of Work, all invoices
shall be payable within 30 days of the invoice date. Any disputed amounts shall
not affect payment of non-disputed amounts. You shall make payments to the
entity and address set forth in the invoice.
5.2
Online
Purchases. For Services
made available for purchase online, you must provide Converseon with a valid
credit card or other payment form approved for use by Converseon (for example,
PayPal). By using such payment methods, you authorize Converseon to charge the
credit card or PayPal account for such Services and any automatic renewal of
such Services. In addition, you agree that Converseon has permission to retain
and/or share with financial institutions and payment processors, your submitted
payment information in order to process your purchase. Subscription to
Converseon Services are non-refundable for the period purchased. If the payment
method you use with us, such as a credit card, reaches its expiration date and
you do not edit your payment method information, you authorize Converseon to
continue billing your credit card or other applicable account and you remain
responsible for any uncollected amounts. Your obligation to pay fees continues
through to the end of the subscription period during which you cancel your
subscription. All applicable taxes are calculated based on the billing
information you provide us at the time of purchase.
5.3
Late
Payment. If any amounts
due hereunder are not received by Converseon by the due date, then at
Converseon’s discretion, such charges may accrue late interest at the rate of
1-1/2% per month or the maximum rate permitted by law, whichever is lower, from
the date such payment was due until the date paid. Converseon may also suspend
your access to the Services if Converseon does not receive the amounts invoiced
hereunder at the expiration of such period. Converseon may suspend your access
to all or any part of the Services upon ten (10) days’ notice to you of
non-payment of any amount past due or immediately upon your breach of these
Terms of Service. If your access to the Services is suspended, we may charge a
re-activation fee to reinstate your access.
5.4
Taxes. You are responsible for paying all
taxes associated with the subscription to the Services. If Converseon has the
legal obligation to pay or collect taxes for which you are responsible under
this section, the appropriate amount shall be invoiced to and paid by you,
unless you provide Converseon with a valid tax exemption certificate authorized
by the appropriate taxing authority.
6.1 Term.
These Terms of Service shall commence on the day you access the Services for
the first time and shall continue until your account is cancelled and you cease
using our Services (“Term”).
6.2 Termination. If you violate these Terms of Service or applicable law,
or otherwise create or take action which could reasonably be foreseen to create
risk, harm, or possible legal exposure to Converseon, Converseon may immediately
terminate or suspend your Converseon account at our sole discretion. You may
also cancel or disable your Converseon account at any time by contacting us at support@converseon.com,
however, you are still responsible for subscription fees associated with the
remainder of the Term as they are not cancelable for the period purchased.
6.3 Effects of Termination. Upon termination of these Terms of
Service for any reason, (i) you will immediately cease all use of the Services;
(ii) you will have no further access to your accounts provided by Converseon;
and (iii) you will pay Converseon all unpaid amounts owing to Converseon.
7.
Service
Availability: The
Converseon Services namely, the Platform and API solutions, will be operational
and available to you 24 hours per day, 7 days per week at least 98% of the time
over the term of your subscription, except for scheduled maintenance and
upgrades (“Uptime Availability Standard”). We will provide at least 24 hours'
advance notice to you of scheduled maintenance that is in excess of 30 minutes.
The Uptime Availability Standard does not apply to gratis or trial basis
subscriptions or uses and no warranty of any kind, either express or implied,
is made in connection with such gratis or trial subscriptions or uses.
8.
Representations
and Warranties:
8.1 Mutual Representations and Warranties. Each party represents and warrants that
(i) it has the right and authority to enter into these Terms of Service and
perform its obligations, covenants and promises hereunder and (ii) if a company
or legal entity, that it is duly organized and validly existing and in good
standing under the laws of the state of its incorporation or formation.
8.2 Other Representations and Warranties. You represent and warrant that (i) you
own, or have acquired the express written authority to use, all of the Customer
Content; (ii) the Customer Content do not contain any harmful or disabling
software code, including without limitation any virus, time-bomb or trojan
horse; (iii) You and the Customer Content shall comply with all applicable
laws, rules and regulations in connection with the use of the Services
(including without limitation all privacy laws) and (iv) You and the Customer
Content will not violate or infringe upon the rights of any third party
(including without limitation any intellectual property, privacy, publicity or
contractual rights). For avoidance of
doubt, you will: (i) be solely
responsible for all use of Services hereunder (it being understood that nothing
in this clause will be deemed to limit Converseon’s obligations with respect to
the provision of Services or the Services hereunder); (ii) use the Services in
compliance with your other agreements; and (iii) comply with these Terms of
Service and all other policies provided to you by Converseon or any of its
partners.
8.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO
THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, CONVERSEON EXPRESSLY EXCLUDES
AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONVERSEON
SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND
NONINFRINGEMENT, THAT ITS SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS, OR
THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY,
SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED FROM CONVERSEON OR ELSEWHERE WILL CREATE ANY WARRANTY
OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL SERVICES AND ALL INFORMATION,
CONTENT, DATA OR OTHER CONVERSEON IP PROVIDED UNDER THIS AGREEMENT ARE PROVIDED
“AS IS” WITH ALL FAULTS, AND THE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE,
ACCURACY, AND EFFORT IS WITH THE USER OF SUCH INFORMATION AND SERVICES.
