Legal
Terms and Conditions
Converge Technologies, Inc. (“Converge” or “we” or “us”) owns and operates a proprietary marketing measurement platform (together with any future software products or services offered by Converge and accessed or used by you, the “Services”). These Terms and Conditions (the “Terms”, together with any Order Form(s) and the Data Processing Addendum attached as Schedule B, collectively, this “Agreement”) govern your access to and use of Converge’s Services. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in Schedule A.
By accessing or using the Services, or by clicking a button or checking a box marked “I Agree” (or similar), you (a) confirm that you have read, understood, and agree to be bound by this Agreement, (b) confirm that you have read, understand, and acknowledge our Privacy Policy, and (c) consent to entering into this Agreement electronically and agree that your electronic acceptance in the manner described herein satisfies any requirements under applicable law that such agreements be in writing or signed. If you do not agree to this Agreement, you may not access or use the Services.
We may update or otherwise modify this Agreement from time to time. If we make material changes, we will post the updated Terms on this page with a “Last Updated” effective date of the revisions. Your continued use of the Services after an update will constitute acceptance of the updated Terms. If you do not agree to the updated Terms, you must stop using the Services.
If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you are authorized to bind that entity to this Agreement, in which case “you” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind your entity or do not agree with any provision of this Agreement, you must not accept this Agreement and may not use the Services.
UNLESS YOU OPT-OUT, THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. YOU CAN OPT-OUT OF THE ARBITRATION AGREEMENT BY CONTACTING LEGAL@RUNCONVERGE.COM WITHIN 30 DAYS OF ACCEPTING THESE TERMS.
(a) copy, modify or create derivative works of the Services or Documentation;
(b) reverse engineer, disassemble, decompile, decode or attempt to improperly access the software component of the Services;
(c) share passwords or allow unauthorized access to the Services;
(d) use the Services in any manner or for any purpose that infringes on third party IP or other rights or that violates any applicable law;
(e) disrupt or interfere the Services or its data;
(f) use unauthorized tools to access or search the Services; or
(g) use the Services, the Documentation or Confidential Information of Converge to develop competing products or copy ideas, features, functions or graphics of the Services. 1.3. Authorized Users. You will not permit any person or entity other than your Authorized Users to access, use or operate the Services. You are fully and directly responsible to Converge for: (a) any act or omission by each of your Authorized Users in connection with such Authorized User’s use of the Services; and (b) any use of the Services through your account, whether authorized or unauthorized. You will use, and will require all Authorized Users to use all reasonable means to secure usernames and passwords, hardware and software used to access the Services, and will promptly notify us if you or any Authorized User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Services may only be accessed and used by the specific Authorized User for whom such account is created. 1.4. Modification, Suspension, or Termination. We may (i) modify, deprecate, or update the Services, in whole or in part, at any time during the Term; and (ii) without liability to you, immediately suspend, terminate, or limit your access to the Services at any time if we reasonably suspect that the Services are being used in violation of this Agreement. Without limitation, we will have no liability for any damages, liabilities, or losses as a result of any suspension, limitation or termination of your or any Authorized User’s right to use the Services in accordance with this subsection. 1.5. Third-Party Services. The Services may allow you and your Authorized Users to interact with certain third-party services (collectively “Third-Party Services”). Converge does not provide or take responsibility for these Third-Party Services, including any compatibility issues or errors they may cause. You are solely responsible for your use of the Third-Party Services and obtaining any associated licenses and consents necessary to use the Third-Party Services.
