LAST REVISED: May 22, 2018
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
Welcome to the Concord Contract Success Platform. These Terms of Service constitute an agreement (this “Agreement”) by and between Concord Worldwide, Inc., a Delaware corporation whose principal place of business is 177 Post St., Suite 910, San Francisco, CA 94108 (“Concord”) and the individual or the corporation, LLC, partnership, sole proprietorship or other business entity executing this Agreement (“Customer” or “you”).
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. 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.
EACH PARTY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT THE PERSON SIGNING ON YOUR BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
A. “Customer Data” means any data, information or material in electronic form input, generated by, or collected through the System by Customer, including without limitation from Customer’s Users or from individuals or business entities doing business with Customer or that Customer has invited to use the System.
B. “Documentation” means Concord’s standard manual related to use of the System, as well as any other written documentation provided to Customer by Concord to facilitate Customer’s use of the System under the terms of this Agreement.
C. “Order” means an order for access to the System created either electronically through the System when Customer opens a Concord account or in the form of a document signed by both Concord and Customer, including by electronic signature.
E. “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 enhancements, modifications, and derivative works to any of the foregoing.
F. “Term” is defined in Section 12.A below.
G. “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not. Users do not include individuals or business entities that open their own Concord account, even if such individual or business entity is doing business with Customer or has been invited by Customer to use the System.
2. THE SYSTEM.
A. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; (b) this Agreement; and (c) Concord’s policies posted on its Website at www.concordnow.com, as such policies may be updated from time to time; in each case solely for Customer’s internal business purposes.
B. System Access Options. The Order may specify a free account, for which no fee is required, or a paid subscription plan. Concord may change its policies and procedures for free accounts, or terminate any free account, at any time by written notice to Customer. In addition, Concord reserves the right to discontinue any aspect of the System at any time, including the right to discontinue the display of any Customer Data. You agree that any termination of your access to the System or any account you may have or portion thereof may be affected without prior notice, and you agree that Concord will not be liable to you or any third party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Concord may have at law or in equity.
C. Order Requirements. Customer agrees: (a) that it shall submit each proposed Order through the System or sign it, as applicable, through a representative having the authority to bind Customer; and (b) that Concord may presume that such representative has such authority. Customer shall include in each proposed Order its accurate name, email address, or other identifying information, the free account or paid subscription plan option selected by Customer, any transaction-specific terms and conditions, and (if Customer has chosen a paid plan), the Term for which Customer has subscribed to the System and the applicable fees, if any. No proposed Order shall be considered an Order until accepted by Concord.
D. Technical Support. “Support” refers to reasonable efforts to address questions and provide solutions related to the System operations. Concord shall provide Support to Customer 24 hours per day, Monday through Friday during the Term, provided Customer is in compliance with this Agreement and is current on payments due and otherwise in compliance with this Agreement. Notwithstanding the foregoing, Concord is not obligated to provide Support with respect to any modifications to the System that were not made by Concord or any interface of the System with other software, platforms, or networks used by Customer. Customer may submit Support requests by email to firstname.lastname@example.org or directly in the System via the Help feature.
E. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
F. System Revisions. Concord may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
G. Customer’s Partners. Customer recognizes and agrees that its business partners may not access the System as Users and, in order to interact with Customer via the System, shall be required to become Concord customers and execute separate contracts with Concord.
3. ELECTRONIC TRANSACTIONS AND ELECTRONIC SIGNATURES
A. Concord’s System has been designed to address the key requirements of:
- The Electronic Signatures in Global and National Commerce (E-SIGN) Act , Pub. L. No. 106-229, 114 Stat. 464 (2000) (15 U.S.C. §§7001-7031);
- The Uniform Electronic Transactions Act (UETA), as approved by the National Conference of Commissioners on Uniform State Laws in 1999 (7A Pt. 1 U.LA. 211, 211-99 (2002)), as well as the state laws modeled after UETA.
- Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures.
