CONVEX SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS
Last Revised: February 2024
By executing an Order Form (defined below), the customer identified on such Order Form (“Customer”) agrees to the following terms and conditions (“Terms and Conditions”), which together with the terms of the Order Form entered into between Customer and Convex Labs Inc. (“Convex”) shall govern Customer’s access to and use of the Service (collectively, the “Agreement”).
Capitalized terms shall have the meaning given to them in Section 1 (Definitions) below or as otherwise defined in the Agreement. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently procured by the Customer from Convex will be subject to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Bulk Format” means an instance where Customer accesses any information on the Service for more than ten thousand (10,000) parcels of real property per day.
“Customer Data” means User Data and data or information submitted or made available by Customer through the Service.
“Order Form” means the ordering document representing Customer’s subscription to the Service, which is executed by the parties and which specifies, among other things, the number of User subscriptions ordered, the subscription term, training and other services, and the applicable fees.
“Service” means the online, web-based commercial services sales and workflow service provided by Convex via http://atlas.convexlabs.io (the “Website”)or other designated websites together with associated offline components such as training and support services, in each case as identified on an Order Form executed by the parties.
“User Data” means data or information submitted or made available by a User to the Service.
“Users” means Customer’s employees or contractors authorized by Customer to use the Service that have been supplied user identifications and passwords by Customer (or by Convex at Customer’s request).
2. The Service.
2.1 Provision of Service. Convex shall provide the Service subject to the terms and conditions of this Agreement. This Agreement includes any Order Form(s), which are incorporated herein by reference. Convex shall: (i) provide Customer with the authentication credentials Users will need to access the Service; (ii) provide telephone and online standard support to Customer in accordance with Section 2.2; and (iii) make the Service generally available as specified in the Order Form.
2.2 Support Policy and Terms. Convex will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling (415) 915-4220 or any time by emailing firstname.lastname@example.org. Convex will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.
3. Use of Service.
3.1 License. Convex grants Customer, during the term of this Agreement, a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to access and use the Service solely for its internal business purposes solely in accordance with the terms of this Agreement, including the applicable Order Form(s).
3.2 Users. Customer may grant access to the Service to only the number and type of Users specified on the Order Form and only for the subscription term applicable to such Users specified therein. Individual User subscriptions are for named Users and cannot be shared, transferred or used by more than one User.
3.3 Customer Responsibilities. Customer is responsible for all activities that occur under User accounts and is responsible for ensuring that any use of the Services by its Users is in compliance with the terms of this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify Convex promptly of any such unauthorized use; and (iii) comply with all applicable laws in using the Service.
3.4 Use Restrictions. Customer shall use the Service solely for its internal business purposes in accordance with this Agreement, including in accordance with any field restrictions, regional data restrictions, and other terms on the applicable Order Form(s). Customer shall not, and shall ensure Users do not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) modify, copy, reproduce, distribute, perform, display or create derivative works based on the Service; (iii) disassemble, reverse engineer or decompile the Service, (iv) use the Service or any derivative thereof in violation of this Agreement or for any illegal purpose, (v) alter or remove Convex’ or its licensors’ names, trademarks, copyright notices, disclaimers or other restrictive legends on the Service, (vi) access, disclose, deliver, disseminate or reproduce or distribute any information on the Service in a Bulk Format, (vii) access the Service in order to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service, (viii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ix) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (x) send or store any information that Customer knows or reasonably should know is from or about children under the age of 13 or includes information concerning health, financial information, or other categories of sensitive information (including any information defined as special or sensitive under applicable laws, regulations, and applicable industry guidelines); (xi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (xii) attempt to gain unauthorized access to the Service or its related systems or networks; or (xiii) use the Service or content found on the Service: (1) as a factor in establishing an individual’s eligibility for credit or insurance, (2) in connection with underwriting individual insurance, (3) in evaluating an individual for employment purposes, (4) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority, (5) in any way that would cause the information to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (6) in any other manner that would cause such use to be construed as a consumer report by any governmental authority.
3.5 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within the Website, offer products and services related to the Service that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of application programming interfaces. Convex does not make any representations or warranties regarding any such third-party provider or any of their products or services, whether or not such products or services are designated by Convex as “certified,” “validated,” “supported” or otherwise. Convex may terminate the links between any third party service and the Service at any time for any reason, including changes in interoperability requirements, policies or fees charged by such third party providers to Convex or any Users. Any exchange of data or other interaction between Customer (or a User) and a third-party provider, and any purchase or use by Customer (or a User) of any product or service offered by such third-party provider, is solely between Customer (or such User) and such third-party provider, and Convex will have no liability or obligation with respect to such exchange or interaction.
