These Convr Terms & Conditions (this “Agreement”) is referenced within, and incorporated by reference into, certain Order Forms (each, an “Order Form”) executed by each of Convr Inc., a Delaware limited liability company, having an address at 475 N. Martingale Rd, Suite 800, Schaumburg, IL 60173 (“Convr”), and the customer listed within and signatory to each such Order Form (“Customer”) and effective as of the date shown on the Order Form (“Effective Date”). As such, this Agreement, together with the Order Form in which this Agreement is referenced, constitutes a legal and valid contract binding on each of Convr and Customer.
(a) Upon execution of an Order Form, Customer shall have a subscription to the use of Convr’s AI underwriting platform (the “System”) specified in such Order Form. The subscription includes (i) online and/or telephone customer support to Customer during Convr’s normal business hours to answer questions and address issues which may arise in connection with the System; and (ii) hosting of the System, in accordance with Convr’s customary practice and Convr’s Service Level Agreement. In addition, Customer may purchase from Convr, and Convr agrees to provide to Customer, services associated with the System (“Professional Services”) as described in an Order Form executed by the parties. Convr may, from time to time, update or modify any component of the System, release new versions of the System or create new features or functionality related thereto, each of which will, to the extent Convr makes such versions, features or functionality available to other similarly-situated Convr subscribers, be included within the System. Convr reserves the right to develop additional functionality that may become part of future released modules that would require an additional Order Form.
(b) Convr, in connection with each Order Form, will make the System available to the applicable number of Customer’s users specified on each Order Form and grants the users a non-exclusive, revocable, non-transferable right to access and use the modules of the System for internal use during the subscription Term set forth in the Order Form. Customer’s use of the System shall be within the capacity and other limitations or use restrictions set forth on the applicable Order Form.
(c) If, in the course of rendering Professional Services, Convr creates and delivers to Customer any work product or deliverables other than the System, such work product or deliverables shall remain the exclusive property of Convr and Customer shall have a nonexclusive, nontransferable right to use the work product or deliverables for its internal business purposes.
In consideration of Convr providing access to the System and providing Professional Services, Customer shall pay to Convr the fees specified in each Order Form (“Fees”) annually in advance, unless otherwise agreed upon by the parties in an Order Form. All payments shall be due thirty (30) days from the date of the applicable invoice, or on such other date specified in the applicable Order Form. Any travel and other expenses incurred by Convr in completing the Professional Services will be invoiced separately, on a monthly basis. Fees which are more than thirty (30) days overdue shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. Convr may suspend Customer’s access to the System if Fees are more than sixty (60) days overdue, until the overdue Fees are paid in full. Customer may not offset or withhold fees due under this Agreement for any reason, and Customer agrees to reimburse Convr for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Customer. All Fees exclude taxes and Customer agrees to pay any applicable taxes charged arising from this Agreement in a timely manner. Customer shall © Convr Inc., 2021 425 N Martingale Rd, Suite 700, Schaumburg, IL 60173 be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Convr’s income derived hereunder. If Customer is taxexempt, Customer shall provide Convr with its tax-exemption number and certificate within five (5) business days after the Effective Date. Customer shall be responsible for any liability or expense incurred by Convr as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected. If Customer is legally required to withhold tax from its payment of Fees to Convr, Customer agrees to gross up all Fees that are subject to such withholding tax, such that the net payment received by Convr is the full originally stated amount of such Fees.
This Agreement shall continue in full force beginning on the Effective Date and continues until the expiration or termination of the last Order Form entered into under this Agreement. Notwithstanding the foregoing, either party shall be entitled to terminate this Agreement immediately upon written notice to the other party in the event that the other party (i) declares bankruptcy, or (ii) breaches any material term set forth herein and fails to cure such breach within 30 days from the date of receipt of written notice thereof (or, to the extent the applicable breach is not susceptible to cure within a 30-day period, commences actions to cure such breach within such period and diligently pursues such cure until the applicable breach has been remedied, but in no event shall such cure period extend beyond 90 days). Sections 3 through 11 of this Agreement shall survive any termination of this Agreement.
