Terms of Service

1. Definitions.

‍1.1      “Account” means an account allowing access to the Web Portal created in Customer’s name.

1.2      “Apps” means the mobile applications made available for download by Cents to mobile devices controlled by customers in connection with their use of the Service.

1.3      “Cents Technology” means collectively, the App, the Web Portal and all software, know-how, processes, methodologies, specifications, user manuals, online documentation or other technology and materials of any kind used by Cents to offer and support the Service, except for any Customer Information.

1.4      “Confidential Information" means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party's financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the Cents Technology, (c) the Customer Information; and (d) the User IDs.

1.5      “Customer Information” means all data, information or other content entered by or collected from Customer (including a User) while accessing and using the Service.

1.6      “Documentation” means the version of the Cents’ user guide or manual (whether in print or electronic form) made available by Cents to Customer during the term of this Agreement.

1.7      “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.

1.8      “Subscription Form” means the order form prepared by Cents, and accepted by Customer, which describes, among other things, the features of Service that the Customer is subscribing for, the number of Users, subscription fees and subscription period.

1.9      “Support Services” means the support services offered by Cents, in relation to the Service, set forth in Exhibit A attached hereto.

1.10    “User ID” means unique User identification name and password issued or otherwise assigned by Customer to each User.

1.11    “User” means an individual who has been authorized by Customer to access and use the Service.

1.12    “Web Portal” means the web portal made available by Cents to customers in connection with their use of the Service.

2. Application Services.

‍2.1           Customer’s Right to Access the Service.  Subject to the terms and conditions of this Agreement, Cents will provide Customer with the right to access and use the Service during the term of this Agreement, solely for Customer’s own business purposes.  Customer’s rights are non-exclusive, non-transferable and non-sublicensable. Customer may access and use the Service only as permitted by this Agreement.  Customer acknowledges that Customer is not receiving any ownership interest with respect to, the Service or any Cents Technology or Intellectual Property Rights related thereto.  Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by Customer and Users, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.

2.2      Cents Apps and Web Portal.  Subject to the terms and conditions set forth herein, Cents grants to Customer a nonexclusive (except as expressly agreed otherwise in the Subscription Form), nontransferable license, during the term of this Agreement, to (i) download and use the Apps on Customer’s mobile devices solely in connection with the Customer’s internal use of the Service, and (ii) to access and use the Web Portal as made available by Cents solely in connection with Customer’s internal use of the Service.  Customer may not copy, transfer, or modify the App or the Web Portal or remove, obscure or alter any intellectual property rights notice.  Customer acknowledges that the Cents Technology contains trade secrets of Cents, and, in order to protect such trade secrets, Customer agrees not to disassemble, decompile, or reverse engineer the Cents Technology nor permit any third party to do so, except to the extent such restrictions are prohibited by law.  Customer agrees that it shall only use the Service and Cents Technology in compliance with all applicable laws, rules and regulations.

2.3           Limited Number of Users.  If Subscription Form limits the number of Users allowed to access the Service through Customer’s Account, then the following applies:  Customer may only allow that number of Users to access and use the Service as are designated on the Subscription Form.  Customer may add Users through mutual agreement with Cents. Any additional Users are subject to the terms and conditions of this Agreement.  Customer will pay the then-current subscription fees for each additional User.  All Users added during a billing month will be charged in full for that billing month.

2.4           User Identification.  Customer shall be responsible for Users’ compliance with this Agreement.  Customer will issue a User ID to enable each User to access and use the Service.  Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer.  Customer will immediately notify Cents of any unauthorized use of a User ID or any other breach of security known to it.

2.5           Prohibited Use.  As a condition of Customer’s use of the Service, Customer agrees not to: (a) access, tamper with, or use any non-public areas of Cents’ systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of Cents’ systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the Cents Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than Users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing Cents’ systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity.  Cents will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. Cents may involve and cooperate with law enforcement authorities in prosecuting users who violate these terms. Customer acknowledges that Cents has no obligation to monitor Users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.

2.6           Customer Responsibilities.  Customer shall be responsible for (i) integrating and updating the Customer service, platform or website to be used in connection with the Service, and (ii) obtaining and maintaining throughout the term of this Agreement, all computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials necessary for each User to access and use the Service at Customer’s facilities.

