TERMS AND CONDITIONS


CENTSOFT INVOICE PROCESSING SUBSCRIPTION SERVICE


THESE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN YOUR ACQUISITION AND USE OF THE CENTSOFT INVOICE PROCESSING SUBSCRIPTION SERVICE AND RELATED SERVICES AND SOFTWARE.


.By accepting this Agreement, whether by (1) clicking a box indicating acceptance, or (2) signing an Order Form or 3) signing a Partner Agreement, that references this Agreement, You agree to the terms of this Agreement.  If the person accepting this Agreement is accepting on behalf of a company or other legal entity, that person represents that they have the authority to bind that entity and its Affiliates to this Agreements.  If You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Subscription Service.


This Agreement is effective between You and Us as of the date of Your accepting this Agreement.  We and You are each sometimes referred to in this Agreement as a “Party”.


This Agreement was last updated on April 02, 2020.


1.  Definitions.


Affiliate” means, with respect to either Party, any legal entity that directly or indirectly controls, is controlled by or is under common control with that Party, where “control” means (a) ownership of more than 50% of the equity of that Party or entity or (b) by the power to direct or cause the direction of the management and policies of that Party or entity, for so long as that Party or entity meets the foregoing definition. If the Parties entered into a Partner Agreement with the purpose to offer the subscription service as an ad-on service to a Parties financial services, as accounting and AP services, then Affiliate also means   each of the Parties client’s legal entity.


Authorized User” or “User” means any individual who is an employee, consultant, client, contractor or agent of You or Your Participating Affiliates, who is authorized by You to use the Subscription Service solely on behalf of You and Your Participating Affiliates, and to whom You have supplied a user identification and password.  A User must be at least 18 years old.


Customer”, “You” or “Your” means (a) in the case of an individual accepting this Agreement on his or her own behalf, that individual, or (b) in the case of an individual accepting this Agreement on behalf of a company or other legal entity, that company or other legal entity and its Participating Affiliates.


Customer Data” or “Your Data” means the electronic data, information and content submitted by or for You or Your Participating Affiliates to the Subscription Service or collected and processed by or for You or Your Participating Affiliates through the Subscription Service.


Documentation” means the help files, user guides, technical documentation and customer systems requirements, as updated by Us from time to time, that We generally make available to Our customers, in any form or medium, for use in connection with the Subscription Service and/or the Related Software, excluding training materials.


Order” means an Order Form prepared by Us and signed by You and Us for the purchase by You of subscriptions to the Subscription Service or Related Services (defined in Section 6 (Related Services) below). The Parties may enter into multiple Orders under this Agreement, and each Order is hereby incorporated into and made a part of this Agreement.


Participating Affiliate” means any entity that that is entered into the Software application and that is a part of the subscription volume calculation for the Subscription Service.


Related Software” means any JavaScript code, object code, plugin, API, mobile applicationor other software code, agent or tool that We provide or make available to Our customers (whether for purchase or as part of the Subscription Service) to enable or facilitate their access to or operation or use of the Subscription Service.


Subscription Service” or “Service” means the Centsoft Invoice Processing solution, an online subscription service that is provided on a software-as-a-service basis.


Term” has the meaning stated in Section 14.1 (Term of Agreement) below.


We,” “Us” or “Our” means the entity described in Section 15.1 (Who You Are Contracting With).


2. Provision of Subscription Service


2.1 Provision.  Subject to Your payment in full of the Service fees and to the terms and conditions of this Agreement and the Orders, We grant You a limited, non-exclusive, non-transferable, worldwide right for You to access and use, and to permit Your Participating Affiliates (up to the number specified in the Orders) and Authorized Users to access and use, the Subscription Service in accordance with this Agreement and the Documentation, during the term and subject to the other limits specified in the relevant Orders.


2.2 Changes.  We reserve the right to modify the Subscription Service on a periodic basis.  We will notify You electronically of any Service change if it will materially affect the manner in which You use the Service or how the Service operates or performs.


2.4 Security.  We will maintain commercially reasonable and appropriate measures designed to secure Customer Data contained in the Subscription Service against accidental or unlawful loss, access or disclosure.  We will report to You as soon as reasonably practicable, and within time limits required by applicable local legal requirements, any breach of security or unauthorized access to the Service that We detect or become aware of, and will use diligent efforts to remedy such breach of security or unauthorized access that is within Our reasonable control.  We reserve the right to suspend access to the Service in the event of a suspected or actual security breach or threat.


