Master Subscription Agreement: Advantage Integration
These Customer Terms and Conditions govern Customer’s limited license to the Software and other Materials of ConceptShare.
1.1 Definitions. As used in these Customer Terms and Conditions,
1.1.1 “Affiliate” means any entity controlled by Customer, where “control” means direct or indirect ownership of fifty-one percent (51%) or more of the stock entitled to vote at general meetings, or the right to appoint a majority of the board of directors, or a body performing a similar function, and provided such entity is set out in the Customer Commercial Terms schedule annexed hereto;
1.1.2 “Agreement” means the agreement, including all exhibits, schedules, appendices and Orders, entered into by ConceptShare and Customer relative to the Materials;
1.1.3 “API” means the application product interface issued by ConceptShare in object code format to enable certain third party products and services, to communicate with the Software;
1.1.4 “Customer Commercial Terms” means the commercial terms and conditions annexed to the Agreement and identified as such;
1.1.5 “Customer Terms” means these terms and conditions;
1.1.6 “Customization” means any special features or other modifications to the Software made by ConceptShare and delivered to Customer pursuant to an Order;
1.1.7 “Documentation” means ConceptShare technical specifications, manuals and any other materials provided by ConceptShare hereunder;
1.1.8 “End User(s)” means individuals authorized to use the Software pursuant to an Order and includes any temporary workers, agents and authorized contractors of Customer;
1.1.9 “Hosting Environment” means the hardware, software, remote access, domain registration, SSL certificate registration, hosting, information technology support services and any other materials, services and hardware necessary or advisable in connection with the hosting and use of the Software, including to ensure the proper installation, operation, updating, maintenance and security of the Software;
1.1.10 “Intellectual Property Rights” means all copyright, trademark, patent, trade secret and other intellectual property rights or interest, including without limitation, all registrations, rights to register or apply for registration, renewals, reversions, all waivers of moral rights and assignments thereof, all assignments of model and property releases, and all rights to enforce such rights or interests, in any work, including without limitation, the structure, sequence and organization of the same;
1.1.11 “License End Date” means the date on which Customer’s rights and licenses to use Software pursuant to an Order expire, which date shall be set out on the applicable Order;
1.1.12 “License Start Date” means the date on which Customer’s rights and licenses to the Materials pursuant to an Order commence, which date shall be set out on the applicable Order;
1.1.13 “License Term” means the period for which Customer licenses the Materials from ConceptShare pursuant to an Order. For further clarity the License Term shall begin on the License Start Date and shall end on the License End Date as set out in the Order;
1.1.14 "Maintenance" means the paid-for right to receive Updates to Software, when and if, issued by ConceptShare;
1.1.15 “Maintenance Period” he Maintenance Period for a Subscription License is the term of the license itself;
1.1.16 "Materials" means the Software and Documentation and API;
1.1.17 “Order” means an accepted order document pursuant to which Customer licenses Materials and/or purchases Services;
1.1.18 "Service(s)" means the services to be provided by ConceptShare to Customer under an Order;
1.1.19 “Software” means the fully compiled version(s) of the software application(s) set out in an Order and any Customization and all Updates (defined below) delivered by ConceptShare to Customer under the Agreement;
1.1.20 “Subscription License” means the Customer’s license has a start and an end date, which dates are set out in the Order.
1.1.21 “Support” means the Software support purchased pursuant to an Order and described in the Software Support Terms and Conditions;
1.1.22 “Support Terms and Conditions” means the Support terms and conditions annexed to and incorporated into the Agreement and identified as such;
1.1.23 “Term” has the meaning set out in Section 9.1 of these Customer Terms;
1.1.24 “Third Party” means a person other than ConceptShare or Customer, or their respective Affiliates;
1.1.25 "Third Party Technology" means products or technology owned by a third party, to be licensed and used by Customer with the Software in accordance with the Documentation;
1.1.26 “Trial License” means a limited license to use the Software that is provided to Customer for its internal evaluation purposes only (and not for resale) and only upon acceptance of an Order by ConceptShare;
1.1.27 “Update” means any and all modifications, enhancements and corrections, including but not limited to error corrections, bug fixes, enhancements, updates, upgrades, new versions, revisions, to the Materials made by ConceptShare and delivered to Customer, including but not limited to all additions, updates, new versions and any changes made in response to legal, technological or other developments; and
1.1.28 “Usage Data” means information pertaining to Customer’s usage of the Software.
1.2 Appendices, Schedules and Exhibits. Each of the appendices, schedules, exhibits and Order to the Agreement are incorporated into and form part of the Agreement.
2. LICENSES AND DELIVERY OF MATERIALS, DEPLOYMENT, SUPPORT, SERVICES AND LIFE CYCLE
2.1 License Grant. Conditional upon Customer’s continuing compliance with the Agreement, including these Customer Terms and the Documentation, ConceptShare grants to Customer, and any Affiliate of Customer that licenses the Software pursuant to an Order, solely and exclusively for its internal business purposes and only for the number of End Users set out in the Order and authorized hereunder, a limited, world-wide, non-exclusive, non-transferable license to use the Software and API as contemplated in the Documentation and to use, copy and make technically accurate derivative works of the Documentation and to make copies of the derivative works thereof.
2.2 Application Programming Interface. If an API license is specified in the Customer Commercial Terms or an Order, ConceptShare will make available to Customer, in object code format, and grant a limited non-exclusive license to Customer to use, for the purposes of exercising its rights under the Agreement only, the API. THE API SHALL BE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. In the event that the Agreement expires or is terminated, any API license granted under the Agreement shall automatically expire and terminate.
2.3 Delivery of Materials. Any delivery of Materials, including Updates, by ConceptShare under this Agreement will be made by electronic means.
2.4 ConceptShare Deployment. ConceptShare shall provision and maintain the Hosting Environment. Notwithstanding the foregoing, in certain circumstances which will be set out in the Order, such as where the Order specifies “segregated deployment”, ConceptShare shall not be responsible for provisioning and maintaining domain registration, SSL certificate registration or any other materials or services necessary or advisable to effectively use, update, maintain and secure the Materials.
