Convoso Services Agreement

Last updated: 02/04/2020

Welcome to Convoso. The terms set forth below govern your use of Convoso Services.  Please read it carefully before you begin using Convoso Services.  You will find defined terms (such as “Customer”) in Section 12.

Binding Agreement. Once you sign an Order Form, that means you, as Customer, have agreed to the terms set forth below. That means that this document, which includes its Schedules, Addenda and each Order Form is a legally binding contract between Convoso, Inc. and you, the Customer. It is called the “Convoso Services Agreement” or the “Agreement” (as defined in Section 12) and once you have signed the initial Order Form, you have agreed to be bound by this Agreement.

If you do not wish to be bound by this Agreement, do not sign an Order Form and do not use the Convoso Services. If you are using the Convoso Services and you do not wish to be bound by this Agreement, then you must cancel your order by following the procedure set forth in this Agreement. Please note that use by any user, whether authorized by you or not, who uses your account, is governed by this Agreement and you are liable for all actions of every such user.

The Agreement applies to your use of Convoso Services specified on the applicable Order Form once it is accepted by Convoso.

Please note: Depending on the plan you have selected, your account is limited to the number of “Seats” that you request, based on the plan you have chosen. Each “Seat” means one login by one user.

  1. Access to and Use of Convoso Services

(a)     Customer Access to the Convoso Services.  Convoso authorizes Customer to access and use, during the Term, the Convoso Services specified in the relevant Order Forms only for the authorized number of Seats and/or minutes of use, such access and use subject to Customer’s compliance with this Agreement

(b)     Order Process. In addition to accepting this Agreement, Customer shall submit its initial Order Form and subsequent Order Forms to increase or decrease Convoso Services Customer orders. (As noted under “Definitions,” each Order Form is incorporated into this Agreement once it has been accepted by Convoso.)

(c)     Responsible Use. Convoso provides tools for Customer’s responsible use and it is Customer’s sole responsibility for such use. Convoso does not monitor uploading of information, databases or audio messages.

Use in compliance with law is Customer’s complete responsibility and Convoso shall have no obligations whatsoever except as specified in this Agreement.

In addition to Customer’s agreement to other terms of this Agreement, Customer agrees that it shall comply with all applicable laws and, among such requirements:

(i)      Respect

  • Customer shall treat all Communication recipients with the utmost respect

(ii)     Affirmative Consent Where Required or Appropriate

  • If Customer does not have either consent or a business relationship with a Communication recipient as required by applicable law or legally valid exemption from, or legally valid exception to, such laws, then Customer shall not make that Communication
  • Customer has the records to prove that Customer had the necessary consent, business relationship or legally valid exemption from, or legally valid exception to, such laws at the time of the Communication
  • Customer understands that there may be different “levels” of consent for different Communications

(iii)    Proper Identification

  • In its campaigns and other uses of Convoso Services Customer shall provide valid contact information such as phone number and address within the initial greeting message or as otherwise required by law

(iv)    Other Prohibited Communications

  • Customer shall not make any Communications (e.g., calls and/or audio messages) to “life-line” services such as police and fire and other law enforcement agencies, emergency calling (e.g., 911), and others such as hospitals and other healthcare facilities, physicians and poison control centers where such Communications are prohibited by applicable law
  • Without proper consent from recipients or a legally valid exemption from, or legally valid exception to, applicable laws, Customer shall not send unsolicited messages that result in charges to such recipients, such as mobile phones, pagers and beepers
  • Customer shall not engage in the use of strings of numbers that result in connecting with two or more lines of a multi-line business
  • Customer shall not make Communications that violate applicable calling time restrictions
  • Customer shall not make Communications that violate laws applicable when such Communications are made

(v)     Removal

  • If a recipient requests that its number(s) be added to the “Do Not Call List” (DNC List) then Customer shall immediately do so
  • Customer understands that it can use the opt-out features relating to DNC and can contact Convoso about use of DNC Lists

(vi)    Applicable Law

  • Customer acknowledges that: (i) it is familiar, and shall remain familiar, with applicable law;  (ii)  it shall comply with all applicable laws;  and  (iii) it shall seek legal counsel when Customer might be unclear with compliance.  If Customer Communicates with numbers outside of the US, there will be additional laws governing such conduct
  • Customer agrees and acknowledges that this Responsible Use portion of the Agreement is not a complete list for compliance.

Customer can find additional information on some but not all of the applicable laws at our page:  <<Convoso.com/compliance>>.  Please note the information on “consent.”  All such information is provided as a courtesy only and is not part of this Agreement and shall not be used in interpretation thereof.  Customer shall seek legal counsel if Customer has any questions.

In addition to the above obligations Customer represents and warrants that its use of Convoso Services and data from such use shall comply with all applicable laws and including the laws of non-US jurisdictions in which use may result in jurisdiction over Customer actions. Customer hereby assumes all responsibility and liability for any violation of such representation and warranty.

