Convoso Services Agreement

Last updated: 09/21/2020

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. Certain Convoso voice Services which may be offered from time to time are Voice over Internet Protocol (“VoIP”) services and are subject to additional terms and conditions, which are set forth in Addendum D.

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.

(d)     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.

(e)     Manual Platform. Convoso offers a product known as “Click-to-Comply” that only permits users to initiate calls/texts with human intervention for each call/text. Click-to-Comply cannot (i) randomly or sequentially generate and dial telephone numbers; (ii) function as a predictive or power dialer; or (iii) dial numbers in any other manner that does not involve human intervention for each call/text. If Customer utilizes Click-to-Comply, Customer and Convoso agree that neither will take any action that would give Click-to-Comply any of the foregoing functionality.

  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 applicable taxes and other governmental fees are the responsibility of Customer, including without limitation, federal and state Universal Service Fees (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 generally does not and is not required to provide emergency (911) services. and that, if a voice service offering does require or permit the dialing of 911 calls, Convoso’s service is different from and more limited than the 911 service available from traditional telephone companies. CUSTOMER ACKNOWLEDGES THAT, IF IT HAS ORDERED VOICE SERVICES, IT HAS READ AND UNDERSTOOD THE 911 NOTICE CONTAINED IN ADDENDUM D, AND CUSTOMER AGREES TO THE LIMITATIONS ON 911 SERVICE AND ON CONVOSO’S LIABILITY CONTAINED THEREIN.
  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.

“Click-to-Comply” is a Convoso Service that only permits users to initiate calls/texts with human intervention for each call/text.

“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:

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

ADDENDUM D

ADDITIONAL TERMS AND CONDITIONS FOR VOICE SERVICES

This Addendum is entered into and is a part of the Convoso Services Agreement (the “Agreement”) entered into between Convoso, Inc. (“Convoso”) and you or the entity you represent (“You” or “Customer”).  Capitalize terms not defined in this Addendum will have the meaning attributed to them in the Agreement.  Except as otherwise expressly stated herein, this Addendum supplements the Agreement and does not modify, amend or limit any provision of the Agreement.

READ THIS ADDENDUM CAREFULLY, IN ITS ENTIRETY, BEFORE USING THE VOICE SERVICE. CUSTOMER’S USE OF THE CONVOSO VOICE SERVICE WILL CONSTITUTE CUSTOMER’S ASSENT TO THIS ADDENDUM (OR RATIFICATION OF PREVIOUS ASSENT).  

1 SERVICES PROVIDED; CHANGES

1.1 Services Provided.  Convoso will provide the Customer with the particular  voice service(s) ordered by Customer on its Order Form  (hereinafter referred to as the “Voice Service”).  Customer’s current and future Order Forms for Voice Service shall be automatically incorporated into this Addendum effective as of the date on which Convoso accepts such Order Form.   

1.2 Additional Terms.  In order to obtain additional features, products or services which may be offered by Convoso with the Voice Service from time to time, Customer will be required to submit an Order Form in accordance with the Agreement.  Additional terms and conditions may apply to any such features, products or services.  

1.3 Changes to the Service.  Convoso may at its sole discretion modify the aspects, features, or functionality of the Voice Service without prior notice.  

2. USE OF THE SERVICE

2.1 System Requirements.  In order to use the Voice Service, Customer must, at Customer’s own expense, provide and utilize one or more industry standard, VoIP compatible devices in accordance with Section 3 of the Agreement; high speed broadband access; and certain software, and may be required to obtain updates or upgrades to the foregoing from time to time.  Customer’s ability to use the Voice Service may be affected by the performance of these items. Customer acknowledges and agrees that system requirements for the Voice Service may change from time to time and that adherence to the system requirements is Customer’s responsibility.  Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up its data and files in accordance with good computing practices.  

2.2 Registration.  Customer is required to register prior to using the Voice Service.  Customer agrees that any registration information shall be accurate, correct, and up to date, and Customer agrees to maintain and promptly update its registration information, including but not limited to the physical location of each Customer User.  Customer shall be responsible for maintaining the security of any required user names and passwords (including both for the Account Administrator and Customer Users), and shall not disclose them to any third party.  Customer shall be solely responsible to Convoso for all activities that occur under Customer’s account or subscription, including any unauthorized use.  Customer agrees to notify Convoso immediately via email upon becoming aware of any unauthorized use of Customer’s password, account, or subscription.  

