End User Service Agreement
AGREEMENT BETWEEN YOU AND CONTIVIO.COM
This is a Terms of Service Agreement between Contivio.com Corporation, 2151 Michelson Drive, Suite 263, Irvine, CA 92612, USA (hereinafter referred to as “Contivio.com”, “us”, or “we”) and you that governs all access to and use of our Services (the “Agreement” or “Terms”). This Agreement applies to Contivio.com’s Cloud Contact Center and Telephony services as provided through the website, www.contivio.com, including software, software updates, software upgrades, documentation, reports, and content (e.g., audio and visual information) contained or made available to you in the course of your using the Service (collectively referred to as the “Service”).
Please read this Agreement carefully. The Service may have other posted notices or codes of conduct. All such notices and codes of conduct are incorporated by reference into this Agreement. By subscribing to and/or using any of the Service, you agree to be bound by this Agreement, including any modifications made to it from time to time. If you do not agree to the terms and conditions in this Agreement, do not subscribe to or use the Service.
“You” and “your” means you, your company, your employees, and your agents whom you have designated as “authorized users” or “administrators” of the Service and your account. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement.
IN THIS DOCUMENT:
1. Your Account
2. Data Privacy and Retention
3. Accessing and Using our Site and Services
4. Our Provisions of the Services
5. Technical Requirements for Use of our Services
6. Emergency Service Not Provided
7. Compliance with Laws
8. Intellectual Property Rights
9. Term and Termination
11. Mutual Indemnification
12. Limitation of Liability
1. Your Account.
1.1. Initiating Service. Following receipt of payment for those charges specified in the Budgetary Proposal as payable in advance, Contivio.com will activate your account and begin providing the Services (the date of the initial service activation represents the “Service Activation or Provisioning Date”). The initial process creates your unique account, and enables you to log in and access the Services. Once we have enabled your account, you will need to visit our online Administrative Site (“Site”) and create an administrative account (an “Admin Account”). When you create your Admin Account, you will create your own password, which you must use in order to access and use the Services. You agree that any information you provide in creating your Admin Account is complete and accurate, and you agree to keep it up to date. For example, we provide some notices by email to your Admin Account, and you agree to keep that email current and valid as a method for providing notices under these Terms. Prices and terms of payment for the Service options you select are stated in your Budgetary Proposal.
1.2. Administering Your Account. Anyone who accesses the Services is a “User”. Your administrators and supervisors can manage your use of the Services as well as perform other administrative functions. Individuals permitted to access the Services for the purpose of making and receiving calls are “Agents.” Each User who accesses the Services through your login account must be covered by a paid subscription and must be your employee, consultant, contractor or agent. User subscriptions can be used concurrently by up to the number of paid Agents identified in your Budgetary Proposal. You are responsible for selecting your passwords, maintaining the confidentiality of your passwords, and internal management or administration of the Services for your Users. You agree that Contivio.com has no liability with regard to the use of such passwords by third parties. You agree to notify us immediately if you have any reason to believe that the security of your account has been compromised.
2. Data Privacy and Retention.
3. Accessing and Using Our Site and Services.
3.1. Subscription Services. Subject to all of the terms and conditions of this Agreement, including your payment of any required fees, Contivio.com will make the Services available to you during the term specified in the Budgetary Proposal. You and your authorized Users may use the Services solely for your internal business purposes or as otherwise specified in the Budgetary Proposal.
3.2. Restrictions. You will not nor will you allow any third party to: modify, copy, or otherwise reproduce the Services in whole or in part; reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the Services; provide, lease or lend the Services to any third party; remove any proprietary notices or labels displayed on the Services; modify or create a derivative work of any part of the Services; or use the Services for any unlawful purpose or contrary to this Agreement. You will (1) ensure that your Users comply with this Agreement; (2) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; and (3) use the Services only in accordance with the User Guide and applicable laws and government regulations (including without limitation those more fully described in Section 7 below, as well as HIPAA, and export control laws and regulations).
4. Our Provision of the Services.
4.1. User Guide. We describe the main functions of our Services in the instructions and manuals we make available via login to our software (our “User Guide”). We update and enhance the Services, and will update the User Guide from time to time.
4.2. Technical Support. As part of our Services, we will make our standard technical support available to you. Our support services and options are more fully described in Appendix B of our Terms of Service document. Such support may, in Contivio.com’s discretion, include on-line help, FAQ’s, training guides and templates and the use of live help.
4.3. Other Services from Contivio.com. Contivio.com may also provide other services, such as Professional Services, including but not limited to consulting, training, or development services. Any such services or requirements not expressly stated in this Agreement are outside the scope of this Agreement and are subject to the Professional Services Standard Terms and Conditions available at https://www.contivio.com/professions-services-terms-and-conditions/.
