Concursive Corporation

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Terms and conditions

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Concursive Corporation
Concursive Corporation Master Subscription Agreement (MSA)

Definitions

Customer -
    Either an individual or an organization with the right to access Concursive Corporation Services (generally via a unique user name and password) pursuant to the terms of this Master Services Agreement. The terms "you" and "yours" are used throughout this agreement to refer to a Customer.
Customer Private Data -
    This means information, data, pictures, literature, contact lists, financial information, catalogs, press releases, artwork, illustrations, photographs, databases, video, e-mail, chat messages, instant messages, bulletin board type messages, orders, user information, information posted on Customer's website or in Customer's Service by persons other than Concursive Corporation and/or other material which Customer maintains on Host Hardware using Concursive Corporation Services, and further includes (i) such information, data, pictures, video and/or other material that Customer designates as Confidential Information and (ii) data collected via Hosted Website from users of said Hosted Website.
Customer Public Data -
    This means information, data, pictures, literature, catalogs, press releases, artwork, illustrations, photographs, databases, video, e-mail, chat messages, instant messages, bulletin board type messages, orders, user information, information posted on Customer's website by persons other than Concursive Corporation and/or other material supplied by Customer for use by Concursive Corporation in conjunction with designing and hosting a Hosted Website, which data is intended to be viewed by others and is not intended to be confidential, although it may be treated as Confidential Information until such time as the Hosted Website is made publicly available. Customer Public Data further includes any links that Customer requests be included to other websites, to content that appears elsewhere on the Internet, and to data feeds from other internet websites.
Service -
    This means services that Concursive Corporation provides pursuant to this Agreement including but not limited to Software as a Service, Website Services, Web Applications, and any offerings and services that are packaged as ConcourseConnect or ConcourseSuite
Host Hardware -
    This means the servers used by Concursive Corporation to provide the Service.
Hosted Website -
    This means a website hosted by Concursive Corporation for Customer.


Term

This agreement will be in effect for the entire duration that the customer is using the services beginning upon the execution of a "Trial Registration" or any fee based agreement.

Restrictions.

You agree not to: (i) use the Services except as expressly authorized in this Agreement and in accordance with our Acceptable Use Policy and your Order Form; (ii) use any device, software, or routine that (a) interferes with any application, function, or use of the Services, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) resell, sublicense, time-share, or otherwise share the Services with any third party; (iv) frame or mirror the Site; (v) decompile, disassemble or reverse-engineer the underlying software that is part of the Services or otherwise attempt to derive its source code; (vi) use the Services either directly or indirectly to support any activity that is illegal; (vi) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above.

Your Responsibilities.

You are responsible for all activity occurring under your user accounts and will: (i) maintain the accuracy, completeness, and timeliness (within 30 days of any change) of the information you provide in your account registration, Order Form, and authorized users; and (ii) notify Concursive Corporation immediately of any unauthorized use of any password or account or any other known or suspected breach of security. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for your access to the Services. All data provided in connection with your use of the Services ("Customer Data") will be stored on Concursive Corporation's servers. You own all Customer Data. You are solely responsible and liable for the Customer Data and you will control access to and the management of the Customer Data through your account and authorized users. You must abide by all applicable local, state, national and foreign laws, treaties and regulations, as well as Concursive Corporation's "Acceptable Use Policy" in connection with your use of the Services, including those related to export regulations, data privacy, international communications and the transmission of technical or personal data. The Services may not be exported or re-exported directly or indirectly in violation of any applicable export laws or used for any purposes prohibited by such export laws.

Account Information and Data

Concursive Corporation does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Concursive Corporation, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Concursive Corporation shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Concursive Corporation will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Concursive Corporation reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Concursive Corporation shall have no obligation to maintain or forward any Customer Data.

Additional Users, Excess Data Storage Fees and Bandwidth

   1. The maximum disk storage space provided to you at no additional charge is 500MB of remote disk storage.
   2. Each system is allocated at least 1GB of network traffic per month (traffic is calculated on a formula multiplying the number of hits that your site receives by the size of your files).
   3. Each system is allowed 100 outbound email messages per day via the Service.
   4. You can add more users and/or exceed the above limits by paying standard Services rates. If a site exceeds its maximum allotment of users, file space, traffic, or outbound email messages, the site will become unavailable until suitable financial arrangements have been made for payment of these overages. Concursive Corporation reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.