2.3 Scope of Use/ Fair Usage.  Customer shall use the Voice Service only as permitted in the Agreement and this Addendum, and in accordance with applicable laws and regulations.  Customer shall use the Voice Service only for its internal business purposes.  Customer’s use of the Voice Service may be subject to certain restrictions and limits, including without limitation as to conference ports, number of Seats per subscription, and storage, which if applicable will be communicated by Convoso in the Agreement or by posting on Convoso’s website from time to time.  Customer may not transfer its Voice Service subscription to any other company or entity. 

2.4 Prohibited Uses.  In addition to the restrictions specified in the Agreement, Customer agrees not to use the Voice Service in a manner that is actually or potentially libelous, threatening, harmful, harassing, indecent, obscene, in violation of the intellectual property rights of any party, or is otherwise unlawful under any applicable law or regulation.  Customer agrees not to engage in any activity that interferes with or disrupts the Voice Service or associated servers, networks, or software; prevents or restricts other customers from using the Voice Service; or damages any Convoso or third party property.  Customer agrees not to reproduce, duplicate, copy, sell, trade, or resell the Voice Service provided under Customer’s account(s).  Except as permitted in the Agreement and Convoso documentation related to the Services ordered by Customer, and in strict accordance with applicable law, Customer agrees not to use the Voice Service for autodialing or predictive dialing; fax broadcast; transmitting broadcasts or recorded material; sending unsolicited messages or advertisements; telemarketing; call center operations or other bulk call-in lines.  Customer agrees not to use the Voice Service continuous or extensive call forwarding; constant dialing; iterative dialing; fax blasting; junk faxing; fax spamming; sending bulk and/ or junk email, voicemail, or faxes; taking any action to attempt to mislead others as to the identity of the sender or the origin of any communication; or any other activity outside the scope of reasonable internal business usage.  Customer agrees not to (1) re-classify or re-originate traffic or take any other action to intentionally make traffic appear as if it:  (i) is anything other than the type of traffic delivered to such called party (including but not limited to making TDM originated traffic appear to be IP originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated; or (2) modify, alter, or delete in any manner calling party number information, originating point codes, or any other signaling information or call detail in connection with the transport and termination of traffic to the called party.  Customer agrees not to access or attempt to access the Voice Service by any means other than the interface provided by Convoso, including but not limited to any automated means such as the use of scripts or web crawlers.  Customer agrees not to use any trademark, service mark, trade name, or logo of any company or organization in conjunction with the Voice Service in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo.  Customer will not record any communication using the Voice Service except as permitted by applicable law.

2.5 Convoso’s Remedies for Prohibited Use.  Convoso may take any lawful action it deems appropriate with respect to prohibited use of the Voice Service, including violations of Sections 2.3 and/or 2.4 hereof, or other use of the Voice Service in violation of the Agreement or this Addendum, or that it deems to be inappropriate or potentially disruptive to the Voice Service or networks of Convoso or any of its providers, carriers, vendors or licensors, Convoso’s rights and interests, or the rights of other customers.  Convoso’s remedies for Customer’s prohibited use of the Voice Service, include but are not limited to issuing warnings; disabling, suspending or terminating Customer’s Voice Service, subscription, accounts, or Customer Users; or increasing the monthly rates charged Customer for the period of Customer’s prohibited use and the remainder of the Order Form term.  Convoso may take such action without notice or liability to Customer or any other party, although Convoso shall have no obligation to take any such action. Convoso’s failure to take any such action in one instance shall not constitute a waiver of Convoso’s right to exercise any of the remedies in this Section 2.5 thereafter.

2.6 Customer Proprietary Network Information.  In the normal course of providing certain voice services, which Convoso now or hereafter may provide, Convoso may collect and maintain certain customer proprietary network information (“CPNI”) typical to the industry. CPNI includes the types of telecommunications and interconnected VoIP services Customer may purchase or subscribe to, how Customer uses those services (for example, Customer’s calling records), and billing information related to those services.  Customer’s telephone number(s) acquired from Convoso, name, and address do not constitute CPNI.  Convoso does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of Convoso and those parties authorized to represent Convoso to offer its services or to perform functions on Convoso’s behalf related to Convoso’s voice services, except as the law may require or Customer may authorize.  Federal law currently applicable to telecommunications and certain Voice Service that Convoso may offer from time to time generally permits Convoso to use CPNI in its provision of the telecommunications and interconnected VoIP services Customer purchases or subscribes to, including billing and collections for those services.  Convoso may also use or disclose Customer CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect Convoso’s rights or property, to protect against the unlawful use of Convoso services, or to protect other users.