B. Exceptions to applicability of electronic signature. Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. Concord shall not be responsible or liable to determine whether any particular contract is subject to an exception to applicable electronic signature laws, or whether it is subject to any particular agency promulgations, or whether it can be legally formed by electronic signatures.
C. Electronic transactions and “consumers”. Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers,” such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. Concord shall not be responsible to: (a) determine whether any particular transaction involves a “consumer;” (b) furnish or obtain any such consents or determine if any such consents have been withdrawn; (c) provide any information or disclosures in connection with any attempt to obtain any such consents; (d) provide legal review of, or update or correct any information or disclosures currently or previously given; (e) provide any such copies or access, except as expressly provided by the System for all transactions, consumer or otherwise; or (f) otherwise to comply with any such special requirements; and (g) Customer undertakes to determine whether any “consumer” is involved in any document presented by Customer or its Users for processing by the System, and, if so, to comply with all requirements imposed by law on such documents.
4. SUBSCRIPTION FEES, BILLING, & PAYMENT.
A. You are responsible for paying any applicable fees as set forth in the applicable Order and applicable taxes associated with the System in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by the methods specified within the System. You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify Concord if your selected payment method is cancelled (e.g., for loss or theft). All fees and charges are earned upon receipt by us and are nonrefundable (and there are no credits) except (a) as expressly set forth herein, and/or (b) as required by applicable law.
B. You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your use of the System, including, but not limited to, sales, use, or value-added taxes. To the extent Concord is obligated to collect such taxes, the applicable tax will be added to your billing account.
C. Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the System; provided, however, that such notice will not affect charges submitted before Concord could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.
D. Subscription Fees. Fees for paid plans are determined based on the number of Users using the System during a monthly or annual subscription period (“Billing Period”). Unless otherwise stated in the Order, all subscription fees are payable in advance.
E. Payment. Customer will make payment only by credit card, Single Euro Payments Area (SEPA) direct debit, or automatic clearing house (ACH) transfer (the “Payment Method”). Concord will only accept credit card as the Payment Method if Customer’s monthly fees total less than $1,000 (or the foreign currency equivalent thereof). Customer authorizes Concord to transmit Customer’s Payment Method information to Concord’s third-party payment processing vendor, which may store such information in order to facilitate payments. Customer shall promptly notify Concord in writing of any change in Customer’s invoicing address or changes related to the Payment Method, which will be effective 5 days after Concord’s receipt of Customer’s notification. Customer authorizes Concord or its payment processing vendor to bill Customer, through Customer’s authorized Payment Method, for the applicable subscription fees, along with any applicable taxes and any other charges Customer may incur in connection with its use of the System. Customer acknowledges that it is solely responsible for any and all fees charged to Customer by its credit card issuer, bank, or other financial institution including, but not limited to, membership, overdraft, insufficient funds, and over-the-credit-limit fees. All fees and charges are nonrefundable, and no credits are required if Customer uses the System for only part of a Billing Period.
F. Invoices. Concord may: (a) send invoices generated through the System, via email, or such other means as it may select from time to time; and (b) invoice Customer through Customer’s Payment Method at the beginning of each Billing Period. Customer may request an additional invoice or an invoice in a different format by emailing email@example.com. Increases in the number of Users on a paid plan or increases in paid subscription plan tiers will be effective and invoiced at the time of the increase, on a pro-rated basis if the change is made during a Billing Period. Decreases in the number of Users on a paid plan or decreases in paid subscription plan tiers will be effective upon renewal of the next Billing Period. If Customer does not notify Concord in writing of a billing problem or discrepancy within 20 days of the relevant invoice date, Customer waives any right or dispute related to such problem or discrepancy.
G. Taxes. All fees are exclusive of taxes, levies, and duties, and Customer will be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), withholding, or similar taxes, but excluding United States (federal or state) income tax and any other taxes based solely on Concord’s income. Concord may calculate taxes based on the billing information Customer provides.
