TERMS AND CONDITIONS
THE UNDERSIGNED PARTIES, the applicant entity identified on the accompanying service application (Application) and herein referred to as the “Customer”, and Convirza, headquartered at 405 E. 12450 S. Bldg 2, Ste K, Draper, Utah 84020 and herein referred to as “Convirza”, and collectively referred to as the “Parties”, hereby agree to certain Call Quality Optimization services (herein referred to alternatively as “CQM Services”, “CQM”, “Service” or “Services”) as set forth below and in the accompanying service application. In consideration of this agreement (Agreement), the Parties hereby agree to the following terms and conditions of service. The agreement of the Parties to these terms may be accepted by signing a formal written agreement of these terms, by clicking on the “accept terms” button with an online version of this application, or by using the Service or continuing to use the Service after a revised version of these terms has been posted. These terms and conditions apply only to the Services described herein and do not apply to other products or services that Convirza may offer or that may be sold or provided in conjunction with these Services except as described in their respective statements of terms and conditions or agreements. Customer warrants that it has full power and authority to enter into this Agreement, and will have and maintain during the service term described herein, all consents, approvals, permissions, and licenses necessary to perform all of its duties and obligations hereunder. The parties acknowledge and agree that Customer will be deemed responsible for each of its clients, subcontractors, licensees, representatives, customers, agents and other Customer affiliates (collectively, “Customer Affiliates”), and their respective compliance with the terms of this Agreement.
1. Length of Service: The length of service for this Agreement is based on the application for service completed in conjunction with this Agreement. This Agreement begins on the date the accompanying Application is submitted and continues for the term agreed to on the Application.
2. Ownership of numbers: Tracking numbers assigned to Customer for use on Customer’s account are leased to Customer for purposes of this Agreement, but remain the property of Convirza through the end of the term of Service. Portability of numbers at the termination of service may be limited by the telecommunications service providers in the area in which Customer’s numbers are located and is subject to transfer fees. Upon termination of this Agreement, Customer must either pay the applicable transfer (if number portability is available for its numbers in that area) or must cease to use the tracking numbers covered by this Agreement and shall cease distributing such numbers and shall take all reasonable steps to remove the numbers from use in any marketing venues including publications, advertisements, promotions, websites, etc. During the term of Service in this Agreement, Customer may not sublease, assign, or allocate tracking numbers included in this Agreement to third parties or use such numbers in any way not set forth in the terms of this Agreement without express written permission from Convirza or without a separate Affiliate, Reseller, or Integrator agreement in place. Convirza reserves the right to reallocate numbers not currently in use by Customer at its discretion. In the event that Customer suspends or terminates this Service for any reason, including breach or non-payment of fees, Customer acknowledges that the tracking numbers or toll-free numbers it had prior to suspension or termination of the Agreement may no longer be available.
3. Compliance with applicable laws: The Customer shall be responsible for compliance with all laws and regulations regarding the monitoring of employee and customer conversations. Customer understands and agrees that it is familiar with all local, state and federal laws and regulations regarding calling, recording, and receiving of calls, and agrees to comply with those laws and regulations. Customer agrees to not use recordings for fraudulent or illegal purposes. Customer shall determine in advance, in its sole discretion without reliance on Convirza whether the use of the Services defined herein are appropriate and legal in the context of Customer’s use and implementation thereof in its jurisdiction.
a. Auto-renewal: i) Monthly: The Service renews automatically every thirty days based on the date that Customer signed up for the Service. ii) Annual: For Customers that have signed up for an annual subscription, Service automatically renews on the anniversary date of their subscription. Accounts are automatically charged on the monthly or annual renewal dates and continue to renew automatically until one or both parties terminate this Agreement as provided for herein.