2.5 Privacy.  “Privacy Policy” means the practices set forth regarding Our collection, use and disclosure of information found online at https://centsoftautomation.com/privacy-policy/, as the same may be modified by Us from time to time to reflect the latest protocols on the data collected, used and disclosed by Us.  The terms of the Privacy Policy are hereby incorporated by reference into and made a part of this Agreement.


3. Use of Subscription Service


3.1 Your Responsibilities.  You shall, and shall cause Your Participating Affiliates and Users to, access and use the Subscription Service in a professional manner and only in accordance with this Agreement, the Documentation (including the customer systems requirements) and applicable laws and regulations.  You shall be responsible for Your Participating Affiliates’ and Users’ compliance with this Agreement.  You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service. Each User must be identified by a unique username and password.  If one of Your Affiliates or a User is no longer authorized by You to access and use the Service, You shall terminate or otherwise disable such access and, to the extent required to implement termination of such access, promptly notify Us.


3.2 Access and Use.  You shall be responsible, through Your master Subscription Service account. “Account”, for designating each Participating Affiliate (up to the number specified in the relevant Orders) and User for each of them. If one of Your Affiliates or a User is no longer authorized by You to access and use the Service, You shall terminate or otherwise disable such access and, to the extent required to implement termination of such access, promptly notify Us.


You are solely responsible for the actions of Your Affiliates and Users relating to access and use of the Subscription Service and for all activities that occur under Your Accounts and Access Credentials, without limitation, and for maintaining the confidentiality of all Access Credentials.  You shall not disclose or permit use of Access Credentials to or by any third party other than the applicable Participating Affiliate or User.  You shall notify Us immediately and in writing of any unauthorized access to or use of any or Your Accounts or Access Credentials or if any Access Credentials or other Account information is lost or stolen.  “Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.


3.3 Your Data. You represent, warrant and covenant that You own or otherwise have and will have all necessary rights and consents in and relating to Your Data so that, as received by Us and processed for purposes of providing the Subscription Service, Support and any Related Services in any jurisdiction where We have or utilize a data center, support or processing systems (currently the EU and the U.S.), it does not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law or regulation.


3.4 Restrictions.  You shall not, and shall not attempt or permit Your Affiliates or any User or other third party to:


(a) use the Subscription Service for the benefit of anyone other than You and Your Participating Affiliates;


(b) transfer, sell, resell, license, sublicense, distribute, rent or lease the Service or any part, feature, function or user interface thereof, or include the Service in a service bureau or outsourcing offering;


(c) copy the Service or any part, feature, function or user interface thereof;


(d) frame or mirror any part of the Service;


(e) use the Service in a way that circumvents a contractual usage limit;


(f) use the Service to store or transmit infringing, libelous, defamatory, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights or applicable laws or regulations, or for any illegal, harmful or fraudulent use or activities;


(g) upload to the Service, or use the Service to store or transmit, malware or other code thatmay damage, interfere with, surreptitiously intercept or expropriate any system, program or data, or use any manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any pages of the Service;


(h) violate, interfere with, alter, harm, destroy or disrupt the security, integrity or performance of, or attempt to gain unauthorized access to, the Service, any data contained therein, or any related or other software, service, systems or network or any third party;


(i) access the Service in order to build a competitive product or service;


(j) perform or disclose any benchmark, performance or security tests on the Service;


(k) modify, adapt, translate or create derivative works of the Service, or reverse engineer, decompile, disassemble, translate or convert or otherwise attempt to derive the source code or structure of the Service or any related software or other technology; or


(l) remove, relocate, alter or obscure any trademark, copyright or other proprietary or restrictive marking or legend on the Service.


As used in this Section, the term “Service” includes the Documentation and Related Software.


3.5 Verification.  We reserve the right (but are not obligated) to monitor and/or audit use of the Subscription Service to verify compliance with this Agreement.  You agree to reasonably cooperate with such monitoring or audit.  In addition to any other available rights and remedies, if You use the Service beyond the limits specified in the Orders, You will promptly pay Us the applicable fees for that excess use.


disassemble3.6 Removal of Improper Content.  We undertake no responsibility to review Your Data.  We may remove any content or data from the Service if it violates this Agreement, if required by a licensor or third party provider, if We receive information that it may violate applicable law or third-party rights, or to comply with law or any judicial, regulatory or other governmental order or request.  We will notify You of any such removal to the extent legally permitted.


