Last Updated: January 2015
This API License and Services Agreement (“Agreement”) is entered into as of the Effective Date defined below by and between CONCUR TECHNOLOGIES, INC. (“Concur”) and the undersigned licensee below (“Licensee”). In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Aggregated Concur Data” means Concur customer data and other information that has been stripped of all personally identifiable information and any information that identifies Concur or any of its customers or partners.
“API Keys” means the API keys, access tokens, account numbers, and other access credentials issued by Concur to Licensee to access the Concur Servers and use the API Services.
“API Services” means the data interface services made available by Concur to Licensee, as selected by Licensee through an Order Form, that provide Licensee with programmatic access to Concur’s functionality, data or business logic to exchange Licensee Functionality, Licensee Data or Licensee Business Logic with the Concur Servers through the Concur APIs in connection with the services provided to Licensee under the Business Agreement.
“Business Agreement” means an agreement for Concur’s provision of business services between Concur and Licensee Customers and End Users.
“Code Library” means executable code or source code made available by Concur to Licensee in connection with each Concur API, to be incorporated into the Licensee Software under this Agreement.
“Commercial Release” means a version of the API Services that is made available to Concur customers as a final, commercial release version of the API Services. A Commercial Release does not include any version of the API Services that is specifically identified by Concur (such as in an Order Form, Concur APIs, or other description of the API Services) as an alpha, beta, test, demo, evaluation, pre-release, or other non-final version, whether or not a fee is charged for such version.
“Concur APIs” means Concur’s application programming interfaces, specifications, instructions and other documentation made available by Concur to Licensee from time to time to enable access to the API Services, excluding the Sample Code.
“Concur Servers” means the Concur Internet servers and networks made available to Licensee to use the API Services, as described in the Concur APIs.
“Concur Software Development Kit” means the Sample Code, Code Libraries, or other tools Concur provides to the Licensee from time to time to aide the Licensee’s development and debugging of their code that uses Concur APIs.
“Licensee Customers and End Users” means business customers of Licensee and their end users that access and use Concur’s business services and the API Services pursuant to a Business Agreement. With respect to matters under this Agreement, the acts and omissions of Licensee Customers and End Users are deemed the acts and omissions of Licensee.
“Licensee Business Logic” means the business logic provided to the Concur Servers by the Licensee Software.
“Licensee Data” means the electronic data specifically pertaining to Licensee, Licensee Customers and End Users, or users of Licensee that are submitted into the services provided under the Business Agreement.
“Licensee Functionality” means the functionality provided to the Concur Servers by the Licensee Software.
“Licensee Software” means the software owned (or licensed), used and hosted by Licensee to access the Concur Servers and use the API Services.
“Modified Code” means improvements, derivative works and other modifications created by or on behalf of Licensee of the Sample Code, Code Libraries, or other tools in the Concur Software Development Kit.
“Noncommercial Release” means any version of the API Services that is specifically identified by Concur (such as in an Order Form, Concur APIs, or other description of the API Services) as an alpha, beta, test, demo, evaluation, pre-release, or other non-final version, whether or not a fee is charged for such version.
“Order Form” means a registration wizard or other form on a Concur website, a service addendum to this Agreement, or such other materials as Concur may provide to Licensee from time to time, through which Licensee may select API Services.
“Sample Code” means the sample source code, scripts, and other software made available by Concur to Licensee, in connection with each Concur API, to be incorporated into the Licensee Software under this Agreement.
“Sensitive Data” means personally identifiable information about persons including, but not limited to, full name, residential address, bank account number, credit card number, telephone number, driver’s license number, and passport number.
2.1 Selection of API Services. Licensee may select API Services through an Order Form. The use of any API Services will be subject to any additional terms and conditions as may be set forth or referenced in the Order Form. Except as set forth in such terms and conditions, Licensee may cancel any API Services at any time by updating and submitting to Concur an Order Form or written notice.
