ELLA Digital Limited (together with its affiliates, “Company”) is an authorised reseller of the proprietary, conversational, AI-powered digital assistant solutions specified in an Order, including access to the related platform dashboard(s) and APIs, including the websites used in connection with the foregoing (collectively the “Platform”) owned and operated by Conversica. Conversica provides associated services in connection with the Platform (the “Services”).
3. DATA PROTECTION; COMPLIANCE.
3.1. Each Authorised User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Authorised Users compliance with this Agreement and actions taken through Customer accounts (excluding misuse of accounts directly caused by a Conversica breach of this Agreement). Customer will promptly notify Company if it becomes aware of any compromise of its Authorised User login credentials.
3.2. Conversica has implemented and will maintain appropriate technical and organisational measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure.
3.3. With respect to the processing of personal data as defined in the UK’s Data Protection Act of 2018 (“the Act”), the Parties acknowledge and agree that Customer acts as a controller and Conversica acts as a processor. Conversica will comply with the Act and any Applicable Laws related to Conversica’s processing of Customer Data. To the extent permitted by law, Conversica will process Customer Data in accordance with Customer’s relevant documented instructions. Notwithstanding the foregoing, if other processing is required by law, Conversica shall, to the extent permitted by law, inform Customer of that legal requirement before such other processing of Customer Data.
3.4. Conversica complies with, and for the Term of this Agreement will continue to comply with, the EU-U.S. Data Privacy Framework program (EU-U.S. DPF) and the UK Extension to the EU-U.S. DPF under which data transfers from the EU and UK respectively will occur to the U.S.
3.5. Conversica will notify Customer promptly and in any event within ten (10) business days of receipt, unless prohibited by applicable law, if Conversica receives any data subject requests or complaints. If requested by Customer from Reseller and conveyed by Reseller, Conversica will provide commercially reasonable efforts to assist Customer in responding to such data subject request, to the extent Conversica is legally permitted to do.
3.6. At Customer’s request relayed by Reseller, Conversica will assist Customer in the event of an investigation by a competent regulator, including a data protection regulator or similar authority, if and to the extent that such investigation relates to Conversica’s processing of Customer Data. If, pursuant to applicable law, Customer is required to perform a data protection impact assessment or prior consultation with a supervisory authority, at Customer’s request, Conversica will provide its reasonable assistance and relevant information.
3.7. Upon Customer’s request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement and as relayed by Reseller, Conversica shall make available to Customer a copy of Conversica’s most recent, annual third-party SOC 2 Type 2 audit report or equivalent audit report and other Documentation relevant to the security and compliance of the Services.
3.8. If Conversica becomes aware or reasonably suspects an unauthorised or unlawful access to or destruction, loss, alteration, or disclosure of Customer personal data in the possession, custody or control of Conversica of a Personal Data Incident, Conversica will (a) notify Customer without undue delay and use commercially reasonable efforts to do so within forty-eight (48) hours after Conversica discovers the Personal Data Incident, (b) provide Customer with a detailed description of the Personal Data Incident and the personal data concerned, unless otherwise prohibited by law or otherwise instructed by a law enforcement or supervisory authority. Conversica will take reasonable steps to mitigate the effects of the Personal Data Incident and to minimise any resulting damage. At Customer’s request, Conversica will provide reasonable assistance and cooperation with respect to any notifications that Customer is required to send to affected data subjects and/or regulators.
4. FEES. Customer will pay all fees set forth in the applicable Order (the “Fees”) to Company. Without limiting remedies available to Company or Conversica, Customer agrees and understands that failure to pay all Fees owed when due (including failure of Company to pay Conversica on Customer’s behalf) will entitle Company or Conversica to suspend access to the Platform and terminate the Agreement immediately.