2.5 Service Level Guarantee, etc. except as otherwise specified in an Order, ConceptShare will adhere to the provisions of the ConceptShare Deployment Service Level Guarantee and Customer Information Management Terms and Conditions.
2.6 Services. ConceptShare shall provide the Services (if any) purchased by Customer pursuant to an Order and such Services shall be performed by qualified personnel, suitably skilled and trained in the performance of the Services and performed in a diligent and professional manner.
2.7 Life cycle.
(a) Updates. For Subscription Licenses, ConceptShare will deliver to Customer all Updates it makes commercially available for the Software licensed by such Customer and which Customer is entitled to receive. For Subscription Licenses, Customer’s right to receive Updates shall terminate on the License End Date. ConceptShare will install and deploy the Updates within a commercially reasonable period of time. (b) Discontinuance and Modification. ConceptShare will make reasonable commercial efforts to notify Customer 6 months in advance of its planned discontinuance of Software licensed hereunder and 30 days in advance of a planned modification to such Software which substantially affect the functionality thereof. he above rights terminate on the License End Date.
(c) Compatibility. ConceptShare will make reasonable commercial efforts to make each Update licensed hereunder compatible with Software licensed hereunder within the 3 month period preceding the release of such Update.
(d) System Updates. The Software shall be compatible with the specific operating, browser and other systems set out in the Documentation accompanying the Software, and ConceptShare shall use reasonable commercial efforts to maintain the Software compatible with subsequent releases of such operating systems. In the event ConceptShare decides to cease maintaining the operability of the Software with a particular system for which it had previously supported, ConceptShare will provide Customer with notice of such decision within the 3 month period subsequent to its making such decision.
(e) Critical Updates. ConceptShare may, in its sole and absolute discretion, designate any Update to be a “critical update”. ConceptShare shall have the right to immediately install and deploy any update designated as a critical update. NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT SUGGESTING OTHERWISE, CONCEPTSHARE SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER FOR ANY DAMAGES OR OTHER COSTS INCURRED (INCLUDING PURSUANT TO THE WARRANTY AND INDEMNITY PROVISIONS SET OUT IN THE AGREEMENT) SUBSEQUENT TO 24 HOURS OF THE INSTALL OF A CRITICAL UPDATE TO THE EXTENT SUCH DAMAGES OR OTHER COSTS ARE ATTRIBUTABLE TO THE PERIOD SUBSEQUENT TO THE CRITICAL UPDATE’S RELEASE.
2.8 Sub-Agents. ConceptShare may appoint contractors, suppliers and/or other persons to perform some of its rights and obligations set out in this Agreement but only provided such persons comply with the provisions of this Agreement to the extent such provisions are applicable and ConceptShare shall be responsible for such compliance.
3. NO MODIFICATION, REVERSE ENGINEERING AND OTHER RESTRICTIONS AND OBLIGATIONS
3.1 No Reverse Engineering. Customer shall not, except as required by law, directly or indirectly: (i) sell, lease, redistribute or transfer any of the Materials to any third party; (ii) except as expressly authorized in the Agreement, modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Materials; (iii) rent or lease any rights in the Materials in any form to any third party; (iv) use the Materials for the benefit of any third parties (i.e., in an ASP, outsourcing or service bureau relationship); (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks within the Materials; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Materials.
3.2 Protection Precautions. The manner in which Customer protects the Materials from unauthorized or illegal copying, distribution, access and use shall be as good as the manner in which it protects its own intellectual property of a similar nature and in no event in a manner less than prudent and diligent care.
3.3 Usage Data. The Software collects and periodically transmits Usage Data to ConceptShare. ConceptShare shall only use Usage Data for its internal business purposes and it shall not disclose any unaggregated Usage Data, or attribute any Usage Data to Customer without Customer’s prior written consent, which consent shall not be unreasonably withheld.
3.4 Other Restrictions and Obligations of Customer. Customer shall not (a) use the Materials to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third- party privacy rights, (b) store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Materials or third-party data contained therein, or (d) attempt to gain unauthorized access to the Services or their related systems or networks. ConceptShare may unilaterally impose other limitations on the license rights of Customer granted hereunder, such as, for example, limits on storage space, bandwidth consumption, and page views. Such limitations may be set out in the Order. ConceptShare will use commercially reasonable efforts to provide Customer with real-time information to enable Customer to monitor its compliance with such limitations.
3.5 Customer shall be responsible for its Affiliates, and its and their, End User compliance with the Agreement.
4. ORDER PROCESS AND PAYMENTS
4.1 Orders and Payments. Customer shall comply with the order process and payment terms set out in ConceptShare’s Customer Commercial Terms.
4.2 Reports and Audit Rights. Customer shall maintain complete and accurate records relating to its exercise of the rights and licenses granted hereunder. ConceptShare shall have the right to examine Customer’s records in order to verify Customer’s compliance with the Agreement. Upon ConceptShare’s written request, not more than once per 12-month period, Customer shall perform its own audit and furnish ConceptShare with a signed certification verifying its compliance with the provisions of the Agreement. Before beginning the certification process, ConceptShare and Customer shall agree on the audit process, including but not limited to (a) what constitutes proof of license, (b) how use will be measured, and (c) the number and locations of Customer facilities to be audited as a representative sampling of Customer’s enterprise.
