AI Messaging Agent Evaluation Agreement

THE TERMS OF THIS AI MESSAGING AGENT EVALUATION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR ACCESS TO AND USE OF INVOCA’S SERVICES (AS DEFINED BELOW) SOLELY FOR YOUR INTERNAL EVALUATION PURPOSES DURING THE EVALUATION PERIOD.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ["I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY ACCEPTING THIS AGREEMENT, EITHER BY (1) CLICKING A BOX INDICATING YOUR DESIRE TO USE THE SERVICES OR OTHERWISE INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR (3) USING FREE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND, IF APPLICABLE, THE ORDER FORM TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT  ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU”, OR “YOUR” AS USED IN THESE TERMS WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO THE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

Invoca may amend this Agreement at any time, and such amended Agreement will automatically be effective seven (7) days after we have posted the amended Agreement on our website. Your continued use of the Services will constitute acceptance of the amended Agreement, and no other Agreement version will be effective or enforceable against Invoca.

1. RIGHTS, RESTRICTIONS AND CUSTOMER OBLIGATIONS.
   1. Right to Access and Use.  Subject to the terms and conditions of the Agreement, Invoca grants to Customer a limited, nonexclusive, nontransferable license, during the term, to use the Services(as defined below) solely for evaluation purposes only, by and through Customer's employees, contractors, publishers, affiliates (defined below), advertisers or other third parties to whom Customer provides access to the Services on its behalf ("Authorized Users").  Invoca shall provide Customer with the means to activate Customer’s instance through the Services.  The “Services” mean Invoca’s AI-powered automated SMS system that engages consumers in two-way text conversations to qualify intent, capture information, and take actions that advance leads through the buying journey, including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material that are provided to Customer through Invoca’s SaaS platform and respective third party platforms as configured (the “Invoca Platform”).
   2. Proper Equipment.  Customer is responsible for procuring telecommunications service capable of receiving inbound phone calls, access to internet service and computer or other connectivity capability to access and log into the Invoca Platform.
   3. Account Security.  Customer is responsible for maintaining the security of the Customer's account access passwords.  Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Services.  Customer shall be liable for all activity occurring under Customer’s accounts.
   4. ‍No Improper Use.  Customer will not, and Customer will cause its Authorized Users not to, access and/or engage in any use of the Services: (i) in a manner that abuses, materially disrupts, overburdens or otherwise interferes with the networks and/or security systems of Invoca or Invoca’s provision of the Services; (ii) to communicate any message or material that Invoca deems harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful; (iii) access or use the Services for any fraudulent or illegal purposes, including, but not limited to any violation of the Copyright Act or other applicable laws of the United States or any other jurisdiction; (iv) in a manner that violates privacy laws and regulations; (v) to engage in denial of services attacks or spamming; or (vi) for the purpose of, or which results in the copying, modification, reverse engineering, disassembling, redistribution, alteration, creation of derivative works, assigning the authorization to use the Services, transferring or adapting any of the software, information, source code or HTML code, or other code.
      
      1. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.4, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Invoca of any such actual or threatened activity.
   5. ‍TCPA,Call Transfers, Call Recording and Texting.  Customer represents and warrants that it shall use the Services only in compliance with applicable laws and regulations, including those related to calling, texting, spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation. To the extent applicable law requires the Customer to obtain consent from a third party to record a call with a third party or to place a call or text to any individual, Customer shall be wholly responsible for obtaining such consent, and Invoca is not responsible for any losses caused by or resulting from Customer’s failure to obtain such consent. Without limiting the foregoing, Customer (i) shall at all times comply with the Telephone Consumer Protection Act (47 U.S.C. §227 – restriction on the use of telephone equipment (TCPA)) and any other applicable laws, rules and regulations that govern calling and texting; and (ii) agrees to make outbound calls and texts and/or transfer calls only to legitimate and intended recipients and/or destinations and only to consumers who have provided legally sufficient consent, in accordance with the TCPA and such other applicable laws.
   6. Termination or Suspension for Ongoing Harm.  In addition to and not in lieu of all other rights and remedies, Invoca may, with reasonably contemporaneous telephonic or email notice to Customer, remove telephone number(s) from Customer’s pool of dynamic or static telephone numbers from its Invoca Platform instance, suspend access to the Services, or terminate the Services if Invoca reasonably concludes that Customer is not complying with Sections 1.4 or 1.5 and/or Customer’s use of the Service is causing immediate, material and ongoing harm to Invoca or others.  If Invoca suspends access to or terminates the Services as described in this Section 1.6,Invoca shall not be liable to Customer nor to any third party for any suspension or termination of the Services.
2. OWNERSHIP RIGHTS.
   