2.7           Customer Information Restrictions.  Customer shall (i) be responsible for the accuracy, quality and legality of Customer Information and for the means by which Customer acquired Customer Information, and (ii) warrant that Customer Information does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy.  Cents is not responsible for any public display or misuse of Customer Information.

2.8           License to Cents.  Subject to the Agreement, Customer hereby grants Cents a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Information to provide the Service to Customer.

2.9           Right to Monitor.  Cents will have the right to review and monitor all use of the Service, including through the use of third-party technology and services, to ensure compliance with all of the terms of the Agreement and evaluate performance of the Service.  Cents will also have the right to analyze user behavior to evaluate use of the Service, both on an individual basis and in the aggregate, and otherwise to collect, create and analyze metadata about Customer’s and the Users’ use of the Service.

3. Support and Service Levels.

‍3.1           Support Service.  Cents will use commercially reasonable efforts to provide the support services to Customer, as described in Exhibit A.

3.2           Service Level Agreement.  Cents will use commercially reasonable efforts to provide the Service in accordance with the Service Level Agreement set forth in Exhibit A.

4. Ownership.

4.1           Customer Ownership.  With the exception of Data collected pursuant to Section 2.9, Customer retains all right, title and interest in and to all the Customer Information.  Cents will use the Customer Information solely to provide the Service under this Agreement and as otherwise specified under this Agreement.  Customer and its designees, successors and assigns shall also own all right, title and interest in and to all trademarks, service marks, trade names, logos and other related intellectual property embodied in the Customer Information (collectively the “Customer Marks”).  Customer hereby grants to Cents a non-exclusive, non-transferable license to use the Customer Marks under the terms and conditions of this Agreement solely to provide the Service under this Agreement and as otherwise specified under this Agreement.  Cents may make only such copies of the Customer Marks as may be necessary to perform its obligations under this Agreement.  Except for the limited license set forth above, neither Cents nor any third party deriving any rights from Cents shall make any use of the Customer Marks and Customer expressly reserves all rights therein.  Any and all use by Cents of the Customer Marks, and any and all goodwill derived therefrom, shall inure solely to the benefit of Customer. Cents shall not edit or otherwise alter the Customer Marks without Customer’s prior written approval.

4.2           Cents Ownership.  Cents retains all right, title and interest in and to, and all Intellectual Property Rights embodied in or related to the Service, Cents Technology, and any other information or technology used or made available in connection with the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement.  Except as set forth in Section 2, this Agreement does not grant Customer a license to the Cents Technology by implication, by estoppel, or otherwise. The Cents name, logo, and the product and service names associated with the Service are trademarks of Cents or third parties, and no right or license is granted to Customer to use them separate from Customer’s right to access the Service.

5. Subscription and Payments

5.1           Paid Subscription.  By subscribing to the Service, Customer expressly agrees to pay subscription fees set forth on the Subscription Form, plus any applicable tax.  Cents may increase subscription fees by delivering notice to Customer at least thirty (30) days prior to the end of the then-current subscription period.  Except as otherwise specified in this Agreement (i) fees are non-refundable and fully earned upon payment, and (ii) payment obligations are absolute, non-cancelable and not subject to set-off or deduction. If the Customer requests to cancel their subscription before the first anniversary of the contract, the Customer will have a balance due worth 50% of the remaining contract value payable to Cents within 15 days of cancellation.

5.2           Payment. Unless otherwise agreed by Customer and Cents, payment for all fees, shall be by automatic ACH /electronic check (eCheck) or credit card auto-payment as indicated on the Subscription Form.  Customer authorizes Cents to debit and/or credit Customer’s bank account for any and all charges incurred without advanced notice via the payment method selected on the Subscription Form, until Customer cancels the subscription. Customer must cancel the subscription before it renews in order to avoid billing of the subscription fees for the renewed period.

5.3           Billing Disputes.  All billing disputes or requests for billing adjustments must be submitted in writing to Cents’ accounting department within ten (10) days of the fees being charged by Cents, accompanied by a reasonably detailed explanation for the basis of such dispute.  Cents may request additional information or supporting documentation or reject Customer’s claim, if unverifiable based on Cents’ records. If Cents rejects such claim, Cents will notify Customer, in which case no refund or credit shall be due.  If Cents determines that the disputed portion was erroneously charged, Cents will notify Customer of such determination and will credit Customer’s account for such amount in the next appropriate billing cycle.