(c)     Certain Restrictions on Use. Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make any Convoso Services available to any third party in any way; (ii) permit access to and/or use of any Convoso Services by more than the Seats specified in the relevant Order Form(s); (iii) modify, or make derivative works based upon, any Convoso Services, (iv) access any Convoso Services for any purpose not expressly authorized in the Agreement, including without limitation to develop a competitive product; (v) reverse engineer any Convoso Services or any other services provided by Convoso; and/or (vi) use any Convoso Services in a manner that: (A) violates any terms of the Agreement or otherwise conflicts with the general intent of the Agreement; (B) violates any applicable law or regulation or gives rise to a claim of such violation by the appropriate governmental agency or third parties granted rights under any applicable law or regulation; and/or (C) would in the opinion of Convoso violate Convoso’s intellectual property rights. Customer agrees and acknowledges that Customer shall be solely responsible for actions or omissions in the access to and use of Convoso Services by Customer Users.

  1. Certain Intellectual Property

(a)     Customer Intellectual Property.  Convoso understands, agrees and acknowledges that Customer owns all rights in and to the Customer Content and the Customer Data.  Convoso needs some rights in that intellectual property to enable Customer Users to use the Convoso Services.  For example, in using certain of the Convoso Services Customer might upload Customer Content such as training materials, employee contests and promotions and other content.  Convoso shall not have access to such content and data except for maintenance and enforcement purposes.

In order for  Customer to use those Convoso Services, Customer needs to grant Convoso a license to have that material on Convoso servers. Accordingly, Customer hereby grants Convoso a license to upload, store, display and modify (solely for purposes of uploading, storing, displaying and, for limited purposes, manipulating) the Customer Content and the Customer Data solely to enable Customer to view, manipulate and interact therewith and for Convoso to aggregate and anonymize data arising from Customer use of the Convoso Services for research, development and maintenance purposes and to keep an archived copy to respond to legal inquiries.

(b)     Convoso Content.  Customer can use the Convoso Content but Customer cannot and shall not download it or otherwise use it.  Its use is also subject to the restrictions set forth elsewhere in this Agreement.

(c)     Convoso Intellectual Property.  This Agreement does not grant title to any Convoso intellectual property.  Apart from the limited, non-exclusive and revocable rights specified in this Agreement, Convoso reserves all other rights.

  1. Customer Equipment

(a)     Compliance with Addendum A. In order for Convoso to be able to properly and effectively implement Convoso Services, Customer must ensure that it meets or exceeds the Customer Equipment requirements detailed in Addendum A. Customer’s non-compliance with specifications identified as “supported by Convoso” would mean that Convoso has no liability whatsoever for Customer’s use of the Convoso Services.

(b)     Customer Equipment Assessment. Although Convoso is not obligated to do so, Convoso may from time to time assess Customer Equipment to establish equipment suitability for use of Convoso’s services.  Customer agrees to cooperate with Convoso staff during this assessment. It will be Customer’s responsibility to adjust and/or otherwise optimize the Customer Equipment, whether the result of such assessment or otherwise, in order for Convoso to activate Convoso Services and for Customer’s account(s) to remain accessible.  Such assessments (and/or making recommendations) are not a guarantee or warranty, expressed or implied, that the Customer Equipment is or will be suitable to utilize Convoso Services. In the event that after an assessment the Customer Equipment is deemed to be unsuitable, then Customer will have the option to upgrade the Customer Equipment, per Convoso’s recommendations, or to cancel the Agreement prior to activation of Convoso Services and Convoso shall have the right to terminate this Agreement. Customer shall have no right to any refund and shall be liable for payment for use of and/or access to Convoso Services and shall be responsible for cancellation of its account in accordance with the Agreement.

  1. Effective Date, Renewal & Termination

(a)     Effective Date. The Agreement commences on the Effective Date, and will remain in effect until Customer cancels all outstanding orders and has paid all amounts due or if the Parties agree otherwise in a writing signed by each Party that expressly states that this Agreement is being terminated. An exchange of emails does not constitute such a writing.

(b)     Termination by Customer or Convoso. If Customer has selected a monthly plan then Customer can cancel its orders by providing written notice not later than thirty (30) days prior to the last day of the final Billing Cycle.  For all other plans (such as one-year plans), such notice must be provided not later than ninety (90) days prior to the last day of the final Billing Cycle. Orders that are not cancelled pursuant to this Agreement are auto-renewed, as specified below. Convoso shall have the right to terminate this Agreement as specified elsewhere in this Agreement. Certain provisions of this Agreement shall survive termination, as specified elsewhere in the Agreement.

(c)     Early Termination. Customer agrees to pay an early termination fee if Customer has entered into a contract of one year or longer and terminates before the end of the agreed-upon term.  For each year of the contract the early termination fee is equal to three months of fees payable by for the Convoso Services.

