10.1 Feedback. Customer agrees that Centage is licensed to use and commercialize any feedback or suggestions that Customer provides regarding the Services Technology or Services to improve Centage’s existing or future products and services on a perpetual basis without payment of any royalties or compensation to Customer and that Customer will not assert any patent or other claim against Centage based on its use or commercialization of the feedback or suggestions.
10.2 Reservation of Rights. Except for the rights and licenses expressly stated in this Agreement each party retains all right, title and interest in and to its intellectual property. No rights in intellectual property may arise by implication or estoppel.
10.3 Confidential Information. “Confidential Information” means any non-public information that a party (the “recipient”) receives from or learns about the other party (the “discloser”) as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available from a source other than discloser so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to discloser. For example, non-public information Customer learns about Centage or its Services as part of the relationship contemplated by this Agreement is Centage’s Confidential Information. Customer Data is Customer’s Confidential Information. Recipient agrees not to use or disclose the discloser’s Confidential Information except to provide or use the Services, as applicable, or to exercise legal rights or obligations in connection with the Agreement. Recipient shall use reasonable care to protect the discloser’s Confidential Information from unauthorized use and disclosure. Centage’s use of reasonable care as to Customer’s Confidential Information that is part of Customer Data is met by the use of the safeguards described in the Security Materials. Recipient shall return or destroy the discloser’s Confidential Information (including that part of the Confidential Information that is “Customer Data”) on termination of the Agreement, except as necessary for reasonable and customary business record-keeping purposes. Recipient is responsible for acts and omissions in violation of this Section by any person to whom it has disclosed the discloser’s Confidential Information to the same extent as for its own violation. Notwithstanding the foregoing, the recipient may disclose discloser’s Confidential Information in response to a subpoena, request from law enforcement, or as otherwise required by law provided that it gives advance written notice of the disclosure (unless notice is prohibited by law) to the discloser.
10.4 Governing Law. The Agreement is governed by and should be interpreted under the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act.
10.5 Notices. Customer’s address for notice purposes is the email address of the individual who serves as its primary business contact and the physical address appearing on the Order. Centage’s address for notice purposes is firstname.lastname@example.org and the physical address of its principal office in the United States published on Centage’s website. Notices under this Agreement must be given by electronic mail with a copy transmitted via first class United States mail (or if Customer is located outside of the United States, a reputable and established international priority mail service) on the date of the electronic mail notice. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall within a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
10.6.1 Mediation. Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not begin a legal action in connection with this Agreement unless it has first given the other party written notice of the dispute and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Bexar County, Texas. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file an arbitration action.
10.6.2 Arbitration. If the mediation process does not resolve a dispute, the parties agree that they shall submit the dispute to binding arbitration in accordance with the commercial rules of the American Arbitration Association, without any right of appeal. The arbitration shall be held in Bexar County, Texas unless the parties agree to a different location. Centage and Customer agree that any dispute resolution process shall be conducted on an individual basis and may not be brought as a class, consolidated, or representative action. In the event there is proceeding in a court, each party irrevocably waives any right to a jury trial to the extent permitted by law.
10.6.3 Injunctive, Equitable Relief. Notwithstanding the requirement for arbitration stated above, either party may bring an action in a court to enjoin intellectual property infringement or breach of confidentiality.
10.6.4 Time Bar. A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued.
10.7 Export Compliance. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Centage to be in violation of U.S. export laws, even if the use is permitted the laws applicable to Customer or Customer’s users. For example, Customer may not authorize any person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws; and Customer may not use or permit the use of the Services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, or permit the use of the Services by any person who Customer know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
10.8 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.
10.9 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
10.10 Centage’s Service Providers. Centage may use service providers to provide the Services. Centage is responsible for its service providers acts and omissions in violation of the Agreement to the same extent as for its own acts and omissions.
10.11 Assignment. Neither party may assign the Agreement in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.12 Publicity. Centage may identify Customer in its marketing and sales materials and may include Customer’s name, logo, trademarks, service marks or similar indicia (“Marks”) in an appropriate area of its website and marketing materials, provided that it does not state or imply that Customer endorses the Services. Centage will use and display Customer’s Marks in accordance with Customer’s trademark usage guidelines communicated to Centage in writing. Any goodwill accruing from Centage’s use of Customer’s Marks shall accrue to Customer.
10.13 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
10.14 Interpretations. (i) In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not to be included. (ii) The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). (iii) The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. (iv) The use of the word “including” should be read to mean “including, without limitation.” (v) All references to monetary amounts mean United States Dollars. (vi) The term “parties,” either in lower- or upper-case form, refers to the persons who are parties to this Agreement unless expressly described as “third parties.” (vii) For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. (viii) A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. (ix) All software and other technology provided for Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription. (x) Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. (xi) Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. (xii) The Section captions in the Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of the Agreement.
10.15 Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.
10.16 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret the Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
10.17 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Centage regarding future functionality or features. Customer acknowledges that Centage may modify or suspend any of its services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees for unused services as Customer’s sole and exclusive remedy.
10.18 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
10.19 Representation by Individual Submitting the Order. If an individual submits an Order, the individual represents that: (i) if the individual submits the Order on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law; or (ii) if the individual submits the Order on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Order and these Service Terms.
10.20 Changes to Online Service Terms. Centage may amend these Services Terms at any time in its sole discretion. Any amendment will become effective as to Customer’s Order on the first renewal of the Order that follows the publication of the amendment by at least thirty (30) days or on the execution of a subsequent Order that modifies the Services covered by an existing Order. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees for unused Services as Customer’s sole and exclusive remedy.
10.21 Waiver. No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy. A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.
10.22 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Centage regarding Customer’s use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) these Services Terms, and (3) the Services documentation. Customer’s use of the Services, both during any free use period and Customer’s paid term, is subject to all of the terms, conditions, and restrictions stated in the Agreement and any restrictions stated on a page on the Centage website that is part of Customer’s Order.