5.4           Late Payments.  Cents may suspend the Service immediately and without notice if Customer’s account with Cents is or becomes past due.  In addition to any rights and remedies available to Cents hereunder, at law, or in equity, if Customer fails to pay any fees due hereunder within ten (10) days from the date due, Cents may impose a late charge equal to the maximum allowable under applicable law.  Customer shall be liable for any costs and expenses, including any and all attorneys’ fees, incurred by Cents in collecting any amounts due and payable hereunder.

6. Term and Termination.

‍6.1           Term. This Agreement will become effective on the Effective Date and shall remain in force for the period set forth in the Subscription Form.  Thereafter, the Agreement shall automatically renew for the same period as the initial subscription period set forth in the Subscription Form unless either party gives thirty (30) days’ prior written notice of non-renewal to the other party.

6.2           Termination. Customer acknowledges and agrees that Cents may stop (permanently or temporarily) providing the Service (or any features within the Service) to Customer at Cents’ sole discretion, without prior notice to Customer, if Customer breaches the terms of this Agreement. In addition, Cents may terminate this Agreement and Customer’s right to access and use the Service for any reason or no reason by giving thirty (30) days’ prior written notice to Customer. If Cents terminates the Service or this Agreement for any reason other than Customer’s breach of this Agreement or of any other contractual obligation to Cents, Cents will provide a refund of any amounts paid for the unused portion of the Service.  Customer acknowledges and agrees that, if Cents disables access to Customer’s account, Users will be prevented from using the Service.  Termination of this Agreement by either party shall not prejudice Cents’ right to recover or prove damages for amounts incurred or accrued and unpaid prior to the date of termination.  No remedy referred to in this Agreement is intended to be exclusive, but each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to Cents at law or in equity and may be exercised concurrently or consecutively.

6.3           Transition. Subject to the Customer’s payment of any and all fees and charges due through the date of expiration or termination and provided that Customer is not in breach or default of any of its obligations hereunder, upon termination or expiration of this Agreement and for up to thirty (30) days from the effective date of such termination or expiration (the “Transition Period”), Customer may request Cents to provide services reasonably necessary to enable Customer to obtain from another vendor, or to provide for itself, services to substitute for or replace the Service provided by Cents under this Agreement.  During such Transition Period, Cents will use commercially reasonable efforts to make available services reasonably necessary for an orderly and seamless transition of the Customer’s data to Customer or a third party solution.  Any transition services or other related services from Cents will be provided by Cents at Cents’ then current service rates.  Cents reserves the right to require all or part of such fees and charges to be paid in advance prior to providing any transition services to Customer. This Section 6.3 summarizes Cents’ entire obligation and responsibility to maintain Customer data following termination or expiration of this Agreement. 

7. Confidential Information.

‍7.1           Obligations.  Customer agrees to disclose to Cents only that portion of Customer’s Confidential Information that is reasonably necessary to enable Cents to provide the Service, and Cents agrees to disclose to Customer only that Confidential Information of Cents that is reasonably necessary to enable Customer to receive the Service.  The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Service under this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement.  Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.2           Termination of Obligations.  The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.3           Return of Confidential Information.  The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first.  At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3.

8. Acceptance, Representations, Warranties and Disclaimer.

‍8.1           Representations and Warranties.  Each party represents and warrants to the other party that:  (a) such party has all requisite corporate or other applicable power and authority to execute, deliver and perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement by such party has been duly authorized; and will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; (c) such party is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the transaction of business of the character transacted by such party; and (d) such party has obtained all applicable permits and licenses required of such party in connection with such party’s obligations under this Agreement and will, in such party’s performance of this Agreement, comply with all applicable laws, rules, treaties, and regulations.

8.2           Limited Warranty.  Cents warrants that the Service provided to Customer will function substantially in conformance with the specifications contained in the Documentation provided by Cents under normal use for a 30-day period from the date of implementation (the “Warranty Period”).  During the Warranty Period, Cents will use commercially reasonable efforts to correct any reproducible failure of the Service to conform to the specifications that Customer reports in writing to Cents within thirty (30) days after such failure is discovered.  Cents will repair, replace or provide a workaround for the Service affected at its own expense.  The warranty granted under this Section 8.3 will be effective only during the Warranty Period and only for so long as (a) the Service or the Cents Technology has not been materially modified or customized by any person other than Cents or its authorized agents or subcontractors, and (b) the Service and Cents Technology have not been subject to any abuse, accident, or misapplication.  The foregoing is Customer’s sole and exclusive remedy and states Cents’ entire liability arising out of the warranty granted under Section 8.3.  EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8.3, CENTS PROVIDES THE SERVICE, THE CENTS TECHNOLOGY AND ALL OTHER SERVICES UNDER THIS AGREEMENT “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO SUCH WARRANTIES IN ENTERING INTO THIS AGREEMENT.  FURTHER, CENTS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES, THE PROFESSIONAL AND SUPPORT SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. 