3.6 Customer Logo. Convex may use Customer’s name and logo in Convex’ lists of customers provided that such use will comply with Customer’s standard trademark guidelines provided by Customer to Convex.
4. Fees & Payment.
4.1 Fees. Customer shall pay the fees for the Service as specified in the Order Form and otherwise in accordance with this Agreement. If Customer’s account is fifteen (15) days or more overdue, Convex may suspend the Service until such amounts are paid.
4.2 Taxes. Convex’ fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Convex’ income. If Convex has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Convex with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Subscription Renewal and Cancellation. Customer agrees that each subscription term will automatically renew at the subscription period renewal frequency and cost referenced on the applicable Order Form or otherwise agreed by the parties (including via email or similar means), if any, and Convex may automatically charge Customer’s payment method at the start of each such renewal period for the applicable fees and taxes for that period, unless the subscription for the Service is terminated in accordance with this Agreement. To avoid future subscription charges, Customer must cancel its subscription plan that is subject to renewal by the cancellation deadline stated in the applicable Order Form or otherwise agreed by the parties (including via email or other means), or if not so designated, then 30 days before the subscription period renewal date, by emailing our Support line (email@example.com) or calling our Support team (+1 (408) 692-0852). Convex reserves the right to elect not to renew any or all of Customer’s subscription plans prior to the start of a new subscription period by providing written notice to Customer. Customer agrees that it is obligated to pay the fees for the entire subscription term even if the billing for such term is periodic (e.g., quarterly payments for an annual subscription term). Subscription fees and any other fees hereunder are non-cancelable and non-refundable and there are no credits for partially used periods.
6. Proprietary Rights.
6.1 Convex Technology. The Service includes, without limitation, (i) the Convex name, the Convex logo, the www.convexlabs.io domain name, the product and service names associated with the Service, including “Atlas”, and other trademarks and service marks; (ii) audio and visual information, documents, software and other content and works of authorship, including training materials, displayed or otherwise available via the Service or developed in connection with any professional services provided by Convex to Customer; and (iii) other technology, including graphical user interfaces, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information contained in or used to provide the Service (collectively, “Convex Technology”). Customer acknowledges and agrees that Convex and its licensors and suppliers own all right, title and interest in the Service and the Convex Technology, and the Convex Technology shall be deemed party of the “Service” under this Agreement. Other than as expressly set forth Section 6.2 below, no license or other rights in or to the Convex Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Convex.
6.2 Customer Data. Customer shall own all rights in and to the Customer Data. Customer hereby grants Convex a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to Laccess, reproduce, and use Customer’s User accounts, including Customer Data and User Data associated therewith, to respond to service or technical problems, at Customer’s or the applicable User’s request, or otherwise in connection with the Service.
For the avoidance of doubt, Customer Data includes any information or data that is capable of identifying or describing any natural person, including information about the Customer’s own business relationships and any information that identiﬁes its own customers. For example, any ﬁles the Customer uploads or integrates to the Service that contain lists of Customer’s current accounts would be conﬁdential Customer Data that Convex would not disclose under any circumstances to its other customers.
At Customer’s written direction, Convex shall delete or return all Customer Data to Customer as at the end of the provision of the Service, unless retention is required by law. Customer warrants that it has obtained all consents, authorizations and rights and provided all notices necessary to provide the Customer Data and permit use and other processing of the Customer Data in accordance with this Agreement. Convex will terminate all user access to User Data via the Service upon the request of the applicable User.
Notwithstanding the foregoing or any other provision of this Agreement, Convex may use the Customer Data and data generated from the use of the Service during and after the term of this Agreement to run analytics and to otherwise improve the Company’s services, and may disclose aggregated, de-identiﬁed data which is derived from such data.
For the avoidance of doubt, this grants Convex the right to produce features that are derived from non identifiable information. For example, Convex could build a feature that could let a user know that his or her sales activity level that week was in the 90th percentile of all users. However, under no circumstances would this disclose the Customer’s own actual business relationships.
6.3 U.S. Privacy Laws. To the extent that Customer is subject to the California Consumer Privacy Act (“CCPA”), the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act or the Virginia Consumer Data Protection Act (together, “U.S. Privacy Laws”), Customer shares with Convex Customer Data containing personal information or personal data subject to such laws (other than data about the User entering the Customer Data), and the sharing of such data would be a “sale” under U.S. Privacy Laws, Convex will, to the extent required of a “service provider” or “processor” under U.S. Privacy Laws in connection with processing such data:
- Only process such Customer Data to provide the Service, at Customer’s or the applicable User’s request (including as set out in this Agreement) or as otherwise permitted by applicable laws.