(d)     Automatic Renewal. In the event that Customer does not give the written notice of cancellation required for its type of plan, then the order in effect at the end of the relevant period will automatically renew for the same period as the previous plan, and Customer will be liable for any and all payments due per the terms of their selected Convoso Service(s). For example, a one-year plan will automatically renew for another year and a monthly plan will automatically renew for another month.  In the event that Customer has activated Seats (or acquired minutes for use) at various days of the month, the thirty (30) day cancellation policy shall continue to apply to all Seats activated in the preceding month—i.e., if the Customer has not provided the written cancellation as specified, then the Customer will be billed for all Seats (and other Convoso Services ordered) for all of the next Billing Cycle, irrespective of when in the preceding month those Seats were activated

(e)     Suspension or Termination; Other Intervention. In addition to other rights Convoso may have under this Agreement and under law, Convoso reserves the right to suspend or terminate Customer access to all or part of the Convoso Services and/or the Agreement, and, in addition, limit access to Customer records and data in the Convoso systems or, at the request of a government agency or court, restrict use of Convoso Services for particular numbers or enact other limits, up to and including termination of Customer use of the Convoso Services, if:  (i)  Convoso believes that there has been or will be a breach or other violation of the Agreement or of applicable law by Customer or other actions deleterious to Convoso or third parties;  (ii)  Customer actually (or Convoso believes that customer will do the following) files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for Customer or its business, provided that to the extent that this Agreement is determined to be an executory contract under 11 USC §365, it shall be considered to be an intellectual property license within the meaning of 11 USC §365(n); (iii) Convoso receives a legitimate request of a government agency or through a court for such termination or Convoso believes that, based on such contact (and any other factors) such suspension or termination should take place; or (iv) as specified in Section 3.

In the event that Customer is in breach of the Agreement due to a late payment, regardless of the cause of the delinquency or the amount delinquent, then Convoso may cancel the Agreement or temporarily suspend Customer’s account until such time that Customer pays any and all delinquent charges and fees owed. Customer will be responsible for all and any related fees and costs incurred by Convoso as a result of the delinquency. Convoso also reserves the right to apply any deposits or other amounts paid to Convoso by Customer towards the delinquent charges and fees and related fees and costs. In the event that Convoso takes any action to collect payment or to enforce any provision of the Agreement, Customer agrees to pay all costs of such action or suit incurred by Convoso, including reasonable attorney’s fees and any interest on any unpaid amount.  Customer agrees and acknowledges that Convoso shall have no liability whatsoever for any damages arising from termination or suspension by Convoso.

Convoso can reactivate Customer accounts after suspension if it believes, in its sole discretion, that the reason(s) for suspension have been resolved.  If Convoso terminates a Customer account, Customer shall still be obligated to pay for the Services through the term of the Plan selected.  Please note that Customer will still be responsible for all charges during any period of suspension.

  1. Maintenance, Outages and Data Security Obligations

(a)     Scheduled Maintenance; Data Transfer. Convoso will, from time to time, conduct scheduled and unscheduled maintenance and upgrades to the Convoso Services, and therefore, they may be inaccessible or inoperable. Convoso will use commercially reasonable efforts to perform maintenance so that Convoso Services may be restored in a timely fashion. However, Customer understands that some maintenance/upgrades might be more extensive than others and might take more time to implement and complete. Additionally, Convoso has the right but not the obligation to inspect messages sent by Customer.

(b)     Outages. Customer understands that, from time to time, the Convoso Services and other related services may be inaccessible or inoperable due to reasons such as the operation of Customer Equipment, telecommunications and network connections and/or causes that may include, without limitation, Force Majeure Events. Convoso will have no liability for such disruptions or the consequences thereof. Please note the limitations of liability specified in this Agreement.

  1. Billing for Customer and Payment Obligations

(a)     Initial Payment(s). Upon Convoso’s acceptance of the initial Order Form and prior to activation of the ordered Convoso Services, Customer must pay Convoso for all charges and fees due, consistent with the Order Form(s). Any and all payments due must be made by credit card or wire transfer of immediately available funds or such other payment processes specified in a Schedule. Convoso will not activate and/or deliver any service in advance of receiving immediately accessible funds for all amounts due. Convoso must also have on file a fully executed credit card authorization form prior to activating the Convoso Service(s).

(b)     All Payment(s) Are Pre-Payments; Auto-renewal. Customer agrees that all payments are pre-payments for access to Convoso Services. Convoso has no obligation to continue providing Convoso Services if Customer is not current with payments. While the initial payment may be made to Convoso by a payment method other than credit card, the renewal of Seats, activation of any additional Seats and/or activation of any Convoso Service by Customer subsequent to the Effective Date will be billed to the credit card on file (unless the Parties agree in a Schedule to alternative method(s) of payment as specified in a Schedule. Convoso may, in its sole discretion, choose to decline any such alternative payment methods). Customer authorizes Convoso to charge such amounts to the card on file (or such other method selected) and Customer hereby assumes all liability for payment of all amounts due. If Convoso accepts the receipt of an alternative payment method, it will be Customer’s sole responsibility to ensure that payments through any such alternative payment method are delivered to Convoso in time in order to ensure the timely renewal and/or activation of any Seat and any other Convoso Service. Convoso will not be responsible for any Seat and/or other Convoso Service that is cancelled and/or not activated due to it not receiving payment in a timely fashion.

(c)     New Credit Card.  In the event that Customer desires to designate a new credit card, then Customer must (i)  give Convoso timely written notice of its intent to change its method of payment, in no event less than fifteen (15) days prior to the effective date of such change;  and (ii)  provide Convoso with a fully executed credit card authorization form that will be provided by Convoso to Customer, once Convoso receives the written notice.  Convoso must be able to charge such card prior to renewal.

