Terms & Conditions
Last Updated on December 19, 2019
1. Parties. “Concise” will mean Concise Computer Consulting II, Inc., a Michigan Corporation. “Client” will mean the entity or person purchasing Products from Concise.
(a) These Terms and Conditions define the relationship of Concise and Client and apply to all purchases of services (“Services”) and any equipment or other materials (“Goods”). Goods and Services shall be collectively referred to herein as “Products”, regardless of whether such Products are provided to Client by Concise directly or through any third party vendor, wholesaler, reseller, independent contractor or distributor of Concise, as the case may be, and may include, but are not limited to, software, licenses, subscriptions, back-up, disaster, and recovery services, cloud services, hardware, trouble support, and ticketing services, call center and maintenance services, combined software and services, and telephone and internet services.
(b) Client acknowledges that these Terms and Conditions are incorporated in, and are a part of, each quotation, statement of work (“Statement of Work” or “SOW”), service order, invoice, specification and all other related documents (for example, agreements for back-up disaster and recovery or cloud IT services), whether expressed verbally, in written form or electronic commerce, relating to the Products purchased by Client (such documents are collectively referred to as the “Agreement”). All agreements between Concise and Client will be solely under the terms and conditions of the Agreement, and Concise objects to any and all additional or different terms contained in any document submitted by Client to Concise. Any execution by Concise of any other document submitted by Client in connection with the purchase of Products does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement, but will constitute only acknowledgment of receipt of such document. In addition, notwithstanding any terms contained in any documents submitted by Client in connection with the purchase of Products described under the Agreement, the acceptance of delivery by Client of Products described in the Agreement will constitute a course of conduct constituting Client’s agreement to the terms and conditions of the Agreement, to the exclusion of any additional or different terms and conditions.
3. Backup, Disaster & Recovery Services; Cybersecurity Enhancements.
(a) During the Term, Concise may offer, and Client may elect to either accept or decline, the provision of backup, disaster and recovery Services (collectively, “BDR Services”), and/or certain cybersecurity enhancements (collectively, the “Cybersecurity Services”).
(b) To the extent such BDR Services are declined by Client, Client acknowledges that Concise has no obligation to (i) backup Client data, or (ii) recover Client data under any circumstances.
(c) Except to the extent that the BDR Services and/or the Cybersecurity Services are accepted by Client, Client hereby releases Concise, all affiliates of Concise and each of their respective employees, officers, directors, members, shareholders, agents, independent contractors, channel partners, vendors, successors and assigns (collectively, the “Concise Parties”), and covenants not to sue and to hold harmless, defend and indemnify the Concise Parties from and against all taxes, penalties, fines, damages, sanctions, losses, assessments, liabilities, claims, costs, obligations and other expenses (including reasonable attorneys’ fees) (collectively, “Losses”), whether or not resulting from third party claims, arising out of or relating to: (i) the failure by Client, whether by mistake, negligence or otherwise, to maintain an adequate backup, disaster and recovery system for any of Client’s data, including, without limitation, personally identifiable information, medical data and personal health information, data relative to Client’s employees, Client’s customers, and all other data for which Client has any obligation under contract or under any applicable federal, state, local law or regulation, in each case, with respect to the maintenance, security, confidentiality and privacy of any such data (collectively “Client Data”); and (ii) any cyberattack against Concise’s standard network protection systems targeting or otherwise affecting any Client Data or Client systems.
4. Term and Termination.
(a) Except as otherwise set forth in a Statement of Work, the Agreement will commence upon the effective date set forth in the applicable SOW and shall continue for thirty-six (36) months or until each SOW initiated within the Term is fulfilled or expires. Thereafter, the Agreement shall automatically renew for successive three (3) year periods unless Client notifies Concise in writing of its desire not to renew the Agreement at least ninety (90) days prior to the expiration of the then-current term. The initial term and any and all renewal terms are referred to herein as the “Term”. Notwithstanding the foregoing, the Agreement shall immediately terminate: (i) upon the occurrence of any material breach of the Agreement by either party (other than for failure by Client to pay any undisputed amounts, which is addressed in Section 6(c) below) which breach is not cured within thirty (30) days after receipt of written notice thereof; or (ii) if either party is declared bankrupt or insolvent, or makes an assignment for the benefit of its creditors, or if a receiver is appointed or any proceedings are commenced, voluntarily or involuntarily, by or against either party under any bankruptcy or similar law. Upon any termination of the Agreement, in whole or in part (including any Statement of Work), Client shall immediately uninstall or cease using any software provided or made available by Concise, return any of Concise’s hardware and otherwise cease to use and return any Product to Concise, together with all related documentation, hardware, intellectual property, and software, and any hard, cyber or digital copies thereof (collectively, the “Ancillaries”) in a manner reasonably acceptable to Concise and at Client’s sole expense.