H. Effect of Nonpayment. Concord may suspend Customer’s access to the System without advanced notice if Customer fails to pay any invoice in full when due. In addition to such other rights as Concord may have, including without limitation pursuant to Section 12.B (Termination without Cause) and Section 12.C (Termination for Cause) below, Customer shall continue to pay fees during any suspension. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Concord to collect any overdue amount. Concord may accept any check or payment in any amount without prejudice to its right to recover the balance or to pursue any other right or remedy. Customer may not withhold amounts due to Concord under this Agreement for any reason or offset them against amounts that Customer asserts are owed to Customer by Concord.
5. CUSTOMER DATA & PRIVACY.
C. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Concord offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
D. Security Incidents. In the event that Customer Data or Personal Data is disclosed to or accessed by an unauthorized party, Concord will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the Customer Data or Personal Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
E. Data Accuracy. Concord shall have no responsibility or liability for the accuracy of data uploaded to the System by Users, including without limitation Customer Data.
F. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 5, in order to maintain, provide and improve the System, Customer hereby grants Concord the non-exclusive, fully paid up, sublicenseable, transferable right and license to collect, use, reproduce, analyze, publicize, or otherwise exploit Aggregate Data (as defined below) in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information of individuals, the names and addresses of Customer and any of its Users or other parties with which it is doing business, and the identity of any such party linked to specific contract terms or other business information).
6. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
A. Acceptable Use. Customer shall not:
- use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System;
- use the System to harm minors in any way;
- impersonate any person or entity, including, but not limited to, a Concord employee, account administrator, or other Customer or User, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;
- provide System passwords or other log-in information to any third party;
- share non-public System features or content with any third party;
- manipulate identifiers in order to disguise the origin of any of Customer’s Data;
- use the System to upload, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- use the System to upload, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System, including by using any device or software;
- modify, adapt, or hack the System, including by using any non-public Concord APIs, or otherwise attempt to gain unauthorized access to the System or its related systems or networks; or
- access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System.
B. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer is on notice that it and Users increase their safety through “strong passwords,” which use a combination of upper and lower case letters, numbers and symbols. Customer shall notify Concord immediately of any known or suspected unauthorized use of the System, breach of security, or unauthorized use of Customer’s account and shall use best efforts to stop such unauthorized use or breach.
C. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
D. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
E. Concord’s Remedies for Breach. If Concord suspects any breach of the requirements of this Section 6, including without limitation by Users, Concord may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Concord may have. This Agreement does not require that Concord take any action against Customer or any User or other third party for violating this Section 6 or this Agreement, but Concord is free to take any such action it sees fit.
7. IP & FEEDBACK.
A. IP Rights to the System. Concord retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
B. Feedback. Concord has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Concord, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Concord’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Concord’s products or services.)
8. CONFIDENTIAL INFORMATION.
“Confidential Information” refers to the following items that one party to this Agreement (“Discloser”) discloses to the other party (“Recipient”): (a) any document marked as “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 5 business days; (c) the Documentation, whether or not marked or designated confidential; (d) any technology incorporated into or used by the System, as well as the System’s non-public features, for which Concord will be Discloser; and (e) any other nonpublic, sensitive information disclosed by Discloser, whether or not marked or designated “Confidential.” 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 Discloser.
B. Injunction. Recipient agrees that breach of this Section 8 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
9. REPRESENTATIONS & WARRANTIES.
A. From Concord. Concord represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Concord’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Concord. In the event of a breach of the warranty in this Section 9.A, Concord, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Concord’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9.A and for potential or actual intellectual property infringement by the System.
B. From Customer. In addition to Customer’s representations and warranties concerning Customer Data in Section 5.B, Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement, (b) it has obtained all permissions, releases, rights or licenses required to engage in Customer’s activities (and allow Concord to perform its obligations) in connection with the use of the System, (c) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (d) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (e) it is a corporation or another entity authorized to do business pursuant to applicable law, an individual with the legal capacity to enter into a contract, or the sole proprietorship of such an individual.
