These Terms of Service (together with the documents referred to herein) tell you the terms and conditions on which you may make use of our Service.
1. DEFINED TERMS
In this Agreement, save where the context requires otherwise, the following words and expressions have the following meaning:
"Account" means a registered account with us to access and use the Service;
"Account Manager" means the person who manages your Account and who authorizes your users to have access to the Service;
"Agreement" means the agreement between Conversocial and you on these Terms of Service, the Order Form and the terms in the Plan you choose;
"Authorized Users" means your Account Manager, your employees or temporary workers that your Account Manager authorizes to access and use the Service up to the maximum number of users permitted by us or the Plan you select;
"Confidential Information" means information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary;
"Conversocial", "we", "us" or "our" means Conversocial Inc., a Delaware company headquartered at 902 Broadway, 6th Floor New York, New York, 10010, with Tax Identification Number 46-0976692;
"Customer Data" means the data we host on your behalf as a result of your use of the Service including (without limitation) any data inputted by you or your Authorized Users;
"Intellectual Property Rights" means (a) patents, trademarks, service marks, registered designs, applications for any of those rights, trade and business names (including Internet domain names), unregistered trademarks, unregistered trade and business names, database rights, copyrights, rights in designs and inventions; and (b) rights of the same or similar effect to those specified in paragraph (a); in each case, in any jurisdiction;
"Minimum Term" means the minimum duration of this Agreement as set out in the Order Form;
"Order Form" means the order form you sign which amongst other things, sets out the Plan and fee;
"Plan" means the plan you choose as set out in your Order Form or when you upgrade your Plan in accordance with the terms of clause 3(f) of this Agreement;
"Renewal Period" means successive periods of 12 months from the expiry of the Minimum Term;
"Service" means the social customer software product we make available as a service via the Site;
"Site" means www.conversocial.com;
"you" or "your" means the company or any other entity or organization acting through the Account Manager or other representative signing up for the Service as indicated on the Order Form.
2. DURATION
a) This Agreement shall commence on the date of the Order Form and shall continue for the Minimum Term and, thereafter, shall be automatically renewed for the Renewal Periods until or unless:
i) either party notifies the other party of termination, in writing by giving at least 90 days' notice prior to the expiry of the Minimum Term or a Renewal Period; or
ii) it is otherwise terminated in accordance with the provisions of this Agreement.
3. ACCESS TO THE SERVICE
a) We grant you a non-exclusive, non-transferable, personal and non sub-licensable license to permit Authorized Users to use the Service for the purpose of managing your social media accounts during this Agreement. By connecting to Service with a third party service, you give us permission to access and use your information from that service as permitted by that service, and to store your login credentials for that service.
b) You must only use the Service to manage your own social media accounts and not the accounts of any third party including your client's, unless we agree otherwise in writing;
c) In relation to Authorized Users, you shall ensure that:
i) the maximum number of Authorized Users that your Account Manager authorizes to access and use the Service shall not exceed the number specified in your Plan or otherwise agreed in writing by us;
ii) each Authorized User shall keep secure and confidential a login and password for his or her use of the Service and shall not disclose such login and password to any other person including persons within your organization, company or business.
d) If we discover that any Authorized User is sharing their login details or passwords with any other person, we may terminate this Agreement immediately and you will pay us for the use of the Service by each additional person we find to be using the Service.
e) Your Account Manager may delete Authorized Users' accounts and authorize other users to access and use the Service provided that the number of Authorized Users permitted to access and use the Service does not exceed the number specified in your Plan or otherwise agreed by us in writing.
f) You may upgrade your account by contacting us at support@conversocial.com, or by following the instructions within the Service. Please note that, depending on the Plan that you subscribe to, each user you designate as an Authorized User may incur an extra charge which will be payable by you.
g) You are permitted to set-up one (1) Account per company, organization or business and you must not, and ensure that your staff do not, set-up multiple Accounts unless we agree otherwise in the Order Form or in writing.
h) You are responsible for maintaining the confidentiality of your login details and any activities that occur under your Account. Whenever applicable, we encourage you to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account. If you have any concerns about your login details or think they have been misused, you should contact us at support@conversocial.com.
i) The rights provided under this clause 3 are granted to the company, organization or business named in the Order Form, and shall not be considered granted to any subsidiary or holding company.
