Terms & Conditions

Recitals

A. Conversive has developed and owns a proprietary computer application, called conversive™ (“conversive”), that integrates with Customer Relationship Management (CRM) data and enables users to send messages from the CRM to the user’s contacts, leads and accounts and other object records. B. Conversive proprietary application is published on different marketplaces run by the CRM Partners, under the brand name of conversive. C. Subscriber desires to subscribe to conversive through these Marketplaces, or directly from conversive, to be able to access and use conversive application and related services and conversive desires to allow the same, each in accordance with the terms and conditions of this Agreement. Now, Therefore, in consideration of the mutual promises and obligations set forth below, the receipt and sufficiency of which each Party hereby acknowledges, each Party agrees as follows.

Agreement

This Agreement governs your purchase of a license to access and use of our services. The Parties agree as follows: IF YOU REGISTER FOR A FREE VERSION OF THE SERVICE OR A FREE TRIAL OF THE SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS AND THAT YOU DO HEREBY BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONS, THEN YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICE.

Definitions

1."Affiliate" means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where "control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
2."Agreement" means this Subscription Agreement and any Service Orders you enter into with us.
3."App" means conversive technology (https://www.conversive.com/) and its related services) and includes without limitation conversive, and may include without limitation computer code, software libraries, software tools, sample publications and Documentation. App shall include any future, updated or otherwise modified version(s) thereof made available by Conversive (in its sole discretion) to Subscriber.
4."Authorized User" means your employee, your Affiliate's employee, or a Permitted Third Party's employee for whom you create a unique username and password under your account to access conversive services.
5."Authorized User Account" means the account created by Subscriber when Subscriber registers on the Website, allowing Subscriber to access and use the Services.
6."Client Software" means software components to be installed on you, your Affiliates', or your Authorized Users' computer systems or devices, including but not limited to conversive Converse.
7."Dedicated Incoming Number" means the long code or short code assigned to Subscriber on an exclusive or shared basis, as the case may be, which enables easy two-way communication and allows Subscriber to send and receive mobile originating SMS messages for marketing and other communication purposes.
8."Documentation" means our user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
9."Emergency Services" means services that allow a user of the Application to connect with the emergency services personnel or public safety answering points, such as 911 services.
10."Permitted Third Party" means an entity under contract with you or your Affiliates who needs to access the Service to perform its obligations to you or your Affiliates and who is not a competitor to conversive providing SMS or Messaging services.
11."Professional Services" means the professional services specified in a Service Order, potentially including but not limited to implementation services, consulting, and training services.
12."Conversive" or "we" or "us" or "our" means conversive Mobile Media Inc., a Nevada corporation, or its designated Affiliate(s) as specified in a Service Order or invoice.
13."Service" means the service identified in the Service Order; as we may modify the service from time to time at our discretion, which might include without limitation our making available to you remote access to the App and furnishing to you any associated Client Software.
14."Service Order" means an ordering document entered into between you and us specifying the Services to be provided thereunder, including any addenda and supplements thereto. By an Affiliate's entering into a Service Order under this Agreement, such Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party to the Agreement. In case of a conflict between any term of a Service Order and this Agreement, the term in the Service Order takes precedence over the term in this Agreement.
15."Statement of Work or SOW" means a document that captures and defines all aspects for a project that requires Professional Services by detailing project-specific activities, deliverables and timelines for conversive providing services to the Subscriber.
16."Status page" means conversive status page (https://www.conversive.com/) (status site) where the infrastructure health, planned and unplanned events are published.
17."Subscriber" or "You" or "Your" means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
18."Subscriber Data" means any data uploaded to the Service or otherwise provided for processing by the Service, by or on behalf of you and your Affiliates in accordance with this Agreement.
19."Subscription Fees" means the fees for the Service specified in the Service Order.
20."Technical Support Services" means our then-current technical support services offering, as described at https://www.conversive.com/company/support-package (see end of document).
21."Trust site" means conversive website where all the information related to security and compliances are published, located at https://trust.conversive.com/.
22."Website" means the conversive website at https://www.conversive.com/.

