Terms & Conditions of Use

1. Introduction

(a)  Concilio Labs, Inc., a Delaware corporation operates certain products, websites, and applications, including without limitation www.ConcilioLabs.com, services, products and mobile applications, to provide certain technology products and services for businesses (the “Services”). This Agreement is made by and between Concilio Labs ("Company") and each business (“Customer”) that subscribes for the Services regarding such Customer’s subscription for the Services. Customer personnel (“Users”) will use the Products and Services under Customer’s account and this Agreement is also made by and between Company and each User. The following Terms and Conditions of Use, along with Company’s  Privacy Notice, by which Customer subscribes for the Products and Services (a “Master Services Agreement” (MSA) and/or “Statement of Work” (SOW)), and any additional documents referenced therein (collectively the “Agreement”), set forth the entire agreement regarding the use of the Services by Customers and Users. As used below, “you” refers to an individual Customer or User, as applicable. If a Customer has a signed agreement with Company regarding provision of Services, the terms of that Agreement will control Company's relationship with that Customer and its Users to the extent of any conflicts with these Terms and Conditions.  This Agreement contains provisions that govern how claims you and we may have against each other are resolved (see Section 12 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration.

(b)  Company collects, uses, discloses and otherwise processes personally identifiable information and personal data (as defined in the General Data Protection Regulation (“GDPR”) in Article 4(1)) of Users in accordance with the Company's Privacy Notice. The following Terms and Conditions of Use adopts the definition of processing set forth in the GDPR in Article 4(2) and defines Personally Identifiable Information as set forth in the definition of “personal data” in the GDPR’s Article 4(1). Please review the Privacy Notice carefully. Certain features of the Products and Services may be subject to additional guidelines, terms, or rules, which will be posted on the Products and Services. All such additional guidelines, terms, and rules are hereby incorporated by reference into this Agreement.

(c)  PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND/OR USING THE PRODUCTS AND/OR SERVICES, YOU REPRESENT AND WARRANT THAT (I) YOU ARE A USER OF A CURRENT CUSTOMER, (II) IF YOU ARE THE FIRST USER OF A CURRENT CUSTOMER TO REGISTER FOR AN ACCOUNT ON THE PRODUCTS AND/OR SERVICES, YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT, (III) YOU AGREE TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION SET FORTH IN MORE DETAIL IN SECTION 12, AND (IV) YOU AGREE TO THIS AGREEMENT.

IF YOU CANNOT MAKE ALL OF THE FOREGOING REPRESENTATIONS AND WARRANTIES, DO NOT ACCESS OR USE THE SERVICES.

2. Services and Support

(a)  Subject to the terms of the MSA, Company will use commercially reasonable efforts to provide Customer the Services [in accordance with the Service Level Terms]. As part of the onboarding process, Customer will identify an administrative username and password for Customer’s account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

(b)  Subject to the terms hereof, Company will provide Customer with support in accordance with Company’s standard practice set forth in the Master Services Agreement, Application Management Agreement and/or individual Statement of Work and Change Requests, (collectively, the "Agreements"). 

3. Term and Termination

(a)  Subject to earlier termination as provided below, the MSA is for the Term as specified in the MSA, and shall be automatically renewed for additional periods of the same duration as the initial term (collectively, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current term.

(b)  In addition to any other remedies it may have, either party may also terminate this Agreement upon sixty (60) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day of the month on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for the remaining days of the month paid, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

4. Ownership and Confidentiality of Content and Materials

(a)  Products and Services, Company gathers, stores, analyzes, displays and uses a variety of information, including without limitation (i) publicly available content such as reviews posted on third party websites, feedback and information provided by guests at Customer facilities, posts from social media sites and forums, news articles, blog posts, photos and videos, and (ii) commercially available data regarding businesses in Customer’s industry (such as hotel occupancy rates, average daily rates and revenue per available room) (collectively “Third Party Content”). Some Third Party Content is public information (such as online hotel reviews) and other Third Party Content is proprietary to its creators (such as industry research data). Third Party Content may be owned by the people or entities that publish such content, or by other parties.