5.1 Confidential Information. For the purposes of the Agreement, “Confidential Information” means all information (regardless of its form, manifestation or how it is known to the other party) concerning either party or any of its Affiliates and which by its nature is confidential or that is identified at the time of disclosure as confidential, including without limitation all non-public information relating to the software, technology, data, business, customers, financial affairs, operations, accounting information, financial statements and financial data, advertising and marketing plans and materials, publicity and promotional plans and materials, development, expansion and business plans, information concerning the customers of the disclosing party’s customer, information or materials received by the disclosing party from any third party in confidence, or subject to a non-disclosure agreement, employee data and human resources-related information, trading and investment data, intellectual property applications or rights which are not publicly available, business records, trade secrets, technology, research, formulas, practices, organization, work, know-how, methodologies, processes, techniques, systems, the existence and provisions of the Agreement, programs and products concerning the disclosing party, its affiliates, its customers or its employees, software, development tools, computer databases and the whole or any portion of any know how, design, process, procedures or improvements with respect to the business of a party that is valuable and secret in the sense that it is not generally known to competitors of the disclosing party, whether written or oral, either supplied to the receiving party by the disclosing party, or observed by the receiving party or its personnel during the course of performance pursuant to the Agreement. Confidential Information shall not include information which: (i) was rightfully in the possession of the receiving party at the time of disclosure without restriction; (ii) prior to or after the time of disclosure becomes part of the public domain without the act or omission of the party to whom it was disclosed; (iii) is disclosed to the receiving party by a third party under no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information. All Confidential Information shall be treated as confidential by the receiving party and its employees, contractors and agents and shall (a) be used only as necessary in the performance of the Agreement, and (b) not be disclosed to unaffiliated third parties by the receiving party without the disclosing party's prior written consent. However, the receiving party may disclose Confidential Information of the disclosing party in accordance with a judicial or other governmental order, provided the receiving party gives the disclosing party reasonable written notice prior to such disclosure and complies with any applicable protective order or equivalent and cooperates with the disclosing party in any legal challenge to such order, request, process or investigation.
5.2 Treatment of Confidential Information. Neither party shall in any way duplicate all or any part of the other party's Confidential Information, except as necessary to perform its obligations under the Agreement. Each party shall have an appropriate agreement with each of its employees, contractors and agents having access to the other party's Confidential Information sufficient to enable that party to comply with all the terms of the Agreement. Each party agrees to protect the other's Confidential Information with a fiduciary duty and shall adopt or maintain procedures to protect such Confidential Information commensurate with such duty.
5.3 Further Treatment of Confidential Information. Each receiving party agrees not to disclose any such Confidential Information without the prior written consent of the disclosing party, to anyone other than the receiving party’s employees, contractors and agents who have a need to know the Confidential Information to carry out the rights granted hereunder. Each receiving party shall use its reasonable efforts to protect all such Confidential Information from material harm, damage, theft, tampering, sabotage, interference or unauthorized use, during the Term of the Agreement and during such time as such Confidential Information remains in the possession of the receiving party or until such information enters the public domain.
5.4 Action to Protect. Each party shall promptly report to the other any actual or suspected violation of the terms of this section, and shall take all reasonable steps to prevent, control or remedy such violation.
5.5 Equitable Relief. In recognition of the unique and proprietary nature of the Confidential Information disclosed by each party to the other party, the disclosing party shall, in the event of a breach by the receiving party of its obligations under these provisions, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law or in equity.
6. CONCEPTSHARE INTELLECTUAL PROPERTY
6.1 Intellectual Property. Customer acknowledges that ConceptShare and its licensors are the owners of all Intellectual Property Rights to the Materials and Customer shall have no rights in respect of such Intellectual Property Rights other than as expressly granted by ConceptShare under the Agreement. To the extent that Customer may have or hereinafter acquire any right, title or interest in the Materials or any other ConceptShare Intellectual Property Rights, Customer hereby sells, transfers, conveys and irrevocably assigns, in perpetuity, all such right, title and interest to ConceptShare. Customer hereby covenants and agrees to execute such documentation as may be necessary or desirable to facilitate the transfer or waiver of any of its rights, title and interest in such ConceptShare property, including without limitation moral rights, to ConceptShare.
6.2 Usage Restrictions. Except as expressly authorized in the Agreement, Customer may not (i) make any of the Materials available on any public or distributed network, (ii) use any of the Materials to operate in or as a time-sharing, outsourcing, service bureau, application provider or managed service provider environment, (iii) use any of the Materials other than under this license, (iv) change any proprietary notices which appear in any of the Materials or (v) modify any of the Materials.
6.3 No Assertion of Claim. Customer shall not assert, claim or register, or attempt to register, directly or indirectly, any interest in, or to anything which may be inconsistent with or otherwise adversely affect the validity or enforceability of any ConceptShare’ Intellectual Property Rights.
6.4 Infringement and Further Assurances. Customer agrees to report any infringement or improper or unauthorised use of ConceptShare’ Intellectual Property Rights which come to the attention of Customer.
6.5 No Reverse Engineering. Customer shall not, except as required by law, directly or indirectly: (i) sell, lease, redistribute or transfer any of the Materials to any third party; (ii) except as expressly authorized in the Agreement, modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Materials; (iii) rent or lease any rights in the Materials in any form to any third party; (iv) use the Materials for the benefit of any third parties (i.e., in an ASP, outsourcing or service bureau relationship); (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks within the Materials; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Materials.
6.6 Protection Precautions. The manner in which Customer protects the Materials from unauthorized or illegal copying, distribution, access and use shall be as good as the manner in which it protects its own intellectual property of a similar nature and in no event in a manner less than prudent and diligent care.
6.7 Other Restrictions and Obligations of Customer. Customer shall not (a) use the Materials to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third- party privacy rights, (b) store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Materials or third-party data contained therein, or (d) attempt to gain unauthorized access to the Services or their related systems or networks. In the event of ConceptShare Deployment, ConceptShare may unilaterally impose other limitations on the license rights of Customer granted hereunder, such as, for example, limits on storage space, bandwidth consumption, and page views. Such limitations may be set out in the Order. ConceptShare will use commercially reasonable efforts to provide Customer with real-time information to enable Customer to monitor its compliance with such limitations.
6.8 Customer shall be responsible for its Affiliates, Customers and its and their, End User compliance with the Agreement.
7. TITLE, WARRANTIES AND REMEDY
7.1 Title. ConceptShare warrants that it has all necessary right to grant the license and rights granted hereunder and to perform its obligations set out in the Agreement.