FULL CONVERSIVE SERVICE; FREE VERSIONS AND FREE TRIALS

1.Full Conversive Service. We offer various versions of our Service. The most comprehensive version of the Service requires payment for continued use of the Service. The version of the Service that requires payment is currently referred to as “Full Conversive Service.”
2.Free Versions. Certain versions of the Service may be provided to you free-of-charge. The versions of the Service that do not require payment to be accessed are currently referred to as “Free Versions.”
3.Free Trials. From time to time, we may offer trials of the Full Conversive Service for a specified period of time without payment or at a reduced rate (each, a “Free Trial“). If you register on our website or via a Service Order for a Free Trial, then we will make the Service available to you under the Free Trial until the earlier of (a) the end of the Free Trial period for which you registered to use the Service, or (b) the start date of any Full Conversive Service subscription ordered by you for such Service, or (c) termination by us in our sole discretion. Additional Free Trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. We reserve the right, in our absolute discretion, to determine your eligibility for a Free Trial, and, subject to applicable laws, to withdraw or to modify a Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under law. ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE FREE TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CONFIGURATION CHANGES MADE DURING THE FREE TRIAL TO A FREE VERSION OF THE SERVICE, UNLESS THE DATA ENTERED OR CONFIGURATION CHANGES ARE TO FEATURES AVAILABLE IN THE FREE VERSIONS; THEREFORE, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. Please review the applicable Documentation for the Service during the Free Trial period so that you become familiar with the functionality and features of the Service before you make your purchase.
4.Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS, FREE VERSIONS, AND FREE TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. SECTION 10 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO, AND SECTION 12.2 (CAP ON LIABILITY) DOES NOT LIMIT THE TOTAL LIABILITY OF, SUBSCRIBERS USING FREE VERSIONS OR FREE TRIALS OF THE SERVICE.