9. Indemnification.

‍9.1           Cents Indemnification. Cents will, at its own expense, defend Customer and pay all costs and damages awarded against Customer based on any third party claim that authorized use of the Service by Customer infringes any copyright or misappropriates any trade secrets.  Cents’ obligation will not extend to a claim based on any alleged infringement arising from any: (a) additions, changes or modifications to the Service by or on behalf of Customer; (b) use or incorporation of the Service or any component thereof with or into any other service, product or process; (c) Customer Information, Data or Confidential Information provided to Cents by Customer; or (d) use of the Service other than as permitted by this Agreement.  Should the Service become, or in Cents’ opinion be likely to become, the subject of any such suit or action for infringement or if Customer is enjoined from using the Services, then Cents will, at Cents' option and expense: (i) procure for Customer the right to continue using the Service; or (ii) replace or modify such Service so that they become non-infringing; or (iii) terminate the Agreement and refund any service fees prepaid by Customer to Cents for the Service that have not been prepaid.  This Section 9.1 states Cents’ entire liability for infringement claims relating to the Service.

9.2           Customer Indemnification.  Customer will, at Customer’s own expense, indemnify, defend, hold harmless and pay all costs, damages and expenses (including reasonable attorney’s fees) awarded against or incurred by Cents based on any claims, allegations or lawsuits that may be made or filed against Cents by any person: (a) as a direct or indirect result of any use by Customer or any User of the Service, excluding claims for which Cents is liable to indemnify Customer under Section 9.1; or (b) that use by Cents under this Agreement of Customer Information, Data or Confidential Information infringes or misappropriates the Intellectual Property Rights of, or has caused harm or damage to, a third party.

9.3           Indemnification Procedures.  The indemnifying party's indemnification obligations under this Section 9 are conditioned upon the indemnified party: (a) giving prompt notice of the claim to the indemnifying party; (b) granting sole control of the defense or settlement of the claim or action to the indemnifying party (except that the indemnified party's prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or, result in any ongoing material liability to the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party's request and expense, assistance in the defense or settlement of the claim.  In any event, the indemnified party will have the option of participating in the defense at its own expense.

10. Limitation of Liability

‍10.1        Limitation. EXCEPT FOR (A) EITHER PARTY’S LIABILITY WITH RESPECT TO A BREACH BY SUCH PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (B) CUSTOMER’S LIABILITY WITH RESPECT TO ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR BREACH OF SECTION 2, OR (C) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, WILL NOT EXCEED THE FEES PAID TO CENTS FOR THE SERVICE TO WHICH SUCH LIABILITY RELATES DURING THE TWELVE (12) MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.  NOTWITHSTANDING THE FOREGOING, CENTS’ AGGREGATE LIABILITY FOR INDEMNIFICATION OBLIGATIONS SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT.

10.2        Disclaimer.  EXCEPT FOR (A) EITHER PARTY’S LIABILITY WITH RESPECT TO A BREACH BY SUCH PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (B) CUSTOMER’S LIABILITY WITH RESPECT TO ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR BREACH OF SECTION 2, OR (C) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR REVENUES, LOSS OR RECONSTRUCTION OF DATA, OR LOSS OF ACCESS TO DATA.  CENTS WILL NOT BE LIABLE FOR ANY NETWORK-RELATED PROBLEMS ATTRIBUTABLE TO THE SERVICE OR CHANGES TO NETWORK CONFIGURATION THAT MAY AFFECT THE PERFORMANCE OF THE SERVICE.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, CENTS’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10.3        Basis of Bargain.  THE PARTIES ACKNOWLEDGE THAT (A) CENTS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, and (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.