7.2 Mutual Warranties. Each Party represents and warrants to the other Party that (i) it is in good standing under the laws of the state of its incorporation and has the corporate authority and power to enter into the Agreement, (ii) that the officer executing the Agreement has been duly authorized to execute and deliver the Agreement to the other Party, and (iii) that the Agreement, when delivered, will be a legal, valid and binding obligation, enforceable against it in accordance with the terms and conditions contained herein except to the extent such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors' rights generally.
7.3 Warranty, Disclaimer and Limited Remedy. ConceptShare warrants that the Software licensed to Customer pursuant to an Order will operate materially in accordance with the Documentation for such Software for a period of ninety (90) days commencing on the license start date specified in the Order. This warranty shall be void in the event of (i) Customer's use of the Software other than in accordance with the Agreement or the applicable Documentation, or (ii) Customer's failure to maintain the recommended operating requirements set out in the applicable Documentation. Customer’s sole and exclusive remedy for breach of the foregoing warranty shall be, at ConceptShare’s option, (i) the repair or replacement of the nonconforming Software or (ii) refund of the amounts paid for the nonconforming Software. Customer must notify ConceptShare within the applicable warranty period, provide reasonable detail of such non-conformity and provide thirty (30) days to ConceptShare to cure such non-conformity in accordance with the Documentation or specifications relating to the Software. Customer will then have thirty (30) days to retest and either accept the Software in writing or give notice in writing of the non-complying functions. If ConceptShare does not correct the noted deficiencies within thirty (30) days of such notice, Customer may then, at its option, terminate the Agreement and receive a full refund of all fees paid under the Order as applicable. ConceptShare makes no warranty whatsoever with respect to any Third Party Technology.
7.4 Additional Warranties. ConceptShare represents and warrants to Customer the following: (i) it will pass-through any warranties it receives from third parties related to any Third Party Technology; (ii) the Software shall not contain any viruses, Trojan horses, malicious bombs, worms, trap doors, or malicious back door devices or other similar code or devices that could damage, unlawfully interfere with, surreptitiously intercept or expropriate any system, data, or information of Customer; and (iii) ConceptShare believes the Software is not subject to open source access and distribution rights by virtue of the manner in which it includes certain code licensed under open source public licenses
7.5 Services Limited Warranty. ConceptShare warrants that all Services provided pursuant to an Order shall be performed in a professional and diligent manner and consistent with best industry practices and will be provided by qualified personnel, suitably skilled and trained in the performance of the Services.
7.6 Limited Remedy re Services Warranty. Within 30 days after completion of Services by ConceptShare, by notice in writing to ConceptShare Customer may (i) refuse the Services if the Services do not conform to the foregoing limited service warranty and (ii) cause ConceptShare to re-perform any non-conforming Services at no additional charge. If Customer does not reject Services within the time period set out above, the Services shall be deemed to have been accepted by Customer. The limited remedy set out in this provision shall be Customer’s exclusive remedy relative to the above set out Services warranty.
7.7 Warranty Limitation. EXCEPT AS EXPRESSLY SET OUT IN THE AGREEMENT, (I) THE MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY CONCEPTSHARE, (II) CONCEPTSHARE DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (III) NO REPRESENTATION OR OTHER AFFIRMATION OF FACT WHICH IS NOT CONTAINED IN THE AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY CONCEPTSHARE. NO AGREEMENTS VARYING OR EXTENDING THE TERMS OF THIS SECTION WILL BE BINDING CONCEPTSHARE UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF CONCEPTSHARE.
8. INFRINGEMENT, INDEMNITY AND LIABILITY LIMITS
8.1 Defence and Settlement of Infringement Claim. If notified in writing, within 10 calendar days, of a reasonable claim that Customer’s exercise of its rights granted hereunder infringes any Intellectual Property Rights of a third party, ConceptShare will defend that action at its expense and, subject to the various limitations set out in the Agreement, ConceptShare will pay the costs and damages finally awarded against Customer in the action, provided that: Customer provides ConceptShare with prompt written notice of such claim; ConceptShare shall have sole control of the defence of any such action and all negotiations for its settlement or compromise; and Customer, and where applicable, those for whom Customer is in law responsible, reasonably cooperate fully with ConceptShare in its defence of the action. Customer has the right to participate, at its expense, in any defense or settlement of such claim. The indemnification set out in this provision does not extend to any claim arising out of Customer’s breach of the Agreement, to the extent such claim would not have arisen had such breach not occurred. Notwithstanding the foregoing, ConceptShare shall have no liability (i) if any of the Materials are used for purposes for which it was not designed or authorized in advance in writing; (ii) in respect of the resale or other distribution of the Materials or display or use of any other ConceptShare Intellectual Property after ConceptShare’s notice to Customer that such activity should be ceased or (iv) to the extent Customer’s failure to deploy an Update in accordance with the Agreement gives rise to or extends such liability. The indemnification set out in this provision does not extend to a claim relative to Third Party Technology. If Customer's use of the Materials or any portion thereof shall be prevented or threatened as a result of a third party claim covered by the indemnity set out in this provision, ConceptShare may, at its option and expense, and in addition to its obligation of indemnity set out in this provision, procure the right to continued use as provided hereunder, modify any portion so that it is no longer infringing, replace any portion with components of substantially equivalent functional capability, or terminate the Agreement as to the infringing Material and refund to Customer the fees paid, pro-rata calculated on a one-year straight-line depreciation basis.
8.2 Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION 8 SET OUT THE ENTIRE LIABILITY AND OBLIGATIONS OF CONCEPTSHARE, AND CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
8.3 Limitation. SUBJECT TO CONCEPTSHARE’S INDEMNITY SET OUT IN THIS SECTION AND EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR LIABILITY ARISING OUT OF CUSTOMER’S INFRINGEMENT OF CONCEPTSHARE’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
8.4 Aggregate Liability. EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S INFRINGEMENT OF CONCEPTSHARE’S INTELLECTUAL PROPERTY RIGHTS, A PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE SHALL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, IN NO CIRCUMSTANCES EXCEED 100% OF THE AGGREGATE FEES PAID BY CUSTOMER TO CONCEPTSHARE OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE NOTIFICATION OF SUCH CLAIM.
