Terms & Conditions
Last updated: April 16th, 2023
To be eligible to use Convercy (as defined below), you must review and accept these Convercy Terms of Service (this “Agreement” or these “Terms”) by clicking on the “Get” or “Signup” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE CONVERCY, YOU AGREE TO THESE TERMS AND CONDITIONS WITH CONVERCY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE THE CONVERCY.
In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Convercy account or using the Convercy on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Convercy that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization).
CONVERCY DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE CONVERCY, AND THESE TERMS LIMIT CONVERCY’S LIABILITY TO YOU.
DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE CONVERCY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Certain Definitions
The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Website” means a website branded with Customer’s trademarks (or, if Customer is an agency, those of its Agency Clients) and operated by or on behalf of Customer (or, if Customer is such an agency, its Agency Clients) that uses an e-commerce platform that has integrated the Convercy, for which Customer is permitted to use the Convercy as set forth in Customer’s Convercy account.
“Convercy” means the cloud-based currency converter software tools made generally available by Convercy for use by its customers to build and serve their e-commerce websites.
2.1 These Terms. Convercy may revise these Terms from time to time. If Convercy does revise these Terms, the revised Terms will supersede prior versions, effective at the beginning of your next subscription renewal. Convercy will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Convercy has on file. For other revisions, Convercy will update the effective date of these Terms at the top of the page. Convercy encourages you to check the effective date of these Terms whenever you visit Convercy’s website or account portal. Your continued access or use of the Convercy constitutes your acceptance of any revisions, effective at the beginning of your next subscription renewal. If you don’t agree to the revisions, you should cancel your subscription to the Convercy. Subject to the foregoing, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
2.2 Convercy. You acknowledge that Convercy may change or deprecate any feature of the Convercy from time to time, and that it is your responsibility to ensure that calls or requests you make to the Convercy are compatible with then-current version of the Convercy. Although Convercy endeavors to avoid changes to the Convercy that are not backwards compatible, if any such changes become necessary Convercy will endeavor to notify you at least thirty (30) days prior to Convercy’s implementation of any such incompatible changes to the Convercy of which it becomes aware.
3.1 Provision of Convercy. Subject to the terms and conditions of this Agreement and the Convercy Acceptable Use Policy (available at https://convercy.app/pages/aup) (the “AUP“), Convercy will use commercially reasonable efforts to make the Convercy available to Customer pursuant to this Agreement based on the pricing plan for the Convercy selected by Customer. Customer may permit its third-party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the Convercy solely in connection with services provided by such third-party contractors to Customer. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Agency Clients, and Customer will only use the Convercy on behalf of such Agency Clients that have authorized Customer to use the Convercy on their behalf within the scope of Customer’s other bona fide agency responsibilities for such Agency Client.
3.2 Feedback. Customer may from time to time provide Convercy suggestions or comments for enhancements or improvements, new features or functionality or other feedback (***” Feedback”***) with respect to the Convercy. Convercy will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3.3 Convercy Platform Improvements and Marketing. Notwithstanding anything herein, Convercy shall have the right to collect and analyze data and other information relating to the use and performance of the Convercy and related systems and technologies and Convercy will be free to (i) use such information and data to develop, improve and provide Convercy’s offerings, and (ii) use and disclose such data in aggregate or other anonymous and de-identified form for marketing purposes and otherwise in connection with its business.
3.4 Data Processing Addendum and Privacy Shield. To the extent that Convercy processes any Personal Data (as defined in the DPA referenced below) provided by Customer’s customers on Customer’s behalf in the provision of the Convercy, the terms of the data processing addendum at https://convercy.app/pages/dpa (“DPA“) as may be updated by Convercy if required by applicable law, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the DPA (including the Standard Contractual Clauses attached to the DPA), Customer is the data controller and data exporter, and Customer’s entering into this Agreement shall be treated as signing of the DPA (including the Standard Contractual Clauses and their Appendices). Convercy further represents to Customer that it has certified its adherence to the EU-US or Swiss-US Privacy Shield Framework, as administered by the US Department of Commerce and detailed at https://www.privacyshield.gov.
4. Confidentiality; Restrictions
Each party (the “Receiving Party“) understands that the other party (the “Disclosing Party“) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. In addition, Customer will not (nor will it permit any third party to) (1) reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Convercy or modify or create derivative works based on the Convercy; (2) use the Convercy to build a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Convercy; or (3) use the Convercy in an unlawful manner, in violation of the AUP or otherwise outside the scope expressly permitted hereunder.
5.1 Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
5.2 Termination and Suspension. You may terminate your account at any time by deleting the Convercy app in the applicable e-commerce platform you are using that has integrated the Convercy. Convercy may terminate or suspend your account in the event you commit any breach of any provision of these Terms (including the AUP), and Convercy may terminate your account effective at the end of your then-current subscription upon written notice to you of non-renewal of your subscription. Convercy may also terminate or suspend your account immediately for cause if: (a) there is reason to believe the traffic created from your use of the Convercy or your use of the Convercy is fraudulent or negatively impacting the operating capability of Convercy; (b) Convercy determines, in its sole discretion, that providing the Convercy is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Convercy; or (c) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Convercy suspends your account, Convercy will make a reasonable attempt to notify you. Note that no refund will be provided in the event of any suspension or termination of your account.
5.3 Survival. Upon termination of this Agreement or your account, Customer will discontinue any further use of the Convercy and all rights and obligations will immediately terminate, except that any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to payment, proprietary rights, confidentiality, disclaimers, indemnification, limitations of liability and termination, and the general provisions below.
6. Warranties and Disclaimers
6.1 DISCLAIMER. THE CONVERCY AND ANY BETA SERVICES (AS DEFINED BELOW) ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. CONVERCY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE CONVERCY AND BETA SERVICES. WITHOUT LIMITING THE FOREGOING, CONVERCY DOES NOT WARRANT THAT THE Convercy OR BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
6.2 BETA SERVICES. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH CONVERCY WHERE CUSTOMER GETS TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA SERVICES”) OFFERED BY Convercy. THE BETA SERVICES ARE NOT GENERALLY AVAILABLE, AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS.
Customer will defend, indemnify and hold Convercy and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to the Customer Content, Customer Websites or its breach of these Terms (“Claim“). Convercy and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. Convercy reserves the right, at Customer’s expense, to retain separate counsel for themselves in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim that is subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Convercy or its affiliate in connection with any Claim. Customer will also be liable to Convercy for any costs and attorneys’ fees Convercy incurs to successfully establish or enforce Convercy’s right to indemnification under this Section.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL CONVERCY BE LIABLE TO YOU FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF CONVERCY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (II) DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM. THE FOREGOING PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9.1 Export Controls. The Convercy may be subject to applicable export control laws and economic sanctions regulations. In receiving the Convercy, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Convercy, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Convercy. These laws include restrictions on destinations, users and end use. Without limitation, you may not transfer any aspect of the Convercy Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Convercy if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
9.2 Publicity. Convercy may use Customer’s name and logo on Convercy’s website and marketing materials to identify Customer’s relationship with Convercy, and Convercy may publicize that Customer is a customer of Convercy and utilizes the Convercy.
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null or void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Waiver. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Entire Agreement. This Agreement comprises the entire agreement between Customer and Convercy with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Convercy, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There shall be no force or effect to any different terms of any pre-printed purchase order or similar forms of Customer, even if signed by the parties after the date hereof.
9.8 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event“), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.9 Interpretation. For purposes hereof, “including” means “including without limitation”.