3.7 Affiliate Additions.  During the Term, Your may add Affiliates and  purchase Service subscriptions or Related Services directly from Us by entering into an Order with Us that incorporates the terms and conditions of this Agreement, in which case the terms “Customer”, “You” and “Your” shall, for purposes of that Order, mean Your Affiliate that enters into that Order.


4. Support.  Subject to Your payment of the fees set forth in the Orders, We will provide technical support services for the Subscription Service as described in the Service Support Policylocated on our website for the Subscription Service, as in effect from time to time (“Support”), on the terms and conditions set forth in the Support Policy.


5. Related Services.  During the Term, You may purchase configuration, training or other services related to the Subscription Service (“Related Services”) from Us pursuant to an Order (which may take the form of a statement of work), on the terms set forth herein and therein.  You shall reimburse Us for Our actual and verifiable out-of-pocket expenses (including travel and related expenses) that We reasonably incur in connection with the Related Services.  We shall not be responsible for any delay caused by You or any third party. For clarity, the term “Related Services” excludes Support.


6. Related Software.  If We provide or make Related Software available for download by You and do not provide separate terms for it, then You have a limited, non-exclusive, non-transferable, worldwide license to use that Related Software, in object code form only and in accordance with its Documentation and applicable law, solely to facilitate Your access to or operation or use of the Subscription Service during the Term, subject to the terms of this Agreement and the relevant Orders.  You shall not use any Related Software other than in connection with the Service.  You shall not use or permit use of third party components on a stand-alone basis or otherwise separated from the relevant Related Software.  If Related Software is licensed to You under separate terms, then Your use of that software is subject solely to those separate terms.


7. ThirdParty Applications.  “Third Party Application” or “TPA” means any Web-based, mobile or other functionality that is provided by You or a third party and that interoperates with the Subscription Service, including Third Party Applications made available by Us for use with the Service or a specific feature of the Service.  Any acquisition or use by You of any TPA, and any exchange of data between You and the provider of that TPA, is solely between You and the provider.  Notwithstanding anything to the contrary, We do not warrant, support or provide any indemnity for TPAs or other non-Centsoft products or services.  If You, Your Affiliates or Users wishes to use a TPA, You will inform Us in writing about the TPA to be used and shall not install it or have or permit it to be installed without Our prior written consent.  If You, Your Affiliates or Users uses a TPA with the Service, You grant Us permission to allow the TPA and its provider to access Your Data as required for the interoperation of that TPA with the Service.  We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a TPA or its provider.  We cannot guaranty the continued availability of any TPA or of any Service feature designed to interoperate with a TPA, and may cease providing them at any time.


8. Fees and Payment


8.1 Fees.You shall pay Us the fees set forth in the Order Forms.  Except as otherwise specified herein or in an Order Form, fees are based on Service subscriptions purchased and not actual usage, and quantities purchased cannot be decreased during the Term.  We may increase fees effective as of the first day of any renewal term, by written notice to You delivered at least 60 days prior to the renewal date. We reserve the right to charge You additional fees for access to new features, modules or applications. You shall and shall ensure that Your Affiliates provide complete and accurate billing and contact information to Us, and You shall promptly notify Us of any changes to such information.


8.2 Payment.Subscription fees will be invoiced monthly in advance except as otherwise provided in the relevant Order.  Related Services fees will be invoiced as described in the relevant Order.  All invoices are due and payable within 30 days of date of invoice.  All payments shall be made in full (without deduction or set-off), in the currency specified in the Order and in accordance with the instructions in the applicable invoice.  We may assess a late payment charge on any overdue amounts equal to the lesserof (i) 1.5% per month or (ii) the highest rate allowed by applicable law.  All payments are non-refundable except as otherwise expressly provided in this Agreement.  If We seek legal recourse for the collection of any unpaid amounts under this Agreement, You shall be liable and promptly reimburse Us for amounts which We incur to collect payment from You, including, without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.


8.3 Taxes.  You are responsible for all taxes, charges and duties on each transaction, including without limitation any sales, use, value added, customs, excise, withholding and similar taxes and duties (“Taxes”) imposed by any government entity, excluding Taxes based on Our net income.  If We are obligated to collect Taxes, then the appropriate amount will be added to the applicable invoice.  If You are required to withhold or deduct any Tax from any payment due hereunder, You will increase the sum payable to Us so that We receive an amount equal to the sum We would have received had You made no withholding or deduction.


9. Warranties


9.1Mutual.  Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; and (b) it has validly entered into this Agreement.