9. TERM AND TERMINATION
9.1 Term. The term of the Agreement between ConceptShare and Customer shall commence on the License Start Date set out in the Order and, unless earlier terminated in accordance with its terms, shall remain in force and effect for a term expiring on the License End Date provided that in the event of multiple Orders, the Agreement shall expire on the latest date set out in such Orders. The Agreement may be renewed by the execution of an Order setting out a later License End Date prior to the expiry of the Agreement (the period commencing on the License Start Date and ending on the expiry date is referred to as the “Term”). If the Agreement is not renewed as set out in this section, it will expire on the expiry of the then current term and thereafter Customer shall have no further rights to extend or otherwise revive the Agreement or the licenses granted thereunder.
The Agreement may be terminated by either Party in the event of a material breach by the other party hereto which continues after thirty (30) days' written notice of said breach (which notice shall, in reasonable detail, specify the nature of the breach) by the non-defaulting Party to the defaulting Party.
9.3 Effect of Termination. Upon termination of the Agreement:
(i) The rights and licenses granted to Customer pursuant to the Agreement shall terminate and Customer shall immediately cease using the Materials and remove the Materials from any Customer servers or other hardware on which the Materials have been installed;
(ii) Each party shall promptly deliver to the other party all Confidential Information of such other party;
(iii) Any monies owed by Customer to ConceptShare shall be paid in full within thirty (30) days of the termination date; and
(iv) Each party shall promptly comply with all other obligations applicable to such party as may be set out in an Order(s).
9.4 Software Disentanglement. Following termination of the Agreement other than termination for Customer’s breach, Customer may use the Software for a period up to three (3) months exclusively for Customer’s internal business purposes relative to its transition away from the Software. During this three (3) month period ConceptShare may provide Customer with transition services for fees to be set out in an Order.
9.5 Destroy or Deliver Up. At termination, except as otherwise required in connection with rights and obligations that survive the termination of the Agreement, each party shall have the option to require the other party to destroy and certify that it has destroyed or to deliver to the other party any property of such party then in its possession or under its control.
9.6 Survival. The provisions of Sections 1, 4.1, 5, 6.1, 6.2, 6.4, 6.8, 7 (for two years only), 8 (for two years only), 9 and 10 shall survive in accordance with their terms the termination or expiry of the Agreement.
10.1 Language. All communication by the Customer to ConceptShare and by ConceptShare to Customer will be in English unless otherwise agreed in writing.
10.2 Independent Contractors. The parties to the Agreement are independent contractors. No relationship of master to servant, employer to employee or franchisor to franchisee is established between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
10.3 Compliance with Laws. Each of the parties shall comply with all applicable laws, rules, regulations and industry standards with respect to its performance hereunder.
10.4 Export Compliance. Customer acknowledges and agrees the Materials, and any related documentation, may be subject to export laws and regulations, and any use or transfer of the Materials must be in compliance with all such applicable laws and regulations (collectively, the “Export Restrictions”). If requested by ConceptShare, Customer agrees to sign written assurances and other export-related documents as may be required to comply with all applicable Export Restrictions.
10.5 Publicity. Without the prior express written consent of the other party, which consent shall not be unreasonably withheld, a party shall not originate any publicity, news release, technical article, advertising or other announcement, written or oral, whether to the public press or otherwise (each, an “Announcement”), relating to performance under this Agreement or the existence of this Agreement, except where required by law. If required by law to make any Announcement, a party shall always (a) consult with the other party in connection with such Announcement a reasonable time prior to its release to allow such other party to comment thereon and to prevent its release if so permitted by law; and (b) promptly provide the other party with a copy of the released Announcement and all materials relating thereto.
10.6 Escrow. ConceptShare maintains a source code escrow account with Iron Mountain or some other escrow agent and, provided Customer has processed an Order, or multiple Orders in any 12 month period, in an amount in excess of $500,000, Customer may request in writing to ConceptShare to be named as a beneficiary of such account. The cost of establishing and maintaining Customer as a beneficiary of such escrow account shall be paid by Customer. In the event the source code of the Materials is released in accordance with the escrow agreement and Customer is a beneficiary of such account, Customer will have a world-wide non-exclusive, limited license to access and use the source code of the Materials solely for the purpose of fulfilling its contractual obligations, if any, to Customers pursuant to contracts entered into prior to the date of the event triggering the escrow release.
10.7 Insurance. ConceptShare maintains insurance policies with coverage materially consistent with the coverage amounts set out in the ConceptShare Insurance Coverage Summary annexed to the agreement. In the event one or more Orders are executed by the parties under which Customer will pay ConceptShare USD $500,000 or more in any 12 month period, at Customer’s written request ConceptShare will include Customer as an “Additional Named Insured” under its insurance policies.
10.8 Force Majeure. Unless continuing for a period of thirty (30) consecutive days, or unless involving the payment of amounts due under the Agreement, no default, delay or failure to perform on the part of either party shall be considered a breach of the Agreement if such default, delay or failure to perform is shown to be due entirely to an event of force majeure, or to causes beyond the reasonable control of the defaulting party including, but not limited to, strikes, riots, civil disturbances, actions or inactions concerning governmental authorities, epidemics, war, embargos, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier, always provided that the party so relieved of its obligations shall take reasonable steps to prevent, correct or amend such act or event which renders such obligations impossible.
10.9 Waiver. No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent excusing the breach shall be in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of the Agreement shall not be construed as a waiver of the further breach of the same provision. Failure by either party to insist on strict performance or to exercise a right when entitled does not prevent such party from doing so at a later time, either in relation to that default or a later one.
