TERMS OF SERVICE
Last updated on November 18, 2020
ConverseNow Technologies, Inc. ("ConverseNow") provides software as a service Voice AI platform for restaurant food ordering channels such as phone calls, drive-thru (/in) and digital kiosk (the “Platform”) for you, the user, the opportunity to utilize voice assistants and conversational interfaces in the automation and personalization of restaurant customer orders on high volume voice channels and obtain additional services that may be offered from time to time. All products and services described in this Section, as well as any other products and services offered by ConverseNow at any time shall be defined herein as “Service” or “Services.” In order to use the Service, you must read and accept all of the terms and conditions in, and linked to, this Terms of Service agreement (this "Agreement"). This Agreement may be modified by ConverseNow from time to time at our sole discretion, and you may be notified as set forth below. We strongly recommend that, as you read this Agreement, you also access and read the linked information. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
1. CONVERSENOW SERVICE
ConverseNow allows you or your customers to interact with voice assistants and conversational interfaces in order to automate and personalize restaurant customer orders on high volume voice channels, including phone calls, drive-thru stations, self-service kiosks and voice-assisted chat and obtain additional services that may be offered from time to time. The Platform utilizes artificial intelligence, machine learning, natural language processing and conversational interfaces in order to facilitate communications between you and your customers.
2. CUSTOMER OBLIGATIONS
Customer Systems and Cooperation. You shall at all times during the Term: (a) set up, maintain and operate in good condition your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated by you or through the use of third party services (collectively, “Customer Systems”) on or through which the Services are accessed or used; (b) provide ConverseNow personnel with such access to your premises and Customer Systems as may be necessary for ConverseNow to perform the Services in accordance with the order form or this Agreement; and (c) provide all cooperation and assistance as ConverseNow may reasonably request to enable ConverseNow to exercise its rights and perform its obligations under and in connection with this Agreement. Effect of Customer Failure or Delay. ConverseNow is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failing to perform, any of your obligations under this Agreement. Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by Section 4, you shall, and shall cause your users, to immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access; and (b) notify ConverseNow of any such actual or threatened activity.
3. ACCESS TO THE SITE AND THE SERVICES
License to You. Subject to this Agreement, ConverseNow grants you a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use and access the Platform solely for your business operations. Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: you shall not (and shall not allow any third party, including its users, to): (a) remove any product identification, copyright, or other proprietary notices on the Platform (or on any content displayed on the Platform); (b) modify, adapt, or create a derivative work of any portion of the Platform; (c) disclose any performance information or analysis from any source relating to the Platform without prior written consent from ConverseNow; (d) license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit any part of the Platform (or any content displayed on the Platform) or use the Platform for third-party training, commercial time-sharing, rental, or service bureau use, or outsourcing for any third parties; (e) cause or permit the reverse engineering, disassembly, or decompilation of the Platform, except to the extent required to obtain interoperability with other independently created software as specified by law; and (f) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post, or transmit any part of the Platform in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to the functionality of the Platform shall be subject to this Agreement. Modification. ConverseNow reserves the right, at any time and in its sole discretion, to make any changes to the Platform or Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of ConverseNow’s Services to its customers, (ii) the competitive strength of or market for ConverseNow’s Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with a mutually agreed upon change order. No requested changes will be effective unless and until memorialized in a written change order signed by both parties. No Support or Maintenance. You acknowledge and agree that ConverseNow will have no obligation to provide you with any support or maintenance in connection with the Services other than the support levels purchased by you for the Services (“Service Level Options”) for the applicable Term, if any. Ownership. Excluding any Customer Data that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Platform, its content, and any modifications made to the Platform by ConverseNow or any other party, are owned by ConverseNow or ConverseNow’s suppliers. Neither this Agreement (nor your access to the Platform or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. ConverseNow and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement. For the avoidance of doubt, ConverseNow’s ownership includes any information, data, or other content derived by or through the Platform or Services from processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from inspection, analysis or further processing of such information, data, or content, such as meta or normalized data, rulesets, algorithms, data models, and normalized data sets (“Derived Data”).