USE OF THE SERVICE

1.Use of the Service. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates that execute a Service Order a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement for your Authorized Users to use the Service solely in connection with your internal business operations. Your and your Affiliates’ rights to use the Service are subject to any limitations on the use of the Service based on the version of the Service for which you register (e.g., applicable usage limits) and as set forth in the Service Order (collectively, the “Scope Limitations“) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and this Agreement. As part of the Service, we may provide you and your Affiliates with Client Software, which you and your Affiliates may install on your computer system or other devices and use solely to upload Subscriber Data into the Service. You are solely responsible for your conduct (including by and between all Authorized Users), the content of Subscriber Data, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information you may access using the Service.
2.Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement for your Authorized Users to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of the Service in accordance with this Agreement.
3.Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize your Affiliates or third parties to: (a) allow anyone other than an Authorized User to access or use the Service; (b) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service or Documentation; (c) reproduce, distribute, alter, adapt, modify, sell, resell or exploit the App or any portion thereof; (d) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the App; (e) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any internal data files generated by the App except as required by law; (f) sublicense access to or use of the App or use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (g) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (h) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (i) use the Service to harm, threaten, or harass another person or organization; (j) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; (k) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Client Software or provide, disclose or make any Client Software available to any third party, except that you may make one copy of Client Software solely for backup and archival purposes; (l) alter, obscure or remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Client Software or any copies thereof; (m) intentionally interfere with or disrupt the Website or servers or networks connected to the use of the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Use of the Services; and (n) use the Services to access or allow access to Emergency Services. You shall be responsible for all traffic sent to and received from an Authorized User Account, including all traffic sent to and received from mobile recipients on the Dedicated Incoming Numbers assigned/dedicated to mobile recipients worldwide. You will ensure that your Affiliates and Permitted Third Parties comply with this Agreement. You will be directly and fully responsible to us for their conduct and any breach of this Agreement by them. We reserve the right to deactivate, change, or require you to change your user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Service for any reason or for no reason. We may exercise such right at any time, with or without prior notice;
4.Regulatory Guidelines. You shall not violate (intentionally or unintentionally) any applicable local, state, national or international laws or regulations in connection with the Services, including but not limited to those related to intellectual property, privacy or security. Conversive believes that Subscriber in accordance to conversive services shall align with all applicable laws, regulations, regulatory and statutory guidelines, and shall be held self-responsible for uploading any valid data; including but not limited to consent data; on Conversive systems. Conversive has incorporated a compliance feature which prevents messages to be sent to opted out numbers. Conversive further provides way of consent management and the option to Subscriber to upload the data with consent only.
5.Authorized Users Only. You acknowledge and agree that only Authorized Users may access or use the Services, and only up to the number of Authorized Users specified in the Service Order. An Authorized User Account must not be shared among others. Additional Authorized Users may be added by paying the applicable fees to us at our then-current rate or as otherwise specified in a Service Order. The Authorized Users who are employees of Permitted Third Parties may access and use the Service solely to perform the Permitted Third Party’s contractual obligations to you subject to the use limitations set forth in this Agreement. As part of the registration process, you may be asked to identify your company and other Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. We may reassign the domain name associated with your account and change the way you access the Service at any time in our sole discretion. You are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login and account, including the activities of Authorized Users.
6.Protection against Unauthorized Use. You will use, and will ensure that your Affiliates and Permitted Third Parties use, reasonable efforts to prevent any unauthorized use of the Service or Documentation, and you will immediately notify us in writing of any actual or suspected unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service or Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party, then you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Service or Documentation. We may, at our expense and no more than once every 12 months with reasonable notice, have our own personnel or an independent third party audit your facilities and books to verify that your use of the Service complies with the terms of this Agreement, and you will reasonably cooperate with such audits.
7.Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version“). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time at our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version.
8.Reservation of Rights. We retain all right, title, and interest in and to the Service, Client Software and Documentation and all related intellectual property rights, including without limitation any modifications, updates, customizations, cards, apps, or other add-ons. Your rights to use the Service, Documentation, and Client Software are limited to those expressly set forth in this Agreement. Specifically, we are providing you with a limited term subscription to access and use the Services during the applicable term. You acknowledge that there are no implied licenses; all rights not expressly granted under this Agreement are reserved by conversive.
9.Service Availability. We perform and maintain regular database backups according to the retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned Service interruptions. We will use commercially reasonable efforts to notify you in advance of planned Service interruptions. In the event of an unplanned Service interruption, you may contact us for Technical Support Services, as described in this Agreement. The Service depends on the availability of the Subscriber Data from you and third-party data providers. You are responsible for making the Subscriber Data available that is necessary for us to provide the Service.

PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES

1.Statement of Work. Certain Services, including adding multi-channel message channels or automation, may require a Statement of Work that details Conversive project deliverables (“SOW”). In the event conversive provides an SOW to the Subscriber, conversive is only responsible to perform Services described in a SOW, which will be incorporated under this Agreement under Schedule A by reference. Additional Services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule.
2.Professional Services. You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Service Order. Unless otherwise specified in the applicable Service Order, any unused portion of the Professional Services and training will expire and may not be carried over after 12 months from the Service Order effective date.
3.Changes to Professional Services. You may reasonably request in writing that revisions be made with respect to the Professional Services set forth in a Service Order. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the Parties will execute an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and we will have no obligation with respect to the relevant change requests.
4.Technical Support Services. We will provide you with the applicable Technical Support Services for the version of the Service to which you are subscribed so long as you are current in payment of the Subscription Fees (if applicable). You are responsible for providing support to Permitted Third Parties.
5.Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Professional Services and Technical Support Services. You acknowledge that our ability to provide Professional Services as described in the Service Order and Technical Support Services may be affected if you do not meet your responsibilities as set forth above.
6.Feedback and Other Content. The Service may permit you, your Affiliates, and Permitted Third Parties to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such content without restriction.

