Terms and Conditions
PLEASE READ THIS SOFTWARE AS A SERVICE CUSTOMER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CONCENTRIC SOFTWARE, INC. (“CONCENTRIC”). THIS AGREEMENT CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN CONCENTRIC AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICES, “CUSTOMER”), REGARDING ACCESS AND USE OF CONCENTRIC’S ONLINE, WEB-BASED AND MOBILE-BASED APPLICATIONS SERVICES AS FURTHER DESCRIBED IN THE APPLICABLE ORDER FORM (“SERVICES”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. BY SELECTING THE “ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. FOR THE PURPOSES OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, THE “ORDER FORM” SHALL MEAN ANY ORDER FORM MUTUALLY AGREED TO BETWEEN THE PARTIES TO WHICH THE SERVICES RELATE. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES.
TERMS AND CONDITIONS
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Concentric will use commercially reasonable efforts to provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at Concentric’s sole discretion, for any purpose deemed appropriate by Concentric. Concentric will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 Concentric will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, in accordance with Concentric’s Service Level Agreement which can be found below. Notwithstanding the foregoing, Concentric reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Concentric.
1.3 Subject to the terms hereof, Concentric will provide reasonable support to Customer for the Services from Monday through Friday during Concentric’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Concentric product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Concentric may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (i) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
2.2 Customer will cooperate with Concentric in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Concentric may reasonably request. Customer will also cooperate with Concentric in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Concentric.
2.4 Customer hereby agrees to indemnify and hold harmless Concentric against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Concentric has no obligation to monitor the Customer Data (as defined below) provided by Customer or Customer’s use of the Services, Concentric may do so and may remove any such Customer Data from the Services or prohibit any use of the Services at any time, for any or no reason, including if Concentric receives any notice or claim that any such Customer Data or activities hereunder with respect to any such Customer Data, may infringe or violate rights of a third party.
2.5 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.6 Customer further acknowledges, agrees to and is bound by the Privacy Policy on Concentric’s website (as it may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.
2.7 Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Concentric is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Concentric does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees and agents with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
3.3 Notwithstanding anything to the contrary, Customer acknowledges and agrees that Concentric may (i) internally use and modify (but not disclose) Customer Proprietary Information, including Customer Data, for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Concentric’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Concentric’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Concentric in connection with Customer’s use of the Services, but only in aggregate, anonymized form which cannot be linked specifically to Customer or any individual. The parties agree that Aggregated Anonymous Data is not Customer Proprietary Information. Upon termination of this Agreement, Concentric will delete or destroy Customer’s Proprietary Information within sixty (60) days of such termination.
3.4 Concentric may use one or more third party services to provide services to Customer, including login authentication (“Third Party Services”). Such Third Party Services may automatically collect and use information about Customer’s visits to, and interactions with, the Services and Third Party Services, and may use cookies, web beacons, pixel tags, SDKs, and other technologies to identify Customer and/or Customer’s device, including Customer’s IP address, web browser, pages viewed, time spent on pages, links clicked and conversion information. Notwithstanding anything to the contrary, Concentric has no control over, and assumes no responsibility for, the policies or practices of any third party that Customer interacts with through the Services (including, without limitation, such third party’s data retention policies or practices), and Concentric’s obligations with respect to Customer’s Proprietary Information do not apply to any such information collected or held by such third party.
3.5 Customer acknowledges that Concentric does not wish to receive any Proprietary Information from Customer that is not necessary for Concentric to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Concentric may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.6 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 As between the parties, Concentric retains all right, title, and interest in and to the Services, and all Software, including Aggregated Anonymous Data, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Concentric for the purposes of this Agreement, including any copies and derivative works of the foregoing. This Agreement is not a sale, and no rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, ideas, comments or other feedback to Concentric with respect to the Services (“Feedback”). Feedback, even if designated as Proprietary Information by Customer, shall not create any confidentiality obligation for Concentric notwithstanding anything else. Customer shall, and hereby does, grant to Concentric a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Concentric’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
4.2 Concentric will obtain and process certain content, data, information or other material provided, uploaded or submitted by or on behalf of Customer (“Customer Data”) only to perform its obligations and exercise its rights under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Customer Data distributed through the Services and the intellectual property rights with respect to that Customer Data. Customer, not Concentric, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
5. INDEMNIFICATION
5.1 Except as provided below, Concentric shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Concentric is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Concentric will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Concentric, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Concentric, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Concentric from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Concentric’s indemnity obligation by the preceding sentence.
6. PAYMENT OF FEES
6.1 Customer will pay Concentric the applicable fees as set forth on the Order Form (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Concentric for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment as set forth on the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
6.2 Unpaid Fees are subject to a finance charge of one percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Concentric’s net income) unless Customer has provided Concentric with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
7. TERMINATION
7.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
7.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings and such proceedings are not dismissed within one hundred twenty (120) days, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
7.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
8. CLIENT SOFTWARE SECURITY
Concentric represents and warrants that it will not knowingly include, in any Concentric software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Concentric fails to comply with the warranty in this Section, Customer may promptly notify Concentric in writing of any such noncompliance. Concentric will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
9. WARRANTY DISCLAIMER
THE SERVICES AND CONCENTRIC PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. CONCENTRIC (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS (SECTIONS 2.4 AND 5) OR CONFIDENTIALITY OBLIGATIONS (SECTION 3) HEREUNDER, IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID AND/OR PAYABLE TO CONCENTRIC HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Concentric are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Concentric’s prior written consent. Concentric may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Concentric in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Concentric will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Concentric. Concentric is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
Exhibit A
Service Level Agreement
This Service Level Agreement (the “SLA”) forms a part of Concentric’s Service Terms and Conditions (the “Service Terms”). Capitalized terms not defined in this SLA shall have the meaning set forth in the Service Terms.
Service Levels: Concentric shall provide Customer with (ii) telephone and email support for the Service to Customer (“Service Support”). Service Support shall only include assistance with issues which are exclusively due to an error with the Service (i.e., a failure of the Service to conform to the written specifications provided by Concentric). Any support outside the scope of Service Support shall be provided by Concentric on a time and materials basis. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime resulting from outages of third party connections or utilities or other reason beyond Concentric’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays or supply interruptions involving hardware, software or power systems not within Concentric’s possession or reasonable control, and denial of service attacks).
Error Response Times
An “Error” means an error in the Services which significantly degrades the Services as compared to Concentric’s published performance specifications. For each Error reported by Customer, Concentric shall (i) assign a priority level to such Error in its discretion in accordance with the table below, and (ii) respond to Customer and provide status updates in accordance with the time periods set forth in the table below.
Service Credits
If (i) the Service is unavailable to Customer due to errors with the Service beyond the Service Availability metric, or (ii) Concentric fails to respond to a Customer Error report within the allotted time frame, then, as Customer’s sole and exclusive remedy (and Concentric’s sole liability), (a) for each full hour in a month that the Service is unavailable beyond the Service Availability metric and (b) for each such response failure, Concentric will credit Customer with one (1) day of free access to the Service. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of one (1) free month of access to the Services. Further, Concentric will not grant a credit for any period in which Customer received any Services free of charge. Concentric’s blocking, suspending or throttling of data communications in accordance with its policies shall not be deemed to be a failure of Concentric to provide adequate service levels under this Agreement. In order to receive service credits, Customer must notify Concentric in writing within seventy-two (72) hours from the time of downtime or response failure (as applicable), and failure to provide such notice will forfeit the right to receive service