4. PRIVACY POLICY AND CONFIDENTIALITY
ConverseNow has established a privacy policy to explain to you, and other users, how your personal information is collected and used. This privacy policy is located at https://chrisw-inbox.clickfunnels.com/conversenow
5. SERVICE FEES AND BILLING METHODS
Periodic Payments. ConverseNow charges you a subscription fee for Services in the amount set forth in the order form or invoice. ConverseNow may bill you directly or may collect these fees using a third party payment service and using a recurring payment system that recurs on an monthly, quarterly or annual basis. You will be charged the service fee on the first day of the Initial Term or each Renewal Term, as applicable. Payment shall be due within thirty (30) days after the date of the invoice unless otherwise specifically agreed on a service order form. Payment shall be made to the address or account specified in the order form or invoice or such other address or account as ConverseNow may specify in writing from time to time. If you fail to remit payment within ten (10) days of the due date, ConverseNow may assess interest on the amount past due in the amount of 1-½% per month or the highest amount permitted by law. We may restrict access to your account or terminate this Agreement if you fail to make a payment when due. We may collect attorneys’ fees against you if we need to hire an attorney to collect past due amounts from you. Taxes. All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on ConverseNow’s income.
6. CUSTOMER DATA
Customer Data. “Customer Data” means any and all information and content that a user submits to, or uses with, the Platform (e.g., data provided by you or your customers in connection with the Platform or Services provided by ConverseNow). You are solely responsible for your Customer Data. You assume all risks associated with use of your Customer Data, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your Customer Data that personally identifies you or any third party. You hereby represent and warrant that your Customer Data does not violate our Acceptable Use Policy (below). You may not represent or imply to others that your Customer Data is in any way provided, sponsored or endorsed by ConverseNow. Because you alone are responsible for your Customer Data, you may expose yourself to liability if, for example, your Customer Data violates the Acceptable Use Policy. ConverseNow is not obligated to backup any Customer Data, and your Customer Data may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your Customer Data if you desire. Exception for Derived Data. Notwithstanding anything to the contrary in the foregoing, Customer Data shall not include any Derived Data). You acknowledge and agree that ConverseNow may collect and analyze Derived Data to (a) improve and enhance the Platform and Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with ConverseNow’s business. ConverseNow owns all models, improvements of the Platform or Services, and any associated intellectual property that may result from ConverseNow’s use of the Customer Data as consented to hereunder. License to ConverseNow. In order to enable ConverseNow to provide the Platform and Services under this Agreement, you hereby grant (and you represent and warrant that you have the right to grant) to ConverseNow an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, prepare derivative works of, incorporate into other works, and otherwise use and exploit your Customer Data, and to grant sublicenses of the foregoing rights, subject to the Privacy and Confidentiality provisions, solely in connection with ConverseNow’s provision of the Platform and Services, which for the avoidance of doubt includes ConverseNow’s testing, monitoring, reporting, modeling, and benchmarking of the Platform and use thereof. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your Customer Data. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”: You agree not to use the Platform to collect, upload, transmit, display, or distribute any Customer Data (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Platform to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Platform (or to other computer systems or networks connected to or used together with the Platform), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Platform; or (vi) use software or automated agents or scripts to produce multiple accounts on the Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Platform (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file). Enforcement. We reserve the right (but have no obligation) to review any Customer Data, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these terms of service or otherwise create liability for us or any other person. Such action may include removing or modifying your Customer Data, terminating your Account in accordance with the Term and Termination Section, and/or reporting you to law enforcement authorities. Feedback. If you provide ConverseNow with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to ConverseNow all rights in such Feedback and agree that ConverseNow shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. ConverseNow will treat any Feedback you provide to ConverseNow as non-confidential and non-proprietary. You agree that you will not submit to ConverseNow any information or ideas that you consider to be confidential or proprietary https://chrisw-inbox.clickfunnels.com/conversenow 
7. CONSENT TO USE CERTAIN DATA
Diagnostic and Usage Data. You agree that ConverseNow and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the services, and to verify compliance with this Agreement. ConverseNow may use certain information, as long as it is collected in a form that does not personally identify you, to provide and improve ConverseNow’s products and services. To enable ConverseNow’s partners and third party developers to improve their software, hardware and services designed for use with ConverseNow products, ConverseNow may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to that partner’s or developer’s software, hardware and/or services, as long as the diagnostic information is in a form that does not personally identify you. ConverseNow may use other information in accordance with its privacy policy: https://chrisw-inbox.clickfunnels.com/personal-identifier-information-protection-policy1599299906801
8. THIRD PARTY LINKS
Third-Party Links. The Platform may contain third-party data and/or sources (including any provided by you in connection with our provision of the Services) (collectively, “Third-Party Data & Sources”). Such Third-Party Data & Sources are not under the control of ConverseNow, and ConverseNow is not responsible for any Third-Party Data & Sources. ConverseNow provides access to these Third-Party Data & Sources only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Data & Sources. You use all Third-Party Data & Sources at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Data & Sources, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Data & Sources. Release. You hereby release and forever discharge the ConverseNow (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Platform users or any Third-Party Data & Sources). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. DISCLOSURE OF INFORMATION
As ConverseNow continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of your information as one of the transferred assets and to be used for any purpose allowed under this Agreement (subject to privacy and confidentiality provisions).
10. TERM AND TERMINATION
Initial Term. The initial term of this Agreement commences on the Effective Date in the order form and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the date set forth in such order form (the “Initial Term”). Renewal. This Agreement will automatically renew at the expiration of a Term as set forth in an applicable order form for a term of equal duration (“Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. BY ACCEPTING THESE TERMS OF SERVICE YOU UNDERSTAND AND AGREE THAT UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE SERVICES (1) YOUR SUBSCRIPTION TO THE SERVICES WILL AUTOMATICALLY RENEW AT THE END OF EACH TERM AND CONTINUE FOR ANOTHER RENEWAL TERM; (2) YOU WILL AUTOMATICALLY BE BILLED AT THE START OF EACH NEW TERM; AND (3) THAT PERIODIC CHANGES FOR EACH NEW TERM WILL BE AUTOMATICALLY BILLED TO YOUR DESIGNATED BILLING PAYMENT METHOD. YOU MAY TERMINATE ENROLLMENT IN AUTOMATIC RENEWAL BY EMAILING INFO@CONVERSENOW.AI. Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) ConverseNow may terminate this Agreement, effective on written notice to you, if you (i) fail to pay any amount when due hereunder, and such failure continues more than ten (10) days after ConverseNow’s delivery of written notice thereof; or (ii) breach any of your obligations under this Agreement. (b) Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement and such breach (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provided the breaching party with written notice of such breach. (c) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the party ceases to conduct business in the ordinary course without a successor. Effect of Termination. Upon any expiration or termination of this Agreement, except as expressly provided otherwise in this Agreement: (a) all rights, licenses, consents and authorizations granted by either party to the other under this Agreement will immediately terminate; (b) ConverseNow shall immediately cease all use of any Customer Data and (i) promptly return to you, or at your written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data; and (ii) permanently erase all Customer Data from all systems ConverseNow directly or indirectly controls, provided that, for clarity, ConverseNow’s obligations under this Section do not apply to any Derived Data. (c) You shall immediately cease all use of the Platform and Services and (i) promptly return to ConverseNow, or at ConverseNow’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on ConverseNow confidential information. (d) Notwithstanding anything to the contrary in this Agreement, ConverseNow may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. (e) ConverseNow may disable your Account, and all user access associated with your Account, to the Services. Payment upon Termination. If you terminate this Agreement pursuant to our breach of this Agreement, you will be relieved of any obligation to pay any fees attributable to the period after the effective date of such termination. If ConverseNow terminates this Agreement pursuant to your breach of this Agreement, you shall pay all unpaid fees for the then-current Term, including the remainder of the Term following termination. You shall not be entitled to any refund. Termination shall not relieve you of your obligation to pay all undisputed charges accrued before the effective date of termination.
11. MODIFICATION OF TERMS AND CONDITIONS
These terms of service are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Platform. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Platform. These changes will be effective immediately for new users of our Platform or Services. Continued use of our Platform or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12. DELAYS
The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. The Service also may be subject to governmental shutdowns, delays and other problems associated with governmental agencies. ConverseNow is not responsible for any delays, failures or other damage resulting from such problems.
13. EXPORT
The Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ConverseNow, or any products utilizing such data, in violation of the United States export laws or regulations.