10.10 Assignment. No party may assign or otherwise transfer its rights hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. An amalgamation or merger of a party with, or an acquisition by, any person who is not a party to the Agreement shall be deemed to result in an assignment of the Agreement. Notwithstanding the foregoing, ConceptShare's acquisition by a third party, howsoever structured, shall be deemed not to be an assignment of the Agreement and Customer consent to such transaction shall not be required.
10.11 Inurement. The Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
10.12 Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be sufficiently given if hand delivered, couriered, or sent by certified or registered mail, return receipt requested, addressed to the other party at its respective address set out below or to such other address as the parties may advise each other from time to time in writing. Notices will be effective upon actual receipt. Unless otherwise advised in writing by ConceptShare, notices to ConceptShare shall be sent to Concept Share, Inc., 1250-130 Slater St. Ottawa, Ontario K1P 6E2, Canada, Attn: CEO. Unless otherwise advised in writing by Customer, notices to Customer shall be sent to the Customer address set out on the most recent Order.
10.13 Governing Law and Arbitration. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. Any dispute, difference or question arising between the parties concerning the construction, meaning, effect, implementation or breach of the Agreement or any part hereof shall be settled by a single arbitrator mutually agreed on by the parties or, failing agreement, an arbitrator appointed pursuant to the Arbitration Act (Ontario). The arbitration shall take place in Ottawa, Ontario. The decision of such arbitrator appointed pursuant to the Agreement or such Act shall be final and binding on the parties and no appeal shall lie therefrom. Notwithstanding the foregoing, either party may seek injunctive relief in any court of competent jurisdiction.
10.14 Further Assurances. The parties agree to do all such things and to execute such further documents as may reasonably be required to give full effect to the Agreement.
10.15 Counterparts. The Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10.16 Severability. If any provision of the Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision or part thereof which is necessary to render the provision valid, legal and enforceable, shall be severed from the Agreement and the other provisions and the remaining part of that provision shall remain in full force and effect; provided that the essential bargained-for performance of the parties shall not thereby have been impaired.
10.17 Entire Agreement. The Agreement, including all Orders, constitutes the entire agreement between the parties concerning the subject matter hereof and supercedes all prior statements, representations, discussions, negotiations and agreements, both oral and written, including all pre-printed terms and conditions appearing on purchase orders, invoices or any other forms. With the exception of fraud, the only remedies available to the parties will be for breach of contract. For the avoidance of uncertainty, in the event of any conflict between the provisions of an Order From and those set out in this document, the provisions of the Order shall supersede this document and govern the matter.
10.18 Amendment. Except as specifically provided for herein, all other modifications and / or amendments require a written agreement signed by authorised signing officers of both parties.
Customer Commercial Terms and Conditions
ORDER PROCESS AND TERMS
Ordering. Customer shall submit purchase orders for Materials and Services using the prescribed order form, as may be updated by ConceptShare from time to time. Each validly submitted order shall constitute a Customer’ offer to purchase the certain Materials and Services set out in such order form. To constitute an “Order” for the purposes of the Agreement, a order must be in the prescribed form and be accepted by signature by both Customer and ConceptShare. An order validly submitted by Customer to ConceptShare hereunder may be accepted or rejected by ConceptShare in writing. ConceptShare shall use its reasonable commercial efforts to issue its written acceptance or rejection, as the case may be, within three (3) Business Days after its receipt thereof from Customer. Customer may authorize an Affiliate to submit an order and for purposes of that Order, such Affiliate will be deemed “Customer.” Notwithstanding the ConceptShare’s acceptance of an order submitted by an Affiliate, Customer hereby guarantees such Affiliate’s compliance with the Agreement, including but not limited to payment obligations and license terms and conditions.
Payments. Unless different payment terms are set out in the Order, Customer shall pay all undisputed invoice amounts set out in each Order within thirty (30) calendar days after Customer’s receipt of ConceptShare’s invoice. Customer may dispute the fees contained in an invoice by timely paying the undisputed portion (if any) of the disputed invoice and including with such payment a written explanation of the dispute together with any supporting documentation. The parties shall work together in good faith to resolve the dispute. Any outstanding Fees will accrue late interest at the rate of 2% per month or the maximum rate permitted by law in Canada, whichever is higher, from the date such payment was due until the date paid.
Currency. Unless a different currency is set out in the Order, all payments to be made pursuant to the Agreement shall be made in U.S. Dollars.
Taxes. Unless otherwise stated in an Order, ConceptShare fees do not include any taxes, levies, duties or other governmental assessments of any nature, including but not limited to value-added, sales use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is liable for paying all Taxes associated with its purchases under the Agreement. If ConceptShare has the legal obligation to pay or collect Taxes, the appropriate amount shall be added to and be paid by Customer unless Customer provides ConceptShare with an exemption certificate of the applicable taxing authority.
Software Support Terms and Conditions
The following terms and conditions shall apply to ConceptShare’s support of the Software.
Any capitalized terms used but not defined in these Support Terms and Conditions will have the meanings ascribed thereto in the Agreement to which these Support Terms and Conditions are annexed.
Customer Support is Provided by Advantage Software (firstname.lastname@example.org) and any questions, reports of issues should be referred to Advantage. Notwithstanding any provision in these Support Terms or elsewhere in the Agreement implying otherwise, ConceptShare will only provide support to problems escalated by Advantage Software.
Service Level Guarantee and
Customer Information Management
TERMS AND CONDITIONS
Any capitalized terms used but not herein defined shall have the meanings ascribed thereto in the Agreement to which these terms and conditions are incorporated.
"Available" means a Customer is able to transmit and receive data to and from the Software and Hosting Environment".
I. SERVICE LEVEL
Service Level Guarantee
ConceptShare guaranties that the Software will be Available 99.7% of the time in any 12 month period of the Agreement, excluding Maintenance periods.
II. CUSTOMER INFORMATION MANAGEMENT
Customer Information. For the purposes hereof, “Customer Information” means any Customer data whatsoever, including configuration data and Customer Personal Data (defined below), stored or otherwise residing within ConceptShare’s Hosting Environment.