(b) If, prior to the expiration of the Term, (i) Client terminates the Agreement or any Statement of Work and such termination is not due to Concise’s uncured breach; or (ii) Concise terminates the Agreement or any Statements of Work due to Client’s uncured breach (each, an “Early Termination”) and Client has not already paid in advance the full amount of all fees due under the Statement(s) of Work being terminated, Client shall pay Concise an early termination charge equal to all fees, including all applicable taxes, set forth in each SOW being terminated which would otherwise be due through the end of the entire Term under such Statement(s) of Work (the “Early Termination Fee”). The parties agree that the precise damages resulting from an Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual damages and
not a penalty. Client agrees and acknowledges that the Early Termination Fee shall apply even if Client terminates the Agreement or any SOW prior to commencement of Client’s access to or use of the Products. The Early Termination Fee shall be due and payable within ten (10) days of the effective date of termination and any prepaid fees will be applied towards the amount of the Early Termination Fee to be paid by Client.
(c) Upon expiration or termination of the Agreement, and for a period not to exceed three (3) months or as otherwise agreed by Concise in writing (the “Post-Termination Transition Period”), Client may, for purposes of continued use and access to Client Data, and for any Services incident thereto (collectively, the “Transition Services”), pay to Concise on the first day of each month following expiration or termination of the Agreement, a monthly transition fee (the “Post-Termination Transition Fee”) at Concise’s then-current billing rates. Further, Client shall remit to Concise any third-party vendor costs relating to the Transition Services required during the Post-Termination Transition Period. If Client Data is or includes protected health information, the storage, use, duplication, return or destruction of such data shall be governed by any applicable BAA (Business Associate Agreement) entered into and executed by the parties.
(d) Client acknowledges that none of the Concise Parties shall have any liability to Client for breach, harm, ransom, storage, hacking, modification, duplication, destruction or loss of any data (including, but not limited to, Client Data) following the termination or expiration of the Agreement (including during the Post-Termination Transition Period), regardless of where or how the data is maintained, including off-site maintenance by third-party storage vendors, and regardless of whether Concise or Client was or was not in direct privity of contract with any such third-party vendor. Client hereby releases the Concise Parties, and covenants not to sue and to hold harmless, defend and indemnify the Concise Parties from any and all Losses arising from or relating to any breach of Client’s Data following expiration or termination of the Agreement, including during the Post-Termination Transition Period.
5. Changes in Services. During the Term, Client may request changes or additions to the Services. In the event such changes or additions are accepted by Concise, in its sole discretion, Concise may revise the price and performance dates relative to the Services. Notwithstanding the foregoing, in no event shall Client reduce its Services to a level that results in Client’s monthly payment to Concise to be less than fifty percent (50%) of the Service fees set forth in the applicable SOW.
6. Payment and Delivery.
(a) To the extent Client obtains hourly Services from Concise, the total price due to Concise shall be payable C.O.D. Otherwise, and unless specifically agreed to in writing by Concise, all invoiced fees are due and payable to Concise in United States dollars, without setoff or other deductions or charges, net fifteen (15) days of Concise’s invoice. Any amounts due by Client to Concise which are unpaid on or after thirty (30) days of Concise’s invoice will bear interest at a rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. The accrual or payment of any interest as provided above will not constitute a waiver by Concise of any rights or remedies in connection with a payment default by Client. Client shall pay all court costs, attorneys’ fees, and other costs incurred by Concise in collecting past due amounts, including interest.
(b) In the event Client in good faith disputes any of Concise’s charges, Client shall (i) promptly pay all undisputed and disputed charges, and (ii) notify Concise in writing of any such disputed amounts within fifteen (15) days of the date payment was due, identifying in reasonable detail its reasons for the dispute and the nature and amount of the dispute. All amounts not timely and appropriately disputed shall be deemed final and not subject to further dispute. Concise will review the amounts in dispute within (10) business days after receipt of such notice. If Concise determines that Client was charged or billed in error, a credit for the amount charged or billed incorrectly will be made to Client’s next payment.
