Master Subscription Agreement
LAST UPDATED: 30 October 2023
This Master Subscription Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined in Section 26 below), and is a contract between Converlens Pty. Ltd. (“Converlens”), and you or the entity or organisation that you represent.
If you are an individual using the Services for your own purposes: (1) all references to “Customer” are to you; and (2) you represent and warrant that you are at least 18 years of age or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Services on behalf of an entity or organisation that you represent: (1) all references to “Customer” are to that entity or organisation and (2) you represent and warrant that you are at least 18 years of age or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer. As a Customer that is an entity or organisation, Customer will designate an initial workspace administrator for its account on the Services. The initial workspace administrator will create and control Customer’s workspace on the Services, and may invite other Authorised Users to access the Services under Customer’s account. As applicable to the Services, if you are invited to a workspace configured by a Customer, the User Terms of Service govern your access to and use of the Services.
If you sign up for the Services using an email address supplied by your employer or another entity, then: (a) you will be deemed to represent your employer or that entity; (b) your click to accept will bind your employer or that entity to this Agreement; and (c) the word “Customer” in this Agreement will refer to your employer or that entity.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services; (2) when you click an “I Accept”; “Sign up” or similar button or check box referencing this Agreement; or (3) when you enter into an Order (as defined below) with Converlens.
Capitalised terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 26.
1.1. This Agreement sets forth the terms pursuant to which Customer may access and use Converlens’s Services in connection with one or more Orders. Subject to the terms of an Order, the Services will support Customer’s analysis, organisation, collaboration, and storage of data and insights pursuant to separate projects within a workspace.
1.2. Access to and use of the Services may be subject to additional terms specific to a product or feature as set forth in the Product-Specific Terms. By accessing or using a product or feature covered by the Product-Specific Terms, Customer also agrees to the applicable Product-Specific Terms.
2. Access and Use
2.1. Subject to the applicable Order and this Agreement, Converlens hereby grants to Customer the right to access and use the Services in accordance with the Documentation during the Order Term.
2.2. As between the Parties, Customer controls its own environment and its individual components (each, a “Customer Component”), whether owned, leased or licensed by Customer, located on Customer’s premises or cloud-based, used by Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Services by establishing integrations or other connections to one or more Customer Components (each, a “Connection”). By implementing a Connection to a Customer Component, Customer hereby grants to Converlens the right, and is expressly instructing Converlens, to access and interoperate with that Customer Component during the Order Term in order to provide and support the Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Components and associated data (collectively, “Third-Party Terms”).
2.3. Through Customer’s configuration and use of Connections and Services, Customer has control over the types and amounts of data from Customer’s own environment, and as well as the use of surveys and data collectors to collect data from Participants and Authorised Users, that are submitted for Processing by the Services (collectively, “Customer Data”). By submitting Customer Data to the Services, Customer hereby grants to Converlens the right, and is expressly instructing Converlens, to Process Customer Data during the Order Term in order to provide and support the Services and as otherwise provided in this Agreement.
2.4. All rights granted by each Party to the other under this Section 2 are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.
2.5. Converlens may, from time to time, offer access to beta products, pre-release products, or other experimental features (“Beta Products”). Any obligations or warranties made by Converlens under this Agreement shall not apply with respect to Beta Products. Furthermore, any data, information, content, or other materials provided or displayed to Customer in connection with any Beta Products, or any knowledge that Customer may have from or relating to Beta Products, is Confidential Information of Converlens.
3. Hosting and Other Providers
Converlens uses third-party hosting providers, other service providers and Converlens Affiliates to support the provision of the Services in the ordinary course of its business, i.e., not specifically for Customer (collectively, “Ordinary Course Providers”). Converlens reserves the right to engage and substitute Ordinary Course Providers as it deems appropriate, but shall: (a) remain responsible to Customer for the provision of the Services; and (b) be liable for the actions and omissions of its Ordinary Course Providers undertaken in connection with Converlens’s performance of this Agreement to the same extent Converlens would be liable if performing the Services directly. In no event shall providers of Customer Components be deemed Ordinary Course Providers for any purpose under this Agreement.
4. Security and Privacy
4.1. Taking into account the nature and types of Customer Data, Converlens will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Services and prevent the accidental loss or unauthorised access, use, alteration or disclosure of Customer Data under its control during each Order Term. During the Order Term, Converlens will maintain security measures at a level not materially less protective than those set forth in its security policies with respect to Customer Data.