CONVERSEON IS NOT RESPONSIBLE FOR ANY DECISIONS OR OUTCOMES THAT USERS MAKE
BASED ON ITS USE OF SUCH INFORMATION, CONTENT, DATA OR OTHER CONVERSEON IP.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND THE SITE ARE PROVIDED ON
AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED
HEREIN. CONVERSEON DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN
RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE
CUSTOMER CONTENT, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.
CONVERSEON IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY
SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH
THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR
SUPPORTED PLATFORMS. CONVERSEON EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING
FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR
YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR
HARMED BY CONVERSEON OR ANYTHING RELATED TO CONVERSEON, YOU MAY CANCEL YOUR
CONVERSEON ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THESE TERMS
OF SERVICE AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND
CONVERSEON’S SOLE AND EXCLUSIVE LIABILITY, SUBJECT TO SECTION 10).
9.1 Indemnification
obligations. You shall
defend, indemnify, and hold harmless Converseon, its affiliates, directors,
officers, employees, and agents (Converseon Indemnitees) from and against all
claims, losses, damages, penalties, liability, and costs, including reasonable
attorneys’ fees, of any kind or nature which are in connection with or arising
out of (i) the Customer Content, (ii) your use of the Services, including your
use of Third Party Services or output of Services; (iii) your or your
Authorized Users’ negligence, fraud or willful misconduct, violation of
applicable law, rule or regulation; (iv) a breach of your representations or
warranties hereunder.
9.2 Indemnification
procedures. Converseon will
promptly notify You in writing of any claim which may give rise to a claim for
indemnification hereunder, provided that a failure to promptly
provide such written notice will not release You from your obligations to
indemnify us. You will have the right to fully control the defense and
settlement of such claim and we will fully cooperate with your reasonable
requests in connection with the claim, including with respect to the defense
and settlement thereof, provided that (a) we will have the right, at our sole
cost and expense, to participate in the defense of the claim through our own
counsel; and (b) our prior written consent will be required if (i) the
settlement includes an admission of fault or guilt by any Converseon
Indemnitees, (ii) the settlement requires any Converseon Indemnitees to make a
payment that will not be fully indemnified by You in accordance with this
Section 9, or to undertake a non-monetary obligation; or (iii) the settlement
does not include, as an unconditional term, the claimant’s or the plaintiff’s
release of Converseon Indemnitees from all liability in respect of the Claim.
10. Limitation of Liability: IN NO EVENT WILL CONVERSEON BE LIABLE
UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF
COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL,
INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES. FURTHER, TO THE FULLEST
EXTENT PERMITTED BY LAW, IN NO EVENT WILL CONVERSEON BE LIABLE FOR ANY DIRECT
DAMAGES EXCEEDING THE GREATER OF THE FEES YOU PAID TO CONVERSEON FOR PRODUCTS
AND SERVICES IN THE SIX MONTHS PRECEEDING THE CLAIM OR ONE THOUSAND ($1000)
UNITED STATES DOLLARS.
11.1
Assignment. You may not assign or otherwise transfer
any of your rights or obligations hereunder, without the prior written consent
of Converseon, such consent not to be unreasonably withheld, and any attempted
assignment or transfer without such consent will be void. Converseon may freely
assign or delegate all rights and obligations under these Terms of Service,
fully or partially without notice to you.
11.2
Amendment. Converseon reserves the right to
modify, supplement, or replace the terms of these Terms of Service, effective
upon posting on the website or notifying you otherwise. Your continued use of
the Services after the effectiveness of that update will be deemed to represent
your agreement with, and consent to be bound by, the new terms.
11.3
Severability. If any part of these Terms of Service shall be held or
declared to be invalid or unenforceable for any reason by any court of
competent jurisdiction, such provision shall be ineffective but shall not
affect any other part of these Terms of Service, and in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
11.4
Notices. For purposes of service messages and
notices about the Services, Converseon may place a banner notice across its
pages to alert you to certain changes such as modifications to these Terms of
Service. Alternatively, notice may consist of an email from Converseon to an
email address associated with your account, even if Converseon has other
contact information. You also agree that Converseon may communicate with you
through your Converseon account or through other means including email, mobile
number, telephone, or delivery services including the postal service about your
Converseon account or services associated with Converseon. You acknowledge and
agree that Converseon shall have no liability associated with or arising from
your failure to maintain accurate contact or other information, including, but
not limited to, your failure to receive critical information about the
Services. You may provide legal notice to support@converseon.com the phrase
“LEGAL NOTICE” in capitalized case, with a duplicate copy sent via registered
mail, return receipt requested, or by means of a nationally known express
service to Converseon, Inc., 500 7th Avenue, 8th floor,
New York, NY 10018; Attention: Legal Notices. The email address provided may be
updated as part of any update to these Terms of Service.
11.5
Waivers;
Remedies.
The failure of Converseon
to partially or fully exercise any rights or the waiver of Converseon of any
breach of these Terms of Service by you shall not prevent a subsequent exercise
of such right by Converseon or be deemed a waiver by Converseon of any
subsequent breach by you of the same or any other term of these Terms of
Service. The rights and remedies of
Converseon under these Terms of Service and any other applicable agreement
between you and Converseon shall be cumulative, and the exercise of any such
right or remedy shall not limit Converseon's right to exercise any other right
or remedy.
11.6
Relationship
of the Parties. No
agency, partnership, joint venture, or employment relationship is created as a
result of these Terms of Service and neither party has any authority of any
kind to bind the other in any respect.
11.7
Force
Majeure. Except for
payment obligations, neither party shall be liable for any failure to perform
its obligations hereunder where such failure results from any cause beyond such
party’s reasonable control, including the elements; fire; flood; severe
weather; earthquake; vandalism; accidents; sabotage; power failure; denial of
service attacks or similar attacks; Internet failure; acts of God and the
public enemy; acts of war; acts of terrorism; riots; civil or public
disturbances; strikes, lock-outs, or labor disruptions; and any laws, orders,
rules, regulations, acts, or restraints of any government or governmental body
or authority, civil or military, including the orders and judgments of courts.
11.8
Governing
Law; Arbitration. The
laws of the State of New York shall govern these Terms of Service. While we
will make reasonable efforts to resolve any disagreements you may have with
Converseon, if these efforts fail you agree that all claims, disputes or
controversies against Converseon arising out of these Terms of Service, or the
purchase of any products or services ("Claims") shall be exclusively
submitted to binding arbitration (except for matters that may be taken to small
claims court), no matter what legal theory they are based on or what remedy
(damages, or injunctive or declaratory relief) they seek. This includes Claims
based on contract, tort (including intentional tort), fraud, agency, your or
our negligence, statutory or regulatory provisions, or any other sources of
law; Claims made as counterclaims, cross-claims, third- party claims,
interpleaders or otherwise; and Claims made independently or with other claims.
The party filing arbitration must submit Claims to the American Arbitration
Association and follow its rules and procedures for initiating and pursuing
arbitration. Any arbitration hearing that you attend will be held at a place
chosen by the American Arbitration Association in the same city as the U.S.
District Court closest to your then current residential address, or at some
other place to which you and Converseon agree in writing, and the arbitrator
shall apply New York law consistent with the Federal Arbitration Act. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE
CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A
REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
You may obtain copies of the current rules, and forms and instructions for
initiating arbitration by contacting the American Arbitration Association at
using the contact information noted below.
American
Arbitration Association
Website:
www.adr.org
A single, neutral arbitrator will
resolve Claims. The arbitrator will be either a lawyer with at least ten (10)
years’ experience or a retired or former judge, selected in accordance with the
rules of the American Arbitration Association. The arbitration will follow the
procedures and rules of the American Arbitration Association which are in
effect on the date the arbitration is filed unless those procedures and rules
are inconsistent with these Terms of Service, in which case these Terms of
Service will prevail. Those procedures and rules may limit the discovery available
to you or us. The arbitrator will take reasonable steps to protect your
customer account information and other confidential information if requested to
do so by you or us. Each party to the arbitration will bear the expense of that
party's attorneys, experts, and witnesses, and other expenses, regardless of
which party prevails, but a party may recover any or all expenses from another
party if the arbitrator, applying applicable law, so determines. The
arbitrator's award is final and binding on the parties.
ANY
CLAIM YOU HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM
ARISES. AS NOTED ABOVE, YOU AND CONVERSEON HEREBY VOLUNTARILY AND KNOWINGLY
WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL.
We will not choose to arbitrate any Claim
you bring in small claims court. However, if such a Claim is determined by the
court to be outside its jurisdiction, the parties agree that the dispute shall
then be submitted to arbitration.
11.9
Survival. Any provision of these Terms of
Service which, either by its terms or to give effect to its meaning, must
survive, and such other provisions which expressly, or by their nature, are
intended to survive termination shall survive the expiration or termination of
these Terms of Service.
11.10
Entire
Terms of Service. The
terms of these Terms of Service, together with any applicable Order Form or
other contract for Services, all exhibits, and Converseon’s Privacy
Policy constitute the
entire agreement between the parties with respect to the use of the Services
and supersede any prior agreements, negotiations, representations, and
promises, written or oral, with respect to the subject matter and is binding
upon the parties and their permitted successors and assigns. In the event of
any conflict between these Terms of Service and the terms of an Order Form, the
provisions of the Order Form shall prevail. The terms of these Terms of Service
will apply to all orders you submit to Converseon for Services accounts and
shall supersede any additional terms, which may be incorporated in a purchase
order form, or any other form you generate. Any such terms shall be null and
void.
11.11
Questions. Should you have any questions
regarding these Terms of Service, you may contact us at info@converseon.com.