Intellectual Property Ownership

Concursive Corporation alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Concursive Corporation Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Concursive Corporation Technology or the Intellectual Property Rights owned by Concursive Corporation. The Concursive Corporation name, the Concursive Corporation logo, and the product names associated with the Service are trademarks of Concursive Corporation or third parties, and no right or license is granted to use them.

Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Concursive Corporation and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Concursive Corporation does not endorse any sites on the Internet that are linked through the Service. Concursive Corporation provides these links to you only as a matter of convenience, and in no event shall Concursive Corporation or its licensors be responsible for any content, products, or other materials on or available from such sites. Concursive Corporation provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

Advertising

Concursive Corporation reserves the right to place content or modify features and offerings, including but not limited to advertising and embedded services, in any "free" or promotional Service.

Termination

You agree that Concursive Corporation may, under certain circumstances and without prior notice, immediately terminate your Concursive Corporation account(s), any associated email address(es), website(s), and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this MSA or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, (h) offers for sale any goods and/or services that are or may be considered by others to be illegal, in violation of applicable laws and/or regulatory requirements, obscene, vulgar, offensive, dangerous and/or otherwise inappropriate; (i) displays any Customer Private Data and/or Customer Public Data that infringes the intellectual property rights and/or rights of privacy or publicity of any person or entity, or that are or may be considered by others to be illegal, in violation of applicable laws and/or regulatory requirements, obscene, vulgar, offensive, dangerous and/or otherwise inappropriate; (j) has engaged in activities using Concursive Corporation Services and/or Hosted Website that are the subject of a government complaint and/or investigation; (k) has engaged in activities using the Concursive Corporation Services and/or Hosted Website that are the subject of third party complaints directed at Concursive Corporation and/or others; or (l) otherwise violates the spirit and intent of this MSA or the "Acceptable Use Policy" and/or, (m) nonpayment of any fees owed by you in connection with the Services. Termination of your Concursive Corporation account includes (a) removal of access to all offerings within the Service (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), (c) turning off your website, and (d) barring of further use of the Service. Further, you agree that all terminations for cause shall be made in Concursive Corporation's sole discretion and that Concursive Corporation shall not be liable to you or any third party for any termination of your account(s), any associated email address(es), website(s), or access to the Service.

Customer understands that applicable laws and regulations may include laws and regulations of foreign countries to the extent that a Hosted Website or other Concursive Corporation Services is viewable in such foreign countries. Any breach of your payment obligations or unauthorized use of the Concursive Corporation technology or Service will be deemed a material breach of this Agreement. Concursive Corporation, in its sole discretion, may terminate your password(s), account(s) or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Concursive Corporation may terminate any free, trial, or other promotional accounts at any time in its sole discretion. You agree and acknowledge that Concursive Corporation has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

Effects of Termination.

Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if you do not renew in accordance with a Renewal Notice, the rights and licenses granted hereunder will automatically terminate, and you may not continue to use the Service. Concursive Corporation will have no liability for any costs, losses, damages, or liabilities arising out of or related to Concursive Corporation's termination of this Agreement. It is the responsibility of the Customer to export a copy of the data within the service before the "Subscription" ends. Upon termination of the "Subscription", Concursive Corporation will have no other further obligation to maintain or provide access to your Customer Data.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Concursive Corporation represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Concursive Corporation help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

Mutual Indemnification

You shall indemnify and hold Concursive Corporation, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Concursive Corporation (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Concursive Corporation of all liability and such settlement does not affect Concursive Corporation's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim. Concursive Corporation shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Concursive Corporation of its warranties. Concursive Corporation shall have no indemnification obligation, and you shall indemnify Concursive Corporation pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

Disclaimer of Warranties

Concursive Corporation AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. Concursive Corporation AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Concursive Corporation AND ITS LICENSORS.

