Terms of Use

1. Acceptance of these Terms

These Terms of Use (the "Terms") form a legally binding agreement between you and Desverso LLC, a Delaware limited liability company ("Desverso LLC", "we", "us" or "our"), and govern your access to and use of Talkivio, including the website, the dashboard, the chat widget, the application programming interfaces, the mobile and desktop experiences and all related software, content and services (together, the "Service").

By creating an account, starting a free trial, clicking to accept these Terms, installing the chat widget or otherwise using the Service, you agree to these Terms, our Privacy Policy and our Refund Policy, which are incorporated into these Terms by reference. If you do not agree, you must not use the Service.

If you use the Service on behalf of a company or other organisation, you represent and warrant that you have the authority to bind that organisation to these Terms, and "you" and "Customer" refer to that organisation. You must be at least 18 years old and able to form a binding contract to use the Service.

Please read section 22 carefully. It requires disputes to be resolved by binding individual arbitration and waives your right to a jury trial and to take part in a class action.

2. Business use only

The Service is designed and offered solely for business and professional use. By subscribing, you represent and warrant that you are acquiring the Service for the purposes of your trade, business, craft or profession and not as a consumer. To the fullest extent permitted by law, consumer protection rights that apply only to consumers (including statutory cooling-off and withdrawal rights) do not apply to your subscription.

3. Definitions

• Agent means each individual user account in your workspace that can sign in to the dashboard, whether or not that individual answers chats in a given period.
• Customer Data means the data you or your Agents submit to the Service, and the data the Service collects from End Users on your behalf, including chat messages, files, visitor details and notes.
• End User means a visitor to a website or application on which you install the chat widget.
• Subscription means your paid plan for the Service, including the plan tier, the number of Agents and the billing period (monthly or yearly).
• Workspace means the separate environment in the Service in which your Agents, sites and Customer Data are held.

4. The Service

Subject to these Terms and payment of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during your Subscription to access and use the Service for your internal business purposes, within the limits of your plan.

We continuously change and improve the Service. We may add, change, limit or remove features or functions at any time, with or without notice, and we are not obliged to continue providing any particular feature. Where a change materially reduces the core functionality of your paid plan, we will make reasonable efforts to notify you in advance. Features described as beta, preview, early access or similar are provided as they are, may be withdrawn at any time and are excluded from any commitments we make about the Service.

Unless we have signed a separate written service level agreement with you, we do not guarantee any particular availability, uptime, response time or delivery time, and the figures we publish describe typical performance only.

5. Accounts and security

You must give accurate, current and complete information when you register and keep it up to date. You are responsible for all activity in your Workspace and under your Agents' accounts, whether or not you authorised it, and for keeping passwords, authentication devices, API tokens and widget keys confidential. We strongly recommend that every Agent turns on two-factor authentication.

You must notify us immediately at support@talkivio.com if you become aware of any unauthorised access to or use of your Workspace. We are not liable for any loss or damage arising from your failure to protect your credentials or to comply with this section.

6. Free trial

We may offer a free trial of a paid plan for 14 days, or another period we state when you sign up (the "Trial"). To start a Trial you must provide a valid credit or debit card and authorise us to charge it. When the Trial ends, your Subscription starts automatically and your card is charged the then-current fee for the plan, billing period and number of Agents you selected, unless you cancel before the Trial ends.

We will send a reminder to the email address on your account at least 7 days before the Trial ends, stating the date of the first charge, the amount and how to cancel. You can cancel at any time before the Trial ends in Settings, Billing, and you will not be charged. It is your responsibility to cancel in time; not reading or not receiving the reminder (for example because of spam filtering or an out-of-date email address) does not entitle you to a refund.

Trials are limited to one per organisation, per payment card and per person. We may verify your card with a temporary authorisation, which your card issuer releases according to its own timetable. We may refuse, shorten or end a Trial at any time and at our sole discretion, including where we suspect abuse, multiple accounts or fraud.

7. Subscriptions, fees and automatic renewal

Fees are charged per Agent per billing period at the prices shown on our website or at checkout when you subscribe, and are payable in advance in US dollars. Your Subscription renews automatically at the end of each billing period for a period of the same length, and you authorise us to charge your payment method on file the then-current fee for each renewal, without further action or approval from you, until you cancel.

If you add Agents or upgrade your plan during a billing period, you authorise us to charge immediately a prorated fee for the remainder of that period; the new number of Agents or plan then applies to every renewal. Removing Agents or downgrading takes effect at the next renewal and does not entitle you to any refund or credit for the current period.