4.2. Customer is responsible for properly configuring the Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts where available, and securing access passwords or other credentials used by Customer in connection with the Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorised access or use of the Services and to promptly notify Converlens if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorised third party or (b) an unauthorised third party has accessed the Services or Customer Data.
4.3. In limited situations, Converlens may access Customer Data to provide support and troubleshoot issues, provided that Converlens will not use Customer Data for any purpose except the sole purpose of providing the Services. Converlens may further Process information about Customer’s configuration and use of the Services (“Usage Data”), and Account Data: (a) to manage Customer’s account, including to calculate Fees (as defined in Section 7.1); (b) to provide and improve the Services, including to provide support and troubleshoot other issues; and (c) to provide Customer and Authorised Users insights, service and feature announcements and other reporting. Converlens may also Process Usage Data that has been aggregated and/or anonymised (including, for clarity, that does not allow a third party to identify Customer as the source of the information): (i) to develop new services and features; and (ii) to promote Converlens’s services, including, for example, through analyses of patterns and trends. Converlens’s Processing of Usage Data, Customer Data and Account Data, as applicable, shall at all times be subject to Converlens’s obligations under this Agreement, including those of security under Section 4.1 and confidentiality under Section 11; the DPA (as defined in Section 6.1), if applicable.
5. Customer Responsibilities and Restrictions
5.1. Customer will be solely responsible for: (a) Customer’s own environment, including as necessary to enable Authorised Users’ access and use of the Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to Converlens’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorisations from, Customer Component providers, Authorised Users and persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials; (d) ensuring use of the Services is only for Customer’s own environment and in accordance with the AUP, Documentation and any applicable Third-Party Terms; (e) all activities of Authorised Users and for Authorised Users’ compliance with this Agreement; (f) providing Converlens with complete and accurate account, billing and payment information and keeping such information up to date during the term of the Agreement; and (g) fulfilling any additional responsibilities as applicable to Customer set forth in the applicable Order.
5.2. No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorised Users to access and use the Services; (b) attempt to gain unauthorised access to any Service or its related systems or networks; (c) use any Service to access Converlens Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy or create any derivative work based upon a Service or any portion, feature or function of a Service; (e) resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the Services in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in the applicable Order, Documentation and this Agreement.
5.3. Converlens reserves the right to investigate potential violations of the above provisions of this Section 5. In the event Converlens reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 13.2), Converlens will have the right to suspend Authorised Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Converlens reasonably believes the violations are wilful, or in urgent or emergency situations, Converlens will notify Customer of any such suspension in advance (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. For clarity, Converlens reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described in this Section 5.3.
6.1. Each Party shall comply with Applicable Laws concerning the privacy and protection of Personal Information. Without limiting Section 5.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorisations required by Applicable Law from, persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials. If Customer is (a) subscribed to a Service Plan; and (b) believes Customer Data may include the Personal Information of natural persons located in jurisdictions who have enacted privacy laws that require a written data processing agreement (such as the UK, Brazil, the European Economic Area, and California), and wishes to execute a Data Processing Addendum (“DPA”), Customer may do so by requesting to complete the Converlens Data Processing Addendum.
6.2. Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this Agreement and the date of each Order, Customer represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of Converlens or its Affiliates in connection with this Agreement. Customer agrees to promptly notify Converlens if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.
6.3. Each Party shall: (a) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
7. Pricing and Fees
7.1. Customer agrees to pay all fees charged by Converlens for Customer’s use of Services in accordance with this Agreement and applicable Order(s) and Service Plan(s) (collectively, “Fees”). Except as otherwise provided in an Order: (a) prices for Services are set forth on the Pricing Page; and (b) Fees must be paid in the quoted currency and, subject to Section 7.2 and 7.3, within 30 days of invoice.
7.2. Except in the event of a good faith dispute under this Section 7.2, if Customer fails to make payment when due, without limiting Converlens’s other rights and remedies: (a) Converlens may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Law; (b) Customer shall reimburse Converlens for all reasonable costs incurred by Converlens in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues, Converlens may suspend Customer’s and its Authorised Users’ access to the Services until such amounts are paid in full. Customer must assert any dispute with regard to Fees in writing within 10 days of receipt of the invoice giving rise to the dispute. Converlens will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
7.3. If Customer is paying Fees using a credit card or any digital payment method supported by Converlens, Customer authorises Converlens to charge Customer’s account for the Services using that payment method. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Customer notifies Converlens to stop using a previously designated payment method and fails to designate an alternative, Converlens may immediately suspend use and access to the Services. Any notice from Customer changing its billing account will not affect charges Converlens submits to Customer’s billing account before Converlens reasonably can act on Customer’s request. Converlens uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use Customer’s credit card information except in connection with Customer’s authorised purchases. Notice (including email) from Converlens’s third-party credit card processor declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Converlens.