ii. references to specific articles of “Regulation (EU) 2016/679” will be deemed replaced with the equivalent article or section of the Swiss FADP;
iii. references to “EU”, “Union” and “Member State” will be deemed replaced with ‘Switzerland’;
iv. references to the “competent supervisory authority” and “competent courts” are replaced with the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland” (as applicable);
v. in Clause 17, the EU SCCs will be governed by the laws of Switzerland; and
vi. in Clause 18(b), disputes will be resolved before the competent courts of Switzerland. (d) If the parties will engage in cross-border transfers of Personal Data subject to the EU SCCs and/or the UK Addendum, Converge will be the “data importer,” Customer will be the “data exporter,” and Annex 1 will provide the supplementary information required. If there is any conflict between this DPA and the EU SCCs and/or UK Addendum, respectively, the EU SCCs or UK Addendum will prevail. (e) In the event Converge engages in cross-border or onward transfers of Personal Data with a subprocessor or other third-party recipient, Converge will conduct such transfers only after obtaining explicit consent from Customer and ensuring a lawful cross-border transfer mechanism is in place. 9. Security Safeguards. Converge will implement, maintain, and monitor a comprehensive written information security policy that contains appropriate administrative, technical, and organizational safeguards to ensure the confidentiality, integrity, and availability of Personal Data and prevent any unauthorized or unlawful Processing of such Personal Data, as detailed in Exhibit A hereto. The safeguards will be appropriate to the nature of the Personal Data and comply with Applicable Data Protection Law. 10. Security Breach. (a) In the event Converge discovers a Security Breach, Converge will (i) without undue delay notify Customer in writing by email of the Security Breach; and (ii) promptly take appropriate steps to investigate, mitigate, and remedy the Security Breach. (b) Any notification required under this Section must satisfy the requirements under Applicable Data Protection Law and include, where feasible: (i) the details of the Security Breach available to Converge at such time, which may include the number and categories of individuals affected, categories and number of records concerned, types of Personal Data affected, likely consequences of the Security Breach, and date and time of such incident; (ii) a summary of the incident that caused the Security Breach and any ongoing risks that the Security Breach poses; (iii) a description of the measures proposed or taken by Converge to address the Security Breach; (iv) any other information required under Applicable Data Protection Law. Following such initial notice, Converge will reasonably cooperate with Customer (including by providing information reasonably requested by Customer) to enable Customer to comply with its legal obligations to notify supervisory authorities or Data Subjects of the Security Breach. (c) Notwithstanding the foregoing, Converge’s maximum liability under this DPA will be limited pursuant to the limitations of liability set forth in the Agreement. 11. Representations and Warranties. (a) Customer represents and warrants that it is and will remain in compliance with all Applicable Data Protection Laws in connection with the Agreement and Personal Data, and that the instructions given to Converge are in accordance with Applicable Data Protection Law. (b) Customer represents and warrants that all Personal Data entrusted to Converge have been lawfully obtained and can be lawfully Processed throughout the duration of the Agreement. Customer shall, in this respect, assist and fully indemnify Converge against any complaint, action or claim by Data Subjects, third parties, public authorities and against Customer, if the latter acts as Processor, without prejudice to Converge’s right to compensation from the Customer for the damages it has suffered. (c) Taking into account the nature, scope, context and purpose of the Processing, as well as the risks to the rights and freedoms of natural persons which vary in their likelihood and seriousness, Customer represents and warrants that it has implemented and will maintain appropriate technical and organizational measures to ensure and be able to demonstrate that the Processing is carried out in accordance with Applicable Data Protection Law. These measures shall be reviewed at regular intervals and updated if necessary. 12. Return or Destruction of Personal Data. Upon Customer’s request, or promptly upon termination of the Agreement, Converge will cease all Processing of Personal Data and, at Customer’s election, either (a) return such data to Customer or (b) destroy such data and certify such destruction to Customer in writing. Converge is permitted to retain Personal Data where it has a legal requirement to do so, provided that Converge notified Customer of this in writing. The parties hereby accept and agree to the terms of this Data Processing Addendum:
Address and Point of Contact: The address and contact details associated with Customer’s Converge account, or as otherwise specified in the Order Form or below.
Activities relevant to the data Processed under the DPA: Use of the Converge platform and services. 2. Processor / Data Importer: Name: Converge Technologies, Inc.
Address: 169 Madison Avenue, Suite 15525, New York, NY 10016, United States
Activities relevant to the data Processed under the DPA: Converge’s provision of customer event tracking services.
Point of Contact: Thomas Holvoet, Data Protection Officer, lega@runconverge.com 3. Subject Matter of Processing: The Processing is in relation to Converge’s provision of services under the Agreement. 4. Duration of Processing: The Processing will begin after the Effective Date and will end upon expiration or termination of the Agreement. 5. Nature and Purpose of Processing: Data is collected, forwarded, and made available for analytics, enabling the use of Converge’s software platform. 6. Types of Personal Data includes: IP address, first name, last name, email address, telephone number, address data, country code, state, zip code, user agent, device identifiers. 7. Categories of Data Subjects: Customers and users of the Converge software platform, and website visitors and customers of Converge’s customers. 8. Period of Data Retention by Converge: Converge will retain Personal Data until the termination of the Agreement, unless otherwise agreed to by the parties. 9. Approved Subprocessors and Data Transfers: https://docs.runconverge.com/legal/subprocessors