5. Technical Requirements for Use of Our Services.
In order to utilize the Services, you will need to adhere to certain technical specifications and have certain minimum hardware, software and Internet connectivity, as specified in our Terms of Service document (“Required Equipment”). With your cooperation, and prior to activation of your Services, we will conduct an assessment of your Required Equipment. We may recommend adjustments to the Required Equipment in order to meet the minimum technical requirements to utilize the Services. You are responsible for implementing any recommendations we make in this regard and also for the ownership and ongoing maintenance of Required Equipment. Contivio.com’s recommendations with respect to Required Equipment do not constitute a guarantee or warranty as to the future suitability of the Required Equipment for operating the Services. You acknowledge and agree that, at all times, you are solely responsible for obtaining and supporting Required Equipment as necessary to use the Services. Your failure to have the Required Equipment is not a basis for terminating this Agreement or seeking a refund.
6. Emergency Service.
6.1. No Requirement to Offer Emergency Service. Contivio.com is not your telecommunication provider. You agree that Contivio.com does not and is not required to provide “Emergency Service”, meaning services that connect a user to emergency services personnel or a public safety answering point (“PSAP”), pursuant to applicable regulatory requirements. In the United States, Emergency Service is provided by dialing the digits “911” on a wired or a wireless telephone. Services do not permit the dialing of “911” or any other emergency telephone numbers. Services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. You agree that Contivio.com is not a replacement for your primary telephone service. YOU ACKNOWLEDGE AND ACCEPT THAT CONTIVIO.COM’S SERVICES DO NOT INCLUDE TELECOMMUNICATIONS AND EMERGENCY SERVICE. YOU UNDERSTAND AND AGREE THAT ADDITIONAL ARRANGEMENTS WITH A THIRD PARTY MUST BE MADE BY YOU FOR TELECOMMUNICATIONS AND TO ACCESS EMERGENCY SERVICE.
6.2. Specific Disclaimer of Liability for Emergency Service. Contivio.com, its officers, directors, employees, shareholders, affiliates or agents will not be liable for any claim, damage, or loss arising from, or relating to, your use of Services to attempt to contact a PSAP or emergency services personnel. You specifically waive, to the maximum extent permitted by applicable law, any and all claims or causes of action, arising from or relating to the Services inability to contact a PSAP or other emergency services personnel. You agree to defend, indemnify, and hold harmless Contivio.com, its officers, directors, employees, shareholders, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, court costs and attorney’s fees) arising out of the fact that Contivio.com does not offer Emergency Service.
7. Compliance With Laws.
7.1. Compliance with Applicable Laws and Regulations. You agree to comply with all federal, state, and local laws, rules, and regulations related to or connected with use of the Services, and you assume all liability and responsibility for your use of the Services. If Contivio.com reasonably determines that you are not in compliance with applicable laws in your use of the Services, we reserve the right to immediately suspend or terminate your use of the Services, and you will be solely responsible for any penalties and other sanctions for legal noncompliance.
7.2. Outbound Calling. You accept sole responsibility for understanding the outbound calling features of the Services, and you agree to maintain and monitor outside of the Service your configuration and settings so that your outbound calls managed through the Service comply with all applicable federal and state telemarketing laws and regulations, including the Federal Trade Commission’s Telemarketing Sales Rule, the Federal Communication Commission’s Telephone Consumer Protection Act Rule, and state and local telemarketing and consumer protection laws, as they may be enacted, amended, and/or updated from time to time. Under these laws and regulations, your use of the Services may be restricted. These restrictions can include, but are not limited to, placing “abandoned” calls; the frequency, days, and/or time of day in which your outbound calls can be placed; use of prerecorded or artificial telephone messages; and the display of caller ID information. You also are solely responsible for obtaining the necessary type of caller consent to place your call, which may include prior express written consent, and to maintain proof of such consent. You agree to contact only persons you are legally permitted to contact, and only in the manner permitted, under federal, state and local law, and to promptly cease calling any individuals who no longer wish to be contacted by you. In addition, you agree to provide persons that you contact with all disclosures required by law, including those required at the outset of a telemarketing call, prior to a consumer purchase or payment, or in conjunction with lead generation services offered by you. BECAUSE TELEMARKETING LAWS AND REGULATIONS ARE COMPLEX AND MAY CHANGE FROM TIME TO TIME, YOU ARE STRONGLY ADVISED TO SEEK THE ADVICE OF AN ATTORNEY REGARDING OUTBOUND TELEMARKETING CALLS AND/OR USE OF AUTOMATED TELEPHONIC EQUIPMENT PRIOR TO USING THE SERVICES FOR TELEMARKETING PURPOSES.