The regulations regarding CPNI do not currently apply to all voice services. If the CPNI regulations apply to a Voice Service made available by Convoso and subscribed to by Customer, Customer may elect to prohibit Convoso’s use of Customer’s CPNI to market services other than services of the same type that Customer already purchases from Convoso by providing Convoso with Customer’s “opt-out” notice within thirty (30) calendar days of Customer’s Voice Service commencement via https://help.convoso.com/hc/en-us/requests/new.  If Customer fails to do so within such timeframe, Customer will be deemed to have given Convoso consent to use Customer’s CPNI to market services other than services of the same type that Customer already purchases from Convoso.  Restricting Convoso’s use of Customer CPNI will not affect Convoso’s provision of any service, nor will it necessarily eliminate all types of Convoso marketing.  

 

3. CUSTOMER’S CONTENT

3.1 Customer is solely responsible for the content of all information and communications sent, displayed, uploaded, posted, published, or submitted by Customer while utilizing the Voice Service (“Customer’s Content”) and for the consequences of doing so, including any loss or damage to Convoso  or any third parties.  Convoso has no responsibility to Customer or any third party for Customer’s Content.

3.2 Convoso reserves the right to, but shall have no obligation to, pre-screen, refuse, flag, filter, or remove any of Customer’s Content from the Voice Service at Convoso’s discretion without notice or liability to Customer or any other party.

3.3 Customer shall retain copyright and any other intellectual property rights Customer holds in Customer’s Content.  Customer shall remain solely responsible for protecting and enforcing such rights where applicable. Customer hereby grants to Convoso a non-exclusive, world-wide, royalty free, sub-licensable, transferable, perpetual, irrevocable license to use, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute Customer’s Content solely for the purpose of providing and distributing the transmission of such Customer Content, as is necessary to the successful provision of the Voice Service.  Customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.

3.4 Except as provided in the Agreement, Convoso shall have no obligation to store Customer’s voicemail, sent or received call logs, and/ or instant messages as part of the Voice Service, and Convoso has no responsibility or liability for the deletion or failure to store any of the foregoing.

4. OTHER USERS’ CONTENT

4.1 Convoso does not control and shall have no liability or responsibility for the 1) conduct or 2) content of any information and communications sent, displayed, uploaded, posted, published, or submitted by other users via the Voice Service, including but by no means limited to advertisements or sponsored content (item (2) collectively referred to as “Other Users’ Content”).  

4.2 Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Other Users’ Content unless specifically agreed to by the owners of such Other Users’ Content in a separate written agreement with Customer.  Customer shall indemnify Convoso in accordance with the Agreement for any unauthorized use of Other Users’ Content.   

5. REGULATORY FEES

Without limiting the generality of the provisions of the Agreement concerning taxes, Convoso may charge Customer various regulatory fees related to the Voice Service, including the following:

  1. Federal and State Universal Service Fee. Convoso is required to make contributions to the Federal and certain state Universal Service Funds (USF).  Convoso is permitted but not required to recover such costs from its customers.  USF rates are subject to change each quarter.
  2. 911 Fee. This fee is imposed by local governments to help pay primarily for the handling of calls for emergency services such as fire and rescue.
  3. 911 Service Fee. Convoso may charge a per-DID/ phone number fee to recover Convoso’s costs directly associated with providing 911 and E911 as part of those Voice Services where it does so.
  4. Regulatory Recovery Fee. Convoso may charge a monthly regulatory recovery fee to offset costs it incurs in complying with obligations imposed by, and inquiries made by, federal, state, and municipal regulatory bodies/governments and related legal and billing expenses.  This fee is not a tax or charge required or assessed by any government.  If assessed by Covoso, the regulatory recovery fee will apply to every directly dialable telephone number (in certain cases referred to as DID-phone numbers) assigned to Customer, including toll free and virtual numbers.
  5. Other Fees. Customer agrees to pay any other fees that may be levied on the Voice Services which are chargeable to customers by any governmental authority.  

 

6. 911/E911

6.1 911 availability.  IF A TWO-WAY INTERCONNECTED VOICE SERVICE IS OFFERED BY CONVOSO AND SUBSCRIBED TO BY CUSTOMER, THAT SERVICE WILL include a 911/E911 ACCESS component.  FROM AND AFTER JANUARY 6, 2022, CONVOSO’S OUTBOUND ONE-WAY VOICE SERVICE WILL ALSO INCLUDE A 911/E911 COMPONENT.  except as provided in the foregoing sentences, the voice service is not required to, and will not provide 911/e911 capability, unless otherwise stated by convoso in writing.  customer shall inform all users (whether or not the same are “customer users” as defined in the agreement) if 911/e911 access is not available through the voice service subscribed to by customer.

