CONCORA SPEC SUBSCRIPTION SERVICES

GENERAL TERMS AND CONDITIONS

These general terms and conditions regarding the Concora Spec Subscription Services (the “Terms”) are incorporated into and govern the Proposal or Order Form (in each case, an “Order”) to which they are attached and together with any attachments, exhibits, schedules, work orders or statements of work incorporated by reference herein shall form the agreement (the “Agreement”) between VIMtrek, LLC, d/b/a Concora (“Concora”), and the Customer identified on the Order (“Customer”). These Terms shall apply to all Subscription Services or Professional Services provided by Concora to Customer pursuant to the Agreement.

1. DEFINITIONS.

As used in these Terms the following terms will have the following meanings:

• “Authorized User” means each employee, contractor or agent of Customer who is authorized by Customer to access and use the Platform, to whom a password and user ID has been issued by Customer and whose access to the Platform has not been terminated, suspended or surrendered.
• “Concora Materials” means the Platform and all related Documentation, as well as any derivative works thereof.
• “Customer Materials” means any (i) software, graphics, audio, video, diagrams, photographs, equipment, materials, documentation and other Customer-owned content that is furnished to Concora by Customer or its designated third-party provider in connection with these Terms, (ii) any modifications, improvements to, or derivative works of the foregoing, and (iii) any Intellectual Property Rights therein.
• “Documentation” means the user documentation and any other operating, training, and reference manuals, including such documentation presented in electronic form, relating to the use of the Platform published by Concora in connection with the Subscription Services.
• “Intellectual Property Rights” means any and all rights to exclude, as they exist from time to time in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, trademark law, unfair competition law, and other similar laws, and all other similar rights.
• “Location” means the single physical location designated by a unique mailing address set forth in the applicable Order where one or more Authorized Users is situated and is given access to the Subscription Services.
• “Party” and “Parties” means Concora and/or Customer, individually or collectively as applicable.
• “Platform” means the Concora Spec Platform and any related modules or updates, which may include third party-owned software, in whatever form and on whatever media rendered.
• “Professional Services” means the professional implementation and configuration services to be provided by Concora, if any, pursuant to the Agreement. All Professional Services will be delivered pursuant to the Professional Services Terms and Conditions attached hereto as Exhibit B.
• “Statement of Work” means a work order or statement of work or similar description of Professional Services and related details
• “Subscription Services” means the term-based subscription access to a cloud-hosted instance of the Platform to be provided by Concora to Customer in accordance with the Agreement.
• “Term” means the initial term of the Subscription Service and any renewal thereof.
• “Third-Party Platform” means software developed by any party other than Concora and utilized by Concora in the provision of Subscription Services.
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2. SUBSCRIPTION SERVICES.

