EFFECTIVE: April 23, 2019
This is a legal agreement (“Agreement”) between Concord Worldwide Inc. (“Concord”) and You (together “The Parties”). This Agreement provides terms regarding the use of free accounts only. If You purchased a subscription to a paid Subscription plan, then refer to the Commercial Terms here.
By registering for an account in the System, You confirm Your acceptance of this Agreement.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND THEM. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. YOUR USE OF THE SYSTEM
1.1 The System. Subject to the terms of this Agreement, Concord hereby grants You a non-exclusive, non-transferable, non-sublicensable right for the duration of the Agreement to use the System. Free Starter Subscription Plan accounts are provided to You without charge up to certain limits as described in the Subscription Plans available here. Your account must have a minimum of one (1) Creator Seat. If Your Starter Subscription Plan account has more than three (3) Seats total, then Your account will become a paid Starter Subscription Plan as described here and subject to the Concord Commercial Terms available here.
1.2 Services Included. Concord will provide you with:
• support, available through the online Help Center;
• system maintenance, updates and improvements.
1.3 Your Responsibilities. You will not directly or indirectly: (a) use the System in any manner that violates Concord’s Intellectual Property; or (b) disrupt the integrity, performance or security of the System. You are responsible: (a) for maintaining the accuracy, completeness and confidentiality of your account password and login information, and for all activities that occur under your account; (b) for the accuracy and quality of Your Data; (c) for complying with all applicable laws governing the privacy, protection, transfer and use of Your Data, including if applicable, with the European Union data protection laws, and (d) for all inquiries regarding Personal Data from Data Subjects or Supervisory Authorities (as those terms are defined by applicable directives, laws, and/or regulations).
1.4 Electronic Transactions. Certain consumer legal protections may impose special requirements on electronic transactions involving consumers. You undertake to determine if a “consumer” is involved, and to comply with all legal requirements. Concord will not be responsible: (a) to determine if any particular transaction involves a “consumer;” (b) for any consent and disclosure requirements imposed on such transactions; or (c) otherwise to comply with any such special requirements.
1.5 Electronic Signatures. Certain types of documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law) or may be subject to regulations established by government agencies regarding electronic signatures and records. Concord will not be responsible to determine if any document is subject to specific governmental regulations or to electronic signature laws exceptions. By using the electronic signature feature, You agree to conduct business transactions with electronic documents and electronic signatures. You are under no obligation to transact business electronically using the System. To withdraw consent to conduct electronic transactions, simply stop using the System and contact the document sender to discuss other options.
2. DATA AND PRIVACY
2.3 Aggregate and Anonymized Data. In order to maintain, provide and improve the System, You hereby consent to Concord collecting, using, processing, or otherwise exploiting Aggregate and Anonymized Data (as defined below) in any way, in its sole discretion. For clarity, this Section 2.3 does not give Concord the right to identify You as the source of any Aggregate and Anonymized Data.
3.1 Mutual Confidentiality Obligations. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party, and will remain the sole property of the disclosing Party. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described in this Agreement; (b) that such Party will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, who have a need to have access and who have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party.
3.2 Compelled Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent compelled by law to do so, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order.
3.3 Injunction. Parties agree that breach of this Section 3 would cause disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
4. PROPRIETARY RIGHTS
4.1 Intellectual Property Rights. Subject to the limited rights expressly granted in this Agreement, Concord and its licensors reserve all right, title, and interest in and to the System, including without limitation all of the related Intellectual Property rights and derivative works. You recognize that the System and its components are protected by the intellectual property laws of the United States and other countries, and all rights to the System not expressly granted to You in this Agreement are reserved.
4.2 Right to Modify Free Accounts. Concord retains the right, in its sole discretion, to implement new elements or make changes to the System, Seat types, and functionalities in the free Starter Subscription Plan. You agree that Concord will not be liable to You or to any third party for any modification, suspension or discontinuance of any part of the System.
You agree to defend, indemnify, and hold Concord and its Affiliates their respective employees, agents, and service providers harmless from and against any claims, actions, and other proceedings (“Claim(s)”) brought by a third party, and will pay any damages, attorney fees and costs finally awarded (collectively, “Losses”), to the extent arising out of or related to (a) Your use or modification (including by anyone using logins, IDs, or passwords assigned to You) of the System (e.g., Claims arising from use of the System for fraudulent purposes or for Claims relating to contracts stored in the System); (b) any of Your content (e.g., Claims for infringement, violation of privacy rights, or failure to obtain necessary consents of third parties); or (c) any violation of this Agreement. In the event of such Claim, Concord will endeavor to provide notice of the Claim to the contact information Concord has for the account, provided that any failure to deliver such notice to You will not eliminate or reduce your indemnification obligation hereunder.
6. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
6.1 Disclaimer of Warranties. To the maximum extent permitted by law, the System is provided “As Is”. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. THE SYSTEM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONCORD EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
b. CONCORD DOES NOT WARRANT THAT (i) THE SYSTEM WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) USAGE DATA PROVIDED THROUGH THE SYSTEM WILL BE ACCURATE.
6.2 Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT CONCORD AND ITS AFFILIATES, AND THEIR RESPECTIVE, EMPLOYEES, AGENTS AND SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF CONCORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SYSTEM; (ii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR DATA; (iii) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (iv) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SYSTEM, OR PROVIDING SERVICES RELATED TO THE OPERATION OF THE SYSTEM; (v) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE.
6.3 Exclusions and Limitations. NOTHING IN THIS AGREEMENT (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND CONCORD’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. TERM AND TERMINATION
7.1 Term. This Agreement is effective on the date You first access or use the System and continues until terminated by either Party.
