Last Reviewed on: 10.19.2021
WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR WHEN YOU EXECUTE AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU, THE COMPANY ENTERING THIS AGREEMENT (“CUSTOMER”), AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
This SaaS Agreement (the “Agreement”), constitutes a binding agreement between Concord Technologies Inc. (“Concord”) and the Customer identified in an order document that references this Agreement (“Order Form”), or the Customer who accepts the terms of this Agreement via click-through acceptance (the date of the Order Form or the date of click through acceptance, the “Effective Date”).
Customer wishes to procure from Concord the certain services as described herein, and Concord wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Services. The services are designed to provide Customer access to the Concord Consent & Compliance and/or Smart Forms services (collectively the “Services”) during the Term (as defined in Section 5).
1.2. Service License & Services Description. Subject to, and conditioned on, Customer’s compliance with the terms and conditions of this Agreement, Concord hereby grants Customer a non-exclusive, non-transferable limited right to access and use the Services during the Term, solely in accordance with the terms and conditions herein. Except as expressly granted in this Section 1.2, Concord retains all right, title and interest in and to the Services. The Services are comprised of the Consent & Compliance and/or Smart Forms services. Additional features of Concord’s application include the Data Vault and certain other third party components which are not made available to Customer but are made available to third party individuals who access the Concord application or interact with the Services (each a “User”).
(a) Consent & Compliance. As part of the Services, Concord may provide Customer with the ability to capture and access consent and compliance data from Users via the Consent & Compliance feature of the Services (“Consent & Compliance”). This may include website and/or mobile plugins for installation on Customer’s websites or applications that allows a User to manage their data privacy preferences with respect to the data collected about such User by Customer. Customer is responsible for installing, configuring and managing the Consent & Compliance service in accordance with the documentation provided by Concord. The Consent & Compliance service stores a User’s consent with respect to Customer’s collection of data with respect to that User and allows a User to request that their personal information be modified or deleted by sending a request via the plugin directly to Customer or to Concord (in each case, a “Privacy Request”). The Consent & Compliance service logs the Privacy Request and provides it to Concord for verification. When Concord receives a Privacy Request, Concord will verify the individual’s identity by verifying the User’s email, phone number, or other personally identifiable information within the Concord application. Concord will provide the Privacy Request, and the result of the verification process, to Customer such that Customer can respond to the Privacy Request. Concord’s sole obligation with respect to a Privacy Request is to provide the Privacy Request and verification results to Customer. Customer is solely responsible for responding to each Privacy Request in accordance with applicable law.
(b) Smart Forms. As part of the Services, Concord may provide Customer with the ability to query or survey Users via the Smart Forms feature of the Services (“Smart Forms”). The Smart Forms service collects User provided information and stores such information in the Data Vault (defined below). A User determines whether or not to provide information via Smart Forms and whether or not to share such information with Customer or with other third parties by managing their privacy preferences within the Data Vault or via the Services.
(c) Data Vault. Concord may provide Users with access to a Data Vault within the Concord application, which consists of data provided by the User (such as through Smart Forms), data about the User’s behavior (such as purchases made), or any other information that is manually or automatically collected about the User (“Data Vault”). Customer does not have direct access to a User’s Data Vault and the Data Vault is not part of the Services. The Data Vault maybe accessed by the User and the User may determine whether or not to share the User’s Data Vault information with Customer or with third parties.
(d) Third-Party Materials. The Services operate in conjunction with technology, materials, software, infrastructure, data, content, equipment, or components of that are provided or managed by Customer or by a third party and are not provided by, managed, controlled or proprietary to Concord (“Third-Party Materials”). Concord is not responsible for Third-Party Materials or the interoperability of Third-Party Materials with the Services. Customer is solely responsible for ensuring all Third-Party Materials operate with the Services.
(e) Changes. Concord reserves the right, in its sole discretion, to make any changes to the Services or the Concord Materials (as defined in Section 6.1) that Concord deems necessary or useful.
2.1. Customer Resources and Cooperation. Customer will timely provide such cooperation and assistance as Concord reasonably requests to enable Concord to perform the Services. Without limiting the foregoing, Customer will timely: (a) perform all obligations identified as customer responsibilities; (b)provide the Customer materials and other resources as may be required; and (c) ensure Customer’s website and all related technology are in working order to allow Concord to perform the Services.
2.2. Effect of Customer Failure or Delay. Concord is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
2.4. Account. Customer is responsible for creating an account within the Services and ensuring that (a) Customer’s account registration information is complete and accurate; and (b) Customer’s account credentials are confidential. Customer will notify Concord immediately of any unauthorized use of Customer’s account or account credentials, or any other known or suspected breach of the security of Customer’s account. Customer is responsible for the activity that occurs withinCustomer’s account and for the actions or omissions of Customer’s employees, contractors, or agents, whether such person is or was acting within the scope of their employment, engagement, or agency relationship. Customer is prohibited from and will not permit competitors of Concord to access the Services for any purpose.
If a trial period is indicated on an Order Form, Concord will provide Customer with a temporary account to one or more Services (a “Trial Account”). The Trial Account will be accessible for the trial period set forth in the Order Form, beginning on the Activation Date (as defined in Section 4), or if no trial period is stated, the Trial Account period will be thirty (30) days from the Activation Date. DURING THE TRIAL PERIOD, THE TRIAL ACCOUNT AND ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. DURING THE TRIAL ACCOUNT PERIOD, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CONCORD AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $100.