1. Services.
1.1. Services. Subject to your compliance with this Agreement, Converge hereby grants you (i) a non-exclusive, non-sublicensable, revocable (only as expressly permitted hereunder), non-transferable (except as expressly permitted hereunder), right to access and use the Services during the Term, solely for your internal business purposes, in accordance with, and subject to, any other terms set forth in the then-current Order Form; and (ii) a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term, solely for your internal business purposes in connection with its use of the Services. 2.1. Restrictions. Except as expressly permitted by this Agreement, you will not, and will not permit any third party (including Authorized Users) to, use the Services in any manner beyond the scope of the rights expressly granted in this Agreement. Specifically, you will not at any time, directly or indirectly, and will not permit any third party to:(a) copy, modify or create derivative works of the Services or Documentation;
(b) reverse engineer, disassemble, decompile, decode or attempt to improperly access the software component of the Services;
(c) share passwords or allow unauthorized access to the Services;
(d) use the Services in any manner or for any purpose that infringes on third party IP or other rights or that violates any applicable law;
(e) disrupt or interfere the Services or its data;
(f) use unauthorized tools to access or search the Services; or
(g) use the Services, the Documentation or Confidential Information of Converge to develop competing products or copy ideas, features, functions or graphics of the Services. 1.3. Authorized Users. You will not permit any person or entity other than your Authorized Users to access, use or operate the Services. You are fully and directly responsible to Converge for: (a) any act or omission by each of your Authorized Users in connection with such Authorized User’s use of the Services; and (b) any use of the Services through your account, whether authorized or unauthorized. You will use, and will require all Authorized Users to use all reasonable means to secure usernames and passwords, hardware and software used to access the Services, and will promptly notify us if you or any Authorized User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Services may only be accessed and used by the specific Authorized User for whom such account is created. 1.4. Modification, Suspension, or Termination. We may (i) modify, deprecate, or update the Services, in whole or in part, at any time during the Term; and (ii) without liability to you, immediately suspend, terminate, or limit your access to the Services at any time if we reasonably suspect that the Services are being used in violation of this Agreement. Without limitation, we will have no liability for any damages, liabilities, or losses as a result of any suspension, limitation or termination of your or any Authorized User’s right to use the Services in accordance with this subsection. 1.5. Third-Party Services. The Services may allow you and your Authorized Users to interact with certain third-party services (collectively “Third-Party Services”). Converge does not provide or take responsibility for these Third-Party Services, including any compatibility issues or errors they may cause. You are solely responsible for your use of the Third-Party Services and obtaining any associated licenses and consents necessary to use the Third-Party Services.
2. Fees and Payment.
2.1. Fees. You will pay Converge the Fees as set forth on the relevant Order Form. All Fees are non-refundable and neither party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement. Unless otherwise set forth on the relevant Order Form, we reserve the right to change the Fees at the end of the relevant Order Form Term, upon 30 days’ prior written notice to you. If you have signed up for automatic billing, we will charge your selected payment method (such as a credit card or debit card) for any Fees on the applicable payment date, including any applicable taxes. If we cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and we may attempt to charge the payment method again if you update your payment method information. In accordance with local law, we may update information regarding your selected payment method if provided such information by your financial institution. We may charge interest on late payments at a rate of 1.5% per month or the maximum rate permitted by applicable law for commercial transactions, whichever is higher, and we may suspend access to the Services until all payments are made in full. You will reimburse Converge for all costs and expenses incurred (including attorneys’ fees) in collecting any late payments or interest. 2.2. Taxes. You are responsible for all sales, use, ad valorem or other taxes on any amount payable by you to Converge hereunder, other than any taxes imposed on Converge’s income.3. Suspension; Termination.
3.1. Order Form Term. If you have entered into an Order Form with Converge, this Agreement begins on the Effective Date set forth in the applicable Order Form and, unless terminated earlier as permitted hereunder, will continue for as long as there is an Order Form in effect (the “Term”). Each Order Form is effective for the Order Form Initial Term and all subsequent renewed Order Form terms, if any (the “Order Form Renewal Terms”), (the Term and Order Form Renewal Terms, as the case may be, collectively, the “Order Form Term”). If you have not entered into an Order Form with Converge, this subsection 3.1 does not apply to you. 3.2. Termination. We reserve the right (a) to immediately and without notice suspend or terminate your access to or use of the Services if we reasonably believe that you have violated this Agreement and (b) to modify the Services or to suspend or stop providing all or portions of the Services at any time, to the extent permitted by law. You also have the right to stop using the Services at any time. We are not responsible for any loss or harm related to your inability to access or use the Services. 3.3. Effect of Termination. No expiration or termination of your access to the Services will affect your obligation to pay any amounts legitimately owed to Converge prior to the effective date of such expiration or termination. After the effective date of termination or expiration of your access to the Services, Converge will have no obligation to maintain or provide Your Content, and may, in our sole discretion, delete or destroy all copies of such Your Content in the Services or in our possession or control. 3.4. Survival. Sections related to Restrictions, Authorized Users, Fees and Payment, Effect of Termination, Survival, IP Rights, Confidentiality, Representations and Warranties, Indemnification, Limitation of Liability, General Provisions, and any other provisions that, by their nature, are intended to survive the Term, shall survive termination.4. IP Rights.