14. WARRANTY DISCLAIMER
You understand and agree that THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT CONVERSENOW ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. CONVERSENOW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT YOU WILL ACHIEVE ANY CERTAIN LEVEL OF SALES OR PROFITABILITY USING THE SERVICES, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ANY CONTENT OR INFORMATION YOU PROVIDE OR CONVERSENOW COLLECTS WILL NOT BE DISCLOSED OR (E) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PLATFORM, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to you as they relate to implied warranties.
15. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) OR EXEMPLARY DAMAGES (COLLECTIVELY, "DAMAGES"), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID AND OWED BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you.
16. INDEMNIFICATION
Indemnification by You. You agree to indemnify, defend and hold harmless ConverseNow, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys' fees and court costs due to or arising from: (a) any violation of this Agreement or applicable law by you; (b) the inaccurate or untruthful Content or other information provided by you to ConverseNow or that you submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm you may have caused to another. ConverseNow will have sole control of the defense of any such damage or claim. Indemnification by ConverseNow. ConverseNow will indemnify, defend and hold harmless you, your officers, managers, owners, employees, agents, designees, users, successors, and assigns from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from infringement of a United States patent of any third party issued on or before the Effective Date or a copyright or trade secret right of any third party; provided that you: (i) promptly notify ConverseNow of such claim; (ii) provide ConverseNow with full control of the defense and settlement of each such claim; (iii) cooperate with ConverseNow in such defense and settlement, and (iv) do not settle any such claim or suit without ConverseNow’s prior written consent. You may participate in the defense and settlement of any claim with counsel of your choice at your own expense provided that ConverseNow shall continue to have sole control of such defense or settlement. If any portion of the Services becomes, or in ConverseNow’s opinion is likely to become, the subject of a claim of infringement, ConverseNow may, at its option: (a) procure for you the right to continue using the Platform or Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Platform or Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused fees actually paid by you to ConverseNow for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Platform and Services. Notwithstanding the foregoing, ConverseNow shall have no obligation under this section or otherwise with respect to any infringement claim based upon (I) any use of the Platform or Services not in accordance with this Agreement or not as specified by ConverseNow; (II) any use of the Platform or Services in combination with other products, equipment, software or data not supplied by ConverseNow if the Platform or Services without such combination does not infringe; or (III) any modification of the Platform or Services by any person other than ConverseNow or its authorized agents. This Section 17 is your sole and exclusive remedy and the entire liability of ConverseNow with respect to infringement claims and actions.
17. NOTICE
You agree that ConverseNow may communicate any notices to you under this Agreement, through electronic mail, regular mail or posting the notices on the Platform. All notices to ConverseNow will be provided by either sending: (i) an email to info@conversenow.ai or (ii) a letter, first class certified mail, to ConverseNow Technologies, Inc., 701 Brazos St., Austin, Texas 78701. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent. The communications between you and ConverseNow use electronic means, whether you use the Platform or send us emails, or whether ConverseNow posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ConverseNow in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ConverseNow provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
18. ENTIRE AGREEMENT
This Agreement governs your use of the Platform and Service and constitutes the entire agreement between you and ConverseNow. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and ConverseNow regarding the subject matter contained in this Agreement.
19. GOVERNING LAW
This Agreement and the relationship between you and ConverseNow will be governed by the laws of the State of Texas, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where you may be located or any other jurisdiction. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that ConverseNow may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Platform or Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
20. SURVIVAL OF TERMS
In the event your use of the Services is terminated or lapses or you are no longer a user of ConverseNow, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Section 3, 6-10, and 13-19.
21. PUBLICITY
During the Term of this Agreement, ConverseNow may, with your prior written consent in compliance with your branding guidelines, publicly identify you as a customer and use your logo on ConverseNow’s corporate website, in sales materials, and in print media in accordance with your usage guidelines, all for the limited purpose of recognizing you as a ConverseNow customer. In addition, you may agree to review for approval a press release from ConverseNow upon execution of this Agreement.
22. MISCELLANEOUS
This Agreement may not be re-sold or assigned by you. If you assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of ConverseNow's rights if ConverseNow fails to enforce any of the terms or conditions of this Agreement against you. In the event a court finds a provision in this Agreement to not be valid, you and ConverseNow agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between you and ConverseNow as a result of this Agreement or use of the Platform or Service. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
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