b. By Customer: Customer may terminate their account inside Convirza CQM by clicking on the “cancel my subscription” link on the “Subscriptions and Add-ons” page available through the Setup menu. Cancellation must be done by a company admin user and the cancellation page requires that they provide identifying information from the account for verification purposes. If there are any issues, Customer may call customer support at 1-855-889-3939 for assistance. As the monthly plan is paid in advance for the next month, the account will remain open through the end of the billing period in which cancellation is requested and will then close prior to the next renewal without being prorated for that period. Lines will remain active through the end of that billing period. At the end of the period any usage from that period will be charged to the card on file in the Convirza CQM billing system. If Customer needs to port any of the tracking numbers on their account, the account must remain active until those ports are completed successfully.
c. By Convirza: Convirza reserves the right in its sole discretion to refuse Service to any party for any reason. Convirza may terminate this Agreement for any or no reason upon thirty (30) days written notice to Customer; or may, without refund, at its sole discretion, terminate or suspend services on this Agreement effective immediately if there is a violation of any laws, regulations or statutes by the Customer, if Customer falsifies personal or company information including, but not limited to, name, email address, mailing address, phone number, etc., or for any material breach of any terms of this Agreement by the Customer, including failure to maintain account current. Violation of laws may also be reported to appropriate law enforcement agencies. Customer shall be responsible under this clause for any balance due on the account at the time of termination.
d. Effect of Termination: Upon the effective date of termination, all rights and obligations of the parties will terminate except for any duties including but not limited to confidentiality, privacy, intellectual property ownership, indemnity or warranty that arose under the terms of the Agreement and that are hereby covered by the survivability clause included herein.
5. What is not included in the service
a. Emergency Dialing: Tracking numbers connect with an existing landline or mobile number provided by Customer. Emergency dialing services (i.e., 911 service) is not included on tracking numbers. Customer therefore waives any claims against Convirza or any of its affiliates based on failure to provide emergency dialing service under this Agreement.
b. Telephone Service: Convirza is not a telephone company and does not provide telecommunications services. Convirza purchases telecommunications services from third party telecommunications providers and uses such services to deliver products and Services to Customer. CQM Terms & Conditions 2.0
6. What is included in the service: Convirza’s CQM service includes a tracking number for use in tracking and recording inbound calls or outbound calls. The tracking number may be either a local or a toll-free number (depending on the services agreed to by the Parties in the Service Application). Tracking numbers are redirected to an existing landline or mobile number using a ring-to feature. The Application for Service may also provide for geo-routing of call allowing them to be forwarded to different terminals based on the area code from which the calls originate. Tracking numbers are used to create tracking reports that detail what calls came in to each number being tracked including number being called, originating number, and date and time of call. Recordings are made of all calls on the tracking number and are made available to Customer through an online account. Convirza may add or remove features of this service at its sole discretion at any time.
7. Equipment: Customer is responsible for obtaining, providing, configuring, and maintaining any telephone or computer equipment (the Equipment) necessary to access the Services in this Agreement. Customer is also responsible for adequately safeguarding its Equipment and access to systems involved with the delivery of the Services to adequately protect any confidential, private, or strategic information or data and to prevent damage to be done to systems involved with this Agreement. Convirza is not responsible for any telephone or internet connection charges, taxes, or fees associated with Customer’s systems needed to access the Service. Any costs associated with modifying, programming, configuring or otherwise connecting Customer’s Equipment to be able to access the Service are the responsibility of Customer.
8. Acceptable Use: The call tracking and call recording Services described by this Agreement are designed for use in tracking customer service and sales calls. Customer agrees to use the Service in accordance with all applicable local, state, and/or federal laws or regulations. Customer agrees that it will not (nor allow any client, subcontractor, licensee, representative, customer, agent or other Customer Affiliate) to use the Service in any manner that violates the rights of any person or is illegal, fraudulent, deceptive (including without limitation any spoofing of caller ID information or similar practices likely to deceive any other party contacted through the Service), harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, invasive of privacy, or otherwise objectionable or unlawful; to use or access the Service by mobile telephone while operating a motor vehicle; or to interfere with another’s use and enjoyment of any Convirza services. The Parties agree that any violation of these terms by Customer shall entitle Convirza to terminate or suspend the Services provided hereunder to customer.