(b)  Customer owns or has rights to all Personally Identifiable Information of its guests provided to Company and/or submitted to Company via the Services. Company will maintain the confidentiality of such Personally Identifiable Information as described in Section 4(a). At the same time, Customer understands the Services operate by aggregating Third Party Content, and agrees that information will not be deemed confidential to the extent it is publicly available or otherwise constitutes Third Party Content. The names of such guests and their reviews are Third Party Content.

(c)   Company owns the Services and provides the Services to Customer and Users as defined in Section 1(a) above. Company also owns all “Service Data”, meaning all data generated as a result of Customer’s interaction with the Services, but excluding Guest Personally Identifiable Information, ownership of which is retained by Customer. Service Data includes each User’s path through the Services, login frequency, level of interaction with Customer, usage reports, reports containing summaries and analysis of aggregated Third Party Content (as defined above), and all other data regarding Customer’s or its Users’ use of the Services. Service Data is de-identified so that Customer cannot be identified as the source of Service Data. The term Anonymous Data used in Company’s Privacy Notice refers to this de-identified content.

5. Confidentiality, Proprietary Rights

(a)  Each party (the “Receiving Party”) understands the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information includes (i) proprietary analysis tools, software and intellectual property, including software and intellectual property related to the Services, human resources or other employee information; business plans; details of internal operations and processes; product research and development information; marketing plans or strategies; product pricing information including but not limited to pricing, pricing assumptions, pricing proposals, pricing quotes and pricing models; customer lists or information; supplier lists or information; all information provided by either party to the other regarding the disclosing party’s business infrastructure, network, employees, guest names and their email addresses, any non-public financial or business information; (ii) industry research data that specifically identifies Customer, such as hotel occupancy rates, average daily rates and revenue per available room for Customer properties; (iii) any other information reduced to writing and clearly marked confidential; or (iv) any other information that a reasonable party would consider confidential. Proprietary Information of Customer also includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information or trade secrets after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) not to disclose Confidential Information in any way to any person or entity without prior consent of disclosing party, except to its employees or contractors who are under confidentiality obligations at least as stringent as those set forth herein; or (f) not to use disclosing party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement; or (g) is required to be disclosed by law and (iii) to return or destroy on demand all Confidential Information which has been supplied to or acquired by receiving party.

(b)  Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

(c)  Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

6. License and Use Rights

(a)  Company will provide Customer with access to the functionality currently included in Services identified this Agreement. Company may, from time to time in the ordinary course of business, refine, modify, or improve current functionality or develop additional functionalities, the latter of which may be offered for free or at additional cost.

(b)  Customer, and each User, agrees not to: (i) permit any third party to access or use the Services; (ii) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (iii) modify or make derivative works based upon the Services; (iv) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; or (v) frame, mirror or reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Products and Services, or (c) copy any ideas, features, functions or graphics of the Products and Services; or (vi) attempt to access any other Company systems that are not part of these Services.

(c)  Service Data, Concilio Labs Confidential Information and Third Party Content may not be modified, republished, reproduced, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of Concilio Labs and if applicable, the rights holder of Third Party Content (such as industry research data). Customer and all Users must abide by all copyright notices, information, or restrictions related to any Service Data and Third Party Content.

(d)  Customer acknowledges that (i) Company aggregates Third Party Content from various public websites and from commercial databases, and (ii) Third Party Content may be obtained by Company or licensed to Company by third parties subject to copyright and other restrictions on reuse or redistribution. Customer understands the foregoing and agrees that it is requesting Company to aggregate and present both publicly available and proprietary Third Party Content to Customer and its Users.

(e)  Certain Services requires the use of Guest Personally Identifiable Information. Customer hereby grants Company a non-exclusive and nontransferable right to access, use, store and process the Guest Personally Identifiable Information collected via the Services and otherwise from the Customer, solely for the purposes of providing those Services to Customer during the term of and in accordance with this Agreement. As set forth in more detail in Section 7, Customer represents and warrants that it has lawfully obtained any and all Guest Personally Identifiable Information and obtained the lawful consent or other GDPR-compliant lawful basis to process and share Guest Personally Identifiable Information that Customer grants Company a non-exclusive and nontransferable right to access, use, store and process for the purposes of providing Services to Customer during the term of and in accordance with this Agreement.

