Cord Service Agreement
This is the Service Agreement referred to in the Order Form.
This Service Agreement (“Agreement”) is between Radical HQ Limited t/a Cord (“Cord”) a company incorporated in England and Wales whose registered address is at 48 Wilson Grove, London, England, SE16 4PN and the entity or person placing an order for or accessing the Service (“Customer”). The “Effective Date” of this Agreement is the earlier of (a) Customer’s initial access to the Service through any online provisioning, registration or order process or (b) the date of the first Order. Certain capitalized terms are defined in Section 17 (Definitions) and others are defined contextually in this Agreement. By indicating your acceptance of this Agreement or accessing or using the Service, Customer agrees to be bound by the terms and conditions of this Agreement.
Cord offers a cloud based software program that is designed to allow its Customer’s End Users to create, collaborate and centralize communication on Customer Applications. Customer maintains sole control over the types and content of all Customer Content submitted to the Service.
2. The Service
2.1. Permitted Use
During the Subscription Term, Customer and its End Users may access and use the Service only for its internal business purposes in accordance with the Documentation, the Policies and this Agreement, including any usage limits in an Order. This includes the right to copy and use the Software and API with Customer Applications as part of Customer’s authorized use of the Service. The API is the application program interface made available by Cord to Customer for the purposes of connecting Customer’s Cord account with Customer Applications.
2.2. End Users
Customer may designate certain employees, consultants, contractors or agents as administrators with control over Customer’s Service account, including management of End Users and Customer Content, as described in the Documentation. Customer is fully responsible for its choice of administrators and any actions they take.
2.4. Customer Affiliates
Customer’s Affiliates may use the Service according to this Agreement and any Order. Customer and each of its Affiliates will be jointly and severally liable for the acts and omissions of such Affiliates and their End Users in connection with this Agreement and such Affiliates’ use or their End Users’ use, of the Service. Only Customer may bring any claim against Cord on behalf of its Affiliates.
Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party (except to make the Service available to End Users in connection with the use of each Customer Application), (b) use the Service to develop a similar or competing product or service, (c) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to Cord), (d) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Software), (e) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (f) publish benchmarks or performance information about the Service, (g) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (h) transmit any viruses or other harmful materials to the Service, (i) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (j) use the Service to store or transmit material which contains illegal content.
4. Customer Content
4.1. Data Use
Customer grants Cord the non-exclusive, worldwide right to use, copy, store, transmit and display Customer Content and to modify and create derivative works of Customer Content (for reformatting or other technical purposes), but only as necessary to provide the Service to Customer under this Agreement. Customer acknowledges and agrees that Cord may use Usage Data for analytical purposes and to improve the Service.
Cord uses reasonable technical and organizational measures designed to protect the Service and Customer Content as described in the Security Standards.
4.3. Personal Data
Each party agrees to comply with the DPA. To the extent Customer Content includes personal data, Cord represents and warrants to only process such data pursuant to Customer’s requests or as otherwise set forth in the DPA.
4.4. Data Export
During the Subscription Term or within 30 days thereafter, Customer may export its Customer Content from the Service using the export features described in the Documentation. After this export period, Cord may delete Customer Content in accordance with its standard schedule and procedures. If Customer elects to proactively delete its account at any time, all associated Customer Content will be deleted permanently and cannot be retrieved.
5. Customer Obligations
Customer is responsible for its Customer Content, including its content and accuracy, and agrees to comply with Laws in using the Service. Customer represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Customer Content with the Service and grant Cord the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Content.
5.2. Prohibited Uses
Customer and End Users must not use the Service with Prohibited Data. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Cord is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Cord has no liability for Prohibited Data.
6. Suspension of Service
Cord may suspend Customer or an End User’s access to and use of the Service and related services if Customer or End User breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations), if Customer’s account is 30 days or more overdue or if Customer’s or End User’s actions risk harm to other customers or the security, availability or integrity of the Service. Cord will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Cord will promptly restore Customer’s or End User’s access to the Service in accordance with this Agreement.
7. Third-Party Applications
Use of a Customer Application or any web-based, offline, mobile or other software application that is provided by a third party that is integrated with the service (in this section, defined collectively as “Third Party Applications”) is subject to Customer’s or End User’s agreement with the relevant provider and not this Agreement. Cord does not control and has no liability for Third-Party Applications, including their security, functionality, operation, availability or interoperability or how the Third-Party Applications or their providers use Customer Content. If Customer enables a Third-Party Application with the Service, Cord may access and exchange Customer Content with the Third-Party Application on Customer’s behalf.