(d)     Past Due Balances. In the event that Customer is past due on any balance due, whether because their credit card is declined or otherwise, Customer will be subject to:

(i)      An interest charge of 1.5% per month for all past due sums (unless such amount is prohibited in Customer’s jurisdiction, in which case it will be the highest amount permitted)

(ii)     Suspension or cancellation of their account for Convoso Services, and liability for any and all costs and fees Convoso incurs in suspending or terminating Customer’s account and/or in attempting to collect past due balances, including costs and attorney’s fees.

(e)     Chargebacks; Collection of Fees.  If a chargeback occurs, then Convoso shall have the right, in its sole discretion, to revoke access to Convoso Services and to invoice Customer for the full disputed amount regardless of the outcome of this right, and will be entitled to such sum within ten days of invoicing. In the event that Customer is past due on any balance due, Convoso may at its discretion give Customer reasonable time to cure the delinquency, but Customer must still pay any and all interest accrued on the past due balance. Customer agrees and acknowledges (i) that payment of such interest does not discharge the debt of Customer to Convoso and (ii) that Customer remains liable for such amounts owed. However, if Customer does not cure the delinquency and make such payments in the time specified by Convoso, then Convoso may, at its discretion, exercise any and all legal collection rights to collect all past due balances, in addition to accrued interest and costs and fees incurred by Convoso in its collection efforts, as well as any other remedies Convoso may have at law or in equity.

(f)     Taxes. All taxes and other governmental fees are the responsibility of Customer, including without limitation, the Universal Service Fee Tax (and all penalties). Customer is responsible for calculating such taxes. Customer agrees that if Convoso must pay for any taxes and/or penalties arising from Customer’s use of the Convoso Services then Customer shall promptly reimburse Convoso within fourteen (14) days of demand by Convoso.

(g)     No Refunds. Customer hereby acknowledges and understands that Convoso does not provide any refunds or credits and any and all payments to Convoso are considered final.

  1. No Warranty. CONVOSO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CONVOSO SERVICES OR ANY CONTENT. CONVOSO DOES NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, (2) THE SERVICES AND/OR DATA OR OTHER INFORMATION ACQUIRED BY USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE SECURE, COMPLETE, TIMELY, ACCURATE OR RELIABLE, (4) THE CONVOSO SERVICES AND THE NETWORK(S) AND/OR HARDWARE USED BY CONVOSO ARE FREE OF VIRUSES, OTHER MALWARE OR OTHER ELEMENTS THAT MIGHT BE INJURIOUS. THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. THE CONVOSO SERVICES MAY BE SUBJECT TO OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELECOMMUNICATIONS AND OTHER FORMS OF COMMUNICATIONS AND CONVOSO IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CONVOSO. NO ADVICE, INFORMATION OR ACTION FROM CONVOSO OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  2. Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL CONVOSO BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LOSS, DAMAGE OR LIABILITY RELATING TO: (A) LOSS OR CORRUPTION OF DATA; (B) INABILITY TO ACCESS THE CONVOSO SERVICES; (C) PERFORMANCE RELATED DELAYS; (D) COMPUTER VIRUSES; (E) LOSS OF BUSINESS DUE TO INOPERABILITY OR PERFORMANCE OF CONVOSO SERVICES; (F) NON-DELIVERY OR MIS-DELIVERY OF COMMUNICATIONS; (G) THE NEGLIGENT ACTS OF OTHER CONVOSO/SUBSCRIBERS; (H) ANY DEFECTS, FAILURES, ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION DELIVERED BY OR PROVIDED FOR DELIVERY BY THE CONVOSO SERVICES; (I) USE OF ANY CONVOSO PRODUCTS AND/OR SERVICES THAT COULD OR DOES GIVE RISE TO CLAIMS BY THIRD PARTIES OR GOVERNMENT AGENCIES OF A VIOLATION OF LAWS OR REGULATIONS; AND (J) LOSS OR LIABILITY RESULTING FROM ACTS BEYOND CONVOSO’S REASONABLE CONTROL. IN NO EVENT WILL CONVOSO’S TOTAL LIABILITY OF ANY AND ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO CONVOSO BY CUSTOMER IN THE AGGREGATE FOR THE MONTH IN WHICH THE CAUSE OF ACTION OCCURRED AND ONE MONTH BEFORE AND AFTER SUCH MONTH.
  3. Indemnification. Customer agrees to indemnify, hold harmless, and defend Convoso and its affiliates, subsidiaries, successors, assignees, shareholders, directors, officers, employees, contractors, representatives, and agents (collectively, “Convoso Indemnitees”) from and against any (real or threatened) action, cause, claim, governmental investigation, lawsuit, damage, settlement, fine, injury, penalty, debt, demand, or liability, including reasonable costs and attorney’s fees (collectively, “Losses”) arising out of or relating to (i) Customer’s actual or alleged breach of the terms of this Agreement; (ii) Customer’s actual or alleged violation of any applicable law; or (iii) Customer’s gross negligence or willful misconduct. Convoso agrees that it will provide Customer with reasonable notice of any claim, threatened or made, or suit instituted against it that could result in a claim for indemnification; however, any delay in providing notification will not release Customer of its indemnification obligations except to the extent such delay materially prejudices Customer’s ability to defend against the claim. Customer may elect to assume the defense of such claim at its own cost and expense and Convoso will have the right to be represented by its own counsel at its own cost in such matters. Customer will use counsel acceptable to Convoso. Convoso agrees that in the event that indemnification is sought under this provision and Customer elects to assume defense of the claim, Convoso shall furnish Customer, upon request, all reasonable information and assistance for defense against any such claim, suit, or demand, to the extent permitted by law or court action and taking into account any non-disclosure obligations Convoso may have. Customer will not settle or dispose of any such claim in any manner that would adversely affect the rights or interests of Convoso without Convoso’s written consent. Please note that this indemnification is in addition to any other indemnification obligations Customer may have with Convoso.
  4. Compliance with Law. Customer hereby covenants that it shall use Convoso Services in strict compliance with all applicable federal, state and local laws rules or regulations of the United States and any other jurisdiction that are applicable to Customer’s use of the Convoso Services, including, but not limited to: prohibitions against the use of unfair, deceptive, or abusive acts or practices; laws, ordinances, regulations, and orders relating to privacy, data security, and the processing, storage, protection, and disclosure of personal information; and laws, ordinances, regulations, and orders relating to the marketing and sale of goods and services to consumers, including, but not limited to, the Telemarketing and Consumer Fraud and Abuse Prevention Act (TCFAPA), the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA), and any rules or regulations (including court interpretations) arising from or relating to any of the foregoing, as well as the rules, regulations and other actions of state, federal, and non-US agencies that have jurisdiction, including, but not limited to, the FTC, Consumer Financial Protection Bureau, and Federal Communications Commission (FCC).  A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use Convoso Services for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into, and during the term of, the Agreement to determine the extent of permissible activities. Customer agrees that Convoso will not be responsible for Customer’s use of the Convoso Services and other services and that Customer will indemnify Convoso for violations of law as specified in this Agreement. Customer will promptly and fully comply with all requests for information or interviews made by Convoso to investigate Customer’s compliance with applicable laws and regulations.
  5. 911 Emergency Services. Customer understands and acknowledges that Convoso does not and is not required to provide emergency (911) services. Emergency services are defined as 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 provided by Convoso do not permit the dialing of “911″ or any other emergency telephone numbers. Convoso services are not telephone or telecommunications services that can provide a connection to emergency services personnel or a PSAP under any circumstances. Therefore, Company must have access to telephone or other telecommunications services to make an Emergency Service call.
  6. Definitions