9. Excessive Use: Convirza reserves the right to limit or suspend Service usage on any account using the Service if call volumes significantly exceed the planned usage or prior usage patterns, or when reasonable prior notice of capacity needs has not been provided. Customer acknowledges that such account limitations or suspensions may result in calls being rejected by fast-busy signal.
10. Support: Technical support is available to Customer during normal business hours through email at Support@Convirza.com or by calling your Convirza representative.
11. Payment terms
a. Billing: billing for services is done in advance, prior to the month in which services are used (or at the beginning of the year in which services are used under annual agreements). Payments for services billed are due upon receipt. Monthly Services fees are for the billing cycle for which they are prepaid only and may not be carried over at the end of the period, whether the services were used during the period or not. Customer agrees to pay all fees, usage charges, surcharges, regulatory fees, or taxes in accordance with the terms of this Agreement and upon receipt of the monthly invoice. Customer will make payment no later than 10 days after first day of month for which invoice has been submitted to Customer. Past due amounts may be charged finance charges of up to 18 % annual percentage rate (1.5% per month), or the maximum permitted by law, whichever is lower, until brought current. Customer is responsible for any costs or expenses incurred (including accounting fees, collection fees, and legal fees) associated with collection of any past-due amounts on Customer’s account.
b. Contracted monthly fees: This Agreement is completed in conjunction with a Service Application in which the fee amounts for this Agreement are listed. The Parties agree that the monthly fees and contracted fee amount apply for the duration of the contract period. The attached Service Application may list a specific volume and rate for the Services to be billed each month. The fees listed may be for the minimum monthly volume and are fixed for the contract period, even if the Customer fails to use all of the Services for which the Customer has agreed to purchase in a given month. In the event that the Customer uses more Services than contracted or Services for which additional fees apply, Convirza will bill the Customer for the additional Services as the agreed upon or then-current rate. Unless otherwise indicated, all fees in this Agreement and any Service Application are in United States currency.
c. Payment Disputes: If Customer has any payment disputes related to the services in this Agreement it must notify Convirza within five days of receiving the disputed billing statement. Failure to notify Convirza of any payment disputes within the five day period shall be deemed to be an acceptance of the billing statement and all fees listed thereon.
12. Assignment. Customer may not assign or sublicense this Agreement or any of its rights hereunder, or delegate any of its duties hereunder without the prior written consent of Convirza. This Agreement may be assigned, in whole or in part, at any time by Convirza by providing written notice of the assignment. This Agreement binds and inures to the benefit of the parties’ successors and lawful assigns.
13. Credit Application. Customer hereby authorizes Convirza to verify any and all information in this Agreement or accompanying service application(s) for credit purposes.
14. Limited Agency Agreement: Customer hereby appoints Convirza to act as its agent with respect to the acquisition and provisioning of services provided for under this Agreement, including, but not limited to the acquisition and provisioning of phone numbers for use with the services described herein. Customer hereby authorizes Convirza to order, effect changes, and handle arrangement on its behalf, including the ordering of services and phone numbers as well as obtaining carrier information for all locations being served by this Agreement. This agency agreement is limited to matters directly related to the Services defined by this Agreement and neither Party is authorized to serve as an agent for the other for any purpose not covered directly in this paragraph nor to negotiate on their behalf on any matter outside the scope of this paragraph. Except as expressly described, herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.
15. General Privacy Terms: The Parties acknowledge that privacy of end users of the Service, including Customer’s employees and clients, is important and the Parties agree to make all necessary efforts to protect the privacy of the same. Use of the Convirza site(s) or Service(s), demonstrates Customer’s consent to the collection and use of information as outlined in this privacy statement and consent to these Terms and Conditions of use.
a. Customer agrees that it has established proper procedures to protect the privacy of its clients’ and employees’ personal information and otherwise comply with all applicable laws and regulations with respect to the data acquired by the Services covered by this Agreement. The Parties agree that information or data (including usage information and data collected through the Service) cannot practicably be stored in a manner which is PCI (payment card industry) or HIPAA (healthcare patient confidentiality and security) compliant. Therefore, Customer agrees to put practices and procedures in place to protect its client information in these areas so they are kept out of the scope of any call recordings gathered by this Service.