8. Service Plans; Automatic Renewal; Cancellation
8.1. Service Plans.
(a) By signing up for an account for the Services you will be required to select a Service Plan, unless otherwise provided in an Order. The account you use to sign-up will be deemed to be Customer’s workspace administrator account.
(b) Converlens may, at its sole discretion, offer access to the Services on a free trial basis for a limited period of time (“Free Trial”). The features and functionality accessible on the Free Trial are offered in Converlens’s sole discretion and are subject to change. Customer’s billing information is not required to be input in order to sign up for the Free Trial. Upon or prior to expiration of the Free Trial, Customer may purchase a paid subscription to a Service Plan. Depending on the Service Plan selected by Customer, Customer may lose access to certain features and functionality offered on the Free Trial. If Customer does not subscribe to a Service Plan upon expiration of the Free Trial, then Customer will cease access to the Services and Converlens reserves the right to delete Customer’s Free Trial account (and any Customer Data contained therein) in its sole discretion, without notice or any further liability or obligation. At any time and without notice, Converlens reserves the right to: (i) modify the terms and conditions of the Free Trial; or (ii) cease to offer the Free Trial.
(b) Service Plans are offered in packages based, in part, on the number of Authorised Users and other features and capabilities. Customer may add Authorised Users to their Service Plan by accessing the billing management settings for Customer’s account via the Services. Subscription fees for Service Plans are based on annual or monthly periods that begin on the Order start date and each annual or monthly anniversary of the start date.
(c) Customer may upgrade, change and otherwise manage its Service Plan subscription by accessing the billing management settings for Customer’s account via the Services.
8.2. Automatic Renewal. Unless a Party cancels an Order for a Service Plan in accordance with Section 8.3 below, each Order will automatically renew for additional periods of the same duration as the expiring Order Term (each, a “Renewal Order Term”). Customer authorises Converlens to automatically charge Customer for the applicable fees on or after the start date of each Renewal Order Term unless the Order has been terminated or canceled in accordance with this Agreement. If Customer wishes to reduce the number of Authorised Users or the applicable Service Plan, it must do so before the start of the next Renewal Order Term. Converlens reserves the right to increase fees for a Renewal Order Term and Customer shall pay such increased fees unless it has opted out in accordance with Section 8.3 below. Customer expressly authorises Converlens to charge applicable fees for Customer’s Service Plan on a recurring basis, in accordance with Section 7.3 above.
(a) Either Party may opt-out of Order renewal for a Business Plan by providing the other Party written notice of its intention not to renew an Order for a Business Plan at least 30 days prior to the Order’s then current expiration date.
(b) Without limiting Section 8.3(a) above, for Service Plans that are not Premium Plans, Customers may cancel their Service Plan at any time by following instructions in their billing management settings. Please see our Purchasing and Billing documentation for more details on how to cancel your Service Plan subscription.
Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the Orders and this Agreement (other than any Taxes on Converlens’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes under Applicable Laws outside the United States, Customer shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that Converlens receives an amount equal to the sum it would have received had no withholding or deduction been made.
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s environment and Customer Data, including in each case all associated Intellectual Property Rights; and (b) Converlens owns all right, title and interest in and to the Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.
11.1. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
11.2. The Recipient shall not: (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent; or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who: (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement; and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
12.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT AND ANY OTHER MATERIAL ARE PROVIDED BY CONVERLENS ON AN “AS IS” AND “AS AVAILABLE” BASIS. CONVERLENS MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 12, CONVERLENS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, ANCILLARY TOOLS OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER COMPONENTS (INCLUDING THEIR UNAVAILABILITY) OR THIRD-PARTY TERMS DURING AN ORDER TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THE APPLICABLE ORDER OR THIS AGREEMENT.
13. Term and Termination
13.1. The term of this Agreement will continue through the expiration or earlier termination of the last Order to be in effect.