Internet Delays

Concursive Corporation'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Concursive Corporation IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

Local Laws and Export Control

The service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of the service ("User") acknowledges and agrees that the service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union 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. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

The service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

Concursive Corporation and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

Notice

Concursive Corporation may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Concursive Corporation's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Concursive Corporation's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Concursive Corporation (such notice shall be deemed given when received by Concursive Corporation) at any time by any of the following: letter sent by confirmed facsimile to Concursive Corporation at the following fax number: (757) 627-8773; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Concursive Corporation at the following addresses: Concursive Corporation, 223 East City Hall Ave., Suite 212 Norfolk, Va. 23320, addressed to the attention of: Chief Financial Officer.

Confidentiality

Customer agrees to hold in strictest confidence all information and material pertaining to Concursive Corporation's business which is provided by Concursive Corporation ("Concursive Corporation Confidential Information"). Customer agrees not to make use of such Concursive Corporation Confidential Information other than for the performance of this Agreement.

Note that because the Service is a hosted, online application, Concursive Corporation occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. As a customer of the Service, you agree that Concursive Corporation can disclose the fact that you are a customer and the edition of the Service that you are using.

Concursive Corporation agrees to hold in strictest confidence all Customer Private Data and all information and material which is provided by Customer which is designated in writing as Customer Confidential Information (collectively "Customer Confidential Information"). Concursive Corporation agrees not to make use of such Customer Confidential Information other than for the performance of this Agreement.

In the event that disclosure of either Concursive Corporation Confidential Information or Customer Confidential Information (hereinafter "Confidential Information") is required by (1) any law of the United States or any state thereof, (2) the order of any court or governmental agency, or (3) the rules and regulations of any governmental agency, the party who is required to make the disclosure shall so advise the party whose Confidential Information will be disclosed no later than 48 hours after receiving the request for said Confidential Information and prior to disclosing said Confidential Information, unless prohibited from doing so by the terms of the request (e.g. subpoena specifying no disclosure of the subpoena) so as to provide the party whose Confidential Information will be disclosed with an opportunity to take appropriate action to prevent the disclosure. Customer's obligation of confidentiality under this Agreement shall survive the termination or expiration of this Agreement by two years. Concursive Corporation's obligation of confidentiality as to Customer Private Data shall survive the termination or expiration of this Agreement. Concursive Corporation's obligation with respect to all other Customer Confidential Information shall survive the termination or expiration of this Agreement by two years.

Modification to Terms

Concursive Corporation reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.


Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Concursive Corporation but may be assigned without your consent by Concursive Corporation to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Concursive Corporation directly or indirectly owning or controlling 50% or more of you shall entitle Concursive Corporation to terminate this Agreement for cause immediately upon written notice.

Usage Data

In addition to certain information about you, including your account information, authorized user information, and services and support information, that is needed to provide you with the Services, Concursive Corporation may maintain other information about you, including the duration and frequency of your use of the Services, the pages viewed and searches performed, and other such anonymous usage data (collectively "Usage Data"). Concursive Corporation uses the Usage Data for internal business purposes only, including improving, testing and providing the Services and additional services. Concursive Corporation may disclose Usage Data in aggregate form (e.g., data aggregated from your and other customers' use of the Services, but does not identify you or any other customer) for promotion, statistical analysis, market analysis, financial analysis, and other such purposes.

General

With respect to U.S. Customers, this Agreement shall be governed by Virginia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Norfolk, Virginia. With respect to Non-U.S. Customers, this Agreement shall be governed by the laws of Switzerland, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Switzerland. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Concursive Corporation as a result of this agreement or use of the Service. The failure of Concursive Corporation to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Concursive Corporation in writing. This Agreement, together with any applicable Order Form, and "Acceptable Use Policy", comprises the entire agreement between you and Concursive Corporation and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.


Concursive Corporation
Suite 212
223 East City Hall Avenue
Norfolk, Va. 23320
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Note: Free accounts are valid for one year for up to 100 users. Storage, bandwidth and other limitations apply.
Concursive Corporation

223 East City Hall Avenue
Suite 212
Norfolk, VA 23510

Phone: 877.818.8108
Fax: 757.627.8773