Customer Terms and Conditions

Last Update: May 18, 2018

Please read these terms and conditions (“Terms and Conditions”) carefully before accessing, using, or obtaining any products or services (collectively, “Services”) provided by Concentric Group, Inc., a Washington corporation, or any of its affiliates (collectively, “Concentric”). These Terms and Conditions sets forth the terms and conditions pursuant to which Concentric agrees to provide to you the Services that you have requested, details pertaining to which may be described in a Service Order signed by you and Concentric. These Terms and Conditions are an agreement between you and Concentric and are incorporated into each Service Order by this reference. By signing a Service Order or otherwise accessing, using, or obtaining the Services, you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, do not sign a Service Order or otherwise access, use, or accept the Services. You are referred to in Service Orders and these Terms and Conditions by the terms “you,” “your,” and “Customer,” and you and Concentric also may be individually referred to as a “Party” and collectively as the “Parties.”

1. Service Orders.
The agreement between Customer and Concentric is comprised by these Terms and Conditions and each individual Service Order, if any (collectively, the “Agreement”). Service Orders describe the Services that Concentric agrees to perform for Customer in greater detail, including the scope of such Services; a list of Deliverables, if any, to be delivered by Concentric; a list of the tools or materials, if any, to be supplied to Customer by Concentric; and the fees to be paid by Customer to Concentric. Service Orders also may set forth certain responsibilities on the part of the Customer that are needed in order for Concentric to successfully perform the Services, together with a list of Customer’s information, requirements, facilities, equipment, access to systems, access to individuals, materials, feedback, or other resources in Customer’s possession or control that it is necessary or advisable for Concentric to have, or have access to, in order to effectively perform the Services (collectively, “{Customer Requirements”). Customer will make all Customer Requirements, whether documented in a Service Order or not, readily available to Concentric in a timely manner at no charge. Customer will be responsible for, and assumes the risk of any fees, costs, expenses, or problems resulting from, such Customer Requirements. Customer acknowledges that the timely provision of and access to such Customer Requirements may be essential to Concentric’s performance of the Services and that Concentric’s ability to perform the Services may be dependent upon the same. If Customer fails to provide any Customer Requirements necessary for Concentric to fulfill an obligation pursuant to a Service Order, whether documented in a Service Order or not, Concentric is discharged from such obligation until Customer corrects the failure.
2. Term; Termination.
The Agreement commences on the earlier of the Service Order Effective Date set forth in the applicable Service Order or the date on which Concentric commences performing the Services and continues in effect until terminated by either Customer or Concentric (the “Term”). Either Party may terminate the Agreement at any time for any reason or no reason by providing the other Party with advance, written notice; provided, however, if Concentric wishes to terminate the Agreement without cause, it must provide Customer with at least 15 days’ advance written notice. Concentric may suspend its performance of the Agreement, without terminating it, in the event that Customer has not paid any overdue amounts owed pursuant to the Agreement that are not the subject of a bona fide dispute on the part of Customer, subject to delivering written notice to Customer and granting Customer 10 business days to bring its account current. Upon termination of the Agreement, each Party will promptly pay in full any amounts owed to the other Party pursuant to the Agreement that are not the subject of a bona fide dispute. No termination of the Agreement will relieve either Party of any liability or financial responsibility that arose prior to the effective date of such termination. Fees paid by Customer pursuant to the Agreement are non-refundable.
3. Fees.
Unless otherwise set forth in a Service Order, all Services performed by Concentric for Customer pursuant to this Agreement will be on a time-and-materials basis at Concentric’s standard rates for professional services as of the time such services are performed, including any Services performed by Concentric at Customer’s request that are outside the scope of any Service Orders. Concentric may adjust the fees for the Services at any time, including its standard rates for professional services, provided that, if Concentric wishes to adjust the fees described in a Service Order, it may do so only by delivering written notice to Customer at least 30 days prior to the effective date of the change. Concentric will email invoices to Customer at Customer’s email address supplied to Concentric. Each invoice will be supported by a summary statement of the fees owed and any reimbursable expenses incurred. Amounts that are not paid by Customer within 30 days after receipt of the applicable invoice may incur a 2% late fee for each month, or portion of a month, during which such amount remains unpaid. For the avoidance of doubt, Concentric’s fees, including fees described in Service Orders, do not include any applicable sales taxes or similar surcharges attributable to Concentric’s performance of the Services or Customer’s execution of the Service Order or receipt of the Services. As between the Parties, Customer is responsible for any such charges. In the event Concentric is required to pay any such charges on Customer’s behalf, Customer will promptly reimburse Concentric for the actual amounts paid. For the avoidance of doubt, all amounts stated in Service Orders are in U.S. dollars and all amounts to be paid by Customer pursuant to the Agreement will be paid in U.S. dollars with no reductions for currency conversions or wiring charges.