8. Commercial Terms
8.1. Subscription Term
The Subscription Term begins once Customer registers for a Cord account, and is the billing cycle selected for its Cord account. Unless otherwise specified in the applicable Order, each Subscription Term will renew for additional terms equal to the expiring Subscription Term, unless Customer gives Cord notice of non-renewal at least 30 days before the current Subscription Term ends by sending an email to email@example.com. All renewals are subject to the applicable Service continuing to be offered.
8.2. Fees and Taxes
Fees for different payment plans are as described on Cord’s pricing page or in each Order and, except as otherwise specifically provided in this Agreement, are non-cancellable and non-refundable. The Customer authorises Cord’s third party payment processor to bill Customer’s payment card for the applicable fee in advance or shortly after the date Customer subscribes for a paid plan and each month or anniversary thereafter, until terminated in accordance with this Agreement. If Customer moves to a higher tier of a paid plan, the change will take effect immediately and Cord will charge Customer for the additional fees associated with the new paid plan on a pro-rata basis. If Customer moves to a lower tier of a paid plan, the fee change will take effect in the next billing cycle. Customer will not be entitled to a refund for moving to a lower tier of a paid plan or to a free subscription plan.
Fees are payable in USD. Fees for renewal Subscription Terms are at Cord’s then-current rates, Cord may increase Fees for the Service at the expiration of the then-current Subscription Term upon 30 days’ prior written notice to the Customer. Customer shall be deemed to accept any increased Fees by continued use of the Service after the introduction of the new Fees. All fees and expenses are non-refundable except as set out in Section 9.2 (Warranty Remedy) and Section 13.4 (Mitigation and Exceptions). Customer is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Cord’s income tax. Fees and expenses are exclusive of Taxes.
9. Warranties and Disclaimers
9.1. Limited Warranty
Cord warrants to paying Customers that: (a) the Service will perform materially as described in the Documentation and Cord will not materially decrease the overall functionality of the Service during a Subscription Term (the “Performance Warranty”).
9.2. Warranty Remedy
If Cord breaches the Performance Warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Cord will use reasonable efforts to correct the non-conformity. If Cord cannot do so within 60 days of Customer’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service. Cord will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) . These procedures are Customer’s exclusive remedy and Cord’s entire liability for breach of the warranties in Section 9.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Customer Applications or other third-party systems or (c) Trials and Betas or other free or evaluation use.
Except as expressly provided in Section 10.1 (Limited Warranty), the Service and all related Cord services are provided “AS IS”. Cord and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Cord does not warrant that Customer’s use of the Service will be uninterrupted or error-free or that the Service will meet Customer’s requirements, operate in combination with third-party services used by Customer or maintain Customer Content without loss. Cord is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Cord’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
10.2. Effect of Termination
Upon expiration or termination of this Agreement or an Order, Customer’s access to the Service will cease, other than limited use of the Service to export Customer Content as described in Section 4.4 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Content, which is addressed in Section 4.4). Customer Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
These Sections survive expiration or termination of this Agreement: 2.8 (Restrictions), 4.4 (Data Export), 5 (Customer Obligations), 8.2 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 16 (General Terms) and 17 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Cord’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in the Customer Applications and Customer Content provided to Cord. Except for Customer’s use rights in this Agreement, Cord and its licensors retain all intellectual property and other rights in the Service, the Software and related Cord technology, templates, formats and dashboards, including any modifications or improvements to these items made by Cord. Cord may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. If Customer or End Users provide Cord with feedback or suggestions regarding the Service or other Cord offerings, Cord may use the feedback or suggestions without restriction or obligation.
12. Limitations of Liability
12.1. Consequential Damages Waiver
The disclaimer in this Section 12.1 (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
12.2. Liability Cap
Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Cord during the prior 12 months under this Agreement.
12.3. Excluded Claims
“Excluded Claims” means: (a) Customer’s breach of Sections 2.8 (Restrictions) or 5 (Customer Obligations), (b) either party’s breach of Section 14 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 13.2 (Indemnification by Customer), (d) either party’s willful misconduct or (e) Cord’s performance of the Service that results in death, personal injury or damage to tangible property.
12.4. Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
13.1. Indemnification by Cord
For Customers who are paying subscribers to the Service, Cord will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Cord resulting from the claim.