“Activation Date” means each date that Convoso activates Convoso Services for which Customer has made payment.

“Addendum” means the documents entitled “Addendum A,” “Addendum B” and “Addendum C” and subsequent documents provided by Convoso and marked as Addendum, and each as amended from time to time, each of which is incorporated into this Agreement.

“Agreement” and “Convoso Services Agreement” means (i) this document or (ii) a written agreement signed by both Parties that either expressly supersedes or amends this Agreement and is on file with Convoso, in both cases of (i) and (ii) including each Addendum, Schedule and Order Form added in compliance with this Agreement.

“Billing Cycle” means the period between each Billing Date. By way of example and for purposes of clarification, if Customer initially activated its Convoso Service on February 15th then the next Billing Cycle would start on March 15th and the subsequent Billing Cycle would start on April 15th and so on.  If additional Seats or other Convoso Services are activated during a Billing Cycle but not on a Billing Date, then the fee for each such additional Seat would be pro-rated until the end of the Billing Cycle in which they were ordered and the full amount would be billed for the next Billing Cycle.

“Billing Date” means the date that Convoso uses to calculate payments for each Billing Cycle.

“Communication” means the use by a Customer of one of the Convoso Services (such as TalkPro, various types of SMS services, RVM, Conversational AI Agent, Workflow Triggers and Voice Broadcasting, provided through the Convoso Contact Center) to contact an individual, e.g., a call, an SMS message, a text and so forth.  “Communicate” is the verb for effecting such Communication.

“Customer” means the entity that enters into this Agreement and submits Order Forms during the Term and, as to limitations on use of the Convoso Services, also includes all users who obtain access to such Convoso Services through Customer’s account.

“Customer Content” means the content that Customer uploads for use of certain of the Convoso Services (e.g., employee training).

“Customer Data” means the data Customer uploads for use of certain of the Convoso Services.

“Customer Equipment” means any and all software, databases, desktops/PCs/other devices, bandwidth connectivity, firewall/router, network configuration, internal network system and network equipment.

“Customer User” means each person who uses any number of Convoso Services through one or more accounts of Customer.

“Customer User Data” means the data on use of the Convoso Services that is aggregated and anonymized by Convoso to determine the effectiveness of, and to enhance, Convoso Services. For example, the aggregated data may indicate that a particular feature should be changed.

“Content Use Data” means the data resulting from use of Customer Content and Convoso Content by Customer Users.

“Convoso” means Convoso, Inc., and its successors-in-interest.