We may change our prices. Any price change applies from your next renewal after we have given you at least 30 days' notice by email or in the Service. If you do not agree to the change, you must cancel before the renewal; continuing your Subscription after the change takes effect means you accept the new price.

Fees exclude all taxes, levies and duties (including sales, use, value added and goods and services taxes), which you are responsible for paying, other than taxes on our net income. Where we are required to collect tax, we will add it to your invoice.

Payments are processed by our third-party payment processor, Converge, a payment platform of Elavon, Inc. Your card details are sent directly to the processor and are not stored on our servers; we keep only a reference (token) and the card brand, last four digits and expiry date. By providing a payment method you represent that you are authorised to use it, and you authorise us and our processor to store it and charge it as described in these Terms. You must keep your payment details current. We may use card network updater services to refresh expired card details.

If a payment fails, we may retry the charge, notify you and suspend access to the Service until all outstanding amounts are paid. Amounts not paid when due may accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower. You will reimburse our reasonable costs of collection, including collection agency fees, attorneys' fees and court costs. If an amount remains unpaid for 30 days after the first failed payment, we may terminate your Subscription and delete your Workspace in accordance with section 18.

8. Cancellation

You may cancel your Subscription at any time online in Settings, Billing, or by writing to billing@talkivio.com from the email address of a Workspace owner. Cancellation takes effect at the end of the current Trial or billing period. You keep access until then, and you will not be charged again.

Cancellation does not entitle you to a refund or credit of any fees already paid or due, including fees for the remainder of a monthly or yearly billing period. See our Refund Policy.

9. No refunds

Except as expressly stated in our Refund Policy or as required by law that cannot be excluded, all fees are non-refundable and non-creditable, including for partial billing periods, unused Agents, downgrades, periods in which you did not use the Service, and suspension or termination of your account for breach of these Terms. The Refund Policy forms part of these Terms.

10. Payment disputes and chargebacks

If you believe you have been charged in error, you agree to contact us at billing@talkivio.com within 30 days of the charge and to give us a reasonable opportunity to investigate and resolve the issue before contacting your bank or card issuer. Most billing questions are resolved quickly this way.

Initiating a chargeback or payment dispute for a charge that was authorised under these Terms is a material breach of these Terms. If you do so, we may immediately suspend or terminate your Workspace, contest the dispute by providing your card issuer with records of your sign-up, your acceptance of these Terms, the trial reminder we sent and your use of the Service, and recover from you the disputed amount together with any chargeback fees, processor fees and collection costs we incur. We may refuse to provide the Service to you or your organisation in the future.

11. Acceptable use

You must not, and must not allow anyone else to, use the Service to:

• break any law or regulation, or infringe or misappropriate the rights of any person;
• send spam, unsolicited marketing, phishing, chain letters or other messages that the recipient has not agreed to receive;
• upload or send malware, or content that is unlawful, defamatory, harassing, abusive, threatening, obscene, hateful or that exploits minors;
• collect payment card numbers, government identification numbers, health information, biometric data or other special categories of data through chat, unless you have a lawful basis and appropriate safeguards and have agreed this with us in writing;
• impersonate any person or misrepresent your identity or affiliation, including by pretending to be a human when you use automated replies where the law requires disclosure;
• probe, scan or test the vulnerability of the Service, breach or circumvent security or authentication, or access data that is not yours;
• interfere with or disrupt the Service, impose an unreasonable load on our infrastructure, or exceed rate limits;
• copy, modify, reverse engineer, decompile or disassemble the Service, or attempt to derive its source code, except to the extent applicable law expressly permits despite this restriction;
• resell, sublicense, rent, lease, frame or make the Service available to third parties as a service bureau, or use it to build a competing product or to benchmark it for publication without our written consent;
• use the Service on behalf of a person or in a country subject to sanctions, as described in section 24.

We may investigate suspected violations and may remove content, disable widgets or suspend accounts at our sole discretion to protect the Service, our customers, End Users or third parties.

12. Customer Data

As between you and us, you own your Customer Data. You grant us and our service providers a worldwide, non-exclusive, royalty-free licence to host, copy, process, transmit and display Customer Data as needed to provide, secure, support and improve the Service and as otherwise permitted by these Terms and our Privacy Policy. We may create and use aggregated or de-identified data that does not identify you or any End User for any lawful purpose, including improving the Service.

