EFFECTIVE: April 23, 2019
This is a legal agreement (“Agreement”) between Concord Worldwide Inc. (“Concord”) and You (together “The Parties”). This Agreement governs paid subscription accounts only. If You registered for a free Starter Subscription Plan, please refer to the Free Starter Account Terms of Service here.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND THEM. THIS AGREEMENT CONTAINS 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.
1.1 The System. Subject to the terms of this Agreement and pursuant to Your Order, Concord hereby grants You a non-exclusive, non-transferable, non-sublicensable right for the duration of the Agreement to use the System.
1.2 Services Included. At no additional charge, Concord will provide you with:
• support, available remotely 24 hours a day, 5 days a week;
• implementation, and training; and
• system maintenance, updates and improvements.
1.3 Subscription Term. Your Subscription is for a one (1) year period (“Subscription Term”), and will automatically renew for additional one (1) year recurring periods (“Renewal Term”), unless terminated by either Party. An Upgrade will be effective immediately, and will not cause any change in the Subscription Term termination date. Downgrades will be effective at the start of the Renewal Term.
1.4 Fees. The System fees are determined based on the Order and any Upgrades or Downgrades carried out in Your account. Upgrade fees will be prorated based on the time period remaining in the Subscription Term. In the event of a Downgrade from a paid Subscription Plan to a free Subscription Plan, You will remain responsible for any unpaid fees. All fees will be billed after an Order issues unless otherwise specified by the Order. You acknowledge that You are solely responsible for any and all fees charged to You by your credit card issuer or other financial institution including, but not limited to, overdraft, insufficient funds, and over-the-credit-limit fees.
1.5 Taxes. All fees are stated exclusive of any Taxes. You are responsible for paying all Taxes associated with your purchases, except for taxes based on Concord’s net income.
2. YOUR RESPONSIBILITIES
2.1 Use of the System. 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 the accuracy and quality of Your Data; (b) 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 (c) for all inquiries regarding Personal Data from Data Subjects or Supervisory Authorities (as those terms are defined by applicable directives, laws, and/or regulations).
2.2 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.
2.3 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.
3. DATA AND PRIVACY
3.3 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 3.3 does not give Concord the right to identify You as the source of any Aggregate and Anonymized Data.
4.1 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
4.2 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.
4.3 Injunction. Parties agree that breach of this Section 4 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.
5. PROPRIETARY 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.
6. REPRESENTATIONS AND WARRANTIES
6.1 From Concord. Concord warrants (a) that it employs appropriate technical and organizational measures at a level not materially less protective than as described in the Data Security page, and (b) the System will perform materially in accordance with the documentation made available by Concord. For any breach of a warranty above, Your sole and exclusive remedies are those described in the Section 9.
6.2 From You. You warrant (a) that if You are entering into this Agreement on behalf of a legal entity, You have the authority to bind such entity and its Affiliates to this Agreement, and (b) your use of the System will comply in all material respects with Concord’s Intellectual Property, and all applicable laws and regulations.
6.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED BY THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SYSTEM IS PROVIDED “AS IS” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
7. MUTUAL INDEMNIFICATION
7.1 Indemnification by Concord. Concord agrees to defend, indemnify, and hold You harmless from and against any claims, actions, and other proceedings (“Claim(s)”), and will pay any damages, attorney fees and costs finally awarded (collectively, “Losses”) against You, to the extent arising out of any Claims brought by any third party against You alleging that the System infringes or misappropriates a third party’s intellectual property rights (an “IP Right”). If Concord receives information about an infringement or misappropriation Claim related to the System, Concord may in Concord’s discretion and at no cost to You (i) modify the System to render it non-infringing; (ii) obtain a license for Your continued use of the System; or (iii) terminate Your subscription and refund You any prepaid fees. The above defense and indemnification obligations do not apply if (1) the Claim arises from a modification to the System by anyone not under Concord’s direction or control; (2) a Claim arises from the use or combination of the System with software, hardware, data, or processes not provided by Concord, if such use would not otherwise infringe; or (3) a Claim arising from Your use of the System in violation of this Agreement.
7.2 Indemnification by You. Except for Claims subject to indemnification by Concord under Section 7.1, You will defend, indemnify, and hold Concord its Affiliates and Concord and their employees, officers, and directors, harmless from and against any Claims, and will pay all Losses, to the extent arising out of or related to third party Claims against Concord 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); or (b) any of Your content (e.g., Claims for infringement, violation of privacy rights, or failure to obtain necessary consents of third parties).
7.3 Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any type of claim described in this Section 7.
7.4 Indemnity Process. The Parties’ indemnification obligations are conditioned on the indemnified party (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim, except that the indemnifying party may not settle any Claims unless it unconditionally releases the indemnified party of all liability ; and (c) providing necessary information and reasonable assistance in connection with the claim, at indemnifying party’s request and expense.
8. LIMITATIONS ON LIABILITY
8.1 Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 1 ABOVE.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING LOST PROFITS, LOST USE, OR BUSINESS INTERRUPTION, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.1 For Any Reason. You may terminate this Agreement at any time without prior notice. You will remain responsible for any unpaid fees for the remainder of the Subscription Term or Renewal Term (as applicable).
9.2 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. If You terminate the Agreement in accordance with this Section, Concord will refund You any prepaid fees for the remainder of the Subscription Term or Renewal Term (as applicable). If Concord terminates this Agreement in accordance with this section, You will pay any unpaid fees for the Subscription Term or Renewal Term (as applicable) remaining after the effective date of termination.
9.3 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) any of Your obligations to pay fees incurred before termination; (ii) Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (Representations and Warranties), 7 (Mutual Indemnification), and 8 (Limitation of Liability); and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.
10.1 Relationship of Parties. The Parties are independent contractors, and neither Party may make commitments on the other’s behalf.
10.2 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.
10.3 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.
10.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
10.5 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.
10.6 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 10.6 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.
10.7 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.
10.8 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.
10.9 Notices. Concord may send notices pursuant to this Agreement to Your emails registered on the System. You may send notices pursuant to this Agreement to email@example.com.
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.
Downgrade means a reduction in the number of paid Seats in Your account, a change to a lesser value Seat type, or a change to a lesser value Subscription Plan.
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 You 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.
Taxes mean taxes, duties, or similar governmental assessments, including, for example, value-added, sales, use, goods and services taxes, or withholding taxes, assessable by any jurisdiction.
Upgrade means a change to superior Subscription Plan, a change to a superior Seat type, or an increase in the number of paid Seats in Your account.
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.