4. RESTRICTIONS ON USE OF THE SERVICE
a) You shall not access, store, distribute or transmit any viruses, data or any material during the course of your use of the Service that:
i) is unlawful, harmful, threatening, defamatory, obscene, abusive, infringing, harassing or racially or ethnically offensive;
ii) invades another person's privacy or is in breach of applicable privacy laws;
iii) facilitates illegal activity;
iv) depicts sexually explicit images;
v) promotes unlawful violence;
vi) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or
vii) causes distress, damage or injury to any person or property.
b) We may, without liability to you, disable the Service to the extent necessary to disable access to any data or material that breaches the provisions of clause 4(a).
c) You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means;
ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service;
iii) access all or any part of the Service in order to build a product or service which competes with the Service;
iv) use the Service to provide services to third parties unless agreed by us in writing;
v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorized Users, or
vi) attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 4.
d) You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Service and, in the event of any such unauthorized access or use, promptly notify Conversocial.
5. SERVICE AVAILABILITY AND SUPPORT
a) Conversocial will use commercially reasonable endeavors to make the Service available with an uptime rate of 99.99%, except for:
i) planned maintenance for which 24 hours notice will be given; or
ii) unscheduled maintenance during normal business hours (UK time) or otherwise, for which we will use reasonable endeavors to give you advance notice.
b) Conversocial will, as part of the Service, use reasonable endeavors to provide a level of support that is appropriate to the nature of any issues requiring support during normal business hours (UK time).
c) You acknowledge that the Service is dependent on access to various third party services (including Facebook and Twitter). You agree that we are not responsible for the non-availability or interruption to our Service caused by any such third party services that you access through the Service.
6. CUSTOMER'S OBLIGATIONS
(a) You shall provide us with all necessary, co-operation in relation to this Agreement, and access to such information, as may be required by us.
(b) You will:
i) comply with all applicable laws and regulations with respect to your activities under this Agreement;
ii) carry out all your responsibilities and obligations in a timely and efficient manner. In the event of any delays in the provision of such assistance or performance of any obligations as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
iii) ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's actions and omissions in connection with their use of the Service;
iv) obtain and shall maintain all necessary licenses, consents, and permissions necessary for us or our contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
v) ensure that your network and systems, including the internet browser used by each Authorized User, comply with the relevant specifications provided by us from time to time; and
vi) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centers in order to access and use the Service.
(c) We may use your name, logo and related trade marks in any of our publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that you use the Service and you grant us such rights as are necessary to use your name, logo and related trade marks for this purpose.
7. CUSTOMER DATA
a) We do not claim ownership in your Customer Data. You retain all right, title and interest in and to the Customer Data although you grant us a license to use the Customer Data solely for the purpose of providing the Service. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
b) We shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data using the Service.
8. PROPRIETARY RIGHTS
You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Service.
9. CONFIDENTIALITY
a) Each party may be given access to confidential information from the other party in order to perform its obligations under these terms and conditions. A party's Confidential Information shall not be deemed to include information that:
i) is or becomes publicly known other than through any act or omission of the receiving party;
ii) was in the other party's lawful possession before the disclosure;
iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or
v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
(b) Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available for use for any purpose other than as needed to perform this Agreement.
(c) Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms and conditions.
(d) Each party shall take a back-up of its own Confidential Information and shall not be responsible to the other for any loss, destruction, alteration or disclosure of Confidential Information.
(e) We acknowledge that the Customer Data is your Confidential Information.
(f) This clause 10 shall survive termination of this Agreement, however arising.