4.1. Converge. Converge (and its licensors, where applicable) has and retains ownership of all rights in and to (including all IP Rights in and to) the Converge IP. No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 4.2. Customer. (a) You hereby grant Converge a non-exclusive, worldwide, sublicensable, royalty-free right and license to use, host, reproduce, publicly display, publicly perform, modify, transmit, and make derivative works of the Your Content: (i) during the applicable Term, solely for the purpose of hosting, operating, improving and providing the Services and Converge’s other current and future products, services and technologies; and (ii) on a perpetual basis, for purposes of developing and deriving Aggregate Data. (b) You hereby grant Converge a limited, non-exclusive, royalty-free license to use and display your or your company’s name, designated trademarks, and associated logos (the “Your Marks”) with your prior written approval in each case, for Converge’s marketing and promotional efforts for its products and services, including by publicly naming you or your company as a client of Converge during or after the Term. All goodwill and improved reputation generated by our use of Your Marks inures to your or your company’s exclusive benefit. 4.3. Feedback. You grant Converge a perpetual, royalty-free license to use any feedback you or your representatives provide for Converge’s business purposes, including to improve the Services. The foregoing license includes the right to profit from such feedback without compensating or crediting you in any way. Feedback will not be considered your trade secret.5. Confidentiality.
5.1. Non-Disclosure of Confidential Information. The parties will protect one another’s confidential information and not use or disclose it except as necessary to perform the Services. Confidential information includes all non-public information provided by a party under this Agreement that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Converge’s Confidential Information includes, without limitation, all non-public elements of the Services. 5.2. Exceptions. The confidentiality obligation does not apply to information that is public, previously known to the receiving party, disclosed to the receiving party by a third without a breach of confidence, independently developed by a party without reference to the confidential information, or legally required to be disclosed.6. Representations and Warranties.
6.1. Representations and Warranties. You represent and warrant that (i) you have obtained and will continue to have all necessary rights, authority, consents, and licenses for the access to and use of Your Content as contemplated by this Agreement, (ii) you will comply with all applicable laws in your use of the Services and performance of this Agreement, and (iii) our use of the Your Content in accordance with the Agreement will not cause a breach of any agreement or obligations between you and any third party. 6.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND OTHER CONVERGE IP ARE PROVIDED ON AN “AS IS” BASIS, AND CONVERGE MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE CONVERGE IP, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONVERGE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMMERCIAL RESULT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CONVERGE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. CONVERGE’S ONLY OBLIGATIONS WITH RESPECT TO THE SERVICES ARE EXPRESSLY STATED IN THIS AGREEMENT.7. Indemnification.
You will defend Converge against any claim, demand, suit or proceeding made or brought against Converge by a third party arising from or relating to (a) Your Content (or our use thereof), (b) your use of any Services in violation of this Agreement, any third-party’s IP Rights, privacy or other rights, or applicable law, or (c) any of your products or services (collectively, a “Claim”), and will indemnify and hold harmless Converge from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid or payable by us under a settlement of, a Claim. We will: (i) promptly give you written notice of the Claim, (ii) give you sole control of the defense and settlement of the Claim (except that you must give us approval over any settlement), and (iii) give you all reasonable assistance, at your cost.8. Limitation of Liability.
8.1. Exclusion of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT, THE CONVERGE IP, OR THE PROVISION OF THE SERVICES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, LOST SAVINGS OR REPUTATIONAL DAMAGES), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8.2. Total Liability. CONVERGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID BY YOU FOR THE SERVICES IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 8.3. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.9. Arbitration; Class Action Waiver; Jury Trial Waiver.
PLEASE READ THIS SECTION CAREFULLY, AS IT DESCRIBES HOW DISPUTES BETWEEN US WILL BE RESOLVED. 9.1. Arbitration Agreement. For any dispute with Converge, you agree to first contact us at legal@runconverge.com and attempt to resolve the dispute with us informally. In the unlikely event that our support team is unable to resolve a complaint you may have (or if we have not been able to resolve a dispute with you after attempting to do so informally), including, but not limited to, any alleged breach of this Agreement, you agree to resolve the dispute through binding arbitration. Arbitration, which is often less expensive, faster, and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award, and may, but do not have to, award legal fees, arbitrator’s fees and costs, and other costs incurred by the party that does not win the dispute. You agree that any dispute will be exclusively, fully, and finally resolved using binding arbitration through the American Arbitration Association (“AAA”). 9.2. Arbitration Procedure. (a) You and Converge agree to employ three (3) arbitrators (the “Panel”), where one (1) arbitrator is selected by you, one (1) arbitrator is selected by Converge, and the third (3rd) arbitrator is selected by mutual consent of you and Converge. If you and Converge cannot agree upon the third arbitrator, the first two (2) arbitrators chosen shall select the third arbitrator. The selection decision shall be binding. (b) The arbitration shall be conducted by telephone, online, and/or be solely based on written submissions—the specific manner to be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the Panel may be entered in any court of competent jurisdiction. (c) Any claim or dispute arising under this Agreement must be initiated by arbitration within two (2) years from its accrual date. Any claim or dispute initiated two (2) years or longer from its accrual date shall be time-barred and dismissed. 