4. Intellectual Property
(a) Nothing in this Agreement affects ownership rights of intellectual property owned by any party to this Agreement as of the Effective Date. All trademarks, patents, copyrights and other intellectual property rights owned in whole or in part by either party as of the Effective Date shall continue to be owned in the same manner by such party following the Effective Date. Other than as expressly set forth in this Agreement, no license or other rights in or to Convr intellectual property rights are granted to Customer, and all such licenses and rights are expressly reserved.
(b) Customer shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of the System, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Customer shall use the System solely for its intended purposes, in accordance with the terms of this Agreement, and shall not use the System for the benefit of any third party (whether as a service bureau or otherwise) except as specifically contemplated under this Agreement or the applicable Order Form.
(c) Customer shall not: (i) use the System for any content or activity that is libelous, slanderous, defamatory, offensive, scandalous, or obscene, or infringes on any third party’s rights, or violates any applicable law; or (ii) introduce into the System any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
(d) Customer shall be solely responsible for: (i) inputting all data into the System unless otherwise specified in an Order Form; (ii) maintaining confidentiality as may be required in connection with any data entered into the System; and (iii) ensuring that each of Customer’s permitted users within its business complies with the terms set forth herein. Customer shall not, except as necessary to use the Services, enter data that contains sensitive personally identifiable information, including but not limited to credit card numbers, bank account numbers, identification numbers, social security numbers, etc. Convr may, at its discretion and as set forth in one or more Order Forms, limit the scope of Customer’s access to the System including, by way of example, limitations on the amount of data which may be input and/or stored within the System.
Each party agrees (i) to treat as confidential all non-public information, confidential information and/or trade secrets of the other party, (ii) not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement, and (iii) not to disclose such confidential information to any third party except affiliates, subcontractors, and partners as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. The parties hereby agree that the terms set forth in this Agreement constitute confidential information of both parties and as such, neither party will disclose such terms to any third party other than such party’s legal counsel. Notwithstanding the foregoing, Convr shall be entitled to list Customer as a client on Convr’s website and/or in marketing materials.
The obligations set forth in this section shall not extend to information that:
(a) becomes publicly available without breach of this Agreement;
(b) is known by the receiving party prior to disclosure without a duty of confidentiality;
(c) is rightfully received from a third party without an obligation of confidence;
(d) is independently developed without resort to the information provided by the disclosing party; or
(e) is required to be disclosed by law or legal process, provided the other party is given prompt written notice of the requirement for such disclosure.
6. Representations and Warranties
(a) Each party represents and warrants that: (i) it has the authority to enter into this Agreement and perform the services required of it hereunder; (ii) it will perform all services hereunder in a professional manner consistent with industry practices; and (iii) each party will comply with all applicable laws and regulations in carrying out its responsibilities hereunder.
(b) Convr represents and warrants that the System will operate substantially in accordance with the materials made available to Customer through the System to assist users of the System (“Documentation”).
(c) EXCEPT AS EXPLICITLY SET FORTH HEREIN, NEITHER PARTY, NOR EITHER PARTY’S EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, LICENSORS NOR THE LIKE, MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (I) WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, (II) REGARDING SYSTEM UPTIME OR DOWNTIME, OR (III) AS TO THE RESULTS THAT MAY BE OBTAINED BY THE OTHER PARTY BY ENTERING INTO THIS AGREEMENT AND/OR THE BUSINESS RELATIONSHIP DESCRIBED IN THE ORDER FORM(S). CONVR SPECIFICALLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR COVENANT AS TO THE ACCURACY, FITNESS, OR COMPLETENESS OF ANY DATA, REPORT, ANALYSIS, SUMMARY, OR OTHER INFORMATION THAT IS PROVIDED THROUGH THE SYSTEM. CONVR'S SOLE LIABILITY FOR BREACH OF ANY REPRESENTATION AND WARRANTY SET FORTH IN THIS AGREEMENT OR OTHERWISE, AND CUSTOMER'S SOLE REMEDY, SHALL BE THAT CONVR SHALL REPERFORM THE AFFECTED SERVICES, OR USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR REPLACE THE PORTION OF THE SYSTEM AFFECTED BY THE BREACH. CONVR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SYSTEM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES NOT PROVIDED BY CONVR, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer acknowledges that Convr has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
7. Certain Responsibilities
Customer is responsible for: (i) maintaining all of its user devices and providing its permitted users with equipment and internet services sufficient to access and utilize the System; (ii) configuring necessary user accounts in connection with use of the System and protecting all passwords and access codes to the System. In addition, it shall be the sole responsibility of Customer to administer, and keep current, all System user accounts, which includes monitoring at all times the employees that have access to the System as users and ensuring that former employees or employees that are no longer required to have access to the System do not retain active user accounts.