“Convoso Contact Center” means the core components of the Convoso Services, including, for example, the various types of SMS services, RVM, Conversational AI Agent, Workflow Triggers and Voice Broadcasting, provided through the Convoso Contact Center.

“Convoso Content” means content Convoso uploads to the Convoso Platform for use by Customer of certain features and functionality of Convoso Services.

“Convoso Platform” means the website and applications underlying it through which the Convoso Services are accessed and used, in most cases through a browser.

“Convoso Services” means each service option that, during the term of the Agreement, Convoso provides.

“Conversational AI Agent” means one of the features of the Convoso Contact Center that enables a Customer to handle incoming calls through use of computers or a “bot” that permits users to provide information orally or through their keypads.

“Customer” means the entity that enters into this Agreement and submits Order Forms during the Term and, as to limitations on use of the Convoso Services, also includes all users who obtain access to such Convoso Services through Customer’s account.

“Customer Content” means the content that Customer uploads for use of certain of the Convoso Services (e.g., employee training).

“Customer Data” means the data Customer uploads for use of certain of the Convoso Services.

“Customer Equipment” means any and all software, databases, desktops/PCs/other devices, bandwidth connectivity, firewall/router, network configuration, internal network system and network equipment.

“Customer User” means each person who uses any number of Convoso Services through one or more accounts of Customer.

“Customer User Data” means the data on use of the Convoso Services that is aggregated and anonymized by Convoso to determine the effectiveness of, and to enhance, Convoso Services. For example, the aggregated data may indicate that a particular feature should be changed.

“Effective Date” shall be the date that Customer signs this Agreement, which can occur by executing the initial Order Form.

“Force Majeure Event” means an event beyond either Party’s reasonable control, including acts of war or terror, criminal acts, riots, natural disasters, electrical shortages, blackouts, acts of war or terror, civil disturbance, acts of god or nature, strikes, national emergencies, or acts of any court or government, network system failure of communications systems (such as the Internet backbone or connections to the Internet other than those under direct control of a Party) and malware, DoS attacks, or variants thereof (e.g. “DDoS”) and other malicious acts occurring through the Internet or other digital communications networks.

“Mass Texting” is a type of SMS by which one person sends a test message to more than one person, usually a larger group of people and in all cases with consent required by applicable law from each recipient.

“Order Form” means each document that Customer signs and submits to Convoso and Convoso approves, which specifies the initial Convoso Services ordered and all subsequent increases and decreases in Convoso Services ordered. Each Order Form is incorporated into this Agreement by this reference.

“Party” means each of Convoso and Customer and “Parties” mean each Party.

“RVM” means a system for leaving messages without, or prior to, the receiving telephone number ringing to indicate a call coming through on that number or line.

“Seat” means the login by each Customer User (or Agent) to the Convoso Services.  If Customer signs up for the “Per Minute Plan” then the Seat can be used for the entire twenty-four hours of each day.  If Customer signs up for the “Unlimited Minute Plan” then a “Seat” is limited to one login for use up to eight hours per day—i.e., one login, such login and use limited to 8 hours per day. Customers signed up for the Unlimited Minute Plan who require more than 8 hours of use per Seat must order additional Seats.

“Schedule” means each document (other than an Order Form) the Parties intend to add to this Agreement during the Term that expressly states that it modifies this Agreement and that each Party executes (by which it is then incorporated into this Agreement). An exchange of emails does not constitute a valid Schedule for purposes of this Agreement.

“SMS” means the digital text messages that can be sent through Convoso Services and includes Mass Texting and Two-way Texting.

“TCPA” means the Telephone Consumer Protection Act of 1991, as amended.

“Term” means the period specified as such on the initial Order Form, plus the period necessary for Customer to fulfill its obligation specified in Section 4(a), provided, however, that the Term shall be a shorter period if the Agreement is terminated in accordance with Section 4 or other rights of termination specified elsewhere in the Agreement.

“Two-way Texting” is a feature of Convoso Services that enables a sender to send and receive text messages, usually by short codes or long codes (also known as virtual mobile numbers).

“Usage-based Services” means the Services provided on a per-minute, per-message or similar metric, e.g., call minutes for voice calls and SMS.

“Usage-based Adjustments Policy” means the policy provided from time to time by Convoso specifying the procedure for adjusting, and paying for such adjustments to, orders for Usage-based Services during any given Billing Cycle(s).

“User” means each person accessing the Convoso Services through the Customer account.

“Voice Broadcasting” is a feature of Convoso Services that can play an automated message and a person can press an option to get to a live agent or just continue the message.

“Workflow Triggers” means the Convoso Service that enables the system to trigger a Communication using certain other Convoso Services such as RVM, SMS, etc.

  1. Miscellaneous

(a)     Governing Law. The laws of the State of California and the United States shall govern the Agreement without reference to conflicts of laws. Customer hereby agrees to the exclusive and personal jurisdiction of courts sitting in Los Angeles County, California.