b. The Parties agree that the principle uses of the call recordings and customer data that will be collected by this Service are for the improvement of quality of customer service and for training purposes by the Customer. Customer acknowledges that Convirza may also use Customer data for training, quality control, or research and development purposes or for use in normal business operations. Data may be used for developing new services, improving existing services, or developing market and industry intelligence. Any information gathered and used by Convirza for these purposes will not contain personally identifiable information for any parties involved in the call recording.
c. Customer agrees to protect login and security information for accessing the information and call recordings collected by this Service for its account(s) with Convirza and to notify Convirza immediately of any breach of security on its end. Convirza cannot be responsible for any data lost, misused, destroyed, or stolen due to Customer’s inability to maintain the security of login information for its account(s). Convirza makes no warranties to cover loss, misuse, or alteration of data, but makes diligent efforts to prevent such from happening.
d. Convirza may use third party providers and subcontractors for the Services described in this Agreement (including, but not limited to, credit card processors, telephone service carriers, data service providers, or consultants). Service through these providers may necessarily include providing them with some or all data, recordings, or information covered by this Agreement. Whenever possible, such data would be transmitted in an anonymous format. Information that may be shared with these third parties will be limited to that which is necessary for the delivery of the applicable Service and only if these third parties are prohibited for using the information provided for any other reason or purpose.
e. Convirza specifically reserves the right, to the maximum extent permitted by law, to use or disclose any information covered by this Agreement for the purposes of enforcing this Agreement; when requested by law enforcement agencies (whether or not under subpoena); or if it reasonably suspects a violation of the user Agreement, Terms & Conditions of use, or any applicable law or regulation. Convirza may also provide personal information disclose information when required by law (e.g., subpoenas, search warrants and court orders), when it determines that such action is reasonably
necessary to protect a party’s rights, property, or well-being or for the purposes of fraud detection or protection, or in other situations involving suspicious or illegal activities.
f. Customer agrees to comply with all applicable laws as to privacy of minors and agrees to be familiar with any such laws. Children under age 13 not permitted to use the call recording service. Convirza does not knowingly collect any information or identifiable information on children without their parent’s consent. If Customer employs minors whose voice may be captured by call recording Services described herein, Customer agrees to obtain written permission from the employees’ parent or legal guardian. Customer agrees to indemnify Convirza from any cause of action related to recording of minors on this Service.
16. Recorded Call Notice: The Parties acknowledge that some jurisdictions require that in order to record a conversation, all parties to the conversation must know that the conversation is being recorded while other jurisdictions only require that one party know of the recording of the conversation. Customer represents, warrants and agrees that in connection with its use of the Services, that Customer has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, that Customer is permitted to engage in those activities, and that Customer shall use Convirza’s service in full compliance with all applicable laws and regulations.
a. In order to assist in compliance with these regulations, a “Recorded Call Notice” is configured to automatically play at the commencement of any call. This feature may be disabled by Customer. Convirza makes no warranties regarding the legality of monitoring, recording, storing, or making available calls to Customer nor the legality of the language used in any “Recorded Call Notice” used in conjunction with this service. Customer agrees, acknowledges, represents and warrants that it will provide and/or obtain all notices, consents, and permissions relating to recording calls, as required by applicable laws and regulations. It is the sole responsibility of Customer to comply with the legislation, regulations and statutes in the jurisdiction(s)in which it operates. Customer agrees to notify Convirza in the event Customer learns of a required revision to the Recorded Call Message in order to comply with applicable laws or regulations with the specific language required.
b. Customer agrees and acknowledges that applicable laws and regulations may require that Customer provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who receive telephone calls recorded by the services described in this Agreement.