5. TERM; TERMINATION. The term of each Order (the “Subscription Term”) will begin on the subscription start date and end on the subscription end date as stated in such Order (the “Initial Subscription Term”), subject to earlier termination as provided herein and/or in such Order. The Initial Subscription Term shall automatically renew for subsequent term(s) for a duration equal to the Initial Subscription Term (“Renewal Subscription Term”), unless either party gives the other party notice of non-renewal at least sixty (60) days prior to the end of the then-current Initial Subscription Term or Renewal Subscription Term. The Terms of Service apply to each Order during each Subscription Term. Either party may terminate the Agreement in the event of a material breach by the other party, which is not cured within thirty (30) days after receipt of notice describing such breach; provided that any breach of Sections 1 or 2 will have a five (5) day cure period. Notwithstanding the foregoing, this Agreement shall not automatically renew if Company ceases to be an authorised reseller of the Platform, in which event Company agrees to promptly notify Customer and may terminate this Agreement. In such event, Customer’s use of the Services shall be subject to Section 12 below. Notices of termination or non-renewal are effective only if given by a Customer employee with authority to make such election. Any attempt by Customer to terminate the Agreement except as permitted herein, will be of no force or effect, and Customer will continue to have access to and use of the Platform hereunder. Conversica may suspend Customer’s access to the Platform at any time in the event Conversica reasonably suspects there has been a violation of Section 1 or 2, or if the provision of Services and/or use of the Platform results in high levels of complaints or other negative results, as determined by Conversica in its reasonable discretion, and in such event, Conversica will use reasonable efforts to give Customer notice promptly after such suspension. Upon termination or expiration of the Agreement for any reason Customer and its Authorised Users will cease to have access to and use of the Platform and Services. Within 30 days of termination of this Agreement, Conversica will terminate access to the Platform and begin logical deletion of Customer Data followed by overwriting or cryptographic erasure, except that this requirement shall not apply to the extent Conversica is required by applicable law to retain Customer Data. This deletion, including the deletion of Customer Data on backup systems, will be completed as soon as practicable in accordance with the deletion schedules of Conversica’s underlying cloud services provider and the Customer Data will remain encrypted until it is unrecoverable. All provisions of this Agreement that must survive the termination of this Agreement to fulfil their essential purpose, including payment, indemnification, and data protection provisions, will survive.
6. LIMITATION OF LIABILITY. EXCLUDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND EXCLUDING CUSTOMER’S BREACH OF THIS AGREEMENT RESULTING IN THE PLATFORM OR SERVICE BEING “BLACKLISTED” OR OTHERWISE RESTRICTED FROM NORMAL BUSINESS OPERATIONS BY ANY THIRD PARTY (TOGETHER, THE “EXCLUDED MATTERS”), NEITHER COMPANY, ITS AFFILIATES, MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES, OR ANY LICENSOR, OR CONVERSICA (COLLECTIVELY, “COMPANY ENTITIES”), ON ONE HAND, NOR CUSTOMER, OR ITS AUTHORISED USERS, ITS AFFILIATES, MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES (COLLECTIVELY, “CUSTOMER ENTITIES”), ON THE OTHER HAND, WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA OR DOWNTIME COSTS), ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ANY WARRANTY OR LIMITATION SHALL FAIL OF ITS ESSENTIAL PURPOSE. EXCEPT WITH RESPECT TO THE EXCLUDED MATTERS, IN NO EVENT WILL THE TOTAL LIABILITY OF THE COMPANY ENTITIES, ON THE ONE HAND, AND CUSTOMER ENTITIES, ON THE OTHER HAND, ARISING OUT OF THIS AGREEMENT EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (B) $50,000. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages; therefore, the above limitation may not apply to Customer to the extent prohibited by such local laws and instead liability will be limited to the maximum extent permitted by law.
7. WARRANTY DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY ENTITIES DO NOT MAKE ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY DATA COLLECTED OR TRANSMITTED VIA THE PLATFORM AND/OR SERVICES; COMPATIBILITY OR INTEROPERABILITY OF THE PLATFORM WITH CUSTOMER’S SYSTEMS, INCLUDING WITHOUT LIMITATION CUSTOMER’S CLIENT RELATIONSHIP MANAGEMENT SOFTWARE; OR FOR THE QUALITY OR EFFECTIVENESS OF ANY COMMUNICATIONS THROUGH THE PLATFORM OR SERVICES. COMPANY ENTITIES MAKE NO REPRESENTATION THAT THE OPERATION OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY ENTITIES PROVIDE NO ASSURANCES THAT CUSTOMER WILL ACHIEVE ANY SPECIFIC BUSINESS RESULTS FROM USE OF THE PLATFORM AND/OR SERVICES. CUSTOMER HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
8. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless the Company Entities from and against any and all damages, losses, costs (including reasonable attorneys’ fees), or other expenses arising from third party claims, actions, suits or proceedings against any Company Entity (a) alleging Customer’s or its Authorised Users’ breach of this Agreement, including allegations of use of the Platform or Services in any manner not permitted hereunder; or (b) in connection with the Customer Data when used by Company Entities as permitted hereunder. Company agrees to indemnify, defend and hold harmless Customer Entities from and against any and all damages, losses, costs (including reasonable attorneys’ fees), or other expenses arising from third party claims, actions, suits or proceedings against any Customer Entity (x) alleging that the Platform when used by Customer and its Authorised Users solely as permitted by this Agreement infringes any U.S. copyright, trademark or trade secret, or (y) alleging Company’s breach of Section 2 of this Terms of Service. The party seeking indemnity (“Indemnified Party”) will give the party from whom indemnity is sought (“Indemnifying Party”) timely written notice of the claim for which indemnity is sought and control of the disposition thereof; provided, that failure to give timely notice will not relieve the Indemnifying Party of its obligations except to the extent that such untimely notice materially impairs the Indemnifying Party’s ability to defend such claim. The Indemnified Party will cooperate with the Indemnifying Party’s reasonable requests (at the Indemnifying Party’s expense) in connection with the defence and settlement of such claim. Neither party will settle any claim for which indemnity is sought unless: (i) such settlement includes an unconditional release of the other party from all liability on the claim, or (ii) the other party gives its prior written consent, not to be unreasonably withheld.
