Concur Breeze – Trial Program Service Agreement
Last updated: October 26, 2010
Welcome to the Concur Breeze trial program ("Trial Program"). This Trial Program consists of a free trial to access and use the Concur Breeze expense management service (the "Service") through the website ConcurBreeze.com and/or related websites (collectively, the "Site") for a limited period of time, as we specify on the Site; provided, however, that optional add-on features may incur a charge during the Trial Program. The Service is only for business or commercial use.
Further, by agreeing to the Service Agreement, you also agree to the ConcurBreeze.com Website Terms of Use. If you do not agree to the following Service Agreement, do not use the Service.
Concur Technologies, Inc. ("Concur") reserves the right to modify or replace this Service Agreement at any time and in Concur's sole discretion. Concur will indicate at the top of this Service Agreement the date such document was last updated. Any changes will be effective immediately upon posting the revised version on the Site (or such later effective date as may be indicated at the top of the revised Service Agreement). Your continued use of the Service following the posting of any changes to this Service Agreement will constitute your acceptance of such changes. If you do not agree to the changes, you must stop using the Service. In addition, Concur may provide other methods by which you may accept this Service Agreement or changes to this Service Agreement.
1. Privacy Policy. Please refer to our Privacy Policy for information on how Concur collects, uses and discloses personal information.
2. Registration; Account Security. Account registration is required to use the Service. Concur reserves the right to refuse registration, or to refuse or limit access to the Service or any features, to anyone in its sole discretion. You will provide accurate, current and complete information (including about Registrant and Registrant's users) in any registration or other Account-related forms on the Site ("Registrant Information") and agree to maintain the security of your username(s) and password(s). You will maintain and promptly update the Registrant Information to keep it accurate, current and complete. YOU UNDERSTAND THAT ANY PERSON WITH YOUR USERNAME(S) AND PASSWORD(S) MAY BE ABLE TO ACCESS YOUR ACCOUNT (INCLUDING REGISTRANT INFORMATION, EXPENSE REPORT DATA, TRANSACTION INFORMATION, AND OTHER USER DATA (COLLECTIVELY, "CONTENT") YOU OR OTHERS HAVE PROVIDED TO CONCUR). YOU ACCEPT ALL RISKS OF UNAUTHORIZED ACCESS TO YOUR ACCOUNT BASED ON THE SHARING OR LOSS OF A USERNAME AND PASSWORD. You will promptly notify Concur if you discover or otherwise suspect any security breaches related to the Site, including any unauthorized use or disclosure of a username or password.
3. Grant of Rights; Ownership; Use Restrictions.
3.1 3.1 Grant of Rights. Subject to the terms of this Service Agreement: (a) Concur hereby grants Registrant a non-exclusive, non-transferable, worldwide right during the term of the Service Agreement to access and use the Service solely for Registrant's internal business or commercial purposes as contemplated by this Service Agreement; and (b) Registrant hereby grants Concur a non-exclusive, worldwide right (i) to use all Content as necessary to provide the Service, and (ii) to create aggregated or redacted forms of Content that do not identify Registrant or any users of an Account ("Aggregated Content") for Concur's business purposes.
3.2 Ownership. Subject to the rights granted to Registrant above, Concur and its licensors and suppliers own and retain all right, title, and interest in and to the following (collectively, "Concur Property"): (a) the Service, the Site, and all other software, hardware, technology, documentation, and information provided by Concur in connection with the Service; (b) all Aggregated Content; (c) all ideas, know-how, and techniques that may be developed, conceived, or invented by Concur during its performance under this Service Agreement; and (d) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (a), (b) and (c) above. Subject to the rights granted to Concur above, Registrant owns and retains all right, title, and interest in and to the Content and all intellectual property rights therein.
3.3 Restrictions. Except as expressly permitted under this Service Agreement, Registrant shall not directly or indirectly do any of the following: (a) access, use, sell, distribute, sublicense, broadcast, or commercially exploit any Concur Property or any rights under the Service Agreement, including without limitation any access or use of any Concur Property on a service bureau basis or for any Registrant processing services beyond the scope specified in this Agreement (such as for any third parties on a rental or sharing basis); (b) introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the Service; (c) copy, modify, or prepare derivative works based on Concur Property; (d) reverse engineer, decompile, disassemble, or attempt to derive source code from any Concur Property; or (e) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any Concur Property.