Fees and Payment

1. Fees and Payment Terms. Unless otherwise specified in a Service Order, the Subscription Fees for the initial subscription term and Professional Service fees set forth in the Service Order are due upon execution of the Service Order. Subscription Fees will be invoiced annually at the then-current rate for the Service or as otherwise specified in a Service Order. Fees for additional Service quantities and Professional Services will be invoiced at the time of order unless otherwise agreed in writing by the Parties.
2. Credit Card. If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create a billing account. You authorize us to charge you for the Service plus a reasonable processing fee using your credit card.
3. Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded monthly from the date due until the date paid.
4. Taxes. The fees stated in a Service Order do not include local, state, federal, or foreign taxes (including value-added, sales, or use taxes). You are responsible for paying all applicable Taxes related to this Agreement.
5. Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

TERM AND TERMINATION

1. Term. This Agreement commences on the effective date specified in the Service Order and continues for the initial subscription term specified in the Service Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement automatically renews for additional successive one-year terms unless at least 30 days before the end of the then-current term either Party provides written notice to the other Party that it does not intend to renew.
2. Termination. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. A breach of this Agreement by your Affiliate or Permitted Third Party will be treated as a breach of this Agreement by you.
3. Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of termination; (b) you will immediately pay to us any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of termination; and (c) any liabilities accrued prior to termination will survive.

CONFIDENTIAL INFORMATION

1. Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding product plans, beta versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either Party or its Affiliates to the other Party or its Affiliates.
2. Maintenance of Confidentiality. The receiving Party agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing Party’s prior written consent.
3. Return of Materials and Effect of Termination. Upon written request of the disclosing Party, or upon termination of this Agreement, the receiving Party will return or destroy all materials containing Confidential Information. The obligations in this section will survive for three years following expiration or termination of this Agreement, except for Confidential Information that constitutes a trade secret.

DATA SECURITY

1. Data Security. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Subscriber Data during transmission to the Service and encryption of backups of Subscriber Data and authentication credentials at rest. We will notify you of any unauthorized access to, or use of, Subscriber Data that comes to our attention.
2. Data Transmission. You acknowledge that the use of the Service involves transmission of Subscriber Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your Authorized User login names and passwords from access or use by unauthorized parties.
3. Subscriber Data. Subscriber Data is your property. You grant us a non-exclusive, worldwide, royalty-free license to use, copy, transmit, store, aggregate, and display Subscriber Data as required to provide or perform the Service, Technical Support Services, account management services, and Professional Services, and to improve our products and services.

WARRANTIES AND DISCLAIMER

1. Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution and delivery of the Service Order, or performance of this Agreement.
2. Our Warranty. We warrant that the Service as delivered to you will materially conform to the specifications set forth in the applicable Service Order during the term of the Service Order. You must notify us of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim first appears.
3. Sensitive Personal Information. Unless we specifically agree otherwise in writing, you represent and warrant that neither you nor any Authorized User will upload into the Service, or otherwise provide for processing by the Service, any Sensitive Personal Information.
4. Disclaimer. Except for the express representations and warranties set forth in this section, neither Party makes any additional representation or warranty of any kind whether express, implied, or statutory as to any matter whatsoever. We expressly disclaim all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement.
5. High-Risk Activities. The Service is not licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, or life support systems where the failure of the Service or Software could lead to death, personal injury, or severe physical or environmental damage.

INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

1. Defense of Infringement Claims. We will, at our expense, either defend you from or settle any claim, proceeding, or suit brought by a third party ("Claim") alleging that your use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property rights.
2. Indemnification of Infringement Claims. We will indemnify you and your Affiliates from and pay damages, costs, and attorneys’ fees finally awarded against you in any Claim under this section, including reasonable attorneys’ fees incurred in connection with the defense of such Claim.
3. Exclusions from Obligations. We have no obligation under this section for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Service in combination with other products or services, use of the Service outside the scope of the rights granted in this Agreement, or modification of the Service not authorized by us.
4. Infringement Remedies. In the defense or settlement of any infringement claim, we may, at our sole option and expense: (a) procure for you a license to continue using the Service; (b) replace or modify the allegedly infringing technology; or (c) terminate your license to access the Service and refund any prepaid unused Service fees.