2.2 Changes to API Services and Concur Software Development Kit. The API Services and Concur Software Development Kit are provided solely at the discretion of Concur, and Concur may change, suspend or cancel any or all API Services or revise the Concur Software Development Kit at any time. Without limiting the foregoing, Concur may suspend or cancel any API Services provided to Licensee immediately, with or without notice to Licensee, in the event of an actual or reasonably suspected security breach or threat. Concur may revise the Concur Software Development Kit by providing the revised Concur Software Development Kit to Licensee by email to Licensee’s email address registered with Concur, posting the revised Concur Software Development Kit to a webpage or server designated by Concur, or notifying Licensee through such other method as Concur may specify to Licensee from time to time. In the event Concur revises the Concur Software Development Kit, except as otherwise set forth in the revised Concur Software Development Kit, Licensee will update the Licensee Software and its use of the API Services to comply with the revised Concur APIs and incorporate the revised Sample Code in the Licensee Software within thirty (30) days of the effective date of any such revisions. Concur makes no guarantees that it will continue to provide, support or maintain the API Services or Concur Software Development Kit.
2.3 API Keys; Security Breaches. Licensee will treat all API Keys as Confidential Information (defined below), and will be solely responsible for all authorized and unauthorized use of the API Services using such API Keys. Licensee will promptly notify Concur if it discovers or otherwise suspects any security breaches related to the API Services, including any unauthorized use or disclosure of API Keys or any other access credentials of a third party.
3.1 Grant of Rights. Subject to Licensee’s compliance with this Agreement, so long as the Business Agreement is in effect between Concur and Licensee, Concur hereby grants to Licensee a nonexclusive, nontransferable license to do the following solely in connection with its use of the Concur APIs:
(a) use the Concur APIs to develop the Licensee Software and customize and configure Licensee’s systems and networks solely as necessary to interface with the Concur Servers; (b) create Modified Code and incorporate the Sample Code, Code Libraries or Modified Code into the Licensee Software; (c) use Sample Code, Code Libraries or Modified Code incorporated in Licensee Software to interface with the Concur Servers; and (d) access the Concur Servers and send and receive Licensee Data, Licensee Functionality, Licensee Business Logic and/or Aggregated Concur Data to and from the Concur Servers.
The license rights granted in the foregoing clauses (a) and (b) may not be sublicensed, however the license rights granted in clauses (c) and (d) may be sublicensed to Licensee Customers and End Users but only to the extent the Business Agreement specifically permits their access to or use of Concur’s business services and the API Services, provided that any such sublicensees comply with the terms of this Agreement. Upon termination of the Business Agreement, the foregoing license and all sublicenses granted thereunder will automatically terminate.
3.2 Ownership. Concur and its licensors and suppliers own and retain all right, title, and interest in and to the Concur Software Development Kit, including all intellectual property and other proprietary rights therein. The license set forth in Section 3.1 is the entirety of Licensee’s rights in connection with the Concur Software Development Kit.
3.3 Restrictions. Licensee shall not, and shall ensure that any sublicensees do not, directly or indirectly do any of the following:
(a) use the Concur Software Development Kit or the API Services for any purpose other than for the purposes described in Section 3.1 or in any manner that violates or does not comply with the Concur APIs;
(b) access the API Services using any version of the Concur Software Development Kit other than the most current version made available by Concur to Licensee, unless the most current version of the Concur Software Development Kit expressly allows continued use of prior versions;
(c) access or attempt to access through the API Services any data other than the Licensee Data or Aggregated Concur Data;
(d) improve, prepare derivative works of or otherwise modify the Concur Software Development Kit, other than Modified Code as permitted under Section 3.1, above;
(e) distribute the Concur Software Development Kit to any third party;
(f) sell, sublicense, distribute or otherwise commercially exploit the API Services, including without limitation enabling any use of the API Services on a service bureau basis or for any Licensee processing services beyond the scope specified in this Agreement (such as for any third parties on a rental or sharing basis);
(g) knowingly introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the API Services;
(h) interfere with any features or functionality of the API Services;
(i) introduce into the API Services or include in or with any Licensee Software any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any software code, which is designed to disrupt, damage, or perform unauthorized actions on a computer system;
(j) reverse engineer, decompile, disassemble, or attempt to derive source code from the API Services (including from any software on the Concur Servers); or
(k) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any Concur Software Development Kit.
3.4 License to Modified Code. Licensee hereby grants to Concur a nonexclusive, royalty free, perpetual and irrevocable license to reproduce, distribute, modify, use and otherwise commercially or non-commercially exploit any Modified Code. Upon request by Concur, Licensee will deliver to Concur a copy of any such Modified Code in a matter reasonably acceptable to Concur. Modified Code is not confidential information of Licensee or a third party.