4. Fees.
4.1 Fees. The fee ("Fee") for any optional add-on feature ("Optional Add-on Feature") are described on the Site and may be changed by Concur at any time by posting a revised description of the Fee on the Site. Any increase in the Fee posted on the Site will take effect at such date as may be specified on the Site. Your continued use of the Optional Add-on Feature following the posting of any changes to the Fee for such Optional Add-on Feature on the Site will constitute your acceptance of such change. If you do not agree to the change, you must stop using and de-register, if applicable, such Optional Add-on Feature.
4.2 Payment. By registering for an Optional Add-on Feature, Registrant agrees to pay the then-current fees applicable for Registrant's usage of such Optional Add-on Feature in connection with the Service, and authorizes Concur (or its designated payment processor) to charge Registrant's for such Fee using the applicable payment method for such Fee.
4.3 Refunds. All Fees paid to Concur are nonrefundable. 4.4 Billing Inquiries. Registrant may contact Concur regarding billing or other questions by calling the Concur Breeze client service center at the toll-free telephone number on the Site, or by visiting the "Contact Us" web page on the Site
5. Warranties and Limitations.
5.1 Warranty. Registrant each hereby represents, warrants, and covenants to Concur that: (a) it has the authority to enter into this Service Agreement, to grant the rights granted by it under this Service Agreement, and to perform its obligations under this Service Agreement; (b) it will comply with all applicable laws and regulations that may be in effect during the term of this Service Agreement as they apply to Registrant's obligations under this Service Agreement; and (c) the Content, and the use thereof by Concur, does not and will not infringe, or constitute an infringement or misappropriation of, any intellectual property rights, privacy rights or other proprietary rights of a third party or breach the terms of any agreement with a third party.
5.2 Disclaimer of Warranties. THE SERVICE AND ANY THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE ARE PROVIDED "AS IS," WITHOUT WARRANTIES OF ANY KIND. CONCUR DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE OR ANY OTHER ITEMS OR SERVICES OR THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE COVERED BY OR FURNISHED UNDER THIS SERVICE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (a) OF MERCHANTABILITY, (b) OF FITNESS FOR A PARTICULAR PURPOSE, OR (c) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. CONCUR DOES NOT WARRANT THAT ANY ITEMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.3 Limitation of Liability. IN NO EVENT WILL CONCUR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS SERVICE AGREEMENT, THE SERVICES, AND ANY THIRD PARTY SERVICES ACCESSED THROUGH THE SERVICE, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF CONCUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnification.
6.1 By Registrant. Registrant shall indemnify and hold harmless Concur and its parent and affiliate companies, and their directors, officers, employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party to the extent: (a) alleging that the Content, or Registrant's use of the Service (if in violation of the terms of this Service Agreement), infringes upon any patent, copyright, trademark, privacy, trade secret, or other proprietary right of, or otherwise harms, any third party or breaches a contract with any third party; or (b) resulting from the failure of Registrant to comply with its obligations under this Service Agreement or from the acts or omissions of Registrant or its employees, agents, Account users, and affiliates, and each of the successors and assigns of the above persons or entities. 6.2 Defense; Procedure. For any indemnifiable claim described in this Section 6, at Concur's election upon notice to Registrant, Registrant shall, at its expense, defend any such claim, provided that, if any settlement requires any obligation of an indemnified party, then such settlement shall require Concur's prior written consent. Concur may assume exclusive control over the defense of any such claim at any time by not electing to have Registrant assume responsibility for such defense or, if such election has been made, by giving notice to Registrant of Concur's resumption of exclusive control over such defense. If any compromise or settlement is made with respect to such claim, Registrant shall pay all amounts in settlement of such claim.