7.2 Termination for Any Reason. You may deactivate your account at any time for any reason by emailing email@example.com. Such request will terminate this Agreement. If You previously subscribed to a paid Subscription Plan subject to the Commercial Terms and later transitioned to a free Starter Subscription Plan account, then You will remain responsible for any unpaid fees. Concord, in its sole discretion, may terminate access to the Starter Subscription Plan free accounts or any part thereof with prior notice.
7.3 Termination for Cause. Upon any breach of a material provision of this Agreement by a Party (“Breaching Party”), the other Party (“Non-Breaching Party”) may terminate this Agreement by providing thirty (30) days’ written notice to the Breaching Party specifying the material breach. The termination will become effective at the end of the notice period unless the Breaching Party cures the breach during -the notice period.
7.4 Effect of Termination. Upon termination of this Agreement: (a) all rights and licenses granted to You under this Agreement will immediately terminate; (b) the Parties will discontinue use of and return or destroy all Confidential Information; (c) Concord will return Your Data upon Your written request to be received no later than thirty (30) days after the effective termination date of this Agreement; and (d) the following provisions will survive termination or expiration of this Agreement: (i) Sections 3 (Confidentiality), 4 (Proprietary Rights), 5 (Indemnity), and 6 (Disclaimer of Warranties and Limitation of Liability); and (ii) any other provision of this Agreement that must survive to fulfill its essential purpose.
8.1 Relationship of Parties. The Parties are independent contractors, and neither Party may make commitments on the other’s behalf.
8.2 Export Compliance. The System and any of its derivatives may be subject to export laws and regulations of the United States and other jurisdictions. The Parties each represents that it is not named on any U.S. government denied-party list. You will not permit any authorized user to use the System in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
8.3 Force Majeure. No delay, failure, or default will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, civil disorder, acts of God or of nature, or other causes beyond the performing party’s reasonable control.
8.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
8.5 Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of the State of California. Subject to the dispute resolution terms of this Agreement, the Parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California.
8.6 Dispute Resolution. Any claim arising out of or related to this Agreement will be submitted to mandatory, binding arbitration under the auspices of American Arbitration Association (“AAA”), in San Francisco, California, with the Parties sharing equally the costs of arbitration. Arbitration will proceed according to AAA’s standard commercial arbitration rules. This Section 8.6 does not limit either Party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after any arbitration procedure, and the exercise of any such remedy does not waive either Party’s right to arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Nothing in this Section will be deemed to prevent either of the Parties from seeking injunctive or other equitable relief from the courts as necessary to prevent actual or threatened infringement, misappropriation, or violation of the respective Party’s security, intellectual property or other proprietary right.
8.7 Class Action/Jury Trial Waiver. Regardless of whether the System has been used for personal or commercial purposes, all claims must be brought in the Parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. The Parties agree that, by entering into this Agreement, each Party is waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
8.8 Amendments. Concord may amend this Agreement as new features, technology, or legal requirements arise. Concord will notify You, and You may decide whether to accept the updated terms or to stop using the System. Your continued use of the System after the effectiveness of that update will be deemed to represent your consent to the new Agreement.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. Except where expressly stated otherwise in a writing executed between the Parties, this Agreement will prevail over any conflicting terms. This Agreement sets forth Your exclusive remedies with respect to the System. If any provision of this Agreement is held to be invalid or unenforceable under law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
8.10 Notices. Concord may send notices pursuant to this Agreement to Your email addresses registered on the System. You may send notices pursuant to this Agreement to firstname.lastname@example.org.
Affiliate means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. For this purpose, “control” means possessing the power to direct the day-to-day management, operation, and policies of any given person or entity.
Aggregate and Anonymized Data means (i) data generated by aggregating Your Data with other data so that results are non-personally identifiable with respect to You or other individuals or businesses You invited to documents in the System; and (ii) learnings, logs, and data regarding use of the System.
APIs means the Concord applications programming interfaces, and their corresponding developer materials including but not limited to software development kits, tools, libraries, scripts, and sample source code.
Confidential Information means information disclosed by one of the Parties to the other (a) in a tangible form and marked “Confidential” or with words of similar import, (b)Your Data; (c) any technology incorporated into or used by the System; or (d) under circumstances by which recipient should reasonably understand such information is to be treated as confidential, whether or not marked “Confidential” or otherwise. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in recipient’s possession at the time of disclosure; (ii) is independently developed by recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of recipient’s improper action or inaction; or (iv) is approved for release in writing by the disclosing party.
Intellectual Property means all right, title and interest throughout the world in the copyrights (including derivative works), patents and inventions (whether or not patentable), trademarks, service marks, logos and designs, trade secrets, and all applications for registration or protection of such rights embodied by or contained in the System and its documentation.
Order means the Concord ordering document or selections made in the System by You indicating a Subscription Plan, a Seat type, and the quantity of authorized users per Seat, selected for Your account.
Seat means the access rights provided to each of Your authorized users. Three Seat types are available: “Creator”, “Collaborator” or “Viewer”. The feature and technical capabilities available to each Seat type is set forth in the Order, any associated Concord documentation, and as provided here.
Subscription Plan means the plan that allows Your and Your authorized users to register for an account to use the System. Subscription Plans provide parameters of included features, permitted numbers and types of Seats and API calls, and other usage parameters.
System means Concord’s hosted online contract creation and management system. The System includes, without limitation, Concord’s proprietary software and other technology, including any APIs, mobile applications, enhancements, modifications, and derivative works.
You means the individual or entity who registered for an account to the System. For clarity, You includes customer’s authorized users and any Affiliate. You must be at least 16 years of age to access the System.
Your Data means electronic data, information or material not supplied by Concord that You import into the System or transmit via your account in the System, including from individuals or business entities You have invited to documents in the System.