9.3. Cost of Arbitration. Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. In all cases where required by law, Converge will pay the arbitrator’s and arbitration fees. If under applicable law Converge is not required to pay all of the arbitrator’s and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law. Any disputes regarding whether Converge is required to pay the arbitrator’s and arbitration fees and/or how those fees are to be apportioned between the parties will be resolved by the arbitrator. 9.4. Exceptions to Agreement to Arbitrate. Converge may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the informal dispute-resolution process described above. 9.5. YOU MAY ONLY RESOLVE DISPUTES WITH CONVERGE ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED UNDER THESE TERMS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND CONVERGE EACH WAIVE ANY RIGHT TO A JURY TRIAL. 9.6. Opt-Out of Alternative Dispute Resolution Process. Notwithstanding the above, you can decline or “opt out” of the alternative dispute resolution process described above by contacting legal@runconverge.com within 30 days of first accepting these Terms and stating that you (first and last name) decline this dispute resolution process. 9.7. YOU UNDERSTAND AND AGREE THAT, BY NOT OPTING OUT OF THE ALTERNATIVE DISPUTE RESOLUTION PROCESS DESCRIBED, YOU WAIVE ANY RIGHT TO A JURY TRIAL TO WHICH YOU MAY OTHERWISE BE ENTITLED IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT. 9.8. If you opt out of the dispute resolution process described in this section or if this arbitration provision is found to be null and void, then all disputes arising under this Agreement between us will be subject to the jurisdiction of the state and federal courts located in New York, New York, and you and we hereby submit to the personal jurisdiction and venue of these courts. You and Converge agree that if for any reason a dispute proceeds in court rather than arbitration: (a) you and Converge waive any right to a jury trial; (b) the dispute will proceed solely on an individual, non-class, non-representative basis; and (c) neither you nor Converge may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.10. General Provisions.
10.1. Order of Precedence. In the event of any conflict or inconsistency between the components of the Agreement, the following order of precedence shall govern: (1) the relevant Order Form, (2) the Data Processing Addendum, and (3) these Terms. The document higher in precedence shall control solely to the extent of such conflict or inconsistency. 10.2. Governing Law. This Agreement is governed by the laws of New York State without giving effect to any choice of law or conflict of law provisions. **10.3. Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for a failure to pay Fees) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including, but not limited to, the denial or cancellation of any export or other necessary license and shelter-in-place or other similar orders), epidemics, acts of terrorism, wars, insurrections, or major disruptions affecting essential third-party infrastructure or service providers. 10.4. Notices. Except as may be otherwise set forth herein, all notices hereunder shall be in writing and shall be delivered by email (with confirmation of transmission). Email notifications to Converge shall be to legal@runconverge.com. You further agree that we may send to you any privacy or other notices, disclosures, or communications regarding the Services (collectively, “Communications”) through electronic means including but not limited to by email, using the email address that you provided to us related to your account or by posting the Communications on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in this Agreement. The delivery of any Communications from us is effective when sent by us, regardless of whether you read the Communication when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Communications by deactivating your account. 10.5. Export Control. You will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from Converge, without first complying with the United States and all other applicable government laws and regulations governing the export, re-export, and import of those items. 10.6. Subcontracting. We may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of our own obligations hereunder as we deem appropriate; provided that we remain responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting vendors, we will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Converge. 10.7. Assignment. You may not assign, delegate, or otherwise transfer your rights or obligations under this Agreement in whole or in part, except that you may assign this Agreement in connection with a merger, acquisition, sale of a majority of its equity, sale of substantially all of its assets to which this Agreement relates, or a similar transaction. This Agreement will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. 10.8. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless in a writing signed by the parties. 10.9. No Waiver. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. 10.10. Relationship. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Except as otherwise set forth in this Agreement, neither party is restricted from doing business with any other person, entity or organization by virtue of this Agreement. Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. 10.11. Enforceability. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. 10.12. Counterparts. This Agreement may be executed in counterparts, each of which will constitute the same instrument. Electronic signatures will be given the same effect and weight as originals.Schedule A – Definitions