10. LIMITED WARRANTY
(a) WE UNDERTAKE TO MAKE THE SERVICE AVAILABLE AS SPECIFIED IN CLAUSE 5(A). OTHERWISE, THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND WE GIVE NO REPRESENTATIONS, CONDITIONS, WARRANTIES OR OTHER TERMS OF ANY KIND IN RESPECT OF THE SERVICE WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
(B) EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT:
i) YOU ASSUME SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICE AND FOR CONCLUSIONS DRAWN OR DECISIONS TAKEN FROM SUCH USE AND YOU RELY ON THE RESULTS OBTAINED FROM THE USE OF THE SERVICE AT YOUR OWN RISK;
ii) ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT; AND
iii) CONVERSOCIAL WILL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, FAILURES OR NON-AVAILABILITY AFFECTING THE SERVICE OR PERFORMANCE OF THE SERVICE WHICH ARE CAUSED BY THIRD PARTY SERVICES OR ERRORS OR BUGS IN SOFTWARE, HARDWARE OR THE INTERNET ON WHICH THE SERVICE RELIES AS YOU ACKNOWLEDGE THAT WE DO NOT CONTROL SUCH THIRD PARTY SERVICES AND SUCH ERRORS OR BUGS ARE INHERENT IN THE USE OF SUCH SOFTWARE, HARDWARE AND THE INTERNET.
11. LIABILITY
a) THIS CLAUSE 12 SETS OUT OUR ENTIRE FINANCIAL LIABILITY (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF OUR EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO YOU IN RESPECT OF:
i) ANY BREACH OF THIS AGREEMENT;
ii) ANY USE MADE BY YOU OF THE SERVICE OR ANY PART OF IT; AND
iii) ANY REPRESENTATION, STATEMENT OR TORTUOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
b) NOTHING IN THIS AGREEMENT EXCLUDES OUR LIABILITY:
i) FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; OR
ii) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
c) CONVERSOCIAL SHALL NOT BE LIABLE WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT.
d) TO THE EXTENT THAT CONVERSOCIAL IS LIABLE UNDER THIS AGREEMENT, CONVERSOCIAL'S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
12. INDEMNITY
You shall indemnify and defend Conversocial and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable attorneys' fees) arising out of a claim brought by a third party relating to your use of the Service (except to the extent caused by our negligence) including without limitation our hosting and use of Customer Data and your decisions, financial, business and commercial judgments, and acts or omissions, based on your use of the Service.
13. TERMINATION
a) We may terminate this Agreement by notice to you with immediate effect, or such notice as we may elect to give you, if you:
i) fail to use your account for a period of twelve (12) months;
ii) are in breach of applicable law; or
iii) infringe our Intellectual Property Rights in the Service or make unauthorized use of our Confidential Information.
b) Either party may terminate this Agreement at any time on written notice to the other if the other:
i) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
ii) is subject to any proceeding under a state or federal insolvency law, becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
c) On termination of this Agreement for any reason all licenses granted under this Agreement shall immediately terminate and your right to access and use the Service will end.
d) The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
14. FORCE MAJEURE
No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: non-availability or failure of any third party service, act of God, governmental act, war, fire, flood, explosion, communications or failure of the internet or civil commotion.
15. WAIVER
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
16. SEVERABILITY
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
17. AMENDMENTS
We may amend this Agreement at any time. We will post a copy of the amended Terms of Service to the Site. Your continued use of the Service after this Agreement has been amended will be considered as your acceptance of the amended Agreement. We will notify you of any material changes to this Agreement.
18. ASSIGNMENT
You may not assign or purport to assign this Agreement or any of its obligations thereunder without our prior written consent.
19. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. THIRD PARTY RIGHTS
This Agreement has been made and is made solely for the benefit of Conversocial, Customer, and their respective permitted successors and permitted assigns. This Agreement does not confer any rights or remedies on any person or party, other than the parties to this Agreement and, where applicable, their successors and permitted assigns.
21. NOTICES
Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or fax, or signed and scanned and sent by email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered seventy-two (72) hours after posting and correctly directed faxes and emails shall be deemed to have been received instantaneously on transmission, provided that they are sent to correct email address or fax number.
22. ENTIRE AGREEMENT
This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. This Agreement shall prevail over any terms and conditions displayed on our Site.
23. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without respect to its conflict of laws principles, and any claim or dispute between Customer and Conversocial that arises in whole or in part from this Agreement shall be decided exclusively by a court of competent jurisdiction located in New York, New York.