(c) If payment in full under any invoice is not received within three (3) days of its due date (other than for payments validly disputed by Client in good faith), Concise shall have the right to suspend its provision of the Products until such time as Client has paid such charges in full, including any late fees and interest. Following payment of all outstanding charges (including late fees and interest), Concise shall promptly reinstate any suspended Products. Failure by Client to pay for such suspended Products within seven (7) days after any suspension shall be deemed to constitute a material breach of the Agreement and Concise may immediately terminate the Agreement, in whole or in part (including any Statement of Work). All remaining payments due to Concise under any terminated Statement of Work shall be immediately due and payable in accordance with Section 4(b) above. No cancellation or termination under this Section shall relieve Client of its obligations to pay for Products under any SOW not so cancelled or terminated.
7. Proprietary Rights.
(a) The Products contain software and other copyrighted and proprietary products and materials of Concise, certain components of which are or may be licensed from one or more of Concise’s licensors (collectively, the “Concise Property”). Subject to the limited rights expressly granted hereunder, Concise and its licensors reserve all of its and their respective right, title and interest in and to the Products and Concise Property, including all patents or applications therefor, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights therein (collectively, “Intellectual Property Rights”). Concise may modify or improve the Products and/or Concise Property at any time and Concise’s rights (including all Intellectual Property Rights) will include all enhancements, modifications, adaptations and/or derivative works therein and thereto (whether made by Concise, a third-party or jointly).
(b) Client shall not: (i) modify, copy or create any derivative works based on the Products; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau or otherwise make the Products available to any third party; (iii) reverse engineer or decompile any portion of the Products, including any software utilized by Concise in the provision of any Services; (iv) access the Products if it is a direct competitor of Concise or in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance or functionality of the Products, or for any other benchmarking or competitive purposes; (v) copy any features, functions, integrations, interfaces or graphics of the Products; (vi) use the Products in violation of laws or outside the scope of the rights granted in the Agreement; (vii) in connection with the Products, send or store any material that (x) infringes on any Intellectual Property Rights of Concise, Concise’s licensors or any
third-party, or is (y) obscene, threatening or otherwise unlawful or tortious or violates applicable law or another party’s rights, including any privacy, publicity, import and export control, data protection, electronic communications, or anti-spamming laws or rights; (viii) send or store any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs in connection with the Products; (ix) interfere with or disrupt performance of the Products or the data contained therein; or (x) attempt to gain access to the Products or their related systems or networks.
8. Confidential Information.
(a) “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Confidential Information includes Client Data; Concise Confidential Information includes the Products (including all Ancillaries); and Confidential Information of each party includes the terms and conditions of the Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
(b) The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other Party’s Confidential Information. Each party may confidentially disclose the terms of the Agreement (including any Statement of Work) to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Concise may disclose the terms of the Agreement and any applicable Statement of Work to a subcontractor to the extent necessary to perform Concise’s obligations to Client under the Agreement, under terms of confidentiality materially as protective as set forth herein. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. Notwithstanding anything to the contrary contained herein, Receiving Party (i) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with laws and industry standards or for the purposes of defending or maintaining litigation; and (ii) will not be obligated to erase Confidential Information that is contained in its archived data storage.
9. DISCLAIMER OF WARRANTIES; ASSUMPTION OF RISK. CLIENT ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CLIENT’S USE OF THE PRODUCTS PROVIDED BY CONCISE. CLIENT ACKNOWLEDGES THAT THE INTERNET IS ACCESSIBLE BY PERSONS WHO MAY ATTEMPT TO BREACH THE SECURITY OF CONCISE AND/OR CLIENT’S NETWORK FACILITIES. CONCISE HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE CONTENT OR MATERIALS TRANSMITTED OVER THE INTERNET, SERVICE INTERRUPTIONS ATTRIBUTABLE TO CLIENT’S NETWORK AND/OR CLIENT’S EQUIPMENT FAILURES, OR ANY OTHER SUCH CAUSES.