17. HIPAA: If Customer is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Customer is solely responsible to ensure full compliance therewith. Customer is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Convirza makes no claims or warranties regarding compliance with HIPAA. Any information that is recorded by the services defined in this Agreement or that may be stored by Convirza for Customer is the sole responsibility of Customer with respect to HIPAA regulations.
18. Credit Card Security: Convirza’s Services covered by this agreement do not comply with any level of credit security or PCI (payment card industry) standards. It is Customer’s responsibility to ensure that any data collected by this Service maintain the integrity of its customers as Convirza hereby disclaims any and all responsibility for the protection of sensitive or financial information. In order to protect its clients, Customer is strongly encouraged not to collect credit card or personal financial information over the phone in connection with this Service. Customer hereby agrees to indemnify, defend, and hold harmless Convirza from any claim related to failure to adequately secure credit card or personal financial information in conjunction with this Service.
19. Copyright: Except as otherwise expressly agreed in writing any copyright, trademark (including names, slogans, trademarks, service marks, designs, and logos), patent (registered or unregistered), trade secrets, or other intellectual property rights in any works or processes, including but not limited to manuals, marketing materials, reports, or materials published, transmitted, or otherwise available on the Convirza Website or through the Service provided by Convirza to the Customer, shall be the property of Convirza. All copyrights, trademarks, patents, or other intellectual property rights shall remain the property of Convirza, and may not be copied, reproduced, republished, reused, uploaded, downloaded, posted, or transmitted, other than through the Service in accordance with its intended use, nor may derivative works be created from it or distributed in any way.
20. Confidentiality: Convirza may furnish to the Customer access to certain of its systems and tools and Customer may furnish to Convirza access to its phone systems, recorded calls, and customer information as Parties mutually deem necessary to execute the terms of this Agreement.
a. All information (Confidential Information) furnished by the Customer, its representatives, or its customers, or any information obtained by Convirza through conversation or written communication between the Parties shall be kept confidential by Convirza and its staff. Convirza shall not disclose any Confidential Information to any third party without prior written approval by the Customer or as specifically required by law or court order. Convirza will use the information and documents including any call recordings or tracking information obtained from the Customer solely for the purposes of this Agreement, but may, from time to time, use data in an unidentifiable way to improve services or develop new products or services as described herein. The Parties agree to reasonably treat any Confidential Information of the other party as if it were their own.
b. Confidential Information may include business methods, business plans, contracts, customers, competitive analysis, designs, methodologies, presentations, procedures, processes, formulas, inventions, products, product plans, product functionality, applications, specifications, technical data, drawings, markets, payment, documentation, services, algorithms, formats, know-how, data, databases, developments, and rules. Confidential Information does not include information generally known or publicly available prior to the time of disclosure, that through no action or inaction of the receiving party becomes publicly available, is already in the possession of the receiving party prior to disclosure, was developed independently by the receiving party with use of any Confidential Information or that is provided by a third party not under confidentiality obligations with the disclosing party.
21. Storage of Data: During the term of the Agreement, and subject to the terms contained herein, Customer may access call detail records, call recordings and associated data for twelve (12) months from the date of the recording. Customer agrees that this feature is provided as a convenience to Customer only and Convirza has no responsibility or liability whatsoever for the deletion, loss, or failure to store, any messages and/or other communications maintained or transmitted as part of this agreement. All archived Customer data (including call recordings) will be governed by the most current storage and deletion terms in effect, which are subject to change at any time and may include limitations on the storage capacity limitations, automatic or mandatory deletion protocols, and length of storage periods. Notification of any such changes will be posted on the CQM website or sent by email. If Convirza, in its reasonable professional discretion, determines that Customer data must be retained beyond the time specified herein in order to comply with regulatory matters, Convirza reserves the right to maintain the data until any and all matters have been resolved adequately. Upon termination of this contract, Convirza will retain archives of Customer’s data for a period of at least 60 days or as required by law, regulation, or court order. Customer can retrieve data for up to 30 days after termination of contract by special request.