7.3. Do Not Call (DNC) Compliance. All DNC lists must be maintained in your own internal database outside of the Service. If you are advised by any party that they do not wish to receive communications from you via the Services, then you will promptly add those parties to your company-specific DNC list that integrates with the Services, and thereafter refrain from calling such parties. If Contivio.com determines, in its sole discretion, that the receipt of communications via the Services is not consensual, or violates any federal, state and/or local rule and regulation, or is harassing to consumers or businesses, Contivio.com may suspend Services until DNC Compliance is met.
7.4. Possible Suspension or Termination of Service for Non-Compliance. If, for any reason, Contivio.com reasonably believes that your use of the Services is violating federal, state, and/or local rules or regulations, or is harassing to consumers or businesses, Contivio.com may suspend its Service to prevent further calling of those numbers through its Service. In addition, Contivio.com may review your Service settings and/or require that you promptly provide Contivio.com with copies of your written telemarketing policies, procedures, and employee/customer training documents that you rely upon to demonstrate telemarketing compliance. Pursuant to Sections 7.1 and 9.2 of these Terms, Contivio.com may suspend or terminate your use of the Services if it reasonably determines that you are not in compliance with federal, state, and/or local telemarketing regulations, if you fail to timely respond to Contivio.com’s request for materials, or if Contivio.com otherwise believes that your use of the Services may present an unreasonable risk of harm to Contivio.com or to others.
8. Intellectual Property Rights.
Except as expressly stated, this Agreement does not grant either party any rights, implied or otherwise, to the other’s intellectual property (“IP Rights”). You own all IP Rights in your User Data and, as between us, Contivio.com owns all IP Rights in the Site, Services, our trademarks and Contivio.com Data. We welcome your suggestions and feedback on how to improve the Services. If you provide any suggestions, feedback, or improvements to the Site or Services, we will have the right to use and have others use such suggestions, feedback, and improvements for any purpose. Each party hereby makes any assignments necessary to accomplish the ownership provisions in this paragraph and will provide reasonable assistance to the other for such purposes. The Site, Services, and Contivio.com Data are commercial items. If they are being used by or on behalf of the U.S. Government, then the U.S. Government’s rights in them will be only those specified in this Agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.
9. Term and Termination.
9.1. Term. Unless earlier terminated as provided in this Agreement, this Agreement commences on the Service Activation Date and shall continue for three (3) months (“Initial Term”) and shall automatically renew for consecutive monthly (1) periods (each a “Renewal Period” and all Renewal Periods together with the Initial Term, the “Term”) thereafter, unless either party has provided notice of its intent not to renew this Agreement in accordance with Section 9.3. In no event may you terminate this Agreement on less than thirty (30) days written notice to us. Either party may terminate this Agreement for cause on thirty (30) days written notice of a material breach to the other party if the breach remains uncured at the expiration of the notice period. Non-payment of any service or other fees due is a material breach. If you materially breach this Agreement, we may, without limitation of our other rights and remedies, withhold further performance of our obligations under this Agreement.
9.2. Suspension of Services. We may suspend or terminate your use of the Services if we have reason to believe: (i) you are using the Services in a manner that may cause harm to us or to a third party, including actions that violate any applicable laws, rules or regulations, including the federal and state telemarketing laws and regulations referenced in Sections 7.1 through 7.4 of these Terms; (ii) your use is compromising the security of the Services or the privacy of our other customers; or (iii) you are engaging in other activity that could cause harm to us or a third party.
9.3. Effect of Termination. Upon termination or expiration of this Agreement or a Budgetary Proposal for any reason: (1) all applicable licenses and other rights granted to you will immediately terminate; (2) we will make your User Data available to you (either from Contivio.com or through a third party offsite storage provider) for up to thirty (30) days after termination. After that thirty (30) day period, you will lose access to any data and we will have no obligation to maintain any, and will have the right to delete, all data related to the expired or terminated Agreement or Budgetary Proposal and we will have no further obligation to make such data available to you. Termination will not relieve you of the obligation to pay any fees due or payable to Contivio.com incurred prior to the effective date of termination, including annual fees, implementation fees, training fees, User subscription fees, or any other fees or payments due under the Agreement. Sections 3.2, 8, 9.3, 10.2, 11, 12 and 13 will survive any termination or expiration of the Agreement.
10.1. Warranty. Each party represents and warrants to the other party that (i) it has the power and authority to enter into and perform all obligations under this Agreement, and (ii) it will comply with all applicable laws in its performance under this Agreement.
10.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, CONTIVIO.COM DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, THIRD-PARTY SERVICES, OR MATERIALS PROVIDED BY CONTIVIO.COM, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS. You agree that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades or for reasons beyond our reasonable control including but not limited to (i) equipment malfunctions, or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to your or our data centers.