13.2. Subject to Section 7.2, Converlens may terminate any Order upon written notice to Customer if Customer fails to pay any amount due under the Order, and such failure continues more than 15 days after Converlens’s delivery of written notice. In addition, either Party may terminate all Orders and this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
13.3. Upon expiration or earlier termination of an Order: (a) subject to Section 13.5, all rights granted to Customer with respect to Services under such Order will terminate effective as of the effective date of termination; (b) subject to Section 13.5, Converlens will have no obligation to provide Services to Customer or Authorised Users after the effective date of the termination; and (c) Customer will, subject to Section 13.4, pay to Converlens any Fees payable for Customer’s and any Authorised User’s use of Services through the effective date of the termination, together with all other amounts in accordance with the Order and this Agreement.
13.4. If an Order is terminated early by Customer pursuant to 13.2: (a) Customer shall not be obligated to pay any additional amounts specified in the Order following the effective date of termination and (b) Converlens will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the Services on the basis of the remaining portion of the current Order Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the Orders or otherwise, Customer will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
13.5. Provided Customer has paid all amounts due under this Agreement, and subject to any applicable shorter Service Plan retention periods and Section 8.1(b) above, for up to 30 days from the termination of Customer’s billing period, as specified in the applicable Order, an Authorised User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorised Users through the Services immediately prior to termination. The designated Authorised User’s access and use will continue to be subject to the terms of this Agreement, provided the Authorised User shall not access or use the Services other than to download Customer Data.
13.6. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 4.3, 5.2, 6, 9, 12, and 13 through 26.
14.1. Subject to Sections 14.2 and 14.4, Converlens agrees to defend, indemnify and hold harmless Customer and its employees, contractors, agents, officers and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”).
14.2. If the Services become, or in Converlens’s opinion are likely to become, the subject of a Customer Infringement Claim, Converlens may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate; or (c) terminate this Agreement and all Orders and issue a Pro-Rated Refund. Converlens will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s own environment, including Connections to Customer Components; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to Converlens’s Processing obligations under this Agreement; or (iii) use of the Services by Customer or an Authorised User in a manner that breaches an Order, Service Plan or this Agreement. SECTIONS 14.1 AND 14.2 STATE CONVERLENS’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
14.3. Subject to Section 14.4, Customer agrees to defend, indemnify and hold harmless Converlens, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “Converlens Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer-Controlled Matters.
14.4. A Customer Indemnitee or Converlens Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification under this Agreement and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defence and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 14.4 will not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.
15. Limitations of Liability
15.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 15: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO CONVERLENS BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION 15.1 APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 15.1 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.
15.2. NOTWITHSTANDING SECTION 15.1 ABOVE OR ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, CONVERLENS’S AGGREGATE LIABILITY FOR ANY FREE TRIALS OR BETA PRODUCTS SHALL NOT EXCEED $100.
15.3. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others. You hereby waive any similar provision in law, regulation, or code that has the same intent or effect as the aforementioned provisions, including without limitation the New Jersey Truth In Consumer Contract, Warranty, and Notice Act.
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Converlens may include Customer’s name and logo in its lists of Converlens customers, its public website and other promotional material.
Subject to change pursuant to this Section: (a) Converlens’s physical address for notices is that of its Australia headquarters at Level 7, 420 King William Street, Adelaide, SA 5000 Attn: Legal Notice, and its email address for notices is firstname.lastname@example.org; and (b) Customer’s physical and email addresses for notices are those associated with its Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to clause (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
So long as Customer subscribes to a Service Plan and remains current in the payment of all amounts when due, Customer may assign this Agreement in connection with any merger, consolidation or reorganisation involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party. Subject to the foregoing, Customer may not assign any of its rights or obligation under this Agreement, whether by operation of law or otherwise, without Converlens’s prior written consent, and any purported assignment in violation of this Section is void. For clarity, Customers who access the Services through a Free Trial account may not assign this Agreement without Converlens’s prior written consent. Converlens may freely assign this Agreement. Notwithstanding the foregoing, if (a) Customer is accessing Converlens individually, then Customer may assign and delegate its rights and obligations under this Agreement and transfer ownership of its workspace to an entity represented or owned by Customer; or (b) Customer is accessing Converlens on behalf of a client, then Customer may assign and delegate its rights and obligations under this Agreement and transfer ownership of its workspace to its client. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
19. U.S. Government Contractors
The Services and Documentation are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any Authorised User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Customer’s Authorised Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
20. Independent Parties; No Third-Party Beneficiaries
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
21. Force Majeure
Except for a Party’s obligation to pay Fees, neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, pandemics, epidemics, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimise the effects of such Force Majeure Event.