You are solely responsible for your Customer Data and for the way you collect and use it. With respect to End User personal data, you are the controller (or business) and we process it on your behalf as your processor (or service provider), in accordance with your instructions as expressed through your configuration of the Service. Our Privacy Policy explains how we handle personal data.

We do not guarantee that Customer Data will not be lost. You are responsible for exporting and keeping copies of data you need.

13. Your obligations to End Users

You represent, warrant and agree that you will:

• provide End Users with all notices, and obtain all consents, required by applicable law for the chat widget, for cookies and similar technologies, for the collection of IP addresses, network and location information, page views and chat content, and for the recording and retention of conversations;
• have and maintain a privacy notice on each website where you install the widget that accurately describes your use of the Service;
• use the Service's consent and privacy settings as needed to comply with the laws that apply to you, including data protection, electronic communications, consumer protection and wiretapping or call recording laws;
• respond to End User requests to exercise their privacy rights, using the tools we provide where helpful.

We provide tools to help you comply but do not give legal advice, and the configuration of the Service is your responsibility.

14. Third-party services

The Service may let you sign in with, connect to or send data to third-party services, such as Google sign-in, webhooks to your own systems, email providers and payment processors. Your use of third-party services is governed by their own terms and privacy policies. We do not control and are not responsible for third-party services, their availability, or how they handle data you choose to send them.

15. Intellectual property and feedback

The Service, including its software, design, text, graphics, logos and the Talkivio name and marks, is owned by Desverso LLC and its licensors and is protected by intellectual property laws. Except for the limited rights expressly granted in these Terms, we reserve all rights, and no rights are granted by implication or otherwise.

If you give us suggestions, ideas or other feedback about the Service, you grant us a perpetual, irrevocable, worldwide, royalty-free licence to use and exploit it for any purpose without restriction or compensation to you.

You allow us to identify you as a customer, including by name and logo, on our website and in marketing materials, unless you ask us in writing not to.

16. Confidentiality

Each party will protect the other's non-public information that is marked or reasonably understood to be confidential using at least reasonable care, and will use it only to perform under these Terms. This obligation does not apply to information that is or becomes public through no fault of the receiving party, was already known to it, is independently developed, or is lawfully received from a third party. A party may disclose confidential information where required by law, after giving notice to the other party where lawful.

17. Suspension

We may suspend all or part of your access to the Service immediately, with or without notice, if we reasonably believe that you have breached these Terms, that your use poses a security risk or may harm us, the Service or any third party, that suspension is required by law, or that any amount you owe is overdue. Fees continue to accrue during a suspension, and suspension does not entitle you to any refund or credit.

18. Term and termination

These Terms apply from when you first use the Service until your Subscription ends or is terminated. We may terminate your Subscription or these Terms for any reason by giving you 30 days' notice, or immediately if you breach these Terms, fail to pay, become insolvent, or if we are required to do so by law. If we terminate for convenience (and not for any reason connected with you), we will refund the prepaid fees for the unexpired part of your billing period, and this is your sole remedy.

When your Subscription ends, your access to the Service stops. You may export your Customer Data before then. We may delete your Workspace and all Customer Data 30 days after the end of your Subscription, or sooner if the law requires, and we have no obligation to keep or return Customer Data after that. Sections that by their nature should survive termination survive, including sections 7, 9, 10, 12, 13, 15, 16 and 19 to 26.

19. Disclaimers

To the maximum extent permitted by law, the Service is provided "as is" and "as available", with all faults and without warranty of any kind. Desverso LLC, its affiliates, licensors and suppliers disclaim all warranties, express, implied or statutory, including implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, quiet enjoyment and any warranties arising from course of dealing or usage of trade. We do not warrant that the Service will be uninterrupted, timely, secure or error free, that defects will be corrected, that messages, notifications or files will be delivered, that visitor location, network or IP information is accurate, or that the Service will meet your requirements or produce any particular result. You use the Service at your own risk.

20. Limitation of liability

To the maximum extent permitted by law, in no event will Desverso LLC or its affiliates, officers, members, managers, employees, agents, licensors or suppliers be liable for any indirect, incidental, special, consequential, exemplary or punitive damages, or for any loss of profits, revenue, sales, business, goodwill, data or use, cost of substitute services, or business interruption, however caused and under any theory of liability (contract, tort including negligence, strict liability or otherwise), even if advised of the possibility of such damages.

To the maximum extent permitted by law, our total aggregate liability arising out of or relating to these Terms or the Service will not exceed the greater of (a) the fees you actually paid to us for the Service in the three (3) months immediately before the event giving rise to the liability, and (b) one hundred US dollars (US $100).