9. CONFIDENTIALITY; PUBLICITY. ”Confidential Information” means: (i) business or technical information, including product plans, designs, source code, finances, marketing plans, business opportunities, personnel, research, development or know-how of the disclosing party and third party information that the disclosing party is obligated to keep confidential; (ii) information designated as “confidential” or “proprietary” or which, under the circumstances taken as a whole, reasonably should be understood to be confidential; and (iii) the financial terms of this Agreement. In addition, the Platform, all details about the uses, functionalities, or other aspects of the Platform (including user interface, screenshots, and specific features of the Platform) are Conversica’s Confidential Information, and Customer Data is Customer’s Confidential Information. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (c) is developed independently by the receiving party without use of the disclosing party’s Confidential Information and by persons without access to such information. The receiving party shall use measures at least as protective as those it uses for its own confidential information (but no less than reasonable measures) to keep confidential and not to disclose to any third party any Confidential Information of the disclosing party, except to those of the receiving party’s agents, representatives and employees (collectively, “Representatives”) who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by terms of confidentiality at least as protective as those in this Agreement. The receiving party shall not use any Confidential Information, directly or indirectly, for any purpose other than as necessary to perform its obligations and exercise its rights under this Agreement. Each party shall be responsible for any breach of this Agreement by its Representatives, which for purposes of Customer will include its Authorised Users. If a receiving party becomes legally compelled to disclose any Confidential Information, it shall provide the disclosing party with prompt prior written notice to the extent legally permitted and assistance (at the disclosing party’s expense) in obtaining a protective order. Customer grants Company and Conversica the right without compensation to use Customer comments relating to the Platform and Service in connection with testimonials, quotes, for publication, and to use Customer’s name and logo in client list and marketing materials.
10. EXPORT CONTROL. In its use of the Platform, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its Authorised Users to) access or use the Platform or Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations
11. MISCELLANEOUS. (a) Conversica in cooperation with Company may modify these Terms of Service at any time and in its sole discretion and will notify Customer of such modification via email to the contact email provided by Customer or via an update notice on the Platform website where Customer’s logs in. Changes to these Terms of Service shall be effective ten (10) days after provision of such notice. Customer is responsible for checking its account on the Platform on a regular basis and for ensuring that any contact information, credit card information or other information that it provides to the Company is current and accurate. Customer’s continued use of the Platform after notice of modifications as provided above shall be deemed to be Customer’s continued acceptance of these Terms of Service, including any amendments and modifications. If a modification is unacceptable to Customer, Customer may terminate the Agreement by giving notice within the ten (10) day period specified above. Under these conditions, termination will then be effective thirty (30) days after such notice is given during which period the pre-existing Terms of Service will continue to apply.
(b) Neither party will be liable for, nor considered in breach of or default under this Agreement on account of any delay or failure to perform its obligations under this Agreement because of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence.
(c) The failure of either party to enforce any provision of this Agreement will not constitute a waiver of such party’s rights to subsequently enforce the provision, and a waiver of breach shall not be a waiver of any other or subsequent breach. A party’s remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
(d) Customer may not assign any of the rights granted under this Agreement without Company’s prior written consent, and any attempted assignment without such consent will be null and void.
(e) This Agreement represents the entire agreement between the parties with respect to the matters set forth herein, and supersedes any prior or contemporaneous agreements relating thereto, including without limitation any non-disclosure agreement, PO, vendor registration etc. If any provision of this Terms of Service conflicts with an Order, the terms of the Order will prevail with respect to the Platform and Services ordered under such Order.
(f) This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Each party agrees that all actions brought to enforce this Agreement or resolve any dispute arising out of or relating to this Agreement, the Platform or the Services shall be settled by binding arbitration before the American Arbitration Association (“AAA”) in accordance with the then current Commercial Arbitration Rules of the AAA, with such proceeding to be conducted in San Francisco, CA unless the parties mutually agree upon another location. Any award shall be final and binding and judgment thereon may be entered in any court of competent jurisdiction. Each party will bear its own cost of arbitration. The foregoing will not preclude any party from seeking injunctive relief to protect its rights pending arbitration.
(g) If any provision of this Agreement is held invalid, such determination will not affect the remaining portions of this Agreement, and the affected provisions shall be interpreted and enforced to the full extent possible to carry out the intent of such provision.
