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WHEREAS, ConvokeAI has developed certain AI-powered voice and text automation cloud-based subscription services to allow clients to handle incoming phone calls and voicemails (the “Services”); NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:
1.1. License : Subject to Customer’s compliance with the terms, conditions and restrictions of this Agreement, Convoke AI grants Customer a limited, non-exclusive, non-transferable license to access and use the Services as provided herein and in accordance with Convoke AI’s applicable user documentation, policies, and related materials.
1.2. Fees : Customer understands and agrees that Convoke AI's fees are based on an anticipated number of calls to be processed through the Services on a monthly basis during the Term. Convoke AI will review such average usage on a quarterly basis and adjust such pricing to the extent the average usage places Customer in a higher pricing tier. In the event that Customer’s usage exceeds the anticipated usage as determined by such quarterly reviews, Customer agrees to pay Convoke AI on a going forward basis only at the higher pricing tier. Customer shall not be responsible for any true up for any prior period measurement, even if such measurement shows higher than anticipated usage.
1.3. Support : Convoke AI will provide support for the Services in accordance with Exhibit A.
1.4. Service Updates : From time to time, Convoke AI may provide upgrades, enhancements, and/or modifications to the Services (“Updates”), and such Updates will become part of the Services and subject to the terms of this Agreement.
1.5. Telecommunications and Internet Connectivity : Customer agrees that its use of the Services is dependent upon access to telecommunications and Internet connectivity. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to use the Services. Convoke AI shall not be responsible for any loss or corruption of data, communications, or any other loss or damage arising from nonperformance of such telecommunications and/or Internet services.
1.6. Equipment; Passwords : Customer shall be responsible for obtaining and maintaining any equipment needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, user account, passwords (including but not limited to administrative and user passwords), and for all uses of Customer account and the Equipment.
1.7. Restrictions on Use : Customer shall not and shall not permit its employees or any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, object code or underlying structure or algorithms of the Services; (b) modify, translate, adapt, alter, or create derivative works from or based on the Services; (c) copy, distribute, publicly display, transmit, sell, rent, pledge, lease, assign or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party or grant any third party access to or use of the Services; (e) remove or otherwise alter any proprietary notices or labels from the Services; (f) use the Services, in whole or in part, to build an application or product that is competitive with any Convoke AI product or service; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures Convoke AI may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (i) crawl, frame or scrape or in-line link to any page, data, or portion of or relating to the Services or use web crawlers, web spiders or other automated means to access, copy, index, process and/or store any content on the Services; or (j) use the Services in a manner that violates applicable laws or regulations.
1.8. Feedback : Customer may from time to time provide recommendations, ideas, suggestions, comments or other feedback to Convoke AI regarding the Services, including with respect to the performance, functionality, features or operation thereof (“Feedback”). Customer hereby unconditionally and irrevocably disclaims, and assigns and conveys to Convoke AI, any and all interest(s) (if any) in and to any and all Feedback.
2.1. In Services and Related Materials : As between the Parties, Convoke AI retains all right, title and interest in and to: (a) the Services, including all modifications, enhancements and customizations thereto, and all technology and intellectual property comprising, appurtenant to, and/or used to support and/or operate, the Services, (b) all Convoke AI documentation and videos related to the Services. Convoke AI may update or otherwise modify the Services from time to time in Convoke AI’s sole discretion and all such updates and modifications shall also be the sole property of Convoke AI, and (c) it shall comply with all accessibility guidelines, including without limitation using all commercially reasonable efforts to make the Service accessible and usable to all people including those with disabilities.
2.2. Customer Data : Except as provided herein, all data related to Customer’s data related to telephone calls processed by the Services (“Telephone Calls”) shall be owned by Customer, provided, however, that: (i) Convoke AI shall be permitted to record Telephone Calls, create transcripts of those Telephone Calls, and use and store such recordings and transcripts for the sole purpose of improving the Services, and (ii) Convoke AI shall be permitted to use anonymized data related to usage of the Services to for the sole purpose of improving the Services.
3.1. Term : This Agreement shall commence on the Effective Date and shall last for 30 days, during which period Customer may test out the Services (such period is referred to herein as the “Pilot Period”). Customer shall be permitted to notify Convoke AI at any time during the Pilot Period to inform Convoke AI that it does not wish to continue to use the Services (such notice is referred to herein as a “Pilot Period Termination Notice”). If Convoke AI has not received a Pilot Period Termination Notice during the Pilot Period, then the Term of the Agreement shall automatically renew for a 30-day period, and continue to auto-renew at the expiration of each 30-day period, for another 30 days, at the end of the Pilot Period, unless otherwise terminated in accordance with the terms of this Agreement (on the terms set forth herein, other than Fees, which Convoke AI may increase in accordance with its standard policies). Either Party can contact the other Party with at least 30 days' notice before the desired termination date to indicate that it does not want the Term so extended. The Pilot Period, along with any subsequent month-to-month extensions, is referred to herein as the "Term".
3.2. Termination for Material Breach : In the event of a material breach of this Agreement by one Party, the other Party may terminate this Agreement if the breaching Party fails to cure such breach within 30 days of receiving written notice of such breach from the non-breaching Party.
3.3. Termination for Convenience : Either Party may terminate this Agreement without cause upon 30 days’ prior written notice to the other Party.
3.4. Effect of Termination : Upon expiration or termination of this Agreement for any reason, Customer’s rights to use the Services shall terminate and Customer shall cease all use of the Services. Termination of this Agreement shall not relieve Customer of its obligation to pay any fees or other amounts that have accrued or are otherwise owed under this Agreement prior to such termination.
4.1. Definition : For purposes of this Agreement, “Confidential Information” means all information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is designated as confidential or that, under the circumstances surrounding disclosure, ought in good faith to be treated as confidential. Confidential Information includes, but is not limited to, the terms and conditions of this Agreement.
4.2. Obligations : The Receiving Party agrees: (a) to maintain the confidentiality of the Confidential Information with the same degree of care that it uses to maintain the confidentiality of its own confidential information (but no less than a reasonable degree of care), (b) to use Confidential Information solely to perform its obligations or exercise its rights under this Agreement, and (c) not to disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent. The Receiving Party’s obligations with respect to any Confidential Information shall continue for a period of two (2) years from the date of disclosure, except with respect to trade secrets, which shall continue for so long as they are maintained as trade secrets.
4.3. Exceptions : Confidential Information shall not include information which: (a) was publicly available at the time of disclosure or becomes publicly available through no fault of the Receiving Party, (b) was known to the Receiving Party prior to disclosure, (c) was disclosed to the Receiving Party by a third party without breach of any obligation of confidentiality, or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
5.1. Limitation : EXCEPT FOR LIABILITY ARISING FROM: (a) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, (b) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (c) AMOUNTS OWED TO THIRD PARTIES UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSS OF PROFITS, REVENUES, OR DATA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. Cap : EXCEPT FOR LIABILITY ARISING FROM: (a) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, (b) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (c) AMOUNTS OWED TO THIRD PARTIES UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO CONVOKE AI IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM.
6.1. Entire Agreement : This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral, with respect to such subject matter.
6.2. Amendments : No amendment or modification of this Agreement shall be valid or binding unless made in writing and signed by an authorized representative of each Party.
6.3. Governing Law : This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
6.4. Dispute Resolution : Any disputes arising out of or related to this Agreement shall be resolved through binding arbitration in New York, New York in accordance with the rules of the American Arbitration Association.
6.5. Notices : All notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand, sent by registered or certified mail (return receipt requested), or by email (with confirmation of receipt) to the addresses set forth in the preamble or to such other address as either Party may designate in writing.