• • Subscription Services Availability. Subject to and conditioned on Customer’s compliance with the terms of the Agreement, during the Term, Concora shall use commercially reasonable efforts to provide Customer the Support services set forth on Schedule A, and access to a cloud-hosted instance of the Platform in accordance with Concora’s specifications, as set forth in the Documentation and these Terms, 24 hours per day, seven days per week every day of the year, except for:
    • scheduled downtime, which Concora will use commercially reasonable efforts to limit to routine maintenance of the Subscription Services between the hours of 1:00 a.m. and 5:00 a.m., Eastern Time; and to give Customer at least 24 hours prior notice of all scheduled downtime outages of the Subscription Services;
    • Downtime or degradation due to a Force Majeure Event;
    • Any other circumstances beyond Concora’s reasonable control, including Customer’s or any Authorized User’s misuse of the Subscription Services, or use of the Subscription Services other than in compliance with the express terms of these Terms and the specifications set forth in the Documentation; and
    • any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Subscription Services as permitted by these Terms.
  • Service Control. Except as otherwise expressly provided in these Terms, as between the Parties:
    • Concora has and will retain sole control over the operation, provision, maintenance and management of the Subscription Services and Concora Materials, including the: (i) Concora systems used to provide the Subscription Services at all locations where any of the Subscription Services are performed, including in the United States, in countries outside the United States, or outside the borders of the country in which Customer or the Customer systems are located; (ii) selection, deployment, modification and replacement of the Platform; and (iii) performance of support Subscription Services and maintenance, upgrades, corrections and repairs of Platform; and
    • Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Subscription Services and Concora Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Affiliate, including any: (i) information, instructions or materials provided by any of them to the Subscription Services or Concora; (ii) results obtained from any use of the Subscription Services or Concora Materials; and (iii) conclusions, decisions or actions based on such use.
  • Subscription Services Changes. Concora reserves the right, in its sole discretion, to make any changes to the Subscription Services and Concora Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Concora’s Subscription Services to its customers, (ii) the competitive strength of or market for Concora’s Subscription Services or (iii) the Subscription Services’ cost efficiency or performance; or (b) to comply with applicable Law.
  • Renewal, Suspension or Termination of Subscription Services. The Subscription Service will renew automatically for successive annual terms (or, if the Subscription Service is a licensed on a month-to-month basis, monthly) unless Customer provides written notice at least sixty (60) days prior to the end of the then-current annual term (or thirty (30) days if the Subscription Service is a licensed on a month-to-month basis). Concora may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other person’s access to or use of all or any part of the Subscription Services or Concora Materials, without incurring any resulting obligation or liability, if: (a) Concora receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Concora to do so; or (b) Concora believes, in its reasonable discretion, that Customer or any Authorized User: (i) has failed to comply with any material term of these Terms; (ii) has accessed or used the Subscription Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any material instruction or requirement of the Specifications; or (iii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscription Services; or (c) these Terms expires or is terminated. This Section 1.5 does not limit any of Concora’s other rights or remedies whatsoever, including any rights or remedies at law, in equity or under these Terms.

3. TAXES.

The Subscription Services and Professional Services fees, and other amounts payable to Concora under the Agreement, do not include taxes. If Concora is required to pay sales, use, property, value-added or other taxes based on the Subscription Services provided by Concora to Customer under the Agreement, such taxes shall be billed to and paid by Customer.  Concora acknowledges and agrees that it shall be Concora’s obligation to report as income all compensation received by Concora pursuant to the Agreement and to pay any withholding taxes, self-employment taxes, and social security, unemployment or disability insurance or similar items, including interest and penalties thereon, in connection with any payments made to Concora by Customer pursuant to the Agreement, including any Statement of Work.

4. PAYMENT

Unless otherwise agreed by the parties in writing, payment for all fees owed under the Agreement (including any Orders or Statements of Work), shall be due thirty (30) days from receipt by Customer of Concora’s invoice therefor.  Undisputed fees not paid when due shall incur interest at a rate of 1.5% per month or the highest rate permissible by law, whichever is higher.