- Process Customer Data in compliance with U.S. Privacy Laws and provide the same level of privacy protection as is required by U.S. Privacy Laws and notify Customer if Convex makes a determination that it can no longer meet its obligations under U.S. Privacy Laws. To the extent required by U.S. Privacy Laws, and upon reasonable written notice that Customer reasonably believes Convex is using Customer Data in violation of U.S. Privacy Laws or this section 6.5, Customer shall the right to take reasonable and appropriate steps to help ensure that Convex uses the Customer Data in a manner consistent with Customer’s obligations under U.S. Privacy Laws and stop and remediate any unauthorized use of the Customer Data.
- Not “sell” or “share” Customer Data, nor retain, use or disclose the Customer Data outside the direct business relationship with Customer or for any purpose other than for the specific purpose of performing the Service.
- Except to perform a business purpose or as otherwise permitted by U.S. Privacy Laws, not combine the Customer Data received from, or on behalf of, Customer with any Personal Data that may be collected from Convex Lab’s separate interactions with the individual(s) to whom the Customer Data relates or from any other sources.
- Ensure that each employee or other person processing Customer Data is subject to a duty of confidentiality with respect to such Customer Data, and only engage subcontractors to process Customer Data on its behalf after providing Customer with an opportunity to object and pursuant to a written contract that requires the subcontractor to materially comply with the Convex’ obligations with respect to the Customer Data.
- Taking into account the nature of the processing, reasonably assist Customer through appropriate technical and organizational measures in: responding to requests from individuals pursuant to their rights under U.S. Privacy Laws, including by providing, deleting or correcting the relevant Customer Data, or by enabling Customer to do the same; implementing reasonable security procedures and practices appropriate to the nature of the Customer Data to protect the Customer Data from unauthorized or illegal access, destruction, use, modification, or disclosure; and entering into this Agreement.
- With Customer, and taking into account the context of the processing, implement appropriate technical and organizational measures designed to provide a level of security appropriate to the risk and establish a clear allocation of the responsibilities between them to implement such measures.
- Upon reasonable request of Customer, make available to Customer all information in its possession necessary to demonstrate Convex’ compliance with its obligations under U.S. Privacy Laws. Convex shall allow, and cooperate with, reasonable assessments by Customer or Customer’s designated auditor of Convex’ compliance with its obligations under U.S. Privacy Laws. Alternatively, Convex may arrange for a qualified and independent auditor to conduct, at least annually and at Convex’ expense, an assessment of Convex’ policies and technical and organizational measures in support of its obligations under U.S. Privacy Laws using an appropriate and accepted control standard or framework and assessment procedure for such assessments. Convex shall provide a report of such assessment to Customer upon request.
- At Customer’s written direction, delete or return all Customer Data to Customer as at the end of the provision of the Service, unless retention is required by law.
6.4 Personal Data Shared with Customer. To the extent that Convex makes available to Customer personal information subject to the CCPA via the Service, Customer will, in connection with its processing of such personal information: (a) comply with applicable obligations under the CCPA and provide the same level of privacy protection as is required by the CCPA; (b) notify Convex if Customer makes a determination that it can no longer meet its obligations under the CCPA; (c) not use such personal information for any purpose other than for its internal business purposes for which it is provided under this Agreement, and (d) grant Convex the right to take reasonable and appropriate steps to help ensure that Customer uses such personal information in a manner consistent with Convex’ obligations under the CCPA and stop and remediate any unauthorized use of the personal information.
6.5 Suggestions. Customer hereby grants to Convex a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service or other related services.
7.1 Definition of Confidential Information. The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form), the Service, the Convex Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.3 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Convex represents and warrants that it will provide the Service in a manner consistent with general industry standards applicable to services similar to the Service
8.2 CONVEX LABS AND ITS LICENSORS AND SUPPLIERS FURNISH THE SERVICE “AS IS.” EXCEPT AS SET FORTH IN SECTION 8.1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONVEX LABS, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, PROMISE, OR GUARANTEE, EXPRESS OR IMPLIED, REGARDING THE QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OF THE SERVICE.