4. Employment of Personnel.
It is the express intention of the Parties that Concentric perform the Services as an independent contractor. Nothing in the Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties. Individuals assigned by Concentric to perform the Services, including individuals assigned to perform the Services at facilities owned, leased, or otherwise controlled by Customer, are, and will remain, employees, contractors, and/or agents of Concentric, not Customer. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
5. Ownership of Tools and Materials.
As between the Parties, any goods, items, products, services, supplies, devices, hardware, software, technologies, equipment, or other tools or materials used or supplied by Concentric in connection with its performance of the Services, including such tools and materials that may be installed, stored, used, or otherwise located by Concentric at facilities owned, leased, or otherwise controlled by Customer (collectively, “Concentric-Supplied Tools and Materials”), are, and will remain, the property of Concentric. To the extent Concentric-Supplied Tools and Materials are supplied to or otherwise made accessible to Customer, they are loaned to Customer, not sold, and shall be used by Customer solely for the purpose of allowing Concentric to perform the Services. To the extent Customer has use of or access to Concentric-Supplied Tools and Materials, it will maintain them in good working condition and will ensure that they are returned to Concentric in the same condition as they were supplied to Customer, normal wear-and-tear excepted.
6. Confidentiality.
Neither Party will, during or after the Term, disclose any Confidential Information of the other Party to any third party or use the Confidential Information for any purpose other than in connection with its obligations pursuant to the Agreement. Each Party will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information of the other Party, including, but not limited to, having each employee of the receiving Party, if any, with access to any Confidential Information, execute a non-disclosure agreement containing terms that are substantially similar to the terms contained in the Agreement. “Confidential Information” means any non-public information that relates to the actual or anticipated activities of the Parties and any proprietary information of the Parties that is disclosed by one Party to the other Party, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, plans, products, prototypes, services, customer lists, guest lists, contacts, processes, procedures, technology, finances, and other, similar, non-public information. Confidential Information does not include any information that the receiving Party can show by documentary evidence: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (b) was publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (c) was already in the possession of the receiving Party at the time of disclosure by the disclosing Party; (d) was obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (e) was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. As between the Parties, Confidential Information is the sole property of the disclosing Party. By disclosing Confidential Information to the other Party, neither Party grants the other Party any express or implied right to such Confidential Information. The Parties acknowledge that any breach or threatened breach of a receiving Party’s obligations in this paragraph would cause irreparable harm to the disclosing Party, and in addition to any other remedies at law or in equity that the receiving Party may have, the disclosing Party is entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Except as otherwise required by applicable law, neither Party will disclose any terms set forth in Service Orders to any third party without the consent of the other Party, other than to the financial or legal representatives of such Party or to potential acquirers, merger partners, investors, and their financial or legal representatives, solely in connection with the due diligence review of such Party by such persons, and provided, in each instance, that such disclosures are made pursuant to confidentiality obligations sufficient to enable the receiving Party to otherwise comply with its confidentiality obligations pursuant to the Agreement. If Confidential Information, including the terms of Service Orders, are required to be disclosed by applicable law, the Party required to disclose the Confidential Information shall notify the other Party and immediately take steps to ensure that only those terms required to be disclosed by applicable law are disclosed. Further, each Party shall promptly notify the other Party upon discovery of any unauthorized use or disclosure of the other Party’s Confidential Information or any other breach of the Agreement and shall cooperate with the other Party in every reasonable way to help the other Party regain possession of the Confidential Information and prevent its future unauthorized use.