8. Indemnification: Insurance
(a) Convr will defend or settle any suit brought by a third party against Customer alleging that the System infringes any intellectual property right of any third party and Convr shall indemnify Customer for damages awarded or agreed upon in a settlement as a result of such infringement claim, provided that Convr is given notice within five (5) business days of receipt of any such claim and sole control of the defense of such claim, including negotiations, appeals, and settlements. Customer agrees to provide reasonable information and assistance to Convr in defending any claim. Notwithstanding the foregoing, Convr will not have liability for any claim to the extent that such claim results from: (i) any modification of the System made by any party other than Convr; (ii) a modification or enhancement to the System pursuant to designs provided by Customer; (iii) the combination, operation or use by Customer of any System, equipment or devices not supplied by Convr to the extent the claim would have been avoided if the System were not used in such combination.
(b) If the System is held to infringe, or in Convr’s opinion the System is likely to be held to infringe any Intellectual Property Rights of a third party, Convr may at its sole discretion and expense, either: (i) secure the right for Customer to continue use of the infringing System; (ii) replace or modify the infringing System to make it non-infringing, provided such System contains substantially similar functionality; or (iii) terminate the access to the infringing System granted hereunder. If Convr elects to terminate access to the System under the foregoing provision, as Customer’s sole and exclusive remedy, Convr shall refund to Customer any prepaid, unused Fees for the infringing System indicated on the related Order Form.
(c) Company shall maintain, at its own expense, insurance coverage in the following amounts: (i) Worker’s Compensation and Employer’s Liability with limits at least equal to statutory requirements; (ii) Commercial General Liability insurance, including without limitation, personal injury coverage, with policy limits of not less than $2,000,000 in the aggregate; (iii) Technology Errors and Omissions coverage with policy limits of not less than $5,000,000 in the aggregate; and (iv) Umbrella coverage with policy limits of not less than $5,000,000 in the aggregate. Prior to the commencement of Services, upon request, Company shall deliver to Client certificate(s) of insurance evidencing such coverage.
9. Limitation on Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITIONTHE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID TO CONVR HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
10. Force Majeure
Excluding payment obligations hereunder and/or within an Order Form, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
11. Governing Law
The rights and obligations of the parties under this Agreement and each Order Form shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement, an Order Form or the performance, breach or termination thereof, shall be finally settled by arbitration in Chicago, Illinois under the rules of arbitration of the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, (i) either party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration process, and (ii) Convr shall be entitled to initiate legal action in the appropriate court located in Cook County, Illinois to collect any past due fees due and owing hereunder..
Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Convr shall be entitled to enter into contracts with third parties to carry out Convr’s obligations under this Agreement, it being understood that Convr shall be responsible for actions taken by each such subcontractor hereunder. This Agreement, together with each Order Form, supersedes all prior written or oral agreements between the parties regarding the subject matter hereof and supersedes any contradictory or additional language in any purchase order. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement may only be amended by written agreement of the parties. The waiver or failure of any party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any future right hereunder. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by either party other than in the event of change of control, including but not limited to an entity acquiring substantially all of its assets, equity or business and assuming the obligations hereunder. Any notice pursuant this Agreement shall be deemed effective when delivered in person or one day after sending such notice to the address listed herein or in an Order Form by reputable overnight courier with confirmation of next-day receipt. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.