(f)  The Company name “Concilio Labs” and the Concilio Labs logo, as well as certain other of the words and logos displayed in Services, constitute trademarks, trade names, or service marks (“Marks”) of Company or other entities. Customer is not authorized to use any such Marks without prior written consent from Company. Ownership of all such Marks and the goodwill associated therewith remains with Company or those other entities.

7. Customer’s Representations, Responsibilities, and Warranty

(a)  Customer, and each User, agrees not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit: (i) material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, constitutes hate speech, or is otherwise offensive or objectionable; (ii) unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (iii) material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor); or (v) any Content that is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.

(b)  Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

(c)  Customer represents covenants, and warrants that Customer has complied with all applicable Data Protection Laws and Regulations (all applicable laws which govern the use of data relating to identified or identifiable natural persons residing in the European Union and/or their member states, Switzerland, the United Kingdom, and the European Economic Area (“EEA”), including the laws of the European Union (“EU”) Data Protection Act 1998, the EU General Data Protection Regulation (“GDPR”), as amended or replaced from time to time, and any other foreign or domestic laws to the extent that they are applicable to a Party in the course of its performance of the Agreement).

(d)  Customer represents, covenants, and warrants that it is responsible for providing the necessary notice of its data collection, processing and sharing practices to guests, visitors or users of its business under the Data Protection Laws. Customer is responsible for obtaining, and demonstrating evidence that it has obtained, all necessary consents, authorizations and required permissions under the Data Protection Laws in a valid manner for Concilio Labs to perform the Services in the Agreement. Upon request of Concilio Labs, Customer shall provide adequate proof for having properly obtained all such necessary consents, authorizations and required permissions

(e) Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations, including but not limited to the GDPR discussed in subsection (c) above Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

(f)  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

(g)  The Products and Services may integrate third-party services (for example, Twitter or Facebook) allowing Customer to post information to websites outside the Products and Services. Customer, and each User, agrees to inform itself of the terms and conditions of each of these integrated third-party services prior to use, and abide by such terms and conditions if Customer utilizes such integrated services. Customer, and each User, further agrees not to: (i) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (ii) interfere with or disrupt Company’s servers or servers or networks connected to Company, or disobey any requirements, procedures, policies, or regulations of networks connected to Company.

(h)  The Services may integrate third-party services allowing Customer to post information outside the Services. Customer, and each User, agrees to inform itself of the terms and conditions of each of these integrated third-party services prior to use, and abide by such terms and conditions if Customer utilizes such integrated services.

(i)  If it is determined at any time that Customer or any User is in breach of this Section 2, Company may suspend Customer’s access to the Services until the issue is resolved to Company’s satisfaction, if Customer does not first remedy the issue within the cure period set forth in Company’s notice to Customer.

(j)  Following registration for the Services, Customer will be asked to provide a admin username and email address for a master account (“Master Account”). Using the Master Account, Customer can create, modify, or delete accounts for Users (each, a “User Account”). Customer’s subscription is personal to Customer, and Customer and each User are prohibited from sharing usernames and passwords. Customer and each User are responsible for maintaining the confidentiality of all passwords for the Master Account and User Accounts, and Customer and its Users are exclusively responsible for all activities that occur within their accounts. Customer and each User agree to immediately notify Company of any unauthorized use of their accounts or any other breach of security related to the Services of which Customer or a User becomes aware. Company reserves the right, with notice to Customer, to change the password to the Master Account or any User Account if Concilio Labs believes that the applicable password is no longer secure.

(k)  Certain Services permit Customers to send email, SMS and other messages to their guests. The sending of commercial messages is regulated by law, including CAN-SPAM and the Telephone Consumer Privacy Act. SMS messaging is further regulated by mobile service carriers (“Carriers”) and by the policies and best practices of the Mobile Marketing Association and the CTIA, which collectively impose requirements regarding the integrity of SMS content and compliance with acceptable use policies. Customer acknowledges and agrees it is responsible for complying with all applicable laws, published rules and policies regarding communication with its guests. Customer represents and warrants it has obtained written or electronic opt-in permission from each guest to send messages to that guest, and agrees if a guest opts out of a specific form of messaging from Customer (e.g. SMS), Customer will update the Services accordingly. Customer may not send any messages to a guest through the Services unless such messages are directly related to the type of information the guest has opted-in to receive from Customer. Company will notify Customer if it becomes aware of any violation or perceived violation of applicable laws, published rules and policies, and Customer is immediately obligated to correct any actual violation. Company may suspend Customer’s use of messaging features in the Products and Services until a violation is cured. Customer will remain responsible for ensuring it complies with all applicable laws, rules and regulations when communicating with its guests via the Services and will keep Company fully indemnified in accordance with Section 7 of this Agreement in respect of any breach of this Section.