11. Mutual Indemnification.
11.1. Our Indemnity. We will defend, indemnify and hold you harmless against any claims, liabilities, expenses (including reasonable attorney’s fees), or damages arising from or relating to a third party claim alleging that your use of the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of a third party. The foregoing indemnity does not extend to claims arising from or relating to third-party Services or claims covered by your indemnification in Section 11.2 of this Agreement. In the event of a claim or threatened claim under this Section by a third party, we may, at our sole option, (A) revise the Services so that they are no longer infringing, (B) obtain the right for you to continue using the Services, or (C) terminate this Agreement and any applicable Budgetary Proposal upon fifteen (15) days’ notice.
11.2. Your Indemnity. You will defend, indemnify and hold us harmless against any claims, liabilities, expenses (including reasonable and all attorney’s fees) or damages arising from or relating to a third-party claim related to or arising from your use of the Services other than those for which we will indemnify you under Section 11.1.
11.3. Procedures. The party entitled to be indemnified (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party”) of any claim for which indemnification may be required under this Agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except if and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable claim. If the Indemnified Party notifies the Indemnifying Party of any claim asserted by a third party against the Indemnified Party that the Indemnifying Party acknowledges is a claim for which it must indemnify the Indemnified Party under this Agreement, the Indemnifying Party will be entitled to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include without limitation using reasonable efforts to provide or make available documents, information and witnesses.
11.4. THIS SECTION 11 (MUTUAL INDEMNIFICATION) REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF THE INDEMNIFYING PARTY AND THE EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION 11.
12. Limitation of Liability.
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (MUTUAL INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL AND PUNITIVE/EXEMPLARY DAMAGES TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT IN CONNECTION WITH A MISAPPROPRIATION OF INTELLECTUAL PROPERTY, OR OBLIGATIONS UNDER SECTION 2 (DATA PRIVACY) OR SECTION 11 (MUTUAL INDEMNIFICATION), THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER OR ARISING FROM THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE TO CONTIVIO.COM IN ONE (1) MONTH OF SERVICE OR THE EQUIVALENT OF $50 USD (WHICHEVER IS GREATER) PRECEDING THE APPLICABLE CLAIM UNDER THIS AGREEMENT.
13.1. Counterparts; Fax and/or Scanned Signatures. The Agreement may be accepted as set forth in the preamble above by signing the Terms of Service document and returning a signed copy to us by facsimile or a scanned copy through email to firstname.lastname@example.org. This Agreement (including any amendment thereto and/or Budgetary Proposal) may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile and/or scanned signatures are valid signatures for enforcement of the Agreement.
13.2. Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of law’s provisions. The parties consent to the jurisdiction and venue of the state courts located in Orange County, California and the federal courts located in the Southern District of California for any action relating to or arising from this Agreement or judgment upon the award entered.
13.3. Assignment. You may not assign this Agreement to a third party by operation of law or otherwise, without our prior written consent.
13.4. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
13.5. Independent Contractors. The parties are and will remain independent contractors. Neither party has any authority to act on behalf of the other party nor to bind it, nor in no event will the parties be construed to be partners, employer-employee, or agents of each other.
13.6. Interpretation. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.
13.7. Notices. Except as otherwise specified in the Agreement, all legal notices under the Agreement will be in writing and will be delivered or sent by (1) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (2) U.S. express mail, or national express courier with a tracking system, to the address specified in the applicable Budgetary Proposal. Notices will be deemed given on the day actually received by the party to whom the notice is addressed. Notices to you about the Services (or your use thereof) or your communications to us about support or other operational matters may be by email.
13.8. Entire Agreement; Order of Precedence. This Agreement constitutes the entire agreement between Contivio.com and you with respect to the subject matter hereof. This Agreement supersedes all negotiations, agreements, and undertakings between the parties with respect to such subject matter, including terms contained in any purchase order or similar document which you may submit to Contivio.com; and, the parties acknowledge that they have not relied on any representations outside of this Agreement in deciding to enter into this Agreement. If a Budgetary Proposal conflicts with these Terms, the Budgetary Proposal will prevail, but only with respect to the subject matter of the conflicting Budgetary Proposal.
13.9. Amendments. From time to time, Contivio.com may amend these Terms in its sole discretion. Contivio.com will post the amended terms on the Contivio.com website and will further notify you of any material changes by promptly sending an email or posting a notice in your Admin Account. By continuing to access or use the Services after Contivio.com has provided you with such notice of a change, you are indicating that you agree to be bound by the modified Terms. Any renewed subscription will be governed by Contivio.com’s then-current Terms.