13.2. Indemnification by Customer
Customer will defend Cord from and against any third-party claim to the extent resulting from Customer Content or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Cord against any damages or costs awarded against Cord (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
The indemnifying party’s obligations in this Section 13 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Cord is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
13.4. Mitigation and Exceptions
In response to an actual or potential infringement claim, if required by settlement or injunction or as Cord determines necessary to avoid material liability, Cord may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Cord’s obligations in this Section 13 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by Cord (including Customer Applications), (2) to infringement resulting from Software other than the most recent release provided by Cord, (3) to unauthorized use of the Service, (4) if Customer settles or makes any admissions about a claim without Cord’s prior consent, (5) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation. This Section 13 sets out Customer’s exclusive remedy and Cord’s entire liability regarding infringement of third-party intellectual property rights.
“Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Cord’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service and the Software. Customer’s Confidential Information includes Customer Content and Customer Applications.
As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Cord, the subcontractors referenced in Section 18.9), provided it remains responsible for their compliance with this Section 14 and they are bound to confidentiality obligations no less protective than this Section 14.
These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Agreement without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.5. Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment and takes commercially reasonable and lawful actions to avoid or minimize the extent of, and to obtain confidential treatment for, any such disclosure.
15. Trials and Betas
If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Cord (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Cord may never release, and their features and performance information are Cord’s Confidential Information. Notwithstanding anything else in this Agreement, Cord provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas will not exceed GBP £50.
16. General Terms
Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Cord may include Customer and its trademarks in Cord’s customer lists and promotional materials but will cease this use at Customer’s written request.
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
16.3. Governing Law and Jurisdiction
This Agreement is governed by and construed with the laws of England and Wales without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Agreement.
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the Order and will be deemed given: (a) upon receipt if by hand or confirmed electronic transmission, (b) upon receipt if by certified or registered mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. Either party may update its address with notice to the other party. All notices to Cord must include a copy emailed to firstname.lastname@example.org. Cord may also send operational notices to Customer by email or through the Service.
16.5. Entire Agreement
This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
Cord may revise this Agreement from time to time by posting a modified version of the Agreement including its effective date. If Cord makes material changes to the Agreement, it will provide Customer with reasonable notice prior to the new Agreement taking effect. By continuing to access or use the Service after the posting of any modified Agreement, Customer agrees to be bound by such modified Agreement.
16.7. Waivers and Severability
Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
16.8. Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
Cord may use subcontractors and permit them to exercise Cord’s rights, but Cord remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
16.10. Independent Contractors
The parties are independent contractors, not agents, partners or joint venturers.
16.11. Anti-Corruption and International Trade Laws
Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. Customer will promptly notify Cord in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by Cord. Cord represents that it has obtained, and warrants that it will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Service. Each party represents that it (and in Customer’s case, also its End Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). Customer will immediately (a) discontinue use of the Service if it is placed on any Sanctions List and (b) remove End Users’ access to the Services if End Users become placed on any Sanctions List. Customer represents that it has not, and warrants that it will not, export, re-export, or transfer the Service to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 16.11.
16.2. Open Source
The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or by Cord upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
“Acceptable Use Policy” means certain terms relating to the use of the Service, the current version of which is available here.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Customer Application” means any software application or service that Customer makes available to its End Users (as defined below) that interfaces with the Service.
“Customer Content” means any data, content or materials that Customer (including its End Users) creates within or submits to the Service, including from Customer Applications.
“DPA” means the Data Processing Addendum between the parties, the current version of which is here.
“Documentation” means Cord’s usage guidelines and standard technical documentation for the Service, the current version of which is here: docs.cord.com.
“End User” means any individual that Customer or its Affiliate permits or invites to use the Service, including users of each Customer Application.
“Fees” means the fees applicable to your use of the Service as set out on Cord’s pricing page or on the Order.
“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.
“Order” means an order document, online registration or order confirmation for access to the Service that references this Agreement.
“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any medical data, financial data, data about minors or other sensitive personal data protected under foreign or domestic Laws.
“Security Standard” means the Cord Security Standard.
“Service” means Cord’s proprietary cloud service, as described on www.cord.com and as identified in a relevant Order and as modified from time to time. The Service includes the Software and Documentation.
“Software” means any Cord client software, API, scripts, apps or other code provided to Customer by Cord for use with the Service.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Services, as identified in an Order.
“Usage Data” means any data that is derived from the use of the Service that does not directly or indirectly identify Customer, End User, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify any natural person.
Apr 1st, 2023