   1. Invoca Services. The Invoca Platform and all Services performed under this Agreement remain the exclusive property of Invoca and shall not be used in any way other than as allowed by this Agreement. Customer acknowledges that Invoca or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Services or any intellectual property rights related thereto, including, without limitation, all modifications, enhancements, derivative works and upgrades thereto even if based on Customer feedback.  Invoca reserves any rights not expressly granted herein.
   2. Customer Data.  Customer owns the data, information or material generated in whole or part by the Invoca Platform and/or Customer’s use of the Services, including any personal data (“Customer Data”); provided, however, that Invoca may access and/or use Customer Data to respond to service or technical problems, and Customer grants Invoca a perpetual, irrevocable non-exclusive license to access and/or use Customer Data in an anonymous or aggregated format to improve or optimize the Invoca Platform, Services, and for future offerings. Customer, not Invoca, will have sole responsibility for the accuracy, quality, integrity, legality of and intellectual property ownership or right to use all Customer Data.  Invoca is not responsible or liable for the deletion, correction, destruction, damage or loss of Customer Data not caused by Invoca.
   3. Feedback.  Customer grants Invoca a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services (or Invoca’s other products or services) any suggestions, enhancement requests, recommendations or other feedback that Customer provides relating to the operation or features of the Services.
3. TERM; TERMINATION.  ‍
   
   1. Term. The Agreement will begin on the Effective Date and will remain in effect for sixty (60) days (“Evaluation Period”), unless terminated earlier in accordance with the terms of the Agreement. Upon expiration or termination of the Agreement, Customer shall discontinue all use of the Services.
   2. Termination. Either party may terminate this Agreement at any time, without cause, upon ten (10) days prior written notice.
   3. Effect of Termination of Services. Upon expiration or termination of Services, Customer will, and Customer will cause its Authorized Users to, immediately discontinue all access and use of the Services.  Upon termination, Invoca will have no obligation to maintain or provide any Customer Data and may thereafter delete or destroy all copies of Customer Data in its possession or control unless legally prohibited.  Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control:  Invoca may retain Customer Data in its then-current state and solely to the extent and for so long as required by applicable law and in its backups, archives and disaster recovery systems or until such Customer Data is deleted in the ordinary course, provided all such Customer Data will remain subject to all confidentiality, security and other applicable requirements of this Agreement.  The provisions set forth in this Agreement that, by its nature, should survive termination or expiration of this Agreement will survive any expiration or termination of this Agreement.
   4. UNLESS OTHERWISE AGREED BETWEEN THE PARTIES IN WRITING, ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING THE EVALUATION PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE EVALUATION PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE EVALUATION PERIOD TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTO4. CONFIDENTIALITY.
      