22. Governing Law; Venue
This Agreement shall be governed by and construed and enforced in accordance with the laws of South Australia and the Commonwealth of Australia. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Adelaide, South Australia, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.
This Agreement, together with all Orders, the AUP and, as and if applicable, the DPA and any Product-Specific Terms, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Without limiting the foregoing, if Customer issues to Converlens a purchase order upon entering into an Order, any such purchase order is for Customer’s internal purposes only, and any terms in such purchase order are rejected by Converlens, do not amend this Agreement, and have no effect. If Customer requests Converlens to reference a purchase order number on a Converlens invoice, such reference is included for administrative convenience only. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Section 25, this Agreement may be modified only by a written instrument duly executed by authorised representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
Any written Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to an Order by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Order.
25. Changes to this Agreement
Converlens may modify this Agreement at any time by posting a revised version at https://converlens.com/legal/master-subscription-agreement, which modifications will become effective as of the date they are posted; provided however, (a) if an Order specifies a monthly subscription, the modifications will take effect the first day of the next monthly renewal term following the month in which they were first posted; and (b) if an Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Order Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
Capitalised terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 26.
“Account Data” means information about Customer that Customer provides to Converlens in connection with the creation or administration of its Converlens account, such as first and last name, user name and email address of an Authorised User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Order Term, and shall in no event include Sensitive Information in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“AUP” means Converlens’s standard Acceptable Use Policy, currently available at https://converlens.com/legal/acceptable-use-policy.
“Authorised User” means an individual employee, workspace administrator, agent or contractor of Customer for whom subscriptions to Services have been purchased pursuant to the terms of the applicable Order and this Agreement, and who has been supplied user credentials for the Services by Customer (or by Converlens at Customer’s request).
“Documentation” means Converlens’s standard user documentation for the Services, currently available at https://converlens.com/docs.
“Feedback” means bug reports, suggestions or other feedback with respect to the Services or Documentation provided by Customer to Converlens, exclusive of any Customer Confidential Information therein.
“GDPR” means the General Data Protection Regulation 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing of Directive 95/46/EC.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order” means a separate order, checkout page, purchase, or statement of work for any Service Plan pursuant to this Agreement: (a) completed and submitted by Customer online at the Converlens website and accepted by Converlens or (b) executed by Converlens and Customer. For Free Trials, “Order” shall refer to the account registration completed and submitted by Customer online at the Converlens website and accepted by Converlens.
“Order Term” means, with respect to each Order, the initial subscription term for the Services specified in the applicable Order and all Renewal Order Terms, if any. In the event an Order does not specify a fixed term, then the Order Term will run from the Order’s effective date until the end of the calendar month in which either Party gives notice of termination in accordance with Section 17, unless the Order is otherwise terminated earlier in accordance with this Agreement or the Order.
“Party” means each of Converlens and Customer.
“Personal Information” means information relating to an identified or identifiable natural person that is protected by Applicable Laws with respect to privacy where the individual resides.
“Premium Plan” means the top-tier annual-only level Service Plan set forth on the Pricing Page (either called “Business”, “Premium” or “Pro”).
“Pricing Page” means the publicly available web page(s) where Converlens publishes its list prices for Services, currently available at https://converlens.com/pricing.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organise, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Product-Specific Terms” means additional terms that apply to certain products and/or features within the Services, currently available at https://converlens.com/legal/product-specific-terms.
“Sensitive Information” means the following categories of Personal Information: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating criminal convictions and offences. Without limiting the foregoing, the term “Sensitive Information” includes Personal Information that is subject to specific or heightened requirements under Applicable Law or industry standards, such as Social Security numbers in the United States, protected health information under the U.S. Health Insurance Portability and Accountability Act, nonpublic personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard, and special categories of personal data under the GDPR.
“Service Plan” means the packaged subscription plan and associated features, as detailed at the Pricing Page, for the hosted Converlens Service to which Customer subscribes. For the purposes of this Agreement, “Service Plan” excludes the enterprise level plan, which is subject to a separate agreement entered into between Converlens and Customer.
“Services” means the hosted services to which Customer subscribes through, or otherwise uses following, an Order that are made available by Converlens, including without limitation any free trials of the Services. Converlens may make such changes to the Services as Converlens deems appropriate from time to time, provided such changes do not materially decrease the features or functionality of the Services as they existed at the effective date of this Agreement. Notwithstanding the foregoing, Converlens may make any modifications, in its sole discretion, to any Beta Products, including without limitation removing certain functionalities or discontinuing the availability of such Beta Products.