22. Indemnification: Customer shall, at its own expense, indemnify, defend and hold harmless Convirza and all employees, officers, subsidiaries, parents, affiliates, managers, shareholders, resellers, sales affiliates, representatives, licensees or other partners, and contractors working on programs related to this agreement (the Indemnified Parties) against all or any claims (Claims) (including but not limited to libel, violation of privacy or publicity, copyright infringement, trademark infringement, trade secret violation, fraud, product liability, misrepresentation, false advertising, or violation of any law, statute, ordinance, rule or regulation throughout the world), as well as any costs, investigations, fines, settlements, damages, proceedings, demands, suits, actions, liabilities, judgments, obligations, losses, and expenses (including without limitation reasonable legal fees, accountants fees, and or other expenses) to which Convirza and the Indemnified Parties may become liable by reason of the negligent, intentional or willful act or omission of the Customer, use of any materials or services supplied by Customer, any other’s use of the Customer’s account, or conduct of Customer including, but not limited to, violation of applicable laws or any tort committed in connection with the services described in this Agreement, use/misuse of Services in violation of the applicable terms and conditions, customer or Customer’s breach of any term, condition, agreement, representation or warranty hereunder, Customer or Client’s telemarketing or other marketing activities, or the use/misuse of confidential information. The indemnifying party will not enter into any settlement or compromise of the Claim except a settlement or compromise that: (a) is full and final with respect to the Claim; (b) does not obligate the indemnified party to act or to refrain from acting in any way; (c) does not contain an admission of liability on the part of the indemnified party; (d) dismisses the Claim with prejudice; or (e) is subject to confidentiality, such that no party may disclose the terms of the settlement or compromise without the indemnified party’s prior written approval, which shall not be unreasonably withheld. Customer will not agree to any settlement that imposes any obligation or liability upon Convirza without Convirza’s prior written consent. Although Convirza has no obligation to monitor the use of the services described herein Convirza may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the Agreement or applicable laws.
23. Limitation of Liability: To the maximum extent permitted by law, under no circumstances and under no legal theory, tort, contract, or otherwise, shall Convirza be held liable to Customer or any third party for any damages (including, but not limited to, direct, indirect, special, consequential, incidental, cover, or reliance) that result from use of the Services or the inability to use the Services for any reason that might directly or indirectly result in any loss by Customer or any third party, including but not limited to the following: a) losses or damages due to telephony systems failures, including Convirza systems, b) any changes to telephone numbers published or distributed by Customer prior to confirmation that the number is installed and terminating properly or that the Service is connected to the proper facilities, c) errors in listings due to directory publishing errors or omissions, d) loss of data, business, profits, or goodwill, e) costs of procurement of substitute goods or services, f) reliance on or use of information or services provided through the Service that result in mistakes, omissions, interruptions, errors, defects, delays in operation or transmission. If, notwithstanding the foregoing, Convirza is found liable to Customer for any damages, exclusive remedy shall be limited to a refund of the amounts paid by Customer to Convirza during the period of time that any services were interrupted and shall not exceed total amounts paid by Customer to Convirza under this Agreement during the last three (3) months paid for.
24. Use of Customer Data: Customer shall be solely responsible for its use of the customer data, recorded calls, or information that is collected as part of the Services of this Agreement.
25. Force Majeure: Convirza shall not be liable for any failure nor be deemed in breach of this Agreement or of any implied warranty or other obligation, for any delay in the supply of its services and goods caused by any acts beyond its control that prevent, restrict or interfere with their delivery, including but not limited to, acts of God including storms, earthquakes, natural disasters, floods or other catastrophes, accidents, civil commotion including, but not limited to, riots, boycotts, rebellions, shortages, or insurrections, power failures, cable cuts, failure of internet carrier lines, failure or malfunction of Customer-supplied equipment, Internet outages beyond the reasonable control of Convirza, labor issues including, but not limited to, work stoppages, lockouts, or strikes, explosions, national emergencies, terrorism, wars, warfare or acts of war, vandalism, cyber terrorism (including hackers, viruses, malware, or other malicious code), law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority or martial law, and Convirza shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. Contact point shall not be liable for any loss, damage, or expense suffered by the Customer or any third party arising directly or indirectly from any such matter covered by this paragraph. Convirza will use reasonable efforts within its powers to avoid or remove any such cause of nonperformance.