7. Limitations of Liability.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES PERFORMED BY CONCENTRIC, INCLUDING ANY REPORTS, ANALYSES, ASSESSMENTS, ADVICE, INFORMATION, OR OTHER DELIVERABLES PREPARED, PERFORMED, AND/OR DELIVERED BY CONCENTRIC (COLLECTIVELY, THE “DELIVERABLES”) AND THE CONCENTRIC-SUPPLIED TOOLS AND MATERIALS DESCRIBED ABOVE, DO NOT GUARANTEE THAT ALL RISKS, THREATS, CRIMES, THEFTS, HARM, DAMAGES, OR LOSSES WILL BE FULLY MITIGATED OR COMPLETELY ELIMINATED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, CONCENTRIC IS NOT LIABLE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING THE MISCONDUCT OF ANY THIRD PARTY, CRIMINAL OR OTHERWISE, OTHER THAN THAT OF ITS EMPLOYEES, CONTRACTORS, AND AGENTS. FURTHER, CONCENTRIC IS NOT LIABLE OR RESPONSIBLE FOR ANY ACTS OR OMISSIONS UNDERTAKEN IN RELIANCE, IN WHOLE OR IN PART, ON THE SERVICES, THE DELIVERABLES, OR THE CONCENTRIC-SUPPLIED TOOLS OR MATERIALS DESCRIBED IN THE AGREEMENT, AND CONCENTRIC SHALL HAVE NO LIABILITY WHATSOEVER FOR THE MANNER IN WHICH THE SERVICES, THE DELIVERABLES, OR THE CONCENTRIC-SUPPLIED TOOLS AND MATERIALS ARE USED OR RELIED ON BY CUSTOMER OR OTHERS. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS ABOVE AND INDEMNIFICATION OBLIGATIONS BELOW, NEITHER PARTY NOR THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, TRUSTEES, MANAGERS, EMPLOYEES, CONTRACTORS, SHAREHOLDERS, AGENTS, AND ADVISORS (IF ANY), WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS DUE TO INABILITY TO OBTAIN DATA, LOSS OF BUSINESS, OR LOSS OF ANTICIPATED PROFITS, REVENUE, DATA, OR USE, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY OF ALL KINDS FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE LESSER OF (a) THE TOTAL AMOUNT PAID AND/OR PAYABLE BY CUSTOMER TO CONCENTRIC PURSUANT TO THE AGREEMENT DURING THE PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY FIRST ARISES OR (b) THE AMOUNT OF ANY PROCEEDS RECOVERABLE UNDER THE INSURANCE POLICIES DESCRIBED BELOW. EACH PROVISION OF THIS PARAGRAPH THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CONCENTRIC TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS PARAGRAPH WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.
8. Indemnification.
Each Party will indemnify, defend, and hold the other Party, its affiliates, and each of their respective members, officers, directors, trustees, managers, employees, contractors, agents, representatives, shareholders, advisors, successors, and assigns (each, an “Indemnified Party”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, fines, actions, judgments, suits, proceedings, costs, expenses, and disbursements of any kind or nature whatsoever related to any third-party claims (including all reasonable costs and expenses associated with legal services, attorney fees, defense, appeal, and settlement of any and all suits, actions, or proceedings instituted or threatened) and all costs of investigation in connection therewith (“Claims”) to the extent such Claims arise, directly or indirectly, from or in connection with the indemnifying Party’s (“Indemnifying Party”) gross negligence, intentional misconduct, or violation of applicable law; provided, however, that a Party’s obligations pursuant to this paragraph do not apply with respect to any Claims that are finally determined by a court of competent jurisdiction to have arisen out of the other Party’s fraud, gross negligence, intentional misconduct, bad faith, or breach of the Agreement. Further, Customer will indemnify the Concentric Indemnified Parties for any Claims asserted against them by a third party to the extent such Claims are based on: (a) Customer’s unauthorized use and/or modification of the Services, the Deliverables, or the Concentric-Supplied Tools and Materials described in the Agreement; or (b) Customer’s failure to promptly implement security recommendations made by Concentric and provided to Customer. As a condition to being indemnified pursuant to this paragraph, an Indemnified Party will promptly notify in writing the Indemnifying Party of a Claim; allow the Indemnifying Party 15 days to respond to such written notice and maintain sole control of the defense and settlement of such suit, action, or proceeding; and provide the Indemnifying Party with reasonable assistance, at the Indemnified Party’s expense, in connection with the Indemnifying Party’s defense and settlement of such action, suit, or proceeding (provided any final settlement or compromise is not made without prior written consent of both Parties hereunder, such consent not to be unreasonably withheld, delayed, or conditioned). Indemnifying Party agrees to pay any final award of damages assessed against the Indemnified Party resulting from such Claim, including any awarded costs and attorney’s fees, or any settlement amount agreed to by Indemnifying Party in writing.