CONCISE WILL NOT BE LIABLE TO CLIENT AND CLIENT ASSUMES ALL RISK FOR ANY LOSS OR DAMAGE ARISING IN WHOLE OR IN PART FROM OR RELATING TO: (A) USE OF ANY THIRD-PARTY HARDWARE, SOFTWARE, INFORMATION OR MATERIALS; (B) VIRUSES, HACKERS OR OTHER MALICIOUS OR ACCIDENTAL DESTRUCTION OF SYSTEMS OR DATA, INCLUDING DESTRUCTION BY CLIENT OR CLIENT’S EMPLOYEES OR REPRESENTATIVES; (C) ANY EVENT BEYOND CONCISE’S CONTROL INCLUDING POWER FAILURE, NATURAL DISASTER, BUILDING MODIFICATIONS OR OTHER EVENTS OF A MAGNITUDE OR TYPE FOR WHICH PRECAUTIONS ARE NOT GENERALLY TAKEN WITH RESPECT TO THE IT SERVICE INDUSTRY; AND (D) CLIENT’S FAILURE TO PERFORM ONE OR MORE OF CLIENT’S OBLIGATIONS SET OUT IN THE AGREEMENT. CLIENT HAS FULL AND EXCLUSIVE RESPONSIBILITY FOR UNDERSTANDING AND ENSURING COMPLIANCE WITH ANY REGULATORY, LEGAL, OR CONTRACTUAL OBLIGATIONS RELATED TO DATA CREATED, GENERATED OR HELD BY CLIENT (INCLUDING ALL CLIENT DATA HELD OR BACKED UP ON CLIENT’S BEHALF BY CONCISE).
EXCEPT AS EXPRESSLY PROVIDED IN A STATEMENT OF WORK, ALL PRODUCTS ARE FURNISHED BY CONCISE AND ACCEPTED BY CLIENT “AS IS,” “WITH ALL FAULTS,” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CONCISE. CONCISE DOES NOT WARRANT THAT ANY PRODUCT WILL MEET CLIENT’S REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR FREE. NO ADVICE OR INFORMATION GIVEN BY CONCISE, ITS AFFILIATES, ITS CONTRACTORS, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OF ANY TYPE OR NATURE.
10. LIMITATION ON LIABILITY. IN NO EVENT WILL CONCISE BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA (CLIENT DATA OR OTHERWISE) OR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY PRODUCT FURNISHED OR TO BE FURNISHED UNDER THE AGREEMENT OR OTHERWISE, EVEN IF CONCISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF CONCISE AND ANY OF ITS EMPLOYEES, AGENTS, SUPPLIERS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND INFRINGEMENT), SHALL NOT EXCEED AN AMOUNT EQUAL
TO THE SUM OF THE PAYMENTS MADE BY CLIENT TO CONCISE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FOR WHICH LOSSES OR DAMAGES ARE CLAIMED.
(a) Concise shall indemnify, defend and hold Client and its successors and assigns harmless from and against any and all Losses resulting from third party claims against Client alleging that use of the Products as contemplated hereunder infringes any Intellectual Property Rights of a third party; provided, however, that Client:(i) promptly gives written notice of the claim to Concise; (ii) gives Concise sole control of the defense and settlement of the claim; and (iii) provides to Concise, at Concise’s cost, all reasonable assistance. Concise shall not be required to indemnify Client in the event of: (x) modification of the Products by Client or its employees in conflict with Client’s obligations or as a result of any prohibited activity as set forth herein; (y) use of the Products in an unauthorized manner or any manner inconsistent with the instruction of Concise; or (z) use of the Products in combination with any other product or service not provided, approved or specified by Concise in writing prior to such combined use. If (i) Client is enjoined from using a Product; or (ii) a Product becomes, or Concise believes a Product is likely to become, the subject of an infringement claim, then Concise shall have the right, in its sole discretion, to (x) obtain for Client the right to continue use of the Product; or (y) replace or modify the Product so that it is no longer infringing. If neither of the foregoing options is reasonably available to or commercially feasible for Concise, then Concise, in its sole discretion, may terminate the affected Product and Concise’s sole liability shall be to provide Client a pro-rata refund of any prepaid fees attributable to the Product that was to be provided after the effective date of termination. THIS SECTION 11(a) SETS FORTH CONCISE’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Client shall indemnify, defend and hold the Concise Parties harmless from and against any and all Losses, whether or not resulting from third party claims, resulting from or relating to: (i) any allegation that the Client Data infringes the rights of, or has caused harm to, a third party or violates any law; (ii) the breach of any representation, warranty, covenant or other agreement of Client under the Agreement; and (iii) the acts or omissions of Client or Client’s employees or agents or any other person to whom Client has given access, or who otherwise gains access, to the Products.