(b)     Amendments and Modifications. Except for Addendum A, Addendum B and Addendum C, this Agreement cannot be amended or otherwise modified except in a writing signed by authorized representatives of each Party, which writing expressly states that such writing amends or otherwise modifies this Agreement (e.g., a Schedule) or by Convoso modifying the terms of this Agreement at any time, effective once Convoso provides notice online to Customer and posting the updated version of this Agreement. Customer consents to the new terms by continuing to use the Convoso Services after the posting. An exchange of emails does not constitute a valid writing for purposes of this Agreement.

(c)     Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by Convoso shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of the Agreement is determined to be invalid under any applicable law, the balance of the Agreement shall remain enforceable.

(d)     Survival. Sections 2(a) and (c) shall survive indefinitely; Sections 6(d), (e) and (f) shall survive until all liabilities thereunder are resolved; Sections 7, 8, 9; 12 and 13 shall survive for as long as there may be liability for Convoso.

(e)     Assignment. Convoso is licensing and granting access to the Convoso Services and any other Services to Customer, and accordingly Customer may not assign the Agreement or any of its rights or obligations hereunder without the prior written consent of Convoso. Any attempted assignment without such prior written consent shall be void, and will be considered a material breach of the Agreement.

(f)     Attorneys’ Fees. In any legal action at law or equity that is brought by one of the Parties to enforce or interpret the provisions of the Agreement, Convoso will be entitled to reasonable attorneys’ fees and other expenses.

(g)     Notices. All notices given per the Agreement must be in writing and shall be deemed as given: (i) three (3) business days after said notice is placed in the mail with the United States Postal Service, with a tracking number, first class postage prepaid, or (ii) two (2) business days after said notice is mailed via a reputable carries such as FedEx, or (iii) upon confirmed receipt of an email to an authorized representative. Persons identified by each Party to the other Party for support and Usage-based Services are hereby deemed authorized representatives with respect to those subject matters only. Any notice given by Customer, including without limitation, notices of cancellation of service, must comply with the above and Customer must be able to provide proof of delivery of any notice give, otherwise the notice will be null and void. For the purposes of the Agreement, proof of service will include tracking numbers for notices mailed, delivery verification receipt if sent via email. Contact information shall be as set forth in the initial Order Form, as changed from time to time in accordance with this notice provision.

In addition, all notices required by this Agreement must also be sent by email to legal@convoso.com.

(i)      Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the Parties regarding such subject matter. Exchanges of emails do not constitute an agreement or amendment or other modification to this Agreement except to the extent that emails permitted for Usage-Based Services Adjustments alter only Usage-based Services and/or payment therefor.  Similarly, no changes made by Customer to the terms of any Order Form or any terms included in payments, constitutes an amendment or other modification to this Agreement, unless accepted by an expressly authorized Convoso representative.

 

The Parties have executed this Agreement by persons duly authorized as of the Amendment Effective Date.

Addendum A

Convoso Services Agreement Technical Requirements for Customer Equipment

  1. a) Internet Connectivity/VoIP Bandwidth. If you wish to utilize Convoso technical support, Convoso requires that each Customer User (i.e., agent) have a minimum of 5 Mbps Internet connection (includes CTI data and voice traffic) in both directions, measured at your Internet connection in both directions, if you run Convoso Services concurrently with typicalbusiness applications and 1 Mbps with only the Convoso Services open. The Convoso Services alone will use approximately 250 kbps upload and download per Customer User. Insufficient bandwidth will impede and in some cases prevent the Convoso Services from effective operation. Please note: International connections are subject to higher latency during peak hours, which can affect the quality of service.

(b) Firewall/Router Configuration. All outbound TCP ports must be open to the Convoso Data Center. Inbound UDP ports for RTP (VoIP) traffic should be open from the Convoso Data Center—(the minimum ports are: 6000, 6001, 8000, 8001. UDP/TCP port 5060 for SIP (VoIP) as well as UDP range 10000-20000 (voice) traffic (bi-directional) must be available to the Convoso Data Center. Other Firewall requirements may be necessary depending on your network and your configuration of your Firewall.

(c) Customer’s internal network configuration. Internet Service Provider (ISP) issued Modem and Router combo devices are not supported by Convoso.  If you choose to use an ISP issued modem and router combo, then devices must be placed in passthrough/bridge mode with all router technology disabled.  Convoso requires that you acquire a public IP address for each Media Gateway. The router should be connected to the Internet using a static IP address; double NAT is not permitted.

(d) Headsets and PC connections. Recommended headsets are business quality USB connected headsets that have active noise-canceling capabilities for the best possible voice quality.  Convoso does not support

(e) Minimum Workstation (PC) Requirements. Convoso requires that each Customer User is accessing the Convoso Services via the Customer User desktop computer. Netbooks are cannot be used.

Processor:

Minimum: Intel i3 CPU (or AMD equivalent) 1.4GHz Dual core or better

Customer support provided: Intel i5 CPU (or AMD equivalent) 2.0GHz Quad Core or better

Operating System: 

Minimum: Windows OS that are still supported by Microsoft (64-bit) and above. Mac 10.2 and above

Customer support provided: Windows 10 and above. Mac 10.2 and above

RAM (per agent PC): 

Minimum: 4GB devoted solely to Convoso Services

Customer support provided: 8GB devoted solely to Convoso Services

Required Browser: Google Chrome Web Browser (Latest version).