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (a) Your Content, or (b) your and/or your Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services. Subject to the foregoing, you have and retain ownership of Your Content, and any intellectual property rights therein. “Authorized User” means any natural person who is your employee or contractor and who: (a) you authorize to use the Services; and (b) receives an account issued by Converge to use the Services. “Converge IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), whether of a general nature or specifically or individually conceived, created, or delivered by Converge alone or jointly with Customer, and all IP Rights in and to any of the foregoing. “Documentation” means the operator and user manuals, training materials, specifications, and/or other similar materials in hard copy or electronic form if and as provided by Converge to you (including any revised versions thereof) relating to the Services, which may be updated from time to time. “IP Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world. “Order Form” means any mutually executed order form which references this Agreement. “Your Content” means any nonpublic captured through the Services, or otherwise made available to Converge, by or on behalf of you or your Authorized User, including visitor event data, attribution data, campaign metadata, and other custom configurations or reports created by you within the Services.Schedule B - Data Protection Addendum
This Data Processing Addendum (“DPA“) forms part of, and is subject to, the Software Services Terms & Conditions or other written or electronic terms of service or subscription agreement (the “Agreement”) between Converge Technologies, Inc. (“Converge,” “we” or “us”) and you (“Customer”). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. In the event of any inconsistency or conflict between this DPA and the Agreement, this DPA will govern. Customer and Converge agree as follows: 1. Definitions. “Applicable Data Protection Law” means all applicable data protection laws, rules, regulations, orders, ordinances, regulatory guidance, and industry self-regulations, including without limitation the EU General Data Protection Regulation (Regulation 2016/679), the United Kingdom Data Protection Act 2018, the California Consumer Privacy Act, as amended by the California Privacy Rights Act, the Swiss Federal Data Protection Act of 19 June 1992 (“FADP”), and any subsequent supplements, amendments, or replacements to the same. “Controller” means an entity that, alone or jointly with others, determines the purposes for and means of Processing. “Controller” has the same meaning as “Business,” as that term is defined under Applicable Data Protection Law. “Data Subject” means an identified or identifiable natural person. “De-Identified Data” means data that cannot reasonably be used to infer information about, or otherwise be linked to, a Data Subject or as that term is otherwise defined under Applicable Data Protection Law. For the avoidance of doubt, De-Identified Data that has been aggregated will not be deemed Personal Data, subject to Converge’s compliance with restrictions on De-Identified Data under this DPA. “EU SCCs” refers to the Standard Contractual Clauses promulgated by the EU Commission Implementing Decision (EU) 2021/914 dated 4 June 2021, as completed and supplemented by Converge, available at https://docs.runconverge.com/legal/scc. “Personal Data” means information that Converge Processes on Customer’s behalf in connection with its performance of the Services or otherwise pursuant to the Agreement or this DPA that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to a Data Subject, or as that term or a similar term is defined under Applicable Data Protection Law. “Process” or “Processing” means any operation or set of operations performed on Personal Data, whether or not by automated means, including, but not limited to, accessing, collecting, recording, organizing, structuring, using, storing, transferring, retaining, disclosing, selling, sharing, deleting, and destroying Personal Data. “Processor” means a natural or legal person that Processes Personal Data on a Controller’s behalf. “Processor” has the same meaning as “Service Provider,” as that term is defined under Applicable Data Protection Law. “Converge Systems” means the facilities, systems, equipment, hardware, and software Converge and Converge’s subprocessors use to Process Personal Data. “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data Processed by Converge. “UK Addendum” refers to the UK’s International Data Transfer Addendum to the EU SCCs, available at https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/international-transfers/international-data-transfer-agreement-and-guidance/. 2. Roles of the Parties. Converge will Process Personal Data on Customer’s behalf, as described in more detail in Annex 1. As between Customer and Converge, Customer will be the Controller and Converge will be the Processor. 3. Customer Instructions. The parties agree that the Agreement (including this DPA) sets out the exclusive and final instructions to Converge for all Processing of Personal Data. Any additional requested instructions must be mutually agreed by the parties in writing. Customer shall ensure its Processing instructions are lawful and that the Processing of Personal Data in accordance with such instructions will not violate Applicable Data Protection Law. Converge shall promptly notify Customer if, in Converge’s opinion, such instruction violates Applicable Data Protection Law. Converge may decide to suspend or cease such Processing of Customer Personal Data without owing Customer any compensation. Any lack of the aforementioned notification by Converge shall in no way affect Converge’s liability to the Customer. If Customer fails to amend its instruction after being notified by Converge that such instruction is unlawful, Converge reserves the right to terminate the Agreement without liability for any damages or compensation arising from such termination. Notwithstanding anything in the Agreement or DPA, Converge shall not be liable in any way for damages resulting from Customer’s instructions. 