C. Warranty Disclaimers. Except to the extent set forth in Section 9.A above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) CONCORD HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; AND (b) CONCORD DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS OR WILL BE ERROR-FREE, WILL MEET SUBSCRIBER’S REQUIREMENTS, OR BE TIMELY OR SECURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO CUSTOMER’S USE OF THE SYSTEM. CUSTOMER CONSENTS TO CONCORD’S INTERCEPTION AND STORAGE OF CUSTOMER DATA AND OF ELECTRONIC COMMUNICATIONS TO AND FROM CUSTOMER, ITS USERS AND OTHER CONCORD CUSTOMERS DOING BUSINESS WITH CUSTOMER. CUSTOMER UNDERSTANDS THAT SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT ARE NOT OWNED, OPERATED, OR CONTROLLED BY CONCORD. CUSTOMER ACKNOWLEDGES THAT CHANGES TO CUSTOMER DATA MAY OCCUR IN ORDER TO CONFORM AND ADAPT CUSTOMER DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES. CUSTOMER AGREES THAT CONCORD IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CUSTOMER DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S DECISION TO USE THE SYSTEM IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES OR MADE IN RELIANCE ON ANY ORAL OR WRITTEN STATEMENTS MADE BY CONCORD REGARDING FUTURE FUNCTIONALITY OR FEATURES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, CONCORD MAY USE INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION, AND THAT CONCORD SHALL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION.
A. Indemnified Claims. Customer shall defend, indemnify, and hold harmless Concord and the Concord Associates (as defined below) against any “Indemnified Claim”, meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Concord’s negligence. Customer’s obligations set forth in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Concord will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Concord Associates” are Concord’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
B. Indemnity Process. Customer’s indemnification obligations are conditioned on Concord’s (a) promptly giving written notice of the claim to Customer; (b) giving the indemnifying party sole control of the defense and settlement of the claim, except as stated in Section 10.A above; (c) providing necessary information and reasonable assistance in connection with the claim, at Customer’s request and expense; and (d) not compromising or settling such claim. Concord may participate in the defense of the claim at its own expense.
11. LIMITATION OF LIABILITY.
A. Dollar Cap. CONCORD’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED (a) FOR A FREE ACCOUNT, $1,000 AND (b) FOR A PAID SUBSCRIPTION, ALL AMOUNTS CUSTOMER PAID TO CONCORD IN THE 6 MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
B. Exclusion of Consequential Damages. IN NO EVENT WILL CONCORD BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
C. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS Section 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF CONCORD IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 11, Concord’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Concord’s liability limits and other rights set forth in this Section 11 apply likewise to Concord’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. TERM & TERMINATION.
A. Term. This term of this Agreement (the “Term”) shall begin upon Customer’s entrance into this Agreement and continue throughout Customer’s use of the System, including for any Billing Period designated in the Order, including any renewals, or if no Billing Period is designated in the Order, until terminated by one of the parties in accordance with the terms and conditions herein. If a Billing Period is designated in the Order, the Term will renew automatically on the last day of each Billing Period for an additional such period.
B. Termination without Cause. Customer may terminate this Agreement as set forth below, by emailing firstname.lastname@example.org or by otherwise notifying Concord as set forth in Section 12.B. Customer’s termination of this Agreement pursuant to a free account will be effective upon Concord’s receipt of Customer’s notice. Customer’s termination of this Agreement pursuant to a paid subscription will be effective at the end of the Billing Period during which Concord receives Customer’s notice. For example, if Concord receives notice of termination on the first day of a new Billing Period, termination will be effective at the end of that new Billing Period. Concord may terminate a free account at any time, without advanced notice, for any reason or no reason.
C. Termination for Cause. Concord may terminate this Agreement (including without limitation Customer’s access to the System) without advanced notice if Customer fails to pay applicable fees when due. Either party may terminate this Agreement for any other material breach by the other party via written notice, effective in 30 days unless the other party first cures such breach.
D. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 7 (IP & Feedback), 8 (Confidential Information), 9.3 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
A. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Concord employee or contractor will be an employee of Customer.