6.2 911 limitations and restrictions.  THE SERVICE’s 911/ E911 ACCESS COMPONENT, WHEN REQUIRED OR AVAILABLE, WILL NOT HAVE THE SAME FUNCTIONALITY OR AVAILABILITY AS THAT ASSOCIATED WITH TRADITIONAL WIRELINE 911/ E911 SERVICES and WILL BE subject to certain limitations and restrictions including those described herein.  CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICE OF THE 911/ E911 LIMITATIONS DESCRIBED HEREIN.  Customer acknowledges, and is hereby on notice, that the 911/ E911 ACCESS portion of A VOICE Service, IF REQUIRED OR AVAILABLE, will not function or will not function properly for any of the reasons detailed BELOW and represents and warrAnts it has BEEN INFORMED BY CONVOSO OF THE REASONS TO HAVE at least one backup method of accessing 911/e911 service, such as a circuit-switched TDM telephone or CELLULAR telephone, per custmomer location.

  • Loss or interruption of electrical power to Customer’s VoIP telephone, its ATA, Modem, Router, Switch or any other devices in the critical path from Customers VoIP handset to the Convoso switching center at the user’s location.  The user will not be able to use the Service for calls (including “911”) during such a power interruption or outage.  Following the power interruption or outage, users may find it necessary to reset or reconfigure the Voice Service prior to being able to use the Voice Service for making and receiving calls, including “911” calls.
  • Loss or interruption of Internet access at the user’s location.
  • Failure of the user’s broadband or VoIP hardware (including without limitation phones).
  • Failure of the user’s broadband or VoIP software (including without limitation soft phones).
  • Improperly installed or configured user broadband or VoIP hardware.
  • Improperly installed or configured user broadband or VoIP software (including without limitation soft phones).
  • Suspension, disconnection, or termination of the Voice Service for any reason, including without limitation (i) for failure to pay or default, or (ii) failure of the Voice Service to function for any reason.
  • Customer failed to provide Convoso with any physical location of the Convoso-served VoIP handset-user, or failed to provide the correct physical location of same (i.e., the address is incorrect, incomplete, abbreviated, or misspelled).
  • Customer failed to update the user’s physical location with Convoso when the user moved or changed location/address.
  • The user attempts a 911 call via a Convoso-served VoIP handset from a location/address different than the location/address registered with Convoso.
  • For the purposes herein (911/E911), the terms location and address shall be understood to designate information necessary to generate a proper Automatic Location Identification record ensuring proper routing to and from the proper PSAP for the call’s originating location.  Such location and address may include but not necessarily limited to the street name and number, building, unit, and zip code (e.g. Unit B-22, 1111 North Main Street, Anywhere, State, 99999).   

6.3 REQUIREMENT TO REGISTER AND UPDATE LOCATION INFORMATION.  CUSTOMER IS REQUIRED TO REGISTER THE PHYSICAL LOCATION OF EACH USER’S EQUIPMENT (PHONE OR SOFTPHONE) WITH convoso UPON ORDERING THE SERVICE AND UPON ADDING A USER/ USERS TO AN EXISTING SUBSCRIPTION VIA ENTERING THE PHYSICAL LOCATION OF THE USER IN THE ONLINE ORDER FORM.  CUSTOMER IS REQUIRED TO IMMEDIATELY UPDATE EACH USER’S LOCATION WHENEVER THE PHYSICAL LOCATION OF SUCH USER’S EQUIPMENT CHANGES VIA THE SETTINGS PAGE ON the DEVICE OR IN ACCORDANCE with OTHER INSTRUCTIONS PROVIDED BY CONVOSO FOR SUCH DEVICE. CUSTOMER ACKNOWLEDGES THAT, for voice service where 911 is required or available, THE PHYSICAL LOCATION REGISTERED FOR THE USER’S EQUIPMENT WILL BE THE LOCATION TRANSMITTED TO THE EMERGENCY CALL TAKER, AND THAT convoso’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER WILL BE THE THEN-CURRENT REGISTERED PHYSICAL LOCATION FOR THE USER’S EQUIPMENT.  IF CUSTOMER DOES NOT ACCURATELY IDENTIFY A USER’S LOCATION UPON ORDERING THE convoso voice SERVICE AND/OR DOES NOT UPDATE SUCH INFORMATION WHEN THE USER’S LOCATION CHANGES, 911 COMMUNICATIONS, when required or available, MAY NOT BE DIRECTED TO THE CORRECT EMERGENCY CALL TAKER.  WHEN CUSTOMER NOTIFIES convoso OF A CHANGE IN THE REGISTERED LOCATION OF A USER OF A VOICE SERVICE FOR WHICH 911 CALLING IS REQUIRED OR AVAILABLE, THERE MAY BE A DELAY IN MAKING THE NEW REGISTERED LOCATION AVAILABLE TO ROUTE 911 CALLS AND TO ADVISE THE APPROPRIATE EMERGENCY CALL TAKER OF THE NEW REGISTERED LOCATION.