8. Company’s Warranty and Disclaimer

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT

9. Payment of Fees

(a) Customer will pay Company the applicable fees described in the SOW for the Services and Implementation Services in accordance with the terms therein (the “Fees”).  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).

(b)  Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

10. Indemnity

(a)  Customer agrees to indemnify, defend, and hold harmless Company, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents (together, the “Company Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys’ fees) (together, “Claims”) brought by third parties (including Users) arising from or relating to (i) any information Customer or any User submits, posts, or transmits through the Products and Services or any other act or omission of Customer or any User in connection with the Products and Services, (ii) Customer’s, or any User’s, grossly negligent use or intentional misuse of the Products and Services, (iii) Customer’s, or any User’s, breach of its material obligations under this Agreement,  (iv) Customer’s, or any User’s, violation of any rights of any other person or entity arising out of or related to the use of the Products and Services, and (v). Customer’s, or any User’s, violation of any Data Protection Laws and Regulations.

(b)  Company agrees to indemnify, defend, and hold harmless Customer from all third party Claims finally awarded against Customer or agreed to in a settlement by Company to the extent arising from the Products and Services violating any third-party’s intellectual property right, including trademark, copyright or patent. Company will conduct the defense of any such Claim, any related proceedings and actions, and all negotiations for settlement or compromise of the same. Customer may in its discretion participate in the defense of any such Claim and any related proceedings and actions at Customer’s expense. The foregoing obligations are conditioned on Customer notifying Company promptly in writing of such action, giving Company sole control of the defense thereof and any related settlement negotiations, and cooperating in such defense. If the Products and Services become, or in Company’s opinion are likely to become, the subject of an infringement or misappropriation claim, Company may, at its option and expense, either (i) procure for Customer the right to continue exercising the rights licensed hereunder; (ii) replace or modify the Products and Services so they become non-infringing and remain substantially functionally equivalent; or (iii) refund to Customer any advance fees paid by Customer to Company pursuant to Section 6 for periods during which Customer is unable to use the affected Products and Services due to such Claim, proceeding, action or settlement, and terminate this Agreement upon written notice to Customer. Notwithstanding the foregoing, Company will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based upon (w) any unauthorized use or distribution of the Products and Services by Customer or any of its Users; (x) any use of the Products and Services in combination with other products, software, or data not supplied by Company; (y) any modification of the Products and Services by any person other than Company or its authorized contractors; or (z) any Third Party Content, or the collection, storage or provision of Third Party Content. This Section states Company’s entire liability, and Customer’s sole and exclusive remedy, for infringement and misappropriation claims and actions.

(c)   Neither Customer nor Concilio Labs may settle or compromise any third party Claim involving a claim of indemnity without the prior written consent of the other, which consent shall not be unreasonably withheld. Neither Customer nor Company may settle or compromise any third party Claim involving a claim of indemnity without the prior written consent of the other, which consent shall not be unreasonably withheld.

11. Limitation of Liability

(a)  COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY, REGARDLESS OF THE NATURE OR THEORY OF ANY CLAIM OR ALLEGED DAMAGES, IN CONNECTION WITH THE COLLECTION, STORAGE, REPRODUCTION, AND PROVISION OF THIRD PARTY CONTENT TO CUSTOMER AND EACH USER, AND THEIR USE OF THIRD PARTY CONTENT.