5. CONFIDENTIAL

• Confidential Information. “Confidential Information” includes, without limitation, any: (i) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, and other materials and concepts relating to either party’s software, products, Subscription Services or other intellectual property rights including, but not limited to, the source code and object code and any generic tools related to the Platform, any deliverables created by Concora, the Documentation, any other third-party software licensed with or as part of the Platform or deliverables, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, and functional specifications; (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Platform or deliverables; (iii) information, ideas or materials of a business nature, such as non-public financial information; information regarding profits, costs, branding, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; any proposals or request for proposals provided by a party; and marketing and sales plans and forecasts; (iv) any personally identifiable information, defined as information that can be identified to a particular person, such as names and social security numbers; (v) all personal property, including, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints and other documents or materials, or copies thereof, received by either party in the course of Concora’s rendering of Subscription Services to Customer or Customer’s use thereof, including, without limitation, records and any other materials used to prepare a Statement of Work or deliverable; and (vi) the terms and conditions of the Agreement, including all Statements of Work.
• Confidentiality Obligation. Concora understands that its work for Customer will involve access to confidential, proprietary and trade secret information and materials of Customer and Customer understands that Concora’s Confidential Information is extremely valuable to Concora and its licensors, suppliers, vendors and other customers.  Accordingly, each party agrees during the term of the Agreement and thereafter that it: (i) shall hold all Confidential Information in confidence and trust for the benefit of the disclosing party through the exercise of the same degree of care as used in protection of its own Confidential Information of similar sensitivity, but not less than a reasonable degree of care; (ii) shall not copy or use (or allow any of its employees, contractors or agents to copy or use) any Confidential Information, except as may be necessary to perform the Subscription Services or use the Platform or deliverables; (iii) shall use the Confidential Information only for the benefit of the disclosing party (and not for the benefit of the receiving party or any third party) except as may be necessary to perform the Subscription Services or use the Platform or deliverables; and (iv) shall not knowingly disclose or otherwise make available any such Confidential Information to any third party except as authorized under the Agreement or in writing and in advance by the disclosing party.  All Confidential Information is and shall remain the sole property of the disclosing party.  The term “Affiliate” shall mean present or future entity that, directly or indirectly, controls, is controlled by, or is under common control with Customer.  For these purposes, “control” means the power to direct or cause the direction of the management, policies or affairs of the controlled entity, whether through ownership of securities or partnership or other ownership interests, by contract or otherwise.
• Exclusions. Confidential Information does not include information: (i) that is publicly available as of the effective date of the Agreement or becomes publicly available after the date of the Agreement through no fault of the receiving party; (ii) that is independently developed by the receiving party without the use of Confidential Information of the disclosing party; (iii) that was known by the receiving party prior to its disclosure by the disclosing party; or (iv) that is disclosed to or received by the receiving party (regardless of whether or not then publicly available) by or from a source who at the time of such disclosure or receipt was not known to the receiving party to be under no legal obligation to treat such information as confidential. It shall not be a violation of the confidentiality obligations under this Section 4 for a receiving party to disclose Confidential Information of the disclosing party to the extent it is required to be disclosed pursuant to a subpoena or order of a governmental agency or court of competent jurisdiction; provided that the receiving party gives to the disclosing party reasonable notice after receipt of such subpoena or order by the receiving party of the fact that such a subpoena or order is pending and the opportunity to seek a protective order to limit such disclosure or to contest such order or disclosure requirement.

6. GENERAL WARRANTIES.

Concora represents and warrants that: (i) it is duly organized and validly existing under the laws of its state of incorporation or other formation; (ii) it has the right, power and authority to enter into the Agreement and that it and its employees and subcontractors have the same to fully perform all of its obligations hereunder and that the execution of the Agreement has been duly authorized by all necessary corporate action; (iii) entering into, and fully performing all of its obligations under, the Agreement does not and will not violate nor conflict with any agreement or obligation existing between Concora and any third party; and (iv) Concora has obtained all consents, licenses, permits and approvals required for it to perform its obligations under the Agreement.