3.5 Submissions. Any feedback, suggestions, ideas, questions, or other comments regarding the Concur Software Development Kit or API Services provided by Licensee to Concur (“Submissions”) are the Confidential Information of Concur, are not confidential information of Licensee or a third party, and shall become the sole property of Concur. Licensee hereby assigns and agrees to assign to Concur of all of Licensee’s rights, title, interest and goodwill in the Submissions, and Concur shall own exclusive rights, including all intellectual property rights, in such Submissions and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Licensee.
3.6 Security Requirements. Licensee agrees to establish, maintain, and monitor industry standard controls to protect any Sensitive Data that Licensee stores on systems that it uses to perform services.
4.1 General. Concur reserves the right to begin charging fees, change existing fees, or change payment terms for any API Services at any time. Concur will provide Licensee with written notice of any new fees, increase in existing fees, or change in payment terms applicable to API Services provided to Licensee at least thirty (30) days before the effective date, which notice may be by given solely by email to Licensee’s email address registered with Concur, posting the revised fees to a webpage or server designated by Concur, or notifying Licensee through such other method as Concur may specify to Licensee from time to time. Except as otherwise expressly set forth in the applicable Order Form: (a) Licensee will pay each accurate Concur invoice within thirty (30) days after the applicable invoice date; and (b) all fees and other charges shall be paid to Concur in United States dollars.
4.2 Taxes. Concur’s fees do not include any governmental taxes, assessments, fees, or duties that may be applicable in connection with the transactions contemplated by this Agreement (“Taxes”). Licensee will be responsible for paying all Taxes, except for taxes based on Concur’s net income or its authority to do business within a given jurisdiction. If Concur has a legal obligation to pay or collect Taxes for which Licensee is responsible under this Agreement, then Concur may include the appropriate amount on its invoice to Licensee and Licensee shall pay such amount, unless Licensee specifies in the applicable Order Form that it claims tax exempt status for amounts due under this Agreement and provides Concur a valid tax exemption certificate (authorized by the applicable governmental authority) at least five (5) business days prior to the date of the applicable Concur invoice.
5.1 Mutual Warranties. Concur and Licensee each hereby represents, warrants, and covenants to the other that: (a) it has the authority to enter into this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement; and (b) it will comply with all applicable laws and regulations that may be in effect during the term of this Agreement as they apply to such party’s obligations under this Agreement. Each party’s exclusive remedy and the other party’s entire liability for any breach of the warranty set forth in clause (a) shall be the indemnification provisions set forth in Section 6 below.
5.2 No Infringement. Licensee warrants that the Licensee Data, and the hosting, transmission and use thereof by Concur in accordance with the terms of this Agreement, do not and will not infringe, or constitute an infringement or misappropriation of, any intellectual property rights of a third party.
5.3 API Services Warranties. Concur warrants that, during the term of this Agreement, each Commercial Release of API Services provided hereunder will be provided substantially in accordance with its documentation, as reasonably updated by Concur from time to time. The foregoing warranty does not apply to any Noncommercial Release of API Services.
5.4 Limitation of Warranty; Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE SOLE WARRANTIES PROVIDED BY CONCUR IN CONNECTION WITH THE API SERVICES AND CONCUR SOFTWARE DEVELOPMENT KIT. CONCUR SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE API SERVICES, CONCUR SOFTWARE DEVELOPMENT KIT OR ANY OTHER ITEMS OR SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (a) OF MERCHANTABILITY, (b) OF FITNESS FOR A PARTICULAR PURPOSE, OR (c) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. CONCUR DOES NOT WARRANT THAT ANY ITEMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND MAKES NO WARRANTIES AS TO THE AVAILABILITY OF THE API SERVICES, LICENSEE’S ABILITY TO ACCESS THE API SERVICES, OR ANY LOSS, DAMAGE OR UNAUTHORIZED CHANGES TO ANY LICENSEE DATA. WITHOUT LIMITING THE FOREGOING, LICENSEE ACKNOWLEDGES THAT ANY NONCOMMERCIAL RELEASE OF API SERVICES IS A TEST VERSION, NOT READY FOR GENERAL RELEASE, AND MAY CONTAIN BUGS AND ERRORS. USE OF ANY SUCH NONCOMMERCIAL RELEASE IS AT LICENSEE’S OWN RISK, AND IS PROVIDED “AS IS” WITH NO WARRANTY.