7. Data Security. Concur will use reasonable efforts to establish and maintain safeguards to protect the security and integrity of the Service and protect against the accidental or unauthorized access, use, alteration or disclosure of the Content. Except with your consent or as otherwise permitted under Section 3.1(b) of this Service Agreement, Concur will not use the Content other than to provide the Service
8. Term and Termination
8.1 Term. The term of this Service Agreement will commence when you register for an Account and will continue until terminated in accordance with this Service Agreement. Concur reserves the right to terminate this Service Agreement at any time, with or without cause and in its sole discretion, immediately upon written notice (which may be by email) or by terminating an Account and redirecting login attempts to a notice regarding such termination. This Service Agreement will automatically terminate upon the end of the limited period of time we specified for free trial use on the Site or Registrant's subscription for use the Service under a separate service agreement. 8.2 Effect of Termination. Upon termination of this Service Agreement, all rights granted to Registrant under this Service Agreement shall immediately terminate, including the right to access and use the Service by all of Registrant's users, unless the termination is due to Registrant's subscription for use of the Service under a separate service agreement. Termination of this Service Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the applicable provisions of this Service Agreement shall continue to apply to such claim until it is resolved. Without limiting the foregoing, Sections 3.1(b), 3.2, 3.3, 5, 6, 8.2 and 9 of Service Agreement shall survive the termination of this Service Agreement for any reason.
9. Miscellaneous
9.1 Relationship of Parties. Concur and Registrant are independent contractors and this Service Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Concur and Registrant. Registrant shall not, and will have no power to, bind Concur or incur obligations on Concur's behalf.
9.2 Assignment. Registrant may not assign or transfer this Service Agreement without the prior written consent of Concur, and any attempted assignment without such consent will be void. Concur may assign or transfer this Service Agreement at any time. Subject to the foregoing restriction on Registrant, this Service Agreement is binding on the parties hereto and their respective successors and permitted assigns.
9.3 Waiver and Severability. Concur's failure to enforce any term or condition of this Service Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Service Agreement. If any provision of this Service Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Service Agreement will remain in full force and effect.
9.4 Excused Performance. Concur shall not be liable for any delay or failure to perform due to causes beyond its reasonable control.
9.5 Entire Agreement. This Service Agreement contains the entire agreement and understanding between Concur and Registrant with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter.
9.6 Amendments. This Service Agreement shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except as set forth above or by a separate written agreement duly executed by the parties to this Service Agreement.
9.7 Governing Law and Venue; Arbitration. This Service Agreement shall be governed by and construed in accordance with the laws of the State of Washington USA, applicable to agreements made and to be entirely performed within the State of Washington USA, without resort to its conflict of law provisions. Any claim, dispute, or controversy related to or arising out of this Service Agreement or the Service shall be resolved exclusively by binding arbitration pursuant to the Commercial Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), but the parties do not necessarily intend for the AAA to administer the arbitration. The arbitration will take place in Seattle, Washington and the internal laws of the State of Washington (other than conflicts of laws rules) and of the United States of America shall apply. Part or all of the arbitration may be conducted by telephone or based on written submissions, and will not require the personal appearance of the parties or any witnesses unless otherwise agreed by the parties. The allocation of costs and fees for such arbitration shall be determined in accordance with the AAA Rules. If such costs are finally determined to be excessive in a consumer dispute, Concur will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitration shall be conducted by a single, neutral arbitrator engaged in the practice of law who is mutually agreed upon by the parties or failing such agreement within 14 days from the delivery of the original arbitration demand, each party shall select one arbitrator and the two selected arbitrators shall mutually agree upon the selection of a third arbitrator within 30 days from the delivery of the original arbitration demand. The arbitrator's decision and award shall be final and binding and may be entered in any court with jurisdiction. Nothing in this Service Agreement will prevent a party from seeking injunctive or other equitable relief with respect to the infringement, misappropriation or other violation of such party's intellectual property or other proprietary rights in any court of competent jurisdiction. In the event the foregoing agreement to arbitrate is deemed unlawful, void, or for any reason unenforceable with respect to any claim, dispute or controversy, then you agree that any such claim, dispute or controversy shall be filed and adjudicated only in the state and federal courts located in King County, Washington and Registrant hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Service Agreement.
9.9 Interpretation. This Service Agreement will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Service Agreement.