7. INDEMNIFICATION.

• Concora shall indemnify and hold harmless, and at Customer’s request defend, Customer and its Affiliates, successors and assigns (and its and their officers, directors, employees, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs awarded by a court) resulting from any third party claim or threat thereof brought against Customer in the U.S. that any of the Platform, Subscription Services or deliverables (or the exercise of the rights granted herein with respect thereto) infringes, misappropriates or violates any U.S. patent, copyright, trademark or trade secret rights of any third party. Customer will: (a) promptly notify Concora in writing of the receipt of any claim that is covered by this Section 8; (b) give Concora all reasonably requested information that Customer has concerning such claim; (c) give Concora sole authority to control the defense and settlement of any such claim; and (d) if applicable, reasonably cooperate with and assist Concora, at Concora’s request and expense, in the defense and settlement of the claim. Customer’s failure to provide written notice of, or information concerning, or authority to control, or cooperation with respect to, any such claim will not relieve Concora from any liability under this Section 8 unless Concora’s defense is prejudiced by the lack or lateness of late notice.  Customer may participate, at its own expense, in the defense of such claim and in any settlement discussions with counsel of its choice, provided that Concora shall retain sole control over the defense.  Concora will: (1) if applicable, defend or settle, at its own expense, any such claim; (2) keep Customer advised of the status of any of its defense or negotiation efforts; and (3) afford Customer a reasonable opportunity to review and comment on significant actions planned to be taken by Concora with respect to such claim.  Concora’s defense and indemnity requirements in this Section 10 shall not apply:  (A) if an infringement claim with respect to any Platform, Service or Deliverable was caused by a design, functionality, specification or other written instruction of Customer furnished to Concora; (B) if any Platform, Service or Deliverable was altered or modified in any way by Customer or a third party (other than an agent of Concora), to the extent such claim was based upon such alteration or modification; (C) if the infringement was caused by the use of the Platform, Subscription Services or deliverables in combination with another product, program, service, equipment or operating system not provided or recommended by Concora or not intended for use as directed by Concora, to the extent such claim was based upon such combination; (D) to any portion of the Platform, Subscription Services or deliverables supplied by Customer or a third party (other than an agent of Concora); or (E) if Customer settles the underlying infringement claim or suit without Concora’s prior written consent.
• The foregoing notwithstanding, Customer will indemnify, defend, and hold harmless Concora, and its affiliates, officers, directors, employees agents, and other representatives from and against all claims, losses, damages, costs and expenses (including attorneys’ fees and costs awarded by a court) resulting from any claims, actions or proceedings, arising out of any third-party claims that the combination by Customer of any Customer software, content, data, marks or other materials provided by Customer or utilized by Customer with the Platform, Subscription Services or deliverables infringes or violates any U.S. patent, copyright or trade secret rights.
• Pre-emptive Infringement Claim-related Remedies. In addition to, and without limitation of, any other right or remedy available to Customer, if Concora reasonably anticipates that a claim of intellectual property rights infringement concerning the Platform, Subscription Services or deliverables under Section 8 of these Terms may be successful, then Concora, at its option and at its sole cost and expense, may: (a) procure for Customer the right to continue using the affected Platform, Subscription Services or deliverables; (b) if applicable, replace or re-perform the affected Platform, Subscription Services or deliverables with conforming and/or non-infringing Platform, Subscription Services or deliverables; (c) modify the affected Platform, Subscription Services or deliverables so it becomes non-infringing without materially detracting from functionality or performance; or (d) refund to Customer the fees paid to Concora for such infringing Platform, Subscription Services or deliverables.

8. LIMITATION OF LIABILITY.

• EXCEPT FOR OBLIGATIONS AND LIABILITIES ARISING UNDER SECTION 7 OR SECTION 8 OF THESE TERMS, DAMAGES ARISING OUT OF CONCORA’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, AND LIABILITIES RESULTING FROM PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO TANGIBLE PERSONAL PROPERTY ARISING OUT OF THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF CONCORA, IN NO EVENT CONCORA’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CAUSES OF ACTION ARISING UNDER THE AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING WITHOUT LIMITATION STRICT LIABILITY AND NEGLIGENCE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CONCORA FOR THE APPLICABLE SUBSCRIPTION SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
• IN NO EVENT SHALL CONCORA HAVE ANY LIABILITY TO CUSTOMER FOR LOST PROFITS OR LOST REVENUE, LOSS OF USE OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CONCORA BY CUSTOMER RELATED TO OR ARISING OUT OF THE AGREEMENT, EVEN IF CONCORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. COMPLIANCE WITH LAWS.

The parties shall perform all of their respective obligations under the Agreement in compliance with all applicable laws, ordinances, regulations, or codes, including, without limitation, environmental and labor laws, and Occupational Safety and Health Administration (OSHA) regulations and Title III of the Americans with Disabilities Act.

10. EXPORT CONTROL.

The parties acknowledge and understand that the Platform, Subscription Services and deliverables provided to Customer under the Agreement may be subject to regulation by agencies of the U.S. Government, including the Department of State and Department of Commerce, and any foreign government or regulatory body, which prohibit export or diversion of certain technical products, data or Subscription Services (“Controlled Technologies”) to certain individuals or countries.  This prohibition includes providing or giving access to such Controlled Technologies (including, without limitation, such items that have been identified by the U.S. Export Administration Regulations and the International Traffic in Arms Regulations).  The parties acknowledge that providing Controlled Technologies to certain foreign nationals located in the United States may be deemed by the U.S. Government as equivalent to exporting that Controlled Technology to a foreign country, including embargoed or restricted countries (“Prohibited Foreign Nationals”).  The parties shall comply in all respects with all export and re-export restrictions applicable to the Platform or deliverables.  Each party shall obtain all necessary licenses to export, re-export, or import any information received from the other as may be required under applicable laws.  Neither party will, directly or indirectly, export or direct such items, any information provided by the other under the Agreement, or any other items covered by the Agreement, or any products therefrom, to any embargoed or restricted country identified in the U.S. export laws.  Each party shall ensure that its employees, contractors or representatives are not included on any United States export exclusion lists and are not Prohibited Foreign Nationals.  Neither party shall use the Platform, Subscription Services or deliverables provided under the Agreement, any information provided by the other party under the Agreement, or any other items covered by the Agreement, or any products thereof, for nuclear, missile, or chemical or biological weaponry end uses.  Each party will promptly notify the other party if it learns of any violations of export laws related in any way to the Agreement.  Each party may request from the other executed documents to support government requirements for export or import licensing with regard to items provided under the Agreement.  Each party agrees to execute the same and to otherwise cooperate in any reasonable manner to facilitate the other party’s respective compliance with all applicable export and import requirements.

11. TERMS TERMINATION.

• • The Agreement will become effective as of the Effective Date set forth on the Order or a Statement of Work when such Order or Statement of Work is signed by duly authorized representatives of both parties, and will continue in effect until expiration or termination in accordance herewith; provided, however, that if any Statement of Work is in effect at such time, then such period shall be automatically extended with respect thereto until the completion, expiration or termination of such Statement of Work (except where the Agreement is terminated in accordance with its terms due to Concora’s breach).
  • Either party may terminate the Agreement or any ancillary documents attached hereto or issued hereunder for the other party’s material breach if such breach remains uncured for thirty (30) days after receipt by the breaching party of written notice thereof; provided, however, that in the event that a breach is incapable of cure or the other party breaches its confidentiality obligations contained herein, the non-breaching party may immediately terminate the Agreement without any opportunity for cure.
  • Upon termination of the Agreement, or at any time Concora so requests, Customer shall deliver immediately to Concora all property belonging to Concora, whether given to Customer by Concora or acquired by Customer in the course of the Agreement, and such portions of materials in Customer’s possession that contain Concora’s Confidential Information and any copies thereof, whether prepared by Customer or others. Any section of the Agreement that by its nature should survive termination or expiration of the Agreement, will survive.

12. SUBCONTRACTORS.

In performing its obligations under these Terms, Concora may engage subcontractors as it determines may be necessary. Concora shall remain responsible for the performance of such contractors in accordance with its obligations hereunder.