INDEMNIFICATION

1. Defense. You will defend us and our Affiliates from any actual or threatened third-party claim arising out of or based upon (a) use of the Service by you, your Affiliates, or Permitted Third Parties that is not in accordance with the terms of this Agreement; or (b) the Subscriber Data or other materials or information provided by you or on your behalf under this Agreement.
2. Indemnification. You will indemnify us from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against us in any Claim under this section; (b) all out-of-pocket costs, including reasonable attorneys’ fees incurred by us in connection with the defense of a Claim; and (c) all amounts that you agree to pay to any third party to settle any Claim.

LIMITATIONS OF LIABILITY

1. Disclaimer of Indirect Damages. To the extent permitted by law, neither Party will, under any circumstances, be liable to the other Party or to any third party for indirect, consequential, incidental, special, or exemplary damages, or for lost profits or loss of business arising out of or related to this Agreement, even if the Party is apprised of the likelihood of such damages occurring.
2. Cap on Liability. To the extent permitted by law, under no circumstances will either Party’s total liability of all kinds arising out of or related to this Agreement exceed the total amounts paid by you under this Agreement during the twelve months immediately preceding the date of the event giving rise to the claim.
3. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered and is an essential element of the basis of the bargain between the Parties.

STATISTICAL INFORMATION

1. Statistical Information. Notwithstanding anything else in this Agreement or otherwise, Conversive may monitor Subscriber’s use of the Services and use User Data in an aggregate and anonymous manner to compile statistical and performance information related to the provision and operation of the Services. Conversive may not view or make any use of the data of Subscriber’s end users except as permitted under this Agreement.

THIRD-PARTY PRODUCTS

1. Third-Party Products. Any third-party product that we provide as identified in an applicable Service Order or that is made available in connection with the Service (e.g., a Non Conversive App) is provided pursuant to the terms of the applicable third-party agreement, and your use of any such third-party product constitutes your agreement to comply with the terms of the applicable third-party agreement. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any third-party product.
2. Non Conversive Apps. “Non Conversive App” means a software application developed by a third party or by you that interoperates with the Service, regardless of whether listed in an app store. We do not warrant or support Non Conversive Apps or their interaction with our App. If you install or enable a Non Conversive App for use with our App, then regardless of whether the Non Conversive App is certified, you grant us permission to allow the provider of that Non Conversive App to access Subscriber Data as required for the interoperation of that Non Conversive App with the Service.

MISCELLANEOUS

1. Access by Competitors. You may not access the Service if you are our direct competitor, or make access available to a competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
2. U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” consisting of “commercial computer software” and “commercial computer software documentation” as defined in applicable federal regulations.
3. Anti-Corruption. You have not received or been offered any illegal bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. If you learn of any violation of this restriction, you will promptly notify our Legal Department.
4. Relationship. We will be and act as an independent contractor and not as an agent or representative of you in the performance of this Agreement.
5. Publicity. We may only use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise authorized in writing.
6. Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent, except in connection with a merger, acquisition, or sale of assets.
7. Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order, but we remain responsible for the performance of those obligations.
8. Notices. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by email, registered mail, or courier to the address specified in the applicable Service Order.
9. Force Majeure. Neither Party will be liable for, or considered to be in breach or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any Force Majeure event or other cause beyond its reasonable control, so long as that Party uses commercially reasonable efforts to avoid or remove the causes of non-performance.
10. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, U.S.A., without reference to its conflict of law rules and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
11. Arbitration. Any action arising out of or in connection with this Agreement or its breach, termination, enforcement, interpretation, or validity will be determined by binding arbitration administered by the American Arbitration Association (AAA) under its applicable rules.
12. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including without limitation your Affiliates, Permitted Third Parties, or Authorized Users.
13. Waiver and Modifications. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement will not be construed as a waiver of that Party’s rights under this Agreement and will not affect the validity of the Agreement or the Party’s ability to enforce it later.
14. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
15. Headings. Headings in this Agreement are for reference purposes only and will not affect the interpretation of this Agreement.
16. Counterparts. The Service Order may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect as an original document with original signatures.
17. Entire Agreement. This Agreement and all exhibits contain the entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior communications, representations, understandings, and agreements, whether oral or written, between the Parties relating to such subject matter.
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