4. CONFIDENTIALITY.
   
   1. Confidential Information. The Parties hereto agree to keep confidential, during and after the Term of this Agreement, all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving”), whether orally or in writing, that the Disclosing Party designates as confidential as well as all information that should be reasonably assumed by the Receiving Party to be confidential in nature (“Confidential Information”).  Such Confidential Information means all non-public information, whether business or technical in nature, including, but not limited to, this Agreement and all order forms (if applicable), information concerning each party’s business, operations, technology, customers, finances, pricing, inventions, trade secrets, products, services, intellectual property and all other information that is either identified as confidential at the time of disclosure or may be reasonably assumed to be proprietary, sensitive or confidential.  Confidential Information shall not include any information that, as evidenced by the Receiving’s records: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
   2. Use and Protection of Confidential Information.  The Parties agree: (i) not to use Confidential Information except to fulfill its rights and obligations herein and (ii) to use commercially reasonable efforts to safeguard such Confidential Information in the same manner in which it would safeguard its own Confidential Information (at all times exercising at least a commercially reasonable degree of care in the protection of such Confidential Information).  The Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  The Parties further agree, except as required by law, not to disclose such Confidential Information to any third party.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent that the compelled disclosure does not contain a restraint on such prior notice) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5. WARRANTY DISCLAIMER. INVOCA AND ITS THIRD PARTY SUPPLIERS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (i) CUSTOMER’S USE OF THE SERVICES DURING THE EVALUATION PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (ii) CUSTOMER’S USE OF THE SERVICES DURING THE EVALUATON PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (ii) USAGE DATA PROVIDED DURING THE EVALUATION PERIOD WILL BE ACCURATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, INVOCA AND ITS THIRD-PARTY SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE SERVICES ARE PROVIDED “AS IS” AND INVOCA WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.
6. INDEMNIFICATION. Customer shall indemnify, defend and hold Invoca and its Affiliates harmless against any third party claim that arises: (i) from a breach of Section 1.4 (No Improper Use) or 1.5 (TCPA, Call Transfers, Call Recording and Texting); or (ii) alleging that any content or data submitted by Customer, including without limitation any Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes upon any patent or copyright, or violates trade secret or privacy rights of a third party. Customer shall pay reasonable attorney’s fees, court costs, damages awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) Invoca promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) Invoca will provide reasonable assistance in the defense of same.  Customer will reimburse Invoca for reasonable expenses incurred in providing such assistance.  Invoca may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, Invoca shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL INVOCA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER INVOCA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL INVOCA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED $1,000.
8. GENERAL.
   
   1. Assignment.  Customer will have no right to assign the Agreement, in whole or in part, by operation of law or otherwise, without Invoca’s prior written consent.
   2. Governing Law; Dispute Resolution; Forum and Venue.  This Agreement shall be construed and governed by the laws of the State of California, without regard to the principles of conflict of laws thereof.  The Parties agree and accept that all such disputes/claims will be resolved by means of a court trial conducted by the superior or district court in Los Angeles County, California.  EACH PARTY EXPRESSLY WAIVES ANY RIGHT IT MAY OTHERWISE HAVE TO A JURY TRIAL UNLESS PROHIBITED BY APPLICABLE LAW.  Notwithstanding the foregoing, in the event of any such dispute/claim, the Parties may agree to mediate the dispute/claim on such terms and conditions as to which the Parties may be agree in writing.
   3. Severability.  If any part of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legal body having jurisdiction to make such determination, the remainder of the Agreement shall remain in full force and effect.
   4. Waiver. Neither the waiver of any term, provision or condition of this Agreement, nor the waiver of a breach or default thereof, by conduct or otherwise, in one or more instances will be deemed to be either a continuing waiver or a waiver of a subsequent breach or default of any such term, provision or condition of this Agreement.
   5. Notices. All legal notices required to be provided under this Agreement must be delivered in writing: (i) by email; (ii) in person; (iii) by a nationally recognized overnight delivery service with tracking capabilities; or (iv) by US certified mail (requiring signature) to the other party at the address and/or email address set forth in an Order Form.  Notice to Invoca by email must include legal@invoca.com. Invoca may deliver invoices and notices related to billing and payment by emailing Customer’s billing contact as specified on the Order Form.  Notice is effective upon receipt. Either party may change its address by giving timely written notice of the new address to the other party pursuant to this Section 10.8 and identifying in such notice the date on which such changes are effective.
   6. Independent Contractors.  The relationship between the Parties created by this Agreement is that of independent contractors.  Nothing contained in this Agreement shall be construed to create any joint venture, partnership, agency or fiduciary relationship between the Parties.
   7. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist.  Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, internet service providers, and other third parties; explosions and fires; embargoes, epidemics, pandemics, public health emergencies, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.
   8. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or current oral or written agreements concerning such subject matter, excluding any agreements incorporated herein by reference or attachment.

‍

Contact Us

If you have any questions about these terms of service, please contact us at: legal@invoca.com, or by mail at: Invoca, Inc., 8605 Santa Monica Blvd #56543, West Hollywood, CA 90069.

LAST UPDATED: 03/2026