Security Requirements. ConceptShare shall implement and maintain information systems that are commercially reasonably suitable to protect the security of Customer Information and such systems shall be consistent with industry best practices for the storage and processing of like data. ConceptShare shall monitor its Hosting Environment for unauthorized access, use, alteration, destruction, or other processing of, or other compromise or breach of security (electronic or physical) involving or related to any Customer Information (collectively, “Security Incidents”). ConceptShare will inform Customer of any unauthorized access, use, violation, compromise or breach of security (electronic or physical), involving or related to information of other customers or other third parties (without being obligated to identify third parties by name) involving the computing environment, information or communication systems, facilities or transportation means involved in Customer Information. ConceptShare’s Security Incident response process, including disaster recovery plan, shall manage and take immediate commercially reasonable corrective action for a Security Incident.
Security Vulnerability Classification
“Security Vulnerability” means a weakness in the Hosting Environment that could allow a Security Incident to occur.
ConceptShare shall classify a Security Vulnerability as critical risk, high risk, medium risk, or low risk, as follows:
Critical Risk Vulnerability. A vulnerability that has a high probability of being widely exploited in a manner disruptive to normal business operations based on these factors: the vulnerability can be exploited through the network without human intervention; the vulnerability is easily exploited and takes limited technical knowledge; an exploit of a vulnerability is subject to worms; software code scripts are widely known and easily available to exploit this vulnerability; the vulnerability is popular and well known in the technical and Internet community; the vulnerability could allow broad exposure/compromise of confidential information or a massive denial of service (DOS) or disruption of service. A critical risk vulnerability is also one categorized as a risk of negative financial impact or public relations impact.
High Risk Vulnerability. A vulnerability that has a high probability of being exercised based on these factors: the vulnerability is easily exploited and takes limited technical knowledge; software code scripts are widely known and easily available to exploit this vulnerability; the vulnerability is popular and well known in the technical and Internet community; the vulnerability could allow broad exposure/compromise of confidential information or a massive denial of service or disruption of service.
A high-risk vulnerability is also categorized as a widespread instance of a new computer virus or worm that cannot be managed by deployed anti-virus software. In addition, it has limited risk of negative financial or public relations impact.
Medium Risk Vulnerability. A vulnerability that has a lower probability of being exercised based on these factors: the vulnerability is more complex to exploit and takes a higher degree of technical knowledge; the vulnerability does not have broad popularity in the technical and Internet community; the vulnerability could allow a more limited exposure/compromise of confidential information or a contained and limited denial of service or disruption of service.
A medium-risk vulnerability is also categorized as isolated instances of a new computer virus or worm that cannot be managed with deployed anti-virus software. Furthermore, it is also the widespread instance of a known virus that is easily managed by the current anti-virus software.
Low Risk Vulnerability. A vulnerability that has a low probability of being exercised based on these factors: the vulnerability is very complex to exploit and takes a high degree of technical knowledge; the vulnerability does not have broad popularity in the technical and Internet community; the vulnerability could allow a very limited exposure/compromise of confidential information or a very limited denial of service or disruption of service.
A low risk vulnerability is also categorized as intelligence received concerning vulnerabilities in Customer information infrastructure, as well as isolated small outbreaks of virus that are controlled by deployed anti-virus software.
Notifying Customer of these risks allows Customer to take proactive measures if need-be to protect itself.
Security Vulnerability Correction Completion Times
Security Vulnerabilities shall be corrected within the following timeframes.
Vulnerability Correction Completion Times
Critical Risk within twenty-four (24) hours of critical vendor patch release announcement, notification from ConceptShare, or discovered security breach, whichever is earlier;
High Risk within forty-eight (48) hours of vendor patch release, or discovered security breach, whichever is earlier;
Medium Risk within seven (7) calendar days of occurrence;
Low Risk within fourteen (14) calendar days of occurrence.
Vulnerability and Penetration Testing. At least once a year, ConceptShare shall conduct or arrange for vulnerability assessment and penetration testing of its security processes and procedures in order to identify potential Security Vulnerabilities (“Testing”). ConceptShare shall conduct or arrange for this Testing on all computers and systems used directly or indirectly in support of its Hosting Environment. Customer shall not attempt to probe, scan, penetrate or test the vulnerability of a ConceptShare system or network, or to breach ConceptShare security or authentication measures, whether by passive or intrusive techniques, without ConceptShare’s express prior written consent.
Incident Logs. ConceptShare shall exercise reasonable commercial efforts to maintain logs of all Security Incidents and will make the logs available for Customer review (including review via electronic access); annually or such other time period as may be agreed in writing.
Malicious Code Protection and Response. “Malicious Code” means any software that are not intended to provide the functionality described in the Software specifications and that interfere with Customer’s right to quiet enjoyment of its license to the Software or its information systems or that interfere with or prevent license use of the Software or its information systems as contemplated in the Agreement. ConceptShare shall maintain a process for installation and maintenance of Malicious Code protection software for all computer systems used directly or indirectly in support of its Hosting Environment. Such process shall include, at a minimum: active virus detection software installed with real-time protection enabled and automated processes to apply latest virus definitions to all computer systems. ConceptShare shall maintain a process for responding to virus outbreaks.
Back-up. ConceptShare’s backup policies are designed to facilitate restoration of Customer Information to the server or device from which the data originated in the event the primary data is lost or corrupted. ConceptShare will perform a back-up at least every 24 hours. In the event of a Hosting Environment failure, ConceptShare may not be able to restore backed up Customer Information exactly as it was configured on the failed device. In addition, ConceptShare will not be able to restore Customer Information entered subsequent to ConceptShare’s most recent back-up of the data.
ConceptShare shall only retain back-up data until it performs a subsequent data back-up.