6.4 WARNING LABELS/notice.  if the voice service subscribed to by customer is one for which 911 service is required or available, convoso may PROVIDE CUSTOMER WITH LABELS WARNING THAT THE 911/ E911 COMPONENT OF THE voice SERVICE MAY BE LIMITED OR NOT AVAILABLE.  if such labels are provided, CUSTOMER AGREES TO PLACE SUCH LABELS ON OR NEAR THE EQUIPMENT USED IN CONJUNCTION WITH THE voice SERVICE.  

6.5 ADDITIONAL 911/ E911 LIMITATIONS.  FOR VOICE SERVICES THAT REQUIRE OR PERMIT 911/E911 CALLING, THE LOCAL EMERGENCY CALL TAKER RECEIVING THE 911 CALL MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN NUMBER OR LOCATION INFORMATION.  THEREFORE THE EMERGENCY CALL TAKER MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE USER MAKING THE 911 CALL WHICH MAY DELAY OR PREVENT EMERGENCY SERVICES.  DUE TO TECHNICAL FACTORS IN NETWORK DESIGN AND IN THE EVENT OF NETWORK CONGESTION THERE IS A POSSIBILITY THAT, FOR VOICE SERVICES WHERE 911 CALLING IS REQUIRED OR AVAILABLE, A 911 CALL WILL PRODUCE A BUSY SIGNAL, WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, WIRELINE 911 SERVICES.

6.6 911/ E911 LIMITATION OF LIABILITY/ INDEMNITY.  convoso AND its affiliates, officers, directors, employees, consultants, agents, LICENSORS, suppliers, and resellers WILL HAVE NO LIABILITY to CUSTOMER, ITS USERS, OR ANY THIRD PARTY FOR, AND CUSTOMER WAIVES ALL CLAIMS AND CAUSES OF ACTION, ARISING OUT OF OR RELATED TO, CUSTOMER, ITS USERS, OR ANY THIRD PARTY’S INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER OR TO ACCESS AN EMERGENCY SERVICE OPERATOR OR EMERGENCY SERVICES. Customer hereby releases and agrees to indemnify, defend, and hold harmless CONVOSO, its affiliates, officers, directors, employees, consultants, agents, LICENSORS, suppliers, and resellers from any and all claims, liability, damages, losses, expenses, and/ or costs (including but not limited to attorneys fees and cost of suit) BY OR ON BEHALF OF CUSTOMER OR ANY THIRD PARTY OR USER arising from or related to the failure of 911/E911 to function or function properly or convoso’s provision of 911/ E911 services or failure to provide access to 911/ E911 services.  

  1. DID NUMBERS

When supply is sufficient, Convoso will make available to Customer a list of DID/ telephone numbers from which Customer may choose their DID/ telephone numbers, if applicable to the Voice Service subscribed to by Customer.  Customer will not be the owner of any DID/ telephone number (including fax numbers) assigned to Customer by Convoso, and Customer will not transfer or attempt to transfer its number(s) to anyone else (except as provided in Section 8.2 below with respect to Porting Out).  Convoso reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice.  Customer will surrender all rights to the DID/ telephone numbers and fax numbers upon termination of Customer’s Service if they have not been ported out in accordance with Section 8.2 below prior to such termination, and the numbers assigned to Customer may be reassigned upon termination of Customer’s Service.  Convoso will not be liable for any direct or indirect damages or incidental costs arising out of such reassignment.