13. DATA OWNERSHIP DATA SECURITY

• • As between Concora and Customer, Customer owns all right, title and interest in and to any data provided to Concora by Customer in connection with these Terms (“Customer Data”). Concora’s use of such Customer Data shall not create in Concora’s favor any right, title or interest therein.  Concora recognizes the proprietary and confidential nature of the Customer Data and the irreparable harm that would occur from unauthorized disclosure.  Concora shall exercise commercially reasonable efforts to seek to prevent or mitigate threats or hazards to the security or integrity of Customer Data and unauthorized access to or use of such Customer Data.
  • In the event that Concora is notified of, or gains actual knowledge of facts reasonably leading it to believe there is a likelihood of, any actual or attempted access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure to or of any Customer Data in the possession, custody or control of, Concora (a “Security Breach”), Concora shall, promptly after Concora learns of the Security Breach: (a) notify Customer of the Security Breach; (b) investigate such Security Breach and provide reasonable assistance to Customer; and (c) take action (as determined in Concora’s reasonable discretion) to promptly remediate the Security Breach. Unless required by applicable law, Concora shall not (x) make any public announcements relating to such Security Breach without first consulting with, and obtaining the prior written consent of, Customer or (y) notify any individual whose personally-identifiable and non-public information may have been affected by a Security Breach or any third party other than law enforcement of any Security Breach without first consulting with, and obtaining the prior written consent of, Customer.
  • In the event that Customer is notified of, or gains actual knowledge of facts reasonably leading it to believe there is a likelihood of, any actual or suspected access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure (or attempted access, use, misuse, acquisition, destruction, loss, misappropriation, compromise, release or disclosure) to or of any Customer Data on Customer’s network (a “Customer Security Breach”), Customer shall, promptly after Customer learns of the Customer Security Breach: (a) notify Concora; (b) investigate such Security Breach; and (c) take action (as determined in Customer’s reasonable discretion) to promptly remediate the Customer Security Breach.

14. GENERAL TERMS

• • No Waiver No failure on the part of any party hereto to exercise, and no delay by any such party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No express waiver or assent by any party hereto of any breach or default (in any term or condition of the Agreement) shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
  • All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render the Agreement illegal, invalid or unenforceable. If any term of the Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining terms hereof shall constitute their agreement with respect to the subject matter hereof and all such remaining terms shall remain in full force and effect.
  • All notices and other communications required or contemplated hereunder shall be in writing and shall be deemed to have been duty given upon delivery in person or upon receipt, if mailed by certified or registered mail, postage prepaid, return receipt requested, to the parties at the addresses appearing on the Order.
  • Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, excluding its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement in whole or in part.
  • Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, the Agreement or any or its rights or obligations under the Agreement; provided, however Concora may assign, sell, transfer, delegate or otherwise dispose of the Agreement or any of its rights and obligations hereunder to its Affiliates or as part of a merger, consolidation, corporate reorganization, sale of all or substantially all of it’s assets, sale of stock, change of name or like event. Any purported assignment, sale, transfer, delegation or other disposition, except as permitted herein, shall be null and void.
  • The Agreement shall be binding upon and inure to the benefit of its parties’ hereto and their respective successors and assigns.
  • The headings as to the contents of the particular paragraphs are inserted only for convenience and shall not be construed as a part of the Agreement or as a limitation on the scope of any of the terms or provisions of the Agreement.
  • Relationship of Parties. Concora and Customer are not principal and agent, employer and employee, partners or joint-venturers, and neither party has any authority to obligate or bind the other.
  • Force Majeure. Each party will be excused from a delay in performing, or a failure to perform, its obligations under the Agreement, other than payment obligations, to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such party, which contingencies include acts of God, war, riot, power failures, fires, and floods.
  • Counterparts; Facsimile, Electronic and Digital Signatures. The Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all such counterparts together shall constitute one and the same instrument and may be sufficiently evidenced by one counterpart. Each party may rely upon the facsimile signature of the other. In addition, at all times while the Agreement is in force, each party expressly agrees to the use and acceptance of signatures by digital and/or electronic means. In addition, each party expressly agrees (except with respect to documents required to be signed in the presence of a third party or documents having an additional qualifying requirement in addition to the signature) that the use of a message which represents the document and is transformed by a digital signature, constitutes a sufficient signing of record. Execution of the Agreement at different times and places by the parties shall not affect the validity hereof.
  • Conflict of Terms. These Equipment Purchase Terms and the terms and conditions of the Agreement supersede any terms or conditions forming a part of Concora’s proposal or which may be included on any Purchase Order or invoice submitted by Customer. Fulfillment of Customer’s order for Equipment does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Equipment Purchase Terms or the Agreement. To the extent that there are any inconsistencies or conflicts between these Equipment Purchase Terms and any terms set forth in the Agreement, the terms of these Equipment Purchase Terms shall supersede, govern and control.
  • Entire Agreement. The Agreement, including the exhibits attached hereto and incorporated by reference, supersedes all prior discussions and agreements between parties with respect to the subject matter hereof, and the Agreement contains the sole and entire agreement between parties with respect to such subject matter. The Agreement shall not be modified or amended except by an instrument in writing signed by or on behalf of the parties hereto.  Any terms or conditions forming a part of Concora’s proposal or which may be included on or contained in any purchase order or other document provided by Customer are expressly rejected and shall be of no force or effect on the terms herein.