9. Insurance.
During the Term and for a period of at least one year thereafter, Concentric shall maintain the following insurance coverage, except as otherwise set forth in the applicable Work Order: (a) commercial general liability insurance covering bodily injury and property damage liability with policy limits of not less than $1,000,000 USD each occurrence and $2,000,000 USD annual aggregate; (b) workers’ compensation insurance (or maintenance of a legally permitted and governmentally approved program of self-insurance) covering Concentric’s employees pursuant to applicable state workers’ compensation laws for work related injuries suffered by such employees; and (c) professional liability or errors and omissions liability insurance with policy limits of not less than $1,000,000 USD for each claim and policy total limit, with a deductible of not more than $50,000 USD.
10. Miscellaneous.
The Agreement and all disputes, claims, or controversies arising out of or in connection with the Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., in connection with any action arising out of or in connection with the performance of the Services, including the Agreement, and agrees that service of process to the Party’s primary residence or corporate offices, as applicable, will constitute effective service within the State of Washington. The foregoing will not preclude the enforcement of a judgment in another forum. In the event of any litigation between the Parties hereto, the prevailing Party will be entitled to recover reasonable attorney’s fees and costs in addition to such other relief as the court may award. Neither the Agreement nor any rights, duties, or obligations under the Agreement may be assigned or otherwise transferred by either Party, in whole or in part, without obtaining the express prior written consent of an authorized signatory of the other Party, except, in the case of an assignor that is a corporate entity, in connection with a merger, acquisition, or sale of all or substantially all of such Party’s assets and/or capital stock or ownership interests (“Transfer Event”); provided that, in connection with any Transfer Event, the assignor will provide advanced written notice of such Transfer Event to the other Party as early as reasonably possible. The Parties acknowledge that an assignment effected in accordance with this paragraph will not entitle the assignor, the assignee, or their respective successors and assigns to terminate the Agreement and that the Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void. Neither Party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay, omission, or failure to perform an obligation set forth herein results from strike, riot, war, fire, flood, natural disaster, or other similar cause or condition beyond such Party’s reasonable control, so long as such Party gives prompt written notice of such cause or condition to the other Party and uses all commercially reasonable efforts to avoid or remove such causes of non-performance. Except as otherwise noted in the Agreement, any notice given pursuant to the Agreement or required by law must be in writing and must be delivered in person; sent by first class mail or air mail, as appropriate; or sent by overnight air courier, in each case, properly posted and fully prepaid to the appropriate address as set below. Either Party may change its address for notices by notice to the other Party given in accordance with this paragraph. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service. Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under the Agreement and will not in any way affect the validity of the whole or any part of the Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under the Agreement will not preclude the enforcement by the Party of any other right or remedy under the Agreement or that the Party is entitled by law to enforce. The Agreement contains the entire agreement of the Parties with respect to the subject matter of the Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by the Agreement, other than a Service Order signed by both Parties on the form approved by Concentric, will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, the Agreement, regardless of any failure of a receiving Party to object to these terms, provisions, or conditions. The Agreement may not be amended, except by a writing signed by both Parties. If any term, condition, or provision in the Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in the Agreement. If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. Service Orders may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. Service Orders may also be executed and delivered by facsimile or other electronic means and such execution and delivery will have the same force and effect of an original document with original signatures.