  1. LOCAL NUMBER PORTABILITY

8.1 Porting In.  For certain Voice Service offerings that Convoso may make available from time to time, Customer may elect to port an existing DID/ telephone number to Convoso (“Port-In”) for use with the Service.  In the event the Voice Service permits Customer to Port-In a number, and Customer elects to do so, Customer must first select a temporary number from the list of DID/ telephone numbers Convoso presents to Customer at the time Customer orders the Voice Service, which will be used until the Port-In is complete.  Convoso will support all valid requests and will cooperate with Customer to perform any Port-In in accordance with Customer’s reasonable directions and Convoso’s operating procedures.  Neither Convoso nor its providers are responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Customer, Customer’s prior provider, or any third parties.

8.2 Porting Out.  For certain Voice Service offerings that Convoso may make available from time to time, Customer or a third-party provider acting as agent on behalf of Customer (“Requesting Party”) may request that Convoso port a number assigned to Customer by Convoso to a third party provider (“Port-Out”).  To the extent required by law and technically feasible for Customer’s Voice Service, Convoso will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and Convoso’s standard operating procedures.  In the event of any Port-Out, Customer agrees that until such time as the Port-Out is complete and Customer terminates the Voice Service for such DID/ telephone number, Customer shall remain bound by the terms of this Agreement related to that DID/ telephone number.  Once the Port-Out is complete, Customer must terminate the Voice Services associated with such ported DID/ telephone number in order to stop incurring charges for such DID/ telephone number.  Customer agrees that in the event of a Port-Out Customer shall remain responsible for paying the required monthly service fees in accordance with the Agreement until the Voice Service is terminated as provided therein.    

  1. 711 DIALING

Certain Voice Service offerings that Convoso may make available from time to time will allow dialing 711 to reach Telecommunications Relay Services (TRS).  In the event the user’s registered location is not the same as the user’s geographic location, 711 calls, if required or available through the Voice Service, may not be routed to the correct TRS center for the user’s location.

  1. SERVICE EXCLUSIONS

The Service does not include directory listings and operator and directory assistance and does not support 976 or 900 calls.  The Service may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in this Agreement) in all or certain service areas.

11. EXCLUSION AND DISCLAIMER OF WARRANTIES

11.1 IN ADDITION TO THE LIMITATIONS AND DISCLAIMERS IN THE AGREEMENT, CONVOSO PROVIDES THE VOICE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, WEBSITES, SERVERS, CONTENT, SUBSCRIPTIONS, AND ACCOUNTS, ON AN “AS IS” AND “AS AVAILABLE” BASIS.  CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S OWN RISK.  NEITHER CONVOSO NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARD TO THE SERVICES OR OTHERWISE RELATED TO THE AGREEMENT.  CONVOSO DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE VOICE SERVICES OR THAT THE VOICE SERVICES WILL PREVENT TOLL FRAUD.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONVOSO DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 

11.2 WITHOUT LIMITING THE GENERALITY OF SECTION 11.1 ABOVE OR THE PROVISIONS OF THE AGREEMENT, NEITHER CONVOSO, ITS LICENSORS, NOR SUPPLIERS SHALL HAVE ANY RESPONSIBILITY TO CUSTOMER FOR DAMAGE RESULTING FROM THE USE OF THE VOICE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOADING, OTHERWISE ACCESSING, OR USING ANY CONTENT, MATERIAL, OR DATA THROUGH THE VOICE SERVICE.  DOWNLOADING, OTHERWISE ACCESSING, AND USING SUCH CONTENT, MATERIAL, OR DATA IS AT CUSTOMER’S OWN RISK.

11.3 CONVOSO DOES NOT HAVE ANY RESPONSIBILITY FOR RETAINING ANY USER INFORMATION OR CONTENT OR COMMUNICATIONS BETWEEN USERS.

12. TERM; TERMINATION

The term of this Addendum shall that specified in the plan selected by Customer; provided that if the Agreement is terminated, this Addendum shall be terminated as of the effective date of termination of the Agreement.  Either party may terminate this Addendum as provided in the Agreement; provided that Customer may be liable for an early termination fee as provided in the Agreement.  

Upon termination, Convoso may deactivate or delete Customer’s Voice Service account and all related information and files therein and/or bar any further access thereto, and Customer shall have no further access to any DID/ telephone number(s) assigned to it by Convoso (unless the ability to Port-Out such phone number was required or available for Customer’s Voice Service, and Port-Out was completed prior to termination of this Addendum).  Unless the Agreement is also terminated, the termination or expiration of this Addendum will not affect the Agreement or any Order Form for non-voice services.