8.3 THE SERVICE MAY CONTAIN DATA RECEIVED FROM THIRD PARTIES (“THIRD PARTY DATA”), INCLUDING, BUT NOT LIMITED TO, LOCAL GOVERNMENTS. CUSTOMER RECOGNIZES THAT CONVEX LABS, ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE FOR ANY INACCURACIES OR OMISSIONS IN THE THIRD PARTY DATA, AND UNDERSTANDS THAT FACTUAL ERRORS IN THE THIRD PARTY DATA SHOULD BE CORRECTED BY CONTACTING THE APPLICABLE THIRD PARTY AUTHORITY. CUSTOMER FURTHER UNDERSTANDS THAT CONVEX LABS, ITS LICENSORS AND SUPPLIERS HAVE NO AUTHORITY AND NO ABILITY TO CORRECT SUCH ERRORS OR OMISSIONS THEMSELVES. NO CHANGES CAN APPEAR IN THE THIRD PARTY DATA UNLESS AND UNTIL THE APPLICABLE THIRD PARTY AUTHORITY MAKES THEM. CUSTOMER AGREES TO RELEASE AND HOLD HARMLESS ALL GOVERNMENTAL AUTHORITIES FROM ANY INACCURATE DATA SUPPLIED BY THEM FOR INCLUSION IN THE SERVICE.
8.4 CUSTOMER ASSUMES ALL RISK AND LIABILITY ARISING FROM THE INTERPRETATION OR USE OF THE SERVICE, ANY DERIVATIVES THEREOF OR ANY DATA PROVIDED TO CUSTOMER BY CONVEX LABS, ITS LICENSORS OR SUPPLIERS. THERE ARE MANY REASONS FOR FAILING INSPECTIONS AND DATA ON FAILURE RATES IS NOT NECESSARILY A RELIABLE INDICATOR OF ANY CONTRACTOR’S QUALIFICATIONS OR ABILITY.
8.5 CONVEX LABS AND ITS LICENSORS AND SUPPLIERS OFFER NO ASSURANCE OF UNINTERRUPTED OR ERROR-FREE SERVICE. CONVEX LABS AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE TEXT, GRAPHICS, LINKS, OR OTHER ITEMS CONTAINED ON, WITH OR WITHIN THE SERVICE, AND ANY OF THESE MAY CHANGE AT ANY TIME WITHOUT NOTICE. IN THE EVENT ANY PROVIDERS OF THIRD PARTY DATA CEASE TO MAKE SUCH DATA OR ANY DATA ELEMENTS THEREIN AVAILABLE TO CONVEX LABS, SUCH THIRD-PARTY DATA OR DATA ELEMENTS THEREIN SHALL CEASE TO BE AVAILABLE VIA THE SERVICE.
8.6 CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR COMPLYING WITH, AND AGREES THAT ITS USE OF THE SERVICE, ANY DERIVATIVES THEREOF AND ANY DATA PROVIDED TO IT BY CONVEX LABS, ITS LICENSORS OR SUPPLIERS WILL COMPLY WITH ALL APPLICABLE FOREIGN, FEDERAL, STATE AND LOCAL LAWS, REGULATIONS AND ORDINANCES, INCLUDING, WITHOUT LIMITATION THE FAIR CREDIT REPORTING ACT (15 U.S.C. § 1681 ET SEQ.) THE UNITED STATES FREEDOM OF INFORMATION ACT, ALL PRIVACY RELATED LAWS AND REGULATIONS AND ALL FREEDOM OF INFORMATION, OPEN RECORDS, SUNSHINE AND OTHER SIMILAR LAWS AND REGULATIONS (COLLECTIVELY, THE “APPLICABLE LAWS.”) CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL CONVEX LABS, ITS LICENSORS OR SUPPLIERS BE LIABLE OR RESPONSIBLE FOR CUSTOMER’S FAILURE TO COMPLY WITH ANY APPLICABLE LAWS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT CERTAIN RESTRICTIONS APPLY TO THE USE OF DATA OBTAINED FROM FEDERAL, STATE AND LOCAL GOVERNMENTS AND AGENCIES AND CUSTOMER AGREES TO COMPLY WITH SUCH RESTRICTIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CONVEX LABS’ AND ITS LICENSORS’ AND SUPPLIERS’ DATA RELATES SOLELY TO REAL PROPERTY, DOES NOT RELATE TO ANY INDIVIDUAL CONSUMER, AND THAT CUSTOMER CANNOT IDENTIFY ANY CONSUMER BASED ON A SEARCH OF SAAS PROVIDER’S DATABASE.