(h) Any notice to Company must be in writing to: Company’s address provided in the Order, with a copy sent to Conversica, Inc., 950 Tower Lane, Suite 1200, Foster City, CA 94404, Attn: Legal, or such other address as Company and/or Conversica may give notice of pursuant to this section, and such notices shall be sent by U.S. first class registered mail or overnight delivery service. Conversica may provide electronic notices to Customer by general notice via the Platform and may give electronic notices specific to Customer by email to Customer’s email address(es) on record in Customer’s account information for the Platform.
12. THIRD PARTY BENEFICIARY. Customer is hereby notified that Conversica, its successors and assigns are each a third-party beneficiary under the Agreement, and each is entitled to enforce all rights of Company relating to the Platform and provision of related Services under the Agreement, in addition to enforcement by Company. If Company ceases to be an authorised reseller of the Platform, Company’s rights and obligations under this Agreement with respect to such Services and Platform shall automatically be assigned to Conversica, upon notice by Conversica to Customer of such assignment, and so long as Customer continues to comply with the terms and conditions of this Agreement, Conversica will continue to provide Services through the remainder of the Subscription Term for which Conversica has received payment.
The Reynolds and Reynolds-required terms below are applicable only to Reseller Customers who order an integration with a Reynolds and Reynolds application.
REYNOLDS AND REYNOLDS DMS INTEGRATION TERMS
As part of its Reynolds Certified Interface program, Customer’s Dealer Management System (“DMS”) provider, the Reynolds & Reynolds Company or its affiliates (collectively “Reynolds”), has developed certain processes that allow certain third party software such as the Platform to receive from Reynolds certain data from the Customer’s DMS and/or allow the Platform and Company to send data to the Reynolds DMS (“RCI Integration”). This Agreement provides access for Customer and Authorised Users of the version of the Platform integrated with the Reynolds DMS using the RCI Integration pursuant to the Reynolds proprietary interface (the “Reynolds Interface”). Customer must have an agreement in effect with Reynolds for use of the Reynolds DMS in order to license the Platform under this Agreement.
2. DATA. Customer hereby grants to Company during the Term of this Agreement and for thirty (30) days thereafter, the right and license to access and use the Customer Data (including the personally identifiable information submitted to the Platform or collected in providing the Services to Customer) as necessary to provide the Platform, Services and Reynolds Interface to Customer hereunder, and grants to Company and Reynolds the right to provide each other access to the Customer Data solely for that purpose. The foregoing grant of rights includes Customer’s consent to Reynolds’ providing Company with access to data from Customer’s Reynolds DMS, and to Company providing Reynolds with access to Customer Data, both of which may include, without limitation, Customer NPI.
3. TERM; TERMINATION. Reynolds may terminate the integration provided through the Reynolds Integration at any time on notice to Company and Customer if Reynolds determines that such integration may conflict with or adversely affect the operation or security of Customer’s Reynolds DMS (including without limitation the integrity or security of the data) or such access may violate any applicable laws or regulations. Upon termination or expiration of the Agreement for any reason (a) Customer and its Authorised Users will cease to have access to and use of the Reynolds Interface; (b) upon receipt of a Customer request within thirty (30) days of termination or expiration, Company will export the Customer Data to Customer in a mutually agreed format, and promptly thereafter Company will return or destroy Customer NPI.
4. WARRANTY DISCLAIMER. THE PLATFORM, SERVICES AND REYNOLDS INTERFACE ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY ENTITIES AND REYNOLDS EACH DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND IN CONNECTION WITH THE REYNOLDS INTERFACE OR ANY ACTION OR FAILURE TO ACT BY REYNOLDS IN CONNECTION WITH THIS AGREEMENT. Some jurisdictions do not allow limitations on certain warranties, so the above limitation or exclusion may not apply to Customer to the extent prohibited by such local laws. Reynolds makes no representations, assurances, warranties or guarantees with respect to the Platform or Company’s obtaining access to data from Reynolds DMS through Reynolds Integration or otherwise. Reynolds disclaims all liability whatsoever for any damages Customer may suffer as a result of using the Platform or because of Company’s access to data from the Reynolds DMS. Customer agrees that problems caused by the data access described in this Agreement will not be covered by any software support and equipment maintenance services or fees previously agreed between Customer and Reynolds. NOTICE TO NORTH CAROLINA DEALERS: THIS END USER AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CUSTOMER RELATED DATA.
5. CANADIAN PROVISIONS. Intentionally omitted.
6. MISCELLANEOUS. The Platform contains portions of program code of the Reynolds Interface owned by Reynolds, which will be entitled to enforce this Agreement as an intended third-party beneficiary and the obligations of Reynolds cannot be modified or terminated without its written consent.