4. Converge Responsibilities. Converge agrees to: (a) Process Personal Data solely in accordance with Customer’s documented instructions and for the specific business purposes and services specified in the Agreement and this DPA, which includes to prevent, detect, or investigate data security incidents, or protect against fraudulent activity to the extent authorized for Converges by Applicable Data Protection Law; (b) except as expressly permitted by Applicable Data Protection Law, not retain, use, disclose, or otherwise Process Personal Data (i) for any purposes other than those specified in the Agreement and in Annex 1; (ii) for any commercial purpose other than the specific business purposes specified in the Agreement and the DPA, including to provide services to a different business; and (iii) outside the direct business relationship between Customer and Converge, including to combine or update Personal Data with information received from or on behalf of another source or collected from Converge’s own interactions with a Data Subject unless expressly instructed by Customer for a specific purpose, and for the sole benefit of Customer, in providing the Services; (c) not “sell” or “share” Personal Data, as Applicable Data Protection Law defines those terms; (d) ensure that persons who Process Personal Data on Converge’s behalf (such as employees) have undergone appropriate training and are bound by obligations of confidentiality; (e) at Customer’s request, update, correct, delete, supplement, transfer, and provide Customer with access to Personal Data in Converge’s possession or control that has been lawfully provided by Customer and has been Processed on Customer’s behalf; (f) cooperate with and provide reasonable assistance to Customer in complying with Applicable Data Protection Law including, but not limited to, assisting with legally-required data protection impact assessments, audits, and consultations with regulatory bodies. To the extent that the services referred to in the preceding paragraph are appropriate and possible, Customer and Converge shall agree on reasonable compensation to which Converge is entitled for these services based on Converge’s then-current rates; and (g) upon Converge’s or a subprocessor’s receipt of a legally-binding request for access to Personal Data from a public authority and where permitted by applicable law: (i) attempt to redirect the request to Customer (and Converge is permitted to provide information to such public authority as reasonably necessary to redirect the request) and/or (ii) promptly notify Customer of the request for access to provide Customer the opportunity to comply with its notice and consent obligations with respect to affected Data Subjects or oppose the disclosure and obtain a protective order or seek other relief), unless providing such notice is prohibited by law, and (iii) where applicable, also comply with Converge’s obligations with respect to access by public authorities set forth in any applicable cross-border transfer mechanism. 5. Provision of Personal Data. Customer in its sole discretion determines what Personal Data is included in content Customer submits to the Services. Customer shall have sole responsibility for the accuracy, quality, and legal basis for collection of such Personal Data. 6. Data Subject Requests. Converge will not respond to direct requests from Data Subjects, and will refer such Data Subjects to Customer. As between Converge and Customer, Customer will be responsible for guaranteeing all Data Subjects’ rights. Converge will cooperate with such requests and provide Customer with the reasonably necessary information. 7. Subprocessors. Subject to the requirements of this Section, Customer hereby grants general authorization to Converge to engage subprocessors to perform its obligations under this DPA and the Agreement. Converge will impose by way of contract on its subprocessors data protection obligations no less protective than those set out in this DPA and the Agreement, and Converge remains responsible for the Processing activities and omissions of its subprocessors. Customer approves Converge’s current list of its subprocessors and the countries in which they are located listed at https://docs.runconverge.com/legal/subprocessors. In the event Converge intends to make changes to the list of approved subprocessors, Converge will provide Customer with at least seven (7) days’ prior written notice (email is sufficient). If Customer raises reasonable objections regarding a new subprocessor in writing during the seven (7) day period and Converge is unable to provide an alternate subprocessor, Customer, as its sole and exclusive remedy, may terminate the Agreement upon advance written notice with respect to those aspects of the Services which cannot be provided without use of the new subprocessor. Converge will refund any prepaid, unused fees for the terminated Services following the effective date of such termination. 8. Cross-Border Data Transfers. The parties will not engage in cross-border transfers of Personal Data without taking steps to ensure such transfers comply with Applicable Data Protection Law. To the extent Customer transfers Personal Data to Converge about individuals in: (a) the European Economic Area (EEA), the parties will conduct such transfers pursuant to Module 2 of the EU SCCs, which are hereby incorporated by reference and deemed executed by the parties as of the Effective Date, or by certifying to and participating in another lawful cross-border transfer mechanism. If Customer is not established in the EEA, Customer will have an appointed representative pursuant to article 27 of the GDPR. (b) the United Kingdom, the parties will conduct such transfers pursuant to the EU SCCs in tandem with the UK Addendum, which are hereby incorporated by reference and deemed executed by the parties as of the Effective Date, or by certifying to and participating in another lawful cross-border transfer mechanism. (c) Switzerland, the parties will conduct such transfers pursuant to the EU SCCs, which are hereby incorporated by reference and deemed executed by the parties as of the Effective Date, or by certifying to and participating in another lawful cross-border transfer mechanism. In relation to Personal Data that is protected by the FADP and transferred pursuant to the EU SCCs, the EU SCCs will be amended as follows: i. references to “Regulation (EU) 2016/679” in the EU SCCs will be deemed to refer to the Swiss FADP;ii. references to specific articles of “Regulation (EU) 2016/679” will be deemed replaced with the equivalent article or section of the Swiss FADP;
iii. references to “EU”, “Union” and “Member State” will be deemed replaced with ‘Switzerland’;
iv. references to the “competent supervisory authority” and “competent courts” are replaced with the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland” (as applicable);