Client will pay the fees for the Services as set forth in the Order Form (“Fees”). Following execution of the Order Form, Concord will activate or otherwise make available the Services listed in the Order Form (“Activation Date”). Beginning on the Activation Date, Customer will be invoiced for the recurring Fees per the invoice schedule in the Order Form. One-time fees and fees for professional services (if any) will be invoiced per the terms of the Order Form, or the applicable statement of work. Customer will pay Fees within thirty (30) days of the date of the invoice. If Customer disputes any Fees, Customer must notify Concord within 90 days of the date of invoice. Invoices not disputed within 90 days from the date of invoice will be deemed accepted by Customer. Concord may charge a late fee of 1.5% per month on any Fees not paid when due. Concord may suspend Customer’s access to the Services in the event Customer fails to pay the Fees when due. Concord may increase Fees upon each Renewal Term, provided that any such increase will not exceed five percent (5%) of the then current Fees. Concord will provide thirty (30) days’ prior written notice of any such increase in Fees. All Fees payable under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, service, use and excise taxes; taxes assessed on the use of software or any other similar taxes; and duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Concord’s income.
6.1. Concord Materials. Concord retains all right, title, and interest in and to (a) the Services; (b) Concord information, data, documents, specifications, inventions, technologies, know how, works, software, hardware, systems, methods, processes, specifications, descriptions, plans that Concord or its subcontractors conceives, discovers, designs, develops, reduces to practice, prepares, makes, modifies or improves (including, without limitation, related to the Consent & Compliance and the Smart Forms Services); and (c) all works, inventions, and other subject matter incorporating, based on or derived from any Concord Materials, including all customizations, enhancements, improvements and other modifications thereof. In each case, (a), (b), and (c), all intellectual property rights therein are and will remain the property of Concord (“Concord Materials”). Other than as expressly granted herein, Customer has no right or license with respect to the Concord Materials.
6.2. Concord License Restrictions. Customer shall not, and shall not permit any other person to access or use the Concord Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, with respect to the Concord Materials, Customer will not, except as this Agreement expressly permits (a) copy, modify, or create derivative works or improvements of the Concord Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Concord Materials to any other person, including through or in connection with anytime-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Concord Materials or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Concord Materials, including any copy thereof; (e) use any Concord Materials in a manner or for any purpose that infringes, misappropriates, or otherwise violates any law or intellectual property right; (f) use the Concord Materials for purposes of competitive analysis, the development of a competing system, product, or service, or any other purpose that is to Concord's commercial disadvantage; and (g) otherwise use the Concord Materials beyond the scope of the license granted under Section 1.2.
6.3. Customer Materials & License. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the software, hardware, systems, and technologies, that are provided or made available to Concord or any of its subcontractors by or on behalf of Customer in connection with this Agreement (“Customer Materials”), including all intellectual property rights therein. Customer expressly reserve all other rights in and to the Customer Materials. Customer hereby grants to Concord a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely as necessary to perform the Services.
6.4. Third-Party Materials. All right, title, and interest in and to the Third-Party Materials, including all intellectual property rights therein, are and will remain with their respective third-party rights holders, subject to the terms and conditions of the applicable third-party license agreements. Customer has no right or license with respect to any Third-Party Materials except as expressly licensed under such third-party license agreements.
7.1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, technology, software, pricing, or other information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential." Without limiting the foregoing, the Concord Materials are the Confidential Information of Concord; the Customer Materials are the Confidential Information of Customer.
7.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will for a period of two years from the disclosure of the Confidential Information: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by this Agreement, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of theReceiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3; (c) safeguard the Confidential Information from unauthorized accessor disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section.
7.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights underSection 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
THE SERVICES ARE PROVIDED "AS IS" AND CONCORD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CONCORD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE,OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CONCORD MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, THAT THE SERVICES OR THE USE THEREOF COMPLY WITH APPLICABLE LAW, ARE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR THAT THE SERVICES ARE OR WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS".
IN NO EVENT WILL CONCORD OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) LOSS OF USE, BUSINESS, REVENUE, PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE; (B) USE, QUALITY, OR PERFORMANCE OF THE SERVICES OR ANY COMPONENT THEREOF, INCLUDING ANY INABILITY TO USE THE SERVICES OR NON-PERFORMANCE IN WHOLE OR IN PART; OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF CONCORD AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID TO CONCORD IN THE TWELVE MONTH PERIOD PRECEDING THE DATE UPON WHICH THE DAMAGE AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
During the Term and for one year after, Customer shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) any person then or within the prior six months employed or engaged by Concord who was involved in any respect with the Services or the performance of this Agreement for employment or engagement as an independent contractor.
In no event will Concord be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Concord's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation
12.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.2. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
12.3. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Concord's prior written consent, which consent Concord shall not unreasonably withhold or delay; provided that, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will not be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Concord's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.4. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
12.5. Use of Customer Name and Logo. Customer hereby grants to Concord the right to use Customer’s name and/or logo on Concord’s website or in sales literature.
12.6. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in a writing that is identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. Any legal suit, action or proceeding arising out of or related to this Agreement or its subject matter shall be instituted exclusively in the federal courts of the United States or the courts of the State of Oregon in each case located in the city of Portland and in Multnomah County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
12.8. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
12.9. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or Section 7 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise.