Terms of Use

Specification of Services

In connection with the execution of this Agreement, User is purchasing the licensed right to use Conqrse products (“Software”) as listed on the subscription plan, as chosen by the User for the designated time period (the “Subscription Plan”). Any expansion or renewal of the Subscription Plan, as so expanded, shall be governed by the terms of this Agreement. Conqrse’s provision of the Software per the terms of the Subscription Plan may be referred to as the "Service” or “Services.”

License

In relation to the Software listed on the Subscription Plan, Conqrse grants a worldwide, non-transferable, non-exclusive license during the Term (defined on the Subscription Plan) to access the Conqrse hosting network and use, by browser interface over the internet (URL), the Software maintained by Conqrse via a cloud computing platform provided by Conqrse, or a third party subcontractor to Conqrse. The Software shall be used only for the respective internal business purposes of User or, to the extent provided for herein, Permitted User. In providing the Software, Conqrse will provide, host, monitor, and manage the server side hardware and server side software, server side telecommunications hardware and software, server side security software and other software that is reasonably necessary to operate and maintain the Software. Conqrse shall have the right to change the hosting server to another industry leading provider of such services who satisfies the requirements of this Agreement upon not less than 90 days’ prior written notice to User.

Loss of User Content/Backup Procedures

User acknowledges that servers and storage systems can and do fail, and the risk of data loss is always present when any data is stored on a computer system of any kind. The Software may at times not be recoverable by Conqrse as a result of electrical power interruptions, “down time” and/or other factors which may or may not be beyond Conqrse’s control. In the event of any loss of User Content for any reason, Conqrse will apply commercially reasonable efforts to attempt to restore the latest version of such information to the Software. Any such restoration however, may not be the most current version of any particular file or data. Conqrse will backup and archive any User Content in accordance with its internal procedures and specifications. User agrees that Conqrse is not responsible for any User Content that may be lost, altered, intercepted or stored without authorization during its transmission across networks not owned and/or operated by Conqrse.

Data Protection

Disaster Recovery

During the Term, Conqrse shall ensure that it, and the hosting provider, will maintain and comply with a disaster recovery plan for recovery of the Software and User Content in line with industry standards. Conqrse shall provide User with at least ninety (90) days prior written notice of any material change in Conqrse’s disaster recovery plan.

Viruses

Conqrse will use commercially reasonable efforts to not code or introduce viruses, malware, or other damaging code into the Software, or into the systems used to provide the Software, and will use commercially reasonable efforts to prevent others from doing so. During the period of such duty, Conqrse will perform regularly scheduled virus checks on the computing platform used to provide the Software using the latest current commercially available virus detection and scanning software.

Availability

Conqrse will make the Software available twenty-four (24) hours a day, seven (7) days a week, at least 99.0% of the time as measured on a monthly basis, excluding Excused Downtime (the "Availability Requirement"). Conqrse will have failed to meet the Availability Requirement only if Software fails to achieve the 99.0% Availability described above, as measured over the period of a given calendar month, in accordance with the following formula:

Software Maintenance

Maintenance on the Software consists of maintaining such Software to a commercially available and stable version of such Software. The timing for updates to the Software is in Conqrse’s discretion. Maintenance on the Software shall be performed during Scheduled Maintenance, unless Conqrse notifies User otherwise. Conqrse shall not be responsible for (i) providing maintenance on any application programing interface (API) or software modifications performed by parties other than Conqrse, or (ii) insuring that maintenance provided by Conqrse is compatible, or will integrate, with any such APIs or modifications.

Suspension of Services

In addition to any other rights granted to Conqrse herein, Conqrse reserves the right to suspend this Agreement and User’s access to the Software if User’s account becomes delinquent (falls into arrears) or User violates any other material obligation under this Agreement. User will continue to be charged for fees during any period of suspension. Conqrse reserves the right to impose a reconnection fee in the event User’s access to the Software is suspended and thereafter User requests access to the Software.

License Term

For the Software, Conqrse shall provide such number of licenses for the time period as set forth in the Subscription Plan chosen by the User.

Scope of License

The license shall be subject to the following provisions:

Accounts and Passwords

Conqrse shall assign User an administrative account and User may establish as many Permitted User accounts within its administrative account as it chooses. User is responsible for adding and deleting Permitted User accounts and for the confidentiality of Permitted User passwords. User acknowledges that each Permitted User will establish its own account with Conqrse once designated and will be required to accept the terms and conditions and privacy policy statement of Conqrse upon the establishment of the Permitted User’s account.

Compliance

User shall (i) be responsible for each Permitted User’s compliance with corresponding obligations under this Agreement in connection with the Permitted User’s use of the Software, (ii) be solely responsible for the accuracy, quality and legality of User Content including information from third party systems or websites used in User Content and shall be solely responsible for insuring that User Content does not infringe upon or violate the rights, including intellectual property rights, of third parties, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software by Unauthorized Users, and notify Conqrse promptly of any such unauthorized access or use, (iv) use the Software in accordance with applicable laws and regulations, (v) use commercially reasonable efforts to avoid posting any viruses, corrupted data, or other harmful, disruptive or destructive files, (vi) be responsible for acquiring any authorizations or licenses needed for interfaces and links to third party systems and websites used in User Content. User will immediately notify Conqrse of any unauthorized use of User’s account or any other breach of security related to User’s account or the Services. Conqrse is not liable for any loss or damage arising from User’s failure to comply with any of the foregoing obligations. Conqrse reserves the right, in its sole discretion, to restrict, suspend, or terminate any Permitted User's access to all or any part of Services at any time, with or without prior notice, and without liability, in the event that Conqrse reasonably determines that User or any Permitted User has violated any of the restrictions contained in this Section 3. Conqrse reserves the right to investigate and take appropriate action against anyone who, in Conqrse’s reasonable opinion, is suspected of violating this Agreement, including without limitation, reporting User or any Permitted User to law enforcement authorities.

Restrictions

User shall not (i) copy, modify, or make derivative works based upon the Software (ii) (a) build a competitive product or service based on non-Conqrse software, (b) build a product using similar ideas, features, functions, or graphics of the Software, or (c) copy any ideas, features, functions, or graphics of the Software. User shall not authorize nor allow any Permitted User to: (i) circumvent or attempt to circumvent user authentication or security (i.e. cracking or hacking) of any internet or intranet site or other Conqrse account, including, but not limited to, accessing data not intended for the Permitted User, logging into a server or account the Permitted User is not expressly authorized to access, or probing the security of other networks (i.e. initiating scans). User shall ensure that its Permitted Users comply with the restrictions described herein.

Connectivity; Devices

User is responsible for connectivity to the hosting provider and for procuring all hardware devices for displaying the Software and the User Content.

Fee Provisions

Confidential Information

As used herein, “Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party ("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. User Confidential Information shall include User Content; Conqrse Confidential Information shall include the Software; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as pricing, business, and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than User Content) shall 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.

Obligations Regarding Confidential Information

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Legally Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Intellectual Property Rights

Conqrse retains all intellectual property rights in and to Software. User only obtains the limited rights and licenses granted by this Agreement. User shall not obscure or remove any copyright or other proprietary notice or legend contained on or included in the Software or the Documentation. User retains all rights in and to the User Content.

By Conqrse

Conqrse will indemnify, defend, and hold harmless User and its directors, partners, officers, employees, representatives, and agents (collectively, the “User Indemnitees”) from and against any and all "Liabilities" (as hereinafter defined) arising from third party claims asserted against User to the extent such Liabilities result from the infringement by the Software upon any third party's legally recognized trade secret, trademark, service mark, or United States copyright or patent (collectively, an “Intellectual Property Right”). Conqrse shall have no obligation under this Section, and otherwise will have no liability for, any claim of infringement that, by its terms, requires the use or combination of the Software with software, hardware, data, or content not licensed or sold by Conqrse to User or that is caused, or alleged to be caused, by (i) the presence of any alteration or modification of the Software by User or any third party acting on User’s behalf; or (ii) User continuing the allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged infringement. If the Software are found, or in Conqrse’s reasonable opinion are likely to be found, to infringe on an intellectual property right, in addition to its indemnity obligation, Conqrse may within a reasonable time, at its option and sole expense, (a) secure for User the right to continue the use of such infringing item; (b) replace such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing (provided such modification will not adversely affect User’s intended or foreseeable use of the item as contemplated hereunder); or (c) if neither of the preceding two options is feasible, accept return of the infringing item from User and refund to User the amount paid to Conqrse for such item and discontinue the provision of the infringing Services and refund to User any prepaid fees for the Services for periods after the date of discontinuance. The provisions of this Section 5(a) shall constitute User’s sole remedies for third party claims of infringement of Intellectual Property Rights.

By User

User will indemnify, defend, and hold harmless Conqrse from and against any Liabilities asserted against Conqrse by a third party to the extent such Liabilities arise from: (i) the infringement by the User Content upon a third party's Intellectual Property Right as a result of the authorized use of such User Content by Conqrse in accordance with this Agreement; and (ii) User Content violating the rights of a third party or applicable Laws, or (iii) User’s violation of any obligation of User under this Agreement.

Procedures

In the event of any Liabilities for which a party is seeking indemnification hereunder, such party will timely notify the other of any such Liabilities, give the other party the right to control and direct the defense (at the other party’s sole expense) and any settlement of any such claim, and give reasonable cooperation to the other party for the defense of same. Notwithstanding anything to the contrary above, the indemnifying party may not enter into any settlement or other disposition of any Liabilities that impact the indemnified party including any admission of liability and any amounts that the indemnified party would be required to pay under any settlement or adjudication, without the indemnified party’s prior written approval.

Liabilities Defined

As used herein, "Liabilities" means the costs, including reasonable attorneys’ fees, to defend or settle a third party claim, together with all amounts paid or payable with respect to the settlement of, or a judgment on, a third party claim.

No Express or Implied Warranties

Except for the express terms and conditions of this Agreement, Conqrse makes no warranties, express or implied, with regard to the Software:

Limitation of Liability

Term

The initial term of this Agreement shall commence on the Effective Date and shall continue as specified in the Subscription Plan. This Agreement may be renewed pursuant to a revised Subscription Plan issued by User and accepted by Conqrse reflecting the mutual agreement regarding fees for the renewal term and the licenses needed during the renewal term.

Termination

Either party may terminate this Agreement if the other party fails to perform a material obligation under this Agreement and does not cure such failure within thirty (30) days (5 days for a payment default) after receiving written notice from the non-breaching party describing the failure in reasonable detail. In addition, either party may terminate this Agreement immediately upon written notice if (i) the other party voluntarily files a petition for relief under the Bankruptcy Code; (ii) if an order for relief under the Bankruptcy Code is entered against the other party following the filing of an involuntary petition for relief under the Bankruptcy Code against the other party that is not terminated within sixty (60) days after the petition was filed or (iii) if the other party makes an assignment for the benefit of its creditors.

Cancellation

Except as provided in Section 7(b) this Agreement may not be terminated by either party prior to expiration of the then current term. If User seeks to terminate or cancel this Agreement otherwise than in accordance with Section 7(b), or if the scope of User’s network is reduced at any time during a term by more than 5% from its peak size during that term (any such event a “Cancellation”), then User shall be required to pay the Cancellation fee described in Section 3(e)(ii).

Termination of Services

Upon the expiration, termination or Cancellation of this Agreement, User agrees to immediately cease using the relevant Service. User agrees and acknowledges that Conqrse has no obligation to retain the User Content, and may delete such User Content, within 30 days after expiration, termination or Cancellation.

Amendment

This Agreement may not be modified or amended, in whole or in part, except as mutually agreed by both parties in writing.

Assignment

User may not assign any of its rights nor delegate any of its duties under this Agreement without the prior written consent of Conqrse, which consent will not be unreasonably withheld. The parties intend this clause to have proprietary effect. Any unauthorized assignment or delegation will be null and void. User will not be relieved of any of its obligations hereunder as a result of any assignment of this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ successors and assigns.

Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

Relationship of the Parties

The parties are independent contractors. This Agreement is a service agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

Governing Law/Dispute Resolution

This Agreement shall be interpreted and enforced according to the laws of the State of North Carolina, without regard to its conflict of laws principles. TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW, THE UNIFORM COMMERCIAL CODE DOES NOT APPLY TO THIS AGREEMENT. In the event of a dispute between the Parties under this Agreement, the Parties agree, at the request of either Party, to appoint executive officers to meet in good faith within sixty (60) days from such request, or other mutually agreed upon timeframe, to resolve the dispute. In the event that the Parties are unable to resolve the dispute pursuant to this process, the sole and exclusive venue for any actions shall be the Courts located in and of the Mecklenburg County, North Carolina, and the parties agree to the jurisdiction of such courts for resolving any claims arising from this Agreement or its interpretation, and each Party hereby submits to such jurisdiction and venue and waives any objection to such jurisdiction and venue.

Force Majeure

Neither User nor Conqrse is liable for any delays or failures in its performance hereunder resulting from circumstances or causes beyond its reasonable control (“Force Majeure”), including, without limitation, acts of God, acts or threatened acts of terrorism, war or other violence, or any law, order or requirement of any governmental agency or authority (but excluding orders or requirements pertaining to tax liability). In the event of such delay or failure, the other Party does not have any duty to perform related responsibilities, and also has the right to cancel this Agreement on a no-liability basis if the nonperforming party is unable to resume performance within 60 days.

Notices

All formal notices, requests, demands, approvals and communications under this Agreement (other than routine operational communications) (collectively, “Notices”) will be in writing and may be served either (i) in person or (ii) by registered or certified mail or air freight services that provide proof of delivery, with shipping fees prepaid, addressed to the Party as provided in this Section 8(h). Notices given as described in the preceding sentence will be considered received on the day of actual delivery. Conqrse’s address for Notices is set forth on page 1; User’s address for Notices and contact person shall be provided on the signature page of this Agreement. A Party may change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee in the manner provided above. Routine operational communications and notices of a non-legal nature may be given by electronic mail.

Entire Agreement

This Agreement, including all Schedules and Exhibits, comprises the entire agreement between User and Conqrse and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User Subscription Plan or other order documentation shall be incorporated into or form any part of this Agreement, unless such terms and the modification of this Agreement are explicitly agreed to by Conqrse in writing. Otherwise Conqrse’s entire obligations toward User shall be limited to the terms of this Agreement.

Counterpart Execution

This Agreement and any amendments hereto may be executed in any number of counterparts with the same effect as if all parties had signed the same document. Delivery of an executed counterpart of the signature page to this Agreement by facsimile or other electronic means (for example, by an e-mail to which is attached a PDF copy) shall be effective as delivery of a manually executed counterpart of this Agreement.

Electronic Signature

The parties intend that laws applicable to validating their ability to form assent and commit electronically to be bound by the obligations described herein, if any, shall apply to this Agreement to the fullest extent possible. The parties further agree that an electronic signature is the legal equivalent of a manual signature on this Agreement. The parties also agree that no certification authority or other third party verification is necessary to validate an electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting contract between the parties.