These limitations apply even if a remedy fails of its essential purpose, and they are an essential basis of the bargain between you and us. Some jurisdictions do not allow certain limitations, in which case they apply to the fullest extent permitted.

21. Indemnification

You will defend, indemnify and hold harmless Desverso LLC and its affiliates, officers, members, managers, employees and agents from and against all claims, demands, actions, losses, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorneys' fees) arising out of or relating to (a) your Customer Data, (b) your use of the Service or your websites, (c) your breach of these Terms or of applicable law, (d) any failure to give notices to or obtain consents from End Users, and (e) any dispute between you and an End User, Agent or third party. We may assume the exclusive defence and control of any matter subject to indemnification, at your expense, and you will cooperate with our defence.

22. Dispute resolution, arbitration and class action waiver

Informal resolution. Before starting any claim, you agree to contact us at legal@talkivio.com with a written description of the dispute and to try in good faith to resolve it informally for at least 60 days.

Binding arbitration. Any dispute, claim or controversy arising out of or relating to these Terms or the Service, including their formation, interpretation, breach, termination, enforceability or validity, and the arbitrability of any claim, will be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before a single arbitrator. The seat of arbitration is Wilmington, Delaware, and the arbitration will be conducted in English. Judgment on the award may be entered in any court of competent jurisdiction. Either party may instead bring an individual claim in small claims court, and either party may seek injunctive relief in court to protect its intellectual property or confidential information.

Class action and jury trial waiver. You and Desverso LLC each agree that claims may be brought only in an individual capacity, and not as a plaintiff or class member in any purported class, consolidated, collective or representative proceeding. The arbitrator may not consolidate claims of more than one person or preside over any form of class or representative proceeding. You and Desverso LLC each waive the right to a trial by jury.

Time limit. Any claim arising out of or relating to these Terms or the Service must be started within one (1) year after the claim arose, or it is permanently barred, to the extent permitted by law.

If the class action waiver is found unenforceable for a claim, that claim will be severed and heard in the courts named in section 23, and the remaining claims will still be arbitrated.

23. Governing law and venue

These Terms and any dispute arising out of or relating to them are governed by the laws of the State of Delaware, United States, without regard to conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Subject to section 22, the state and federal courts located in Delaware have exclusive jurisdiction, and you consent to their personal jurisdiction and venue.

24. Export controls and sanctions

You represent that you are not located in, organised under the laws of, or ordinarily resident in a country or region subject to comprehensive US sanctions, and that you are not on, or owned or controlled by anyone on, any US government restricted party list. You will comply with all applicable export control and sanctions laws in your use of the Service.

25. Changes to these Terms

We may change these Terms from time to time. We will post the updated Terms on this page and update the "Last updated" date, and for material changes we will give you notice by email or in the Service at least 15 days before they take effect. Your continued use of the Service after the changes take effect constitutes acceptance. If you do not agree to the changes, you must stop using the Service and cancel your Subscription before they take effect.

26. General

Entire agreement. These Terms, together with the documents they reference and any order form we sign with you, are the entire agreement between you and us about the Service and supersede all prior agreements and understandings. Any purchase order or other terms you provide are rejected and have no effect.

Assignment. You may not assign or transfer these Terms without our prior written consent. We may assign these Terms without your consent, including to an affiliate or in connection with a merger, acquisition, reorganisation or sale of assets.

Force majeure. We are not liable for any delay or failure to perform caused by events beyond our reasonable control, including outages of hosting, network, power or third-party services, cyberattacks, labour disputes, acts of government, natural disasters, epidemics, war or terrorism.

Severability and waiver. If any provision is held invalid or unenforceable, it will be enforced to the maximum extent permissible and the remaining provisions remain in full force. Our failure to enforce any right is not a waiver of it.

Notices and electronic communications. We may give notices by email to the address on your account, by notice in the Service or by posting on our website. You consent to receive communications from us electronically and agree that they satisfy any legal requirement that communications be in writing. Legal notices to us must be sent to legal@talkivio.com.

Relationship. The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency or employment relationship. There are no third-party beneficiaries of these Terms.

Language and headings. These Terms are written in English, and the English version prevails over any translation. Headings are for convenience only.

27. Contact

Desverso LLC, operator of Talkivio. Questions about these Terms: legal@talkivio.com. Billing: billing@talkivio.com. Support: support@talkivio.com.