v. in Clause 17, the EU SCCs will be governed by the laws of Switzerland; and
vi. in Clause 18(b), disputes will be resolved before the competent courts of Switzerland. (d) If the parties will engage in cross-border transfers of Personal Data subject to the EU SCCs and/or the UK Addendum, Converge will be the “data importer,” Customer will be the “data exporter,” and Annex 1 will provide the supplementary information required. If there is any conflict between this DPA and the EU SCCs and/or UK Addendum, respectively, the EU SCCs or UK Addendum will prevail. (e) In the event Converge engages in cross-border or onward transfers of Personal Data with a subprocessor or other third-party recipient, Converge will conduct such transfers only after obtaining explicit consent from Customer and ensuring a lawful cross-border transfer mechanism is in place. 9. Security Safeguards. Converge will implement, maintain, and monitor a comprehensive written information security policy that contains appropriate administrative, technical, and organizational safeguards to ensure the confidentiality, integrity, and availability of Personal Data and prevent any unauthorized or unlawful Processing of such Personal Data, as detailed in Exhibit A hereto. The safeguards will be appropriate to the nature of the Personal Data and comply with Applicable Data Protection Law. 10. Security Breach. (a) In the event Converge discovers a Security Breach, Converge will (i) without undue delay notify Customer in writing by email of the Security Breach; and (ii) promptly take appropriate steps to investigate, mitigate, and remedy the Security Breach. (b) Any notification required under this Section must satisfy the requirements under Applicable Data Protection Law and include, where feasible: (i) the details of the Security Breach available to Converge at such time, which may include the number and categories of individuals affected, categories and number of records concerned, types of Personal Data affected, likely consequences of the Security Breach, and date and time of such incident; (ii) a summary of the incident that caused the Security Breach and any ongoing risks that the Security Breach poses; (iii) a description of the measures proposed or taken by Converge to address the Security Breach; (iv) any other information required under Applicable Data Protection Law. Following such initial notice, Converge will reasonably cooperate with Customer (including by providing information reasonably requested by Customer) to enable Customer to comply with its legal obligations to notify supervisory authorities or Data Subjects of the Security Breach. (c) Notwithstanding the foregoing, Converge’s maximum liability under this DPA will be limited pursuant to the limitations of liability set forth in the Agreement. 11. Representations and Warranties. (a) Customer represents and warrants that it is and will remain in compliance with all Applicable Data Protection Laws in connection with the Agreement and Personal Data, and that the instructions given to Converge are in accordance with Applicable Data Protection Law. (b) Customer represents and warrants that all Personal Data entrusted to Converge have been lawfully obtained and can be lawfully Processed throughout the duration of the Agreement. Customer shall, in this respect, assist and fully indemnify Converge against any complaint, action or claim by Data Subjects, third parties, public authorities and against Customer, if the latter acts as Processor, without prejudice to Converge’s right to compensation from the Customer for the damages it has suffered. (c) Taking into account the nature, scope, context and purpose of the Processing, as well as the risks to the rights and freedoms of natural persons which vary in their likelihood and seriousness, Customer represents and warrants that it has implemented and will maintain appropriate technical and organizational measures to ensure and be able to demonstrate that the Processing is carried out in accordance with Applicable Data Protection Law. These measures shall be reviewed at regular intervals and updated if necessary. 12. Return or Destruction of Personal Data. Upon Customer’s request, or promptly upon termination of the Agreement, Converge will cease all Processing of Personal Data and, at Customer’s election, either (a) return such data to Customer or (b) destroy such data and certify such destruction to Customer in writing. Converge is permitted to retain Personal Data where it has a legal requirement to do so, provided that Converge notified Customer of this in writing. The parties hereby accept and agree to the terms of this Data Processing Addendum:
Annex 1 to DPA: Scope of Processing
1. Controller / Data Exporter: Name: Company named on the associated Order Form.Address and Point of Contact: The address and contact details associated with Customer’s Converge account, or as otherwise specified in the Order Form or below.
Activities relevant to the data Processed under the DPA: Use of the Converge platform and services. 2. Processor / Data Importer: Name: Converge Technologies, Inc.
Address: 169 Madison Avenue, Suite 15525, New York, NY 10016, United States
Activities relevant to the data Processed under the DPA: Converge’s provision of customer event tracking services.
Point of Contact: Thomas Holvoet, Data Protection Officer, lega@runconverge.com 3. Subject Matter of Processing: The Processing is in relation to Converge’s provision of services under the Agreement. 4. Duration of Processing: The Processing will begin after the Effective Date and will end upon expiration or termination of the Agreement. 5. Nature and Purpose of Processing: Data is collected, forwarded, and made available for analytics, enabling the use of Converge’s software platform. 6. Types of Personal Data includes: IP address, first name, last name, email address, telephone number, address data, country code, state, zip code, user agent, device identifiers. 7. Categories of Data Subjects: Customers and users of the Converge software platform, and website visitors and customers of Converge’s customers. 8. Period of Data Retention by Converge: Converge will retain Personal Data until the termination of the Agreement, unless otherwise agreed to by the parties. 9. Approved Subprocessors and Data Transfers: https://docs.runconverge.com/legal/subprocessors