5.5 Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 3.3, 5 OR 6 OF THIS AGREEMENT OR FOR PERSONAL INJURY, FRAUD, OR WILLFUL MISCONDUCT:
(a) NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, FOR WHATEVER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR IN TORT OR OTHERWISE, WILL BE LIMITED TO GENERAL MONEY DAMAGES AND SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100).
6.1 By Concur. Subject to the terms of this Agreement, Concur shall indemnify, defend and hold harmless Licensee and its employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by a third party to the extent (a) alleging that the API Services, as provided by Concur and used in accordance with the terms of this Agreement, infringes upon any valid U.S. patent, copyright, trademark, trade secret, or other proprietary right of such third party, or (b) resulting from Concur’s breach of its warranty in Section 5.1(a). Notwithstanding the above, Concur shall have no liability for any infringement claim which: (i) pertains to any Concur Software Development Kit that has been altered or modified without Concur’s prior written approval; or (ii) is based on use of the API Services in conjunction with any item not provided by Concur, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by Concur.
6.2 By Licensee. Subject to the terms of this Agreement, Licensee shall indemnify, defend and hold harmless Concur and its employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party to the extent (a) alleging that the Licensee Data, or Licensee’s use of the API Services in violation of the terms of this Agreement, infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of, or otherwise harms, such third party; (b) resulting from the failure of Licensee to comply with its obligations under this Agreement or from the acts or omissions of Licensee or its employees, agents, successors or assigns; or (c) resulting from Licensee’s breach of its warranty in Section 5.1(a).
6.3 Defense; Procedure. For any indemnifiable claim described in this Section 6: (a) the indemnifying party shall have the sole responsibility, at its expense, to defend and, at its sole discretion, to settle any such claim, provided that, if any settlement requires a non-monetary obligation of an indemnified party (other than ceasing use of the API Services), then such settlement shall require the indemnified party’s prior written consent, which consent will not be unreasonably withheld; and (b) each indemnified party shall provide the indemnifying party with prompt written notice of any such claim brought against it, together with copies of all related court documents involving such claim. An indemnified party’s failure to provide prompt notice to the indemnifying party of any such claim shall not relieve the indemnifying party from any liability under this Section 6 with respect to such claim, unless the indemnifying party is materially prejudiced by such failure, in which case the indemnifying party shall have no obligation under this Section 6 with respect to such claim. If any compromise or settlement is made with respect to such claim, the indemnifying party shall pay all amounts in settlement of such claim. The indemnified party shall provide the indemnifying party with such information and assistance for the defense of such claim as the indemnifying party reasonably requests.
7.1 Confidential Information. In connection with this Agreement, Concur may disclose its confidential or proprietary information to Licensee. Subject to the exceptions listed below, “Confidential Information” shall be defined as information disclosed by Concur to Licensee under this Agreement that is either: (a) clearly marked or otherwise clearly designated as confidential or proprietary; or (b) should be reasonably understood by Licensee to be the confidential or proprietary information of Concur. For the avoidance of doubt, the Concur Software Development Kit, any Submissions, and all pricing under this Agreement are the Confidential Information of Concur.
7.2 Confidential Treatment. During and after the term of this Agreement, Licensee shall not use, or otherwise disclose to any third party, any Confidential Information without the prior written consent of Concur. In addition, Licensee shall take reasonable measures to protect the Confidential Information and to ensure that such Confidential Information is not disclosed, distributed, or used in violation of the provisions of this Agreement (which measures shall be no less than that which a reasonable person would take with respect to like confidential, proprietary, or trade secret information).
7.3 Exceptions. Notwithstanding anything to the contrary, the obligations of Licensee set forth in this Section 7 shall not apply to any information of Concur that: (a) is or becomes a part of the public domain through no wrongdoing of Licensee or any third party; (b) was in Licensee’s possession free of any obligation of confidentiality at the time of Concur’s communication thereof to Licensee; (c) is developed by Licensee completely independent from the Confidential Information; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing Concur with advance written notice, if reasonably possible, such that the Concur is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
7.4 Remedies. Licensee recognizes and agrees that money damages are an inadequate remedy for breach of this Section 7 and further recognizes that any such breach would result in irreparable harm to Concur. Therefore, in the event of any such breach, Concur may seek injunctive relief from a court of competent jurisdiction to enjoin such activity in addition to any other remedies available to it.