9.1 Indemnification by Convex. Subject to this Agreement, Convex shall at its expense defend Customer and its officers, directors and employees (“Customer Indemnified Parties”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer hereunder infringes the intellectual property rights of a third party (each, a “Customer Claim”), and shall pay any damages finally awarded by a court or agreed to by Convex in a settlement with respect to such Customer Claim; provided, that Customer (a) promptly gives written notice of the Customer Claim to Convex; (b) gives Convex sole control of the defense and settlement of the Customer Claim (provided that Convex may not agree to any settlement that imposes any liability or obligation on Customer); and (c) provides to Convex, at Convex’ cost, all reasonable assistance. Convex shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (i) Customer’s use of the Service (including its processing of Customer Data or personal information accessed by Customer or Users through the Service) other than as contemplated by this Agreement, (ii) any modifications to the Service made by any entity other than Convex, (iii) any combination of the Service with services or technologies not provided by Convex, or (iv) Customer’s use of the Service or portion thereof after Convex has terminated this Agreement or such portion of the Service in accordance with this Section 9.1. If in Convex’ opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Convex liability, Convex may in its discretion (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre-paid fees applicable to the portion of the terminated Service to be provided after the termination date.
9.2 Indemnification by Customer. Subject to this Agreement, Customer shall at its expense defend Convex and its officers, directors and employees (“Convex Indemnified Parties”) against any claims made or brought against any Convex Indemnified Party arising from or related to (i)Customer’s use of the Service (ii) Customer’s breach of any representation, warranty or obligation under this Agreement including, Customer’s failure to comply with Sections 3.2, 3.3 and 6.5 of the Agreement or violation of any applicable laws, and (iii) Customer’s gross negligence or willful misconduct (each, a “Convex Claim”) and shall pay any damages finally awarded by a court or agreed to by Customer in a settlement with respect to such Convex Claim; provided, that Convex (a) promptly gives written notice of the Convex Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Convex Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Convex); and (c) provides to Customer, at Customer’s cost, reasonable assistance in connection therewith.
10. Limitation of Liability.
10.1 Limitation of Liability. IN NO EVENT SHALL CONVEX LABS’ OR ITS LICENSORS’ OR SUPPLIERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CONVEX LABS HEREUNDER IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.
10.2 Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES ARISING FROM A PARTY’S BREACH OF SECTION 7, A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT OR CUSTOMER’S BREACH OF SECTIONS 3.3 OR 6.1 THROUGH 6.3, IN NO EVENT SHALL CONVEX LABS, ITS LICENSORS OR SUPPLIERS OR CUSTOMER HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Term & Termination.
11.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated or until otherwise terminated in accordance with this Section 11.
11.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed or stayed within sixty (60) days. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Convex prior to the effective date of termination.
11.3 Customer Data. Upon expiration or termination of this Agreement (or of the applicable User subscription), Convex shall have no obligation to maintain or provide any Customer Data (or the applicable User Data) and shall thereafter, unless legally prohibited, delete all Customer Data (or the applicable User Data) in its systems or otherwise in its possession or under its control.
For the avoidance of doubt, such deletion would include data customer imported into Convex systems from Excel ﬁles, CRM integrations, or manually entered into Convex systems.
Notwithstanding the foregoing or any other provision of this Agreement, Convex may use in perpetuity any aggregated, de-identified data which is derived from Customer Data but does not identify Customer or any specific User, and may use in perpetuity any residual know-how gained from the Customer Data.
11.4 Deletion of Certain Third-Party Data Upon Termination. Certain Third Party Data (as defined in Section 8.2) that may be downloaded via the Service must be deleted from Customer’s systems upon the termination or expiration of the subscription term under which Customer downloaded such data (such data, “Temporary Data”). Temporary Data is identified at Appendix A of this Agreement. Customer represents and warrants that it will permanently delete all Temporary Data within five (5) days after the end of the applicable subscription term.
11.5 Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 4, 5, 6 (excluding Section 6.2), 7, 8, 9, 10, 11 and 12.
12. General Provisions.
12.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Convex’ licensors and suppliers are intended third-party beneficiaries to this Agreement.
12.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Convex shall be addressed to the attention of its Chief Operating Officer, with a copy to its Chief Executive Officer. Notices to Customer are to be addressed to the individual identified in the Order Form.
12.3 Force Majeure. Neither party shall be liable to the other for any failure or delay in performance of its obligations under this Agreement (other than obligations to make any payments) arising out of any event or circumstance beyond the reasonable control of such party.