26. Disclaimer of Warranties: THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THE SERVICE WOULD NOT BE AVAILABLE WITHOUT IT. EXCEPT AS SPECIFICALLY DESCRIBED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONVIRZA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES DESCRIBED IN THIS AGREEMENT OR ANY AND ALL OTHER SERVICE, MATERIAL, OR EQUIPMENT PROVIDED BY CONVIRZA, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS FOR WARRANTIES DISCLAIMED BY CONVIRZA HEREIN.
a. Some legal rights vary by jurisdiction and may not be disclaimed. In the event that any warranty disclaimed herein is prohibited for any reason, it and all other warranties are to be disclaimed to the fullest measure permitted by law. Convirza makes no warranties as to the results to be obtained from the use of the Service, the number of calls tracked or recorded, the costs Customer may save or the revenue Customer may earn, nor to the accuracy or legality of any information or data provided as part of the Service.
b. While Convirza strives to work with all telecommunications systems to provide its services, it does not guarantee that the Service may be accessed from all locations or with all equipment or types of communications access, nor does it recommend or support use of the Service in mission critical situations or on mission critical equipment. Convirza makes every effort to provide the highest level of Service under this Agreement, but makes no warranty that the Services will be uninterrupted, secure, or error-free.
27. Severance: If any part of any provision of this Agreement is held to be invalid, unlawful, void, or for any reason unenforceable, said part shall be deemed severed from this Agreement and shall not affect the validity or enforceability of any remaining provisions. Invalid parts shall either be modified to reflect the parties’ intent, but only to the extent necessary to make them enforceable, or be deemed to be ineffective to the extent of such invalidity only, without affecting the remaining parts or provisions of this Agreement. All other parts and provisions of the Agreement shall remain valid and enforceable.
28. Survivability: The Parties agree that certain terms of this Agreement shall survive termination or expiration of same, including, but not limited to issues of privacy, confidentiality, intellectual property protection, or indemnification for claims as described herein.
29. Entire Agreement: This Agreement, including any Addenda, and any product-specific terms and conditions, sets forth the entire mutual understanding of the Parties relative to the services covered herein and supersedes any prior agreements or understandings, whether written or oral. Any conflicting or additional terms that may have been discussed in reaching this agreement, whether oral or written, that are not set forth herein are void and are not included in this agreement. The Parties may enter into other agreements for other services without affecting the terms set forth herein unless the Parties specifically agree to supersede this Agreement. Except as otherwise provided for herein, any waivers or modifications must be in writing and signed by both Parties.
30. Waiver of Rights: Failure of Convirza to exercises or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
31. Reservation of Rights: The parties reserve all rights not expressly granted.
32. Modification of terms: The Parties agree that Convirza may, at any time, for any reason, including but not limited to responses to regulatory changes beyond the control of the Parties that materially alter the feasibility or economics of the Services provided, unilaterally change, amend, modify, suspend, or discontinue any aspect of these terms and conditions of service, in any reasonable manner, by posting the revised terms and conditions to its website. Customer’s continued usage of the service after modified terms have been posted shall constitute an acceptance of the modified terms by Customer. Customer’s sole remedy with respect to any modification is to terminate this Agreement or suspend or cancel its account(s). Modifications to the terms of service that may be made by Convirza may include, without limitation, the availability of any service feature, database or content, hours of availability, or equipment needed to access the Service.
33. Choice of Law: Each of the terms of this Agreement shall be construed as independent of any other provision of this agreement and shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions. Any dispute arising under this Agreement shall be construed under and resolved in accordance with the laws of the State of Utah. In any action or proceeding to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover costs including reasonable attorney’s fees.
34. Dispute Resolution: the Parties agree to binding arbitration for resolution of any dispute arising from this agreement. Arbitration shall be conducted in Salt Lake City, Utah.
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