8.1 Term. The term of this Agreement will commence on the Effective Date and will continue so long as Licensee continues to use the API Services, unless terminated earlier in accordance with this Agreement.
8.2 Termination without Cause. Either party may terminate this Agreement, for any or no reason, by delivering written notice of termination to the other party at least thirty (30) days before the desired effective date of such termination.
8.3 Termination for Cause. In the event of a material breach of this Agreement by either party, the non-breaching party may give written notice of such breach to the breaching party and, if the same is not cured within thirty (30) days after delivery of such notice, then, without limitation of any other remedy available hereunder, the non-breaching party may terminate this Agreement by delivery of a written notice of termination at any time thereafter to the breaching party. Such termination shall be effective as of the date of the notice of termination or such later date as set forth in such notice.
8.4 Duties Upon Termination; Return of Confidential Information; Survival. Upon termination of this Agreement: (a) all rights granted to Licensee under this Agreement shall immediately terminate, in which case Concur may invalidate Licensee’s API Keys and otherwise deny further access to the API Services; and (b) within thirty (30) days after such termination, Licensee will return to Concur or destroy all Concur Software Development Kit and Confidential Information that is in its possession or control. Termination of this Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination (including any claim for fees accrued or payable to Concur prior to the effective date of termination), and the applicable provisions of this Agreement shall continue to apply to such claim until it is resolved. Sections 3.2, 3.3, 3.4, 4.4, 4.5, 5, 6, 7.3, and 8 of this Agreement shall survive the termination of this Agreement for any reason.
9.1 Relationship of Parties. Concur and Licensee are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Concur and Licensee. In addition, either party may use subcontractors to perform its obligations under this Agreement; provided that each party and its successors and assigns will be and remain liable for all of the obligations of such party under this Agreement whether performed by such party or its subcontractor. Neither Concur nor Licensee will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
9.2 Notices. Except as otherwise provided in this Agreement, all notices hereunder by either party shall be given by personal delivery (including reputable courier service), fees prepaid, or by sending such notice by registered or certified mail return receipt requested, postage prepaid, and addressed as set forth below each signature to this Agreement. Such notices shall be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), as the case may be, and the date of receipt identified by the applicable postal service on any return receipt card shall be conclusive evidence of receipt. Notices also may be sent by facsimile transmission, which shall be deemed received when transmitted if: (a) a document is electronically generated by the transmitting machine confirming that the transmission was received; and (b) the party transmitting the notice also sends such notice the same day by any of the other notice methods described above. Any party, by written notice to the other as above described, may alter the address for receipt by it of written notices hereunder.
9.3 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which permission shall not be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets or equity, or any other similar transaction; provided, that the assignee: (a) provides prompt written notice of such assignment to the non-assigning party; (b) is capable of fully performing the obligations of the assignor under this Agreement; and (c) agrees to be bound by the terms and conditions of this Agreement. This Agreement is binding on the parties hereto and their respective successors and permitted assigns.
9.4 Waiver and Severability. Failure to enforce any term or condition of this Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Agreement. If any provision of this Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect.
9.5 Excused Performance. Neither party shall be liable for any delay or failure to perform due to causes beyond its reasonable control.
9.6 Entire Agreement. This Agreement (together with any Order Forms and other documents that either incorporate this Agreement by reference or are incorporated herein by reference) contains the entire agreement and understanding between Concur and Licensee with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter.
9.7 Amendments. This Agreement shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except as set forth herein or by a separate written agreement duly executed by the parties to this Agreement. No document, purchase order, or any handwritten or typewritten text which purports to alter or amend the printed text of this Agreement shall alter or amend any provision of this Agreement or otherwise control, unless Concur and Licensee both specify in writing that such terms or conditions shall control.
9.8 Governing Law. This Agreement shall be governed by, subject to, and interpreted in accordance with the laws of the state of Washington , without regard to conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in King County, Washington for the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement. The parties agree that this Agreement and the transactions contemplated therein shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. English shall be the governing language of this Agreement.
9.9 Interpretation. This Agreement will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement. This Agreement may be executed by facsimile copy and in any number of counterparts, all of which taken together will constitute one single agreement between the parties.