12. Third Party Products and Services. Client acknowledges that Concise does not manufacture hardware or software, or provide power or Internet services. Concise will have no responsibility for the adequacy or performance of (i) any third party software provided to Concise under the Agreement; (ii) any hardware; or (iii) any services or equipment provided by any third party (collectively, “Third-Party Products”). All Third-Party Products provided by Concise are provided on an “as is” basis except as expressly stated in the Agreement. Concise does not take responsibility for third-party warranties or for any effect that the Products may have on those warranties. Except as otherwise agreed to in writing by the parties, Third-Party Products are exclusively subject to the terms and conditions agreed upon between the third party and Client, if any. Concise has no liability for Third-Party Products and Client must look exclusively to the third party for any damages or liability with respect to the provision of any Third-Party Products. Except as otherwise specifically agreed to in a Statement of Work, Client authorizes Concise (or otherwise obtains the right for Concise) to copy, install and modify, when necessary and as required by the SOW, all Third-Party Products to be used in the Products or to be copied or stored for later reinstallation of a backup system or data. Client represents and warrants to Concise that Client has obtained any and all licenses, consents, regulatory certifications and approvals required to enable Concise and its subcontractors or employees the right or license to access, copy, distribute, use, modify (including creating derivative works) or install any Third-Party Products to be used in the Products, without infringing the ownership or Intellectual Property Rights of the providers or owners of such Third-Party Products.
13. Bankruptcy of Client. If, during the pendency of any insolvency, liquidation or restructuring of Client, and provided Concise has not terminated the Agreement, Client requests and Concise, in its sole discretion, agrees to the continuation of its provision of the Products, Concise shall be considered, for purposes of applicable state and federal law, including federal bankruptcy law, as a “critical vendor,” and Concise shall be paid immediately for any outstanding pre-filing invoices that are outstanding. Additionally, Client shall waive any and all rights to bring any avoidance action, actions for claw back of amounts paid/transfers made, actions for preferential transfer/treatment, and actions for fraudulent transfer, whether such actions arise under state or federal law, including, but not limited to, federal bankruptcy law. Each and every payment under the Agreement shall be considered, and is hereby acknowledged by the parties as, a contemporaneous exchange for new value.
14. Force Majeure. In no event shall either party have any claim or right against the other party for any failure of performance (except for Concise’s right to seek payment of all accrued charges) due to causes beyond that party’s reasonable control, including, but not limited to: acts of God, fire, explosion, vandalism, fiber optic cable cut, storm, flood or other similar catastrophes; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over either of the parties or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; or supplier failures, shortages, breaches or delays.
15. Non-Solicitation. During the Term and for twelve (12) months thereafter, Client agrees that it shall not, either on Client’s own behalf or in conjunction with any third party, directly or indirectly, solicit Concise’s employees, independent contractors or agents for employment, consulting or other services for either Client or any third party without the prior written consent of Concise, which consent may be withheld in Concise’s sole and absolute discretion.
16. Compliance with Laws. Each party shall comply with all applicable laws and regulations in the course of performing under the Agreement.
17. Export and OFAC Compliance. The Products and other technology Concise makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that neither it nor any of its employees is (a) a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action; or (b) named on any U.S. government denied-party list. Client shall not permit any person or entity to access or use any of the Products in a U.S. embargoed country or in violation of any U.S. export law or regulation.
18. GDPR. Concise makes no representations or warranties, express or implied, in regard to compliance with the GDPR (General Data Protection Regulation), Regulation (EU) 2016/679, as enacted, and as may be subsequently amended, by the European Parliament and the Council of the European Union.
19. Non-Disparagement. Neither party shall, directly or indirectly, make or authorize the making of any statement that disparages or creates any material negative inference with respect to the other party and/or its officers, managers, directors, employees, shareholders, members, affiliates, products or related companies, by words, actions or other communications (electronic or otherwise), or by any omission to speak, act or otherwise communicate.
20. Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other agreements, whether oral or written, between the parties with respect to such subject matter.
21. Survival. The parties’ respective representations and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of the Agreement and continue in full force and effect.
22. No Third Party Beneficiaries. The Agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to the Agreement.
23. Severability. If any provision of the Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of the Agreement shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
24. Waiver. A waiver of any right under any provision of the Agreement by either party hereunder shall be valid only if such waiver is in writing and signed by the party to be charged. No waiver of any right under any provision of the Agreement on any occasion shall be a waiver of any other right or under any other provision or on any other occasion. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.
25. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by the Agreement. Neither party shall have the power to obligate or bind the other party.
26. Assignment. Except as otherwise provided herein, neither party may assign, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, the Agreement or any Statement of Work or any rights or obligations thereunder, without the prior written consent of the other party, and any purported assignment, transfer, delegation or disposal in violation of this provision will be null and void. Concise may terminate the Agreement, any Statement of Work or any part thereof by written notice which termination shall be effective on the date specified in such notice, without any liability, in the event that Client assigns the Agreement or any Statement of Work without Concise’s prior written approval. Notwithstanding the foregoing, Concise may assign all of its rights and obligations under the Agreement or any Statement of Work to an affiliate or a successor-in-interest of Concise without the prior written consent of Client.
27. Change in Control. Concise shall have the right to terminate the Agreement, any Statement of Work or any part thereof without any further obligation, if Client shall undergo a change of control, which shall be defined as the acquisition of more than fifty percent (50%) of its equity voting rights (thirty percent (30%) if Client is a publicly held company).
28. Governing Law. The Agreement is a contract made under, and shall be governed by and construed in accordance with, the laws of the State of Michigan without giving effect to choice of law principles of such State.
29. Dispute Resolution; Venue. If there is a dispute between the parties, the parties agree that they will first attempt to resolve the dispute through one senior management member of each party. If they are unable to do so within thirty (30) days after the complaining party’s written notice to the other party, the parties will then seek to resolve the dispute through non-binding mediation conducted in Oakland County, Michigan. Each party must bear its own expenses in connection with the mediation and must share equally the fees and expenses of the mediator. If the parties are unable to resolve the dispute within thirty (30) days after commencing mediation, either party may commence litigation which shall only be brought in any court sitting in Oakland County of the State of Michigan, or the United States District Court for the Eastern District of Michigan, Southern Division, and each of the party’s hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to such party and such party’s property and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery or by the mailing thereof by registered or certified mail, postage prepaid to the party’s address. No action, regardless of form, arising out of the transactions relating to the Agreement, may be brought by either party more than one (1) year after the cause of action has accrued.
30. Consent to Electronic Delivery. Client agrees to receive and/or obtain any and all Statements of Work, billing statements and other notifications from Concise via electronic communications. Client accepts electronic communications from Concise as reasonable and proper notice, for the purpose of any and all laws, rules and regulations, and agrees that such electronic form fully satisfies any requirement that such communications be provided to Client in writing or in a form that it may keep.
31. Change to the Agreement. Concise may, from time to time and in its sole discretion, modify these Terms and Conditions as well as any other terms and conditions of the Agreement. All modifications shall be effective upon their publication on Concise’s website. It is Client’s responsibility to review Concise’s online services for such modifications on a frequent basis. If Client continues to use the Products following any such modification, such use will be deemed acceptance of such modification by Client. Any modifications requested by Client to any of the terms of the Agreement must be approved in writing by Concise.
32. Electronic Signature. The parties agree that the Agreement shall be executed by electronic signature. By clicking the “Sign” function on any applicable SOW, Client is signing the Agreement electronically. Client agrees that his, her or its signature is the legal equivalent of Client’s manual signature on the Agreement. By clicking the “Sign” function, Client consents to be legally bound by the Agreement. Client also agrees that no certification authority or other third party verification is needed to validate its E-signature and that the lack of such certification or third party verification will not in any way affect the enforceability of its E-signature or any resulting contract between Client and Concise. The person who clicks the “Sign” function on any applicable SOW also represents that he or she is authorized to sign on behalf of Client to enter into the Agreement. If the “Sign” function is selected, a signatory page will be delivered to Client indicating that Client signed the Agreement and the execution date of the Agreement.