12.4 Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6 Governing Law. This Agreement shall be governed by the laws of California, without giving effect to any conflicts of laws principles. Except as provided below, any dispute, controversy or claim arising out of, or relating to, this Agreement or breach of this Agreement, or the transactions contemplated hereby, shall be settled in accordance with the following procedures: If any dispute arises under this Agreement, the parties will use good faith efforts to promptly resolve the matter informally before resorting to more formal means of resolutions. The parties hereby agree to submit any dispute they cannot resolve informally to final and binding arbitration. The arbitration will be conducted in San Francisco, California, using the English language and will be administered by the American Arbitration Association under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol and Supplementary Procedures for Resolution of Consumer Related Disputes (collectively, the “AAA Rules”) then in effect, in front of a sole arbitrator. The arbitrator will follow California law in adjudicating the dispute. Interpretations of this Agreement, including determinations of unconscionability, and the interpretation of this Section will be determined by the arbitrator selected through this provision. The determinations of the arbitrator shall be final and shall not be subject to judicial review; provided, however, that any award or determination rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties shall share equally the costs of arbitration, including the costs of transcribing the arbitration, but each party shall bear its own attorneys’ fees and related costs, unless otherwise provided by law or statute. Except to the extent necessary to confirm an award or as may be required by applicable laws, neither a party nor an arbitrator may disclose the existence, content, or results of an arbitration without the prior written consent of the other parties. Each party expressly and irrevocably waives any claim or defense in any arbitration or proceeding based on any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine or theory. Each party irrevocably waives any and all right to trial by jury in any proceeding arising out of or related to this Agreement. Any proceeding to resolve a dispute hereunder will be conducted solely on an individual basis, and neither party will seek to have any dispute heard as a class action or class arbitration. The parties acknowledge and agree that any action for equitable relief or any other action that may not be submitted to arbitration under applicable law, including the enforcement of any arbitration ruling, shall be tried by a court of competent jurisdiction located in San Francisco, California. To that end the parties hereby submit to the jurisdiction of the State of California for this limited purpose.
12.7 Entire Agreement. This Agreement, including any applicable Order Form(s), constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict between the provisions in the main body of this Agreement and the Order Form the terms of the main body of this Agreement shall prevail to the extent of such conflict. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void.
12.8 Modifications. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted, provided that Convex may update this Agreement from time in which case Convex will update the “Last Revised” date at the top of this Agreement. If Convex makes changes that are material, Convex will use reasonable efforts to attempt to notify Customer by placing a prominent notice on the first page of the Convex website. However, it is Customer’s sole responsibility to review the Agreement from time to time to view any such changes. The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Customer’s continued access or use of the Service after the modifications have become effective will be deemed Customer’s acceptance of the modified Agreement.
|Company Phone Number
|Company’s HQ Phone Number
|Contact’s Name in the following format: First name, Middle name (optional), Last name
|Contact Job Title
|Contact’s Job Title
|Contact Direct Phone Number
|Contact’s direct phone number
|Contact Mobile Phone Number
|Contact’s mobile phone number
|Contact E-mail Address
|Contact’s Work e-mail address for the contact in firstname.lastname@example.org format
|Contact LinkedIn URL
|Link to Contact’s LinkedIn profile
|Contact Enhancement Prioritization Matrix Category
|This Contact was found by using one of the following Convex Contact Enhancement algorithms1: Right Title + Right Address + Right Company Name2: Right Title + Right Address3: Right Title + Right Company Name4: Right Address5: Right Company Name6: Right Address + Right Company Name
|Property Atlas ID
|Unique identifier used by Convex assigned to a given property
|Property is a New Location
|This property:0 = Exists from the list of properties the customer has given Convex1 = Is a new property identified by Targeting from Convex2 = Both identified by Convex and also part of customer’s original list of properties
|Property Street Address
|Property’s physical street address.
|Property Street Address #2
|Property’s physical street address continued.
|Property’s physical state/province (code).
|Property Zip Code
|Property’s physical zip/postal code.
|Property FIPS County Code
|The FIPS county code is a five-digit Federal Information Processing Standard (FIPS) code that uniquely identifies counties and county equivalents in the United States.
|Type of the property (12 Convex types)
|Number of stories in the building
|Building square footage
|Property Year Built
|Year the property was built.
|Property Owner #1
|Name of property owner (most recent).
|Property Owner #2
|Name of property owner (2nd most recent).
|Property Owner Occupied
|The property is owner occupied.
|Property Last Sold Date
|Last date the property was sold.