B. Notices. Concord may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 24 hours after they are sent.
C. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
D. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Concord’s express written consent. Except to the extent forbidden in this Section 13.D, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
E. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
F. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
G. Choice of Law & Jurisdiction: This Agreement will be governed solely by the laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. Subject to the dispute resolution terms herein, the parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California.
I. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
J. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Concord or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of date of publication, Cuba, Iran, North Korea, Sudan, and Syria).
K. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
M. Marketing. Unless Customer notifies Concord in writing that it does not want its name used in Concord’s marketing, Concord may identify Customer as a Concord customer in Concord’s marketing materials. In case of such notice: (a) Concord shall not include Customer in any future printed customer lists, provided Concord will not be required to modify any existing printed materials; and (b) Concord will remove Customer’s name from any online materials within a reasonable period, not to exceed 30 days.
N. Dispute Resolution. Any claim arising out of or related to this Agreement, including without limitation claims related to the parties’ negotiations and inducements to enter into this Agreement, shall be submitted to mandatory, binding arbitration under the auspices of American Arbitration Association (the “AAA”), in San Francisco, California, with the parties sharing equally the costs of arbitration. Arbitration will proceed according to the standard commercial arbitration rules of the AAA. This Section 13.N does not limit either party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after the pendency of any arbitration, 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. 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 shall be deemed as preventing Concord from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.
O. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other 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. You agree that, by entering into these Terms, you and Concord are each 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.
WEBSITE LEGAL INFORMATION
The website http://www.concordnow.com/ is published by:
8, rue François Villon, 75015 Paris, France
SAS capital of €9602
RCS Paris – 527 474 522
French VAT registration number: FR 13 527 474 522
• PUBLISHING EDITOR
Amazon Web Services, Inc.
P.O. Box 81226
Seattle, WA 98108-1226
By accessing, using or downloading any materials from the Site, you agree to follow and be bound by the Website General Conditions.
The content of the www.concordnow.com website, including trademarks and logos, general structure, software, texts, images, videos, sounds, know-how, animations, and generally the information published on the website is the property of Concord or is subject to an authorization of use.
Any representation, modification, reproduction, misrepresentation, total or partial, of all or part of this website or its content, whatever the process or medium used, is strictly prohibited.
Unauthorized use of Materials from this Site may violate copyright, trademark and privacy laws.
The data available on www.concordnow.com is provided only for informational purposes. Although Concord attempts to provide accurate information on the Site, Concord assumes no responsibility for the accuracy of the information.
Visitors to the Site shall be responsible for conducting their own analysis of the information provided.
ALL INFORMATION ON THIS SITE IS PROVIDED “AS IS” WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. CONCORD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
COOKIES AND MANAGING PERSONAL INFORMATION
Visitors to the Site are informed that information (“cookies”) may be temporarily saved on the hard disk of their computer in order to facilitate Site navigation. Visitors authorize these cookies. Cookies send data that is not used for identification but to record information relating to your navigation of the Site. They enable analysis to be made about visitors to the Site and about their visit, etc., in order to improve the quality of the Site. The settings from the Internet browsers are usually programmed by default to accept Cookies, but Visitors can easily adjust it by changing the settings of your browser. However, if Visitors choose to disable the Cookies on their browsers, they might not be able to benefit from all the functionalities offered by Concord’s website.
For more information on the setting of Cookies, please consult the following links:
For Internet Explorer™: https://support.microsoft.com/en-us/help/17442/windows-internet-explorer-delete-manage-cookies
For Safari™: http://support.apple.com/kb/HT1677?viewlocale=en_US
In accordance with the French Data Protection and Civil Liberties law of 6th January 1978, Visitors have the right to access, modify, rectify and remove the personal data that Concord has collected (Section 34 of the “Informatique et Libertés” law). Requests may be emailed to firstname.lastname@example.org or sent via regular mail addressed to the Publishing Editor at company French headquarters indicated above.
Any request must be accompanied by an ID of the applicant.