(b)  EXCLUDING ITS INDEMNIFICATION OBLIGATIONS AND ITS CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, NEITHER COMPANY NOR CUSTOMER WILL BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE SERVICES, SERVICE DATA, THIRD PARTY CONTENT OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF COMPANY FOR ALL OTHER CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, SERVICE DATA AND THIRD PARTY CONTENT, WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY WITHIN THE PRECEDING SIX (6) MONTHS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL COMPANY’S RESELLERS OR SUPPLIERS HAVE LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

(c)  Company’s inclusion of a link via the Product and Services to any other website or Internet resource is for Customer’s convenience only and does not signify Company’s endorsement of such other website or Internet resource or its contents. Company shall have no responsibility or liability for any information, software, or materials obtained from third-party websites or Internet resources Concilio Labs’ inclusion of a link via the Product and Services to any other website or Internet resource is for Customer’s convenience only and does not signify Concilio Labs’ endorsement of such other website or Internet resource or its contents. Concilio Labs shall have no responsibility or liability for any information, software, or materials obtained from third-party websites or Internet resources.

12. Arbitration

All claims arising out of or relating to this Agreement and the Service will be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of the Consumer Arbitration Rules of the AAA, excluding any rules or procedures governing or permitting class actions.  The arbitrator—and not any federal, state, or local court or agency—will have exclusive authority to resolve all disputes arising out of or relating to this Agreement.  The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity.  The arbitrator’s award will be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.  The interpretation and enforcement of this Agreement will be subject to the Federal Arbitration Act.

THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879.  TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST.  IF WE ARE REQUIRED TO PAY THE ADDITIONAL COST OF THE FILING FEES, YOU SHOULD SUBMIT A REQUEST FOR PAYMENT OF FEES TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA.  THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.

THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.  THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.

     Small Claims Exception.

     Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

13. General

(a)  Each party, at its sole respective cost and expense, shall comply with all present and future federal, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Products and Services (collectively “Laws”) including, without limitation, all data privacy and processing Laws, and all intellectual property and licensing Laws.

(b)  If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The section headings of this Agreement are for convenience and are not to be used in interpreting this Agreement. The words “includes” and “including” shall be read to mean “including without limitation”. This Agreement may only be modified as provided for herein, and otherwise cannot be modified, terminated or amended in any respect orally or by conduct of the parties without written agreement by the parties .

(c)  This Agreement and/or each Party’s rights and obligations under this Agreement may not be assigned or transferred by either Party; provided, however, that Concilio may subcontract its obligations to Subcontractors as provided herein and provided, further, that either Party may assign or transfer this Agreement to (i) a subsidiary or affiliate of such Party provided the assigning Party remains liable for its subsidiary’s or affiliate’s performance of the Agreement or (ii) to any third party which acquires all or substantially all of such Party’s business or assets to which this agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise, upon prior written notification to the other Party.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns, provided that any such assignee shall agree to perform the provisions of this Agreement, including all obligations assumed hereunder, including, without limitation the Term set forth in the Parties’ MSA, and any time remaining on the renewal term.

(d)  From time to time, Company will review, audit, and amend its pricing, pricing assumptions, pricing model and other terms pursuant to which the Services are provided. Company may amend this Agreement from time to time by posting an amended version and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). However, if you are a Customer and give Company written notice of rejection of the amendment prior to the Proposed Amendment Date, this Agreement will continue under its original provisions, and the amendment will become effective at the start of the next term. If you are a User and object to any such changes, your sole recourse will be to discontinue use of the Products and Services. A User’s continued use of the Services following the Proposed Amendment Date shall constitute acceptance of such changes. Notwithstanding the foregoing, Company may amend the Privacy Notice at any time as set forth therein. Company reserves the right to modify, suspend, or discontinue the Services upon notice to Customer. Company shall not be liable should Company exercise its right to modify, suspend, or discontinue the Services. If, however, Company discontinues the Services, Company may refund to Customer any subscription fees Customer has prepaid for the period after which Company has discontinued Services.

(e)  Each party agrees it has reviewed and approved this Agreement, and accordingly any presumption or rule of construction permitting ambiguities to be resolved against the drafting party shall not be employed in the interpretation or application of this Agreement.

(g) This Agreement shall be construed under the laws of the State of Virginia, notwithstanding any choice-of-law principle that might dictate a different governing law. Each party irrevocably agrees, consents and submits to the exclusive jurisdiction of and venue in the federal and state courts located in McLean, Virginia with respect to any dispute arising out of or relating in any way to this Agreement.

Last modified: May 2018