SCHEDULE A SUPPORT

SCHEDULE B

PROFESSIONAL SERVICES TERMS AND CONDITIONS

These Professional Services Terms and Conditions (“Professional Services Terms”) are attached to and incorporated into the Agreement (the “Agreement”) between VIMtrek, LLC, d/b/a Concora, and the Customer listed on the Order (“Customer”).  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

1. SERVICES

• Concora agrees to provide to Customer the Initial Set-up and Installation Support Subscription Services (as described below) and the any other services as specified in a Statement of Work executed by Concora and Customer (collectively, the “Professional Services”). Concora will provide the Professional Services through its employees, contractors and subcontractors (“Concora Personnel”).  Each Statement of Work shall set forth the deliverables (defined below) to be provided by Concora in the performance of the Professional Services during the period specified in the Statement of Work.  The Professional Services provided by Concora may be amended from time to time in accordance with supplemental Statements of Work to be executed by both parties and attached to the Agreement.
• Concora will render the Professional Services specified in a Statement of Work in a professional manner consistent with industry standards. Subject to compliance with Concora’s obligations contained herein, the manner and means by which Concora chooses to perform the Professional Services are in Concora’s sole discretion and control unless specified otherwise in such Statement of Work.
• No change in the scope of any Statement of Work or projects, tasks or deliverables thereunder, shall become effective, and Concora shall have no obligation to commence work on any such change in scope, unless and until the parties have signed a written change order specifying in detail the change in scope and its effects on specifications, time lines, fees and Concora Personnel.
• Concora will provide its own equipment, tools and other materials required to perform the Professional Services at its own expense. Customer will make its facilities and equipment available to Concora when necessary for Concora’s performance of the Professional Services. Professional Services may be rendered by Concora at Customer’s facilities, Concora’s offices, or at any other suitable location as mutually agreed by Concora and Customer.  The foregoing notwithstanding, if the Professional Services will be provided at Customer’s facilities, whenever access to Customer’s facilities is required, such access shall be subject to Concora’s compliance with Customer’s standard security policies and procedures and procedures set forth in these Professional Services Terms.
• Upon reasonable request by Customer, Concora will furnish to Customer a report summarizing the work performed in rendering the Professional Services and the then-current status of any work in progress under a Statement of Work.

2. FEES AND EXPENSES

• Customer will pay Concora the fees as set forth in the applicable Statement of Work for the Professional Services rendered by Concora pursuant to such Statement of Work (“Fees”) in accordance with the Terms.
• Customer shall reimburse Concora for previously approved expenses incurred in connection with the performance of Professional Services as set forth in the applicable Statement of Work. Customer shall reimburse reasonable and actual travel expenses for Concora incurred in performance of Professional Services.
• Upon termination of the Agreement or any Statement of Work for any reason, Concora will be paid undisputed Fees for Professional Services provided up to and including the effective date of such termination within thirty (30) days of the receipt of Concora’s invoice.

3. INTELLECTUAL PROPERTY OWNERSHIP.

All right, title and interest in the Platform, Documentation and Modifications shall be and remain the exclusive property of Concora.

LIMITED WARRANTY; WARRANTIES DISCLAIMER.

Concora will perform Professional Services in a workmanlike manner consistent with broadly recognized, written industry standards. THE WARRANTY IN THIS SECTION 4 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES RENDERED UNDER EACH STATEMENT OF WORK.  CONCORA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED THERETO.