 

Additional detail can be found at the following links on the Convoso site:

 

https://help.convoso.com/hc/en-us/articles/360026568813-Networking-Guidelines

https://help.convoso.com/hc/en-us/articles/360000276674-TalkPro-Minimum-Network-and-System-Requirements
https://help.convoso.com/hc/en-us/articles/226937347-Router-Recommendations-and-Setting-Guidlines

https://help.convoso.com/hc/en-us/articles/360024909774-Blacklist-Routers-with-known-SIP-Issues

Addendum B

Convoso Services Agreement—Support Services

  1. Designated Contact.Customer must designate up to two (2) of its employees as designated technical contacts (or more as agreed in writing by the Parties). Unless otherwise agreed in writing by the Parties, these contacts will undergo Convoso product training included in any Order Form (or otherwise provided by Convoso at its discretion). The designated contacts are the only individuals who are authorized to create tickets and/or contact Convoso regarding any issues related to the Convoso Services. Inquiries from individuals other than the designated contacts will be referred back to the designated contacts on file. Customer’s designated contacts are responsible for training Customer’s employees and staff. Convoso will not support any issues or questions that are due to lack of training or poor training by the designated contacts. Customer may change the designated contacts at any time by contacting Convoso in the manner specified in the Agreement.
  2. Technical Support

(a)     Procedure. If Customer has any questions or issues, then Customer MUST follow the procedures below in the order specified:

(i)      Customer will direct any questions to its designated contacts.

(ii)     If the designated contacts cannot address the question, then they should refer to Convoso’s customer support page at help.convoso.com. This URL contains frequently asked questions and provides various downloads necessary to support Convoso Services.

(iii)    If the matter cannot be resolved via Convoso’s customer support page, then the designated contacts may create a ticket via help.convoso.com. Convoso staff will review and prioritize the ticket accordingly, and will attempt to resolve the issue via the assigned priority level of the ticket. Convoso has no obligation to provide support on Customer Equipment that does not comply with Addendum A. You can contact Convoso through this procedure but Convoso can elect to decline.

(iv)    Customer’s designated contacts may contact Convoso in order to discuss the issue if a ticket has been created.

Convoso staff will address questions that have a respective ticket ONLY. No questions or issues will be handled by Convoso staff unless Customer has created a ticket. Customer also acknowledges that Convoso will require a reasonable amount of time to review the ticket internally and to begin to troubleshoot the matter. Therefore, Customer must wait a reasonable amount of time before contacting Convoso, once a ticket has been created.

(b)     Information to Provide.  When creating a ticket and/or contacting Convoso in order to troubleshoot an issue, Customer must be prepared to provide various technical information such as, but without limitation, network set up (how hardware is connected), type of connection, type of router/firewall, type of gateway, type and model of phone, type of operating system and version, version of java installed, full description of the problem, accurate list of steps to reproduce the issue, username, password, IP address and/or domain name.

  1. Priority Issues. This Section gives an overview of how Convoso will prioritize Customer’s tickets.

(a)     Priority 1:  Critical Issue. Any issue which precludes Customer from any operation of the service(s), such as recurring server crash, high number of phone call crashes, complete audio loss or any such related issue which prevents Customer from its operations of the Convoso Services or related services.

(b)     Priority 2:  Moderate Issue. Any issue with precludes Customer from some of the operation of the service(s), but where the majority of the functions are still usable, such as inability to use one of the product features, some dial errors or product does not conform to full specifications but is still functional.

(c)     Priority 3: Minor Issue. Any issue which does not significantly affect the service(s), such as cosmetic interface issues or any other issue.

  1. Exclusions. In addition to other exclusions specified elsewhere, Convoso shall have no obligation to support issues relating to Customer Equipment that does not comply with Addendum A and/or caused by Customer’s negligence, hardware malfunctions, any issue beyond the reasonable control of Convoso, software installed in a hardware or operating environment not supported by Convoso, software not licensed directly from Convoso and/or Customer’s internal network or Customer’s ISP provider issues, and lack of training or poor training by the designated contacts of Customer’s staff and employees.
 

Addendum C

Data Retention Policy

Due to the various storage demands, Convoso retains the right to periodically purge customer data from Convoso owned or managed servers, to maximize system performance for all customers. It is Customer’s sole responsibility to download, maintain and preserve its data if Customer so chooses. If Customer chooses to download, maintain and preserve the data, Customer is responsible for setting up and designating servers and any other equipment on which the data is saved. Certain types of data may be stored by Convoso for an additional fee. Customer should contact Convoso if Customer intends to make arrangements for Convoso to store certain data.

The information below details Convoso’s minimum data retention periods:

  1. CRM Data 90 Days Retrieve with Lead Sheet Reports
  2. CRM Session Data 90 Days Retrieve with Lead Sheet Reports
  3. Call Logs 60 Days Retrieve with Call Log Reports
  4. Campaign State 90 Days Retrieve with List Status Reports
  5. Dialing Lists 90 Days Retrieve with Lists / Export
  6. Recordings Sooner of 30 Days or successful offload Via ftp
  7. Callbacks 90 Days after “Complete By Date” Export in Administrator