11. Assignment.

Customer may not assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of Cents. Notwithstanding the foregoing, Customer may assign all of its rights and duties under this Agreement to a third party that: (a) directly or indirectly controls Customer; (b) is controlled by or under common control with Customer; or (c) purchases all or substantially all of Customer’s assets; provided, that: (i) Customer gives prior written notice to Cents of the assignment, (ii) the assignee agrees to be bound by all the terms of this Agreement; and (iii) number of Users authorized by assignee to use the Service does not exceed the number of Users authorized by Customer prior to such assignment without the payment of additional fees.  Assignment of this Agreement will not release Customer from any prior outstanding obligation under this Agreement.  Subject to the foregoing, this Agreement will inure to the benefit of each party’s successors and assigns.  Any assignment in violation of this Section 11 is null and void.

12. Relationship.

No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party.  Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever.  Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees.  The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party.  Nothing in this Section 12 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.

13. Force Majeure.

Cents will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond Cents’ reasonable control, including without limitation failures or fluctuations in electrical equipment.  In addition, the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications.  Cents is not responsible for any delays, failures, or other damage resulting from such problems.  Customer acknowledges that the Service may be affected by numerous factors outside of Cents’ control.

14. General Terms.

If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired.  Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement.  Capitalized terms have the meanings given in this Agreement.  No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given.  No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right.  All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party.  Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail.  This Agreement will be governed by the laws of the State of California without regard to conflicts of law principles.  All disputes arising under this Agreement must be brought in the state and federal courts located in San Francisco County, California.  Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding.  This Agreement along with Exhibit A and the Subscription Form, which are incorporated herein by this reference constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied.

Exhibit A: Cents Support Services and Service Level Agreement

‍This Cents Support Services and Service Level Agreement attached to the Master Subscription Agreement by and between Cents and Customer governs Cents’ performance of the support services and the service levels with respect to the Service.  Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Reseller Agreement.

‍1.    DEFINITIONS.

1.1.     “Excused Downtime” means anytime the Service are not available for access that (i) occurs during a Scheduled Maintenance Period or (ii) is caused by: (A) Customer’s or a Users’ telecommunications and Internet services, (B) services, software or hardware not provided and controlled by Cents (including third-party services, software or sites that are accessed or linked through the Service), or (C) force majeure events.

1.2.     “Scheduled Maintenance Period” means any time period during which Cents performs scheduled or emergency maintenance on the Service.

2.    SERVICE LEVEL.Cents will use commercially reasonable efforts to cause the uptime for the Service to be no less than 99.9%, excluding Excused Downtime.  Cents shall provide an advanced notice of at least two (2) business days to Customer for any scheduled maintenance.

3.    SUPPORT SERVICES.

3.1.     The Support Services provided under this Agreement (the “Support Services”) will include online support available during Cents’ normal business hours (7 am PST to 7 pm PST) with the exception of Cents’ holidays.  Any Support Services provided by Cents to Customer after normal business hours, or during weekends and Cents’ holidays or other periods of closure will be, at Cents’ option, charged at Cents’ then-current rates and costs.

3.2.     The Support Services will be provided only for those issues forwarded to Cents from Customer’s designated staff members (not more than four (4)) and entered via the Customer support portal.  Customer must provide Cents with accurate and complete information regarding each issue logged by Customer, including without limitation designated points of contact and passwords for maintenance and repair use by Cents support agents.  Cents will not be responsible for any delays or failures caused by Customer's failure to abide by the requirements of this Section 3.2.  Cents may reclassify any case misclassified as falling into one of the severity categories listed below.

3.3.     The Support Services are offered to Customer on a commercially reasonable-efforts basis only.  Customer acknowledges that Cents may not be able to resolve every request for support through the Support Services.  Customer’s exclusive remedy and Cents’ sole obligation for any failure to resolve a request shall be to use commercially reasonable efforts to resolve such request.  In the event that the request for support is not covered by the Support Services, Customer may have to purchase additional services from Cents.  Any additional services are made available upon agreement by Cents at Cents’ then-current rates.  The Support Services are provided for on-going use of the Service; they are not intended to be a substitute for the professional services or training necessary for the implementation of the Service.  All other services, including without limitation, on-site assistance, custom programming, network administration, new features and custom designed reports and forms, may be furnished by Cents at Cents’ then-current rate. 

3.4.     As part of Support Services, Cents will investigate all reproducible, material failures of the Service to conform to the specifications as described in the applicable documentation.