- shall have valid and current information on file with its domain name registrar for any domain hosted by ConceptShare;
- shall only use IP addresses assigned ConceptShare in connection with the ConceptShare Deployment of the Software;
- agrees that if ConceptShare IP numbers assigned in connection with the ConceptShare Deployment are listed on an abuse database like Spamhaus, and that same shall be a violation of the Agreement and, accordingly, ConceptShare may take reasonable action to protect its IP addresses, including suspension and/or termination of the Agreement;
- agrees that if it registers a DNS record or zone on ConceptShare managed or operated DNS servers or services for a domain of which Customer not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, ConceptShare may modify, transfer, or delete such records or zones;
- may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with any Services. Upon termination or expiry of the Agreement, Customer must within 5 calendar days of the termination or expiry date, as applicable, release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with ConceptShare Deployment (but not any URL or top level domain or domain name) and Customer agrees that ConceptShare may take steps to change or remove any such IP addresses.
“Personal Data” means any Customer Information relating to a natural identifiable person, whether the person identified is an employee, employee family member, applicant, consumer, customer, company, partner, potential partner, or other individual and expressly includes Customer current and former customers and Customer current or former personnel. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
Privacy Laws. Any Personal Data processed by ConceptShare in the course of performing its obligations under the Agreement or as part of any deliverable or other information provided to Customer will be processed and protected in accordance with all applicable privacy laws. ConceptShare expressly warrants that its processing of Personal Data will comply with all applicable privacy laws. ConceptShare will at all times perform its obligations under the Agreement in such a manner as to not, by its actions, or inaction contrary to the Agreement, cause Customer to be in violation of applicable privacy laws and/or any other applicable laws.
Ownership and Information Integrity. All Personal Data processed by the ConceptShare is and will remain the exclusive property of Customer. ConceptShare will process Personal Data only to the extent strictly necessary to perform its obligations under the Agreement, or as otherwise required by law. ConceptShare may not otherwise use or modify the Personal Data, merge it with other data or information, commercially exploit it, disclose it or take any other actions that may in any manner adversely affect the integrity, security or confidentiality of such Personal Data, other than for purposes of performance under the Agreement or as otherwise directed by Customer in writing. No systems or Personal Data may be reproduced in any form by any means, whether electronic, mechanical or otherwise, including information storage and retrieval systems, without prior written permission from Customer and then only for use for the purpose for which ConceptShare is given access under the Agreement.
Delineation and Identification of Personal Data. ConceptShare shall take all commercially reasonable steps and implementing all appropriate processes to delineate and identify Personal Data for special handling within ConceptShare’s organization.
Secure Servers and Maintenance. Ensuring that all physical, network, host, web and data sites in which Personal Data is stored are (i) maintained in a secure manner that satisfies all the requirements of the Agreement; and (ii) identified to Customer upon request.
Restricted Access. Ensuring that Personal Data will be accessible only by authorized ConceptShare employees, officers, directors, agents, contract workers and others who have a legitimate business need to access such information, with suitable user authentication, sign-on and access controls that satisfy the requirements of the Agreement.
Encryption of Personal Data – Transmission. When Processing Personal Data, connections to Customer computing environments and any other transmission via data transmission services or using the Internet will be protected using any of the following cryptographic technologies: IPSec, SSL, SSH/SCP, PGP, or other technologies that provide substantially similar or greater levels of security. Encryption algorithms will be of sufficient strength to protect data to commercially reasonable security levels and will utilize industry recognized hashing functions. Transmission may not use any cryptography algorithms developed internally by or for ConceptShare.
Encryption of Personal Data – Storage. Storage, back-up or other retention of Personal Data at rest will be protected using one or more of the encryption technologies approved in the Agreement for data transmission.
Data Segregation – Virtual. Maintaining capability to segregate and isolate Personal Data and disable functionality of applications using it, so it can be returned upon request by Customer or in the event of a Security Incident.
Data Segregation – Physical. Physically and electronically segregating Customer Personal Data by logically isolating it from third party and internal ConceptShare information, and deploying suitable application controls, firewalls, air-gaps or private circuits so that Personal Data will not be commingled or corrupted by data from other sources.
Back-up, Emergency/Disaster Recovery Systems. ConceptShare shall apply the requirements hereof to Personal Data stored on back-up media, servers or repositories, transported, or transmitted, stored or recovered as part emergency or disaster recovery systems maintained by or for Customer.
Data Transfer to and From Third Parties Outside of Originating Country. ConceptShare shall ensure that no Personal Data (or any other data if restricted by law) is transmitted or permitted to be accessed from outside the country of its origin without determining requirements of and complying with the Privacy Laws in the originating and destination countries.
Periodic Adjustment. ConceptShare shall regularly monitor, evaluate, and adjust, as appropriate, its policies and process in light of any relevant changes in applicable law and regulations, technology, internal or external threats.
System Changes. ConceptShare shall make no system change that may adversely affect the security of the system or the security of Customer Information.
ConceptShare will contractually require all third parties, including subcontractors, with access to Customer Information to adhere to the security requirements and to all other terms and conditions of the Agreement, including without limitation, the confidentiality obligations. Only third parties with a business need-to-know are to be provided with access to Customer Information.
ConceptShare Insurance Coverage Summary
- Commercial General Liability. ConceptShare shall maintain coverage on a Commercial General Liability Occurrence Coverage Form (or equivalent) including coverage for completed operations and contractual liability with limits of not less than CDN $5,000,000 each occurrence. The above coverage shall include worldwide coverage including coverage for USA jurisdiction claims and occurrences.
- Professional Liability. ConceptShare shall maintain coverage on a Professional Liability Form (or equivalent) in the amount of not less than CDN $5,000,000 per claim.
a. Where agreed to in an Order, ConceptShare shall provide proof of insurance and forms, including the coverage herein and any endorsements, but ConceptShare’s failure to exercise such discretion regarding provision of proof shall not waive its obligation to maintain insurance coverage as specified herein.
b. All insurance companies for each of the coverages set forth above must be rated A or better.
c. Where agreed to in an Order, ConceptShare shall provide for thirty days (30) days’ prior written notice of its cancellation or nonrenewal of coverage.