9.2 Our Subscription Service Warranty.  We warrant to You that during the Term (a) the Subscription Service will perform substantially in accordance with the Documentation and (b) We will not materially decrease the overall functionality of the Subscription Service.  For any of this warranty, Your exclusive remedies, and Our sole liability, are as described in the “Termination” and “Refund or Payment upon Termination” sections below.


9.3 Our Support and Related Services Warranty.  We warrant to You that all Support services and Related Services will be performed in a professional manner, in accordance with industry standards and by qualified individuals.  This warranty shall be valid for 30 days from completion of service.  For any breach of this warranty, Your exclusive remedy, and Our sole liability, shall be for Us to re-perform the non-conforming services.


9.4 Limitations.  The warranties set forth in Sections 9.2 and 9.3 do not apply (a) if the Subscription Service has been used other than in accordance with this Agreement and the Documentation or Our other written instructions or (b) to non-conformities caused by any third party software, hardware, application, content or service, or by any acts or omissions other than by Us or Our representatives.


9.5 Warranty Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SUBSCRIPTION SERVICE, RELATED SOFTWARE, SUPPORT AND RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE MAKE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY OR OTHEREWISE, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, OWNERSHIP, QUIET ENJOYMENT, SECURITY OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY (A) THAT THE SERVICE WILL PERFORM CONTINUOUSLY OR WITHOUT INTERRUPTION OR BE ERROR-FREE, (B) THAT THE SERVICE WILL MEET YOUR OR YOUR AFFILIATES’ OR USERS’ REQUIREMENTS AND (C) THAT ANY OR ALL DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR FREE OF HARMFUL COMPONENTS OR THAT ANY DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.  As used in this paragraph, “We” means We, Our Affiliates, and Our and their licensors and other providers.


10. Ownership


10.1 By Us.  As between the Parties, We retain all right, title and interest, including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights (“Intellectual Property Rights”), in and to: (a) the Subscription Service, Service Data, Related Software and Documentation; (b) the Related Services and any deliverables furnished by Us to You as part of the Related Services; (c) any ideas, suggestions, modifications, improvements, enhancements or other feedback that You request, propose, create or author relating to any of the foregoing (collectively “Feedback”), all intellectual property and other rights in which are hereby assigned by You to Us; and (d) any and all improvements, modifications, translations and derivative works of any of the foregoing.  Upon payment in full of all amounts due for Related Services under an Order, You are granted a limited, non-exclusive, non-transferable license, for the Term, to use any deliverables furnished by Us to You as part of the Related Services solely with, and in connection with Your permitted use of, the Service.  All rights not expressly granted by Us in this Agreement are reserved.


10.2 By You.  As between the parties, You retain all right, title and interest, including without limitation all Intellectual Property Rights, in and to Your Data.  You hereby grant to Us and Our Affiliates a worldwide license to host, store, copy, transmit, index, use, process and display Your Data for the purpose of providing the Service, Support and any Related Services to You and Your Affiliates during the Term and for the post-termination period specified in Section 14.5.  No rights are granted to Us under this Agreement with respect to Your Data other than as expressly set forth in this Agreement.


10.3 Service Data.  You acknowledge and agree that We may collect and analyze data relating to the provision, use and performance of the Subscription Service, Support, the Related Software and Related Services and related systems and technologies, and may use such data in connection therewith.  Notwithstanding anything to the contrary, We shall have the right to aggregate, copy and store de-identified Customer Data with other de-identified customer data and to use, disclose, publish, display and distribute anonymous information derived from such aggregated data or portions thereof (“Service Data“) both during and after the Term, provided that no such use shall include any information that identifies You or any individual.  For the avoidance of doubt, Service Data shall not constitute “Customer Data”.


11. Confidentiality


11.1 Obligations.  Each Party agrees that it shall: (a) use Confidential Information of the other Party only during the Term and only for the purposes of this Agreement or the Service or as otherwise expressly provided by this Agreement (“Purpose“); (b) maintain such Confidential Information in confidence and not disclose such Confidential Information except to its employees, Affiliates, contractors, third party service providers, consultants or advisors (“Representatives“) who have a need to know such Confidential Information for the Purpose, provided that such Representatives are bound by confidentiality obligations consistent with the provisions of this Section; and (c) use the same degree of care that it uses to protect its own confidential information of a similar nature, but not less than reasonable care.  “Confidential Information” means any technical, business, marketing, sales, affiliate, customer, licensor or other provider, financial, pricing, employee or other information disclosed hereunder in any form, which is either (i) marked or identified as confidential at the time of disclosure or (ii) of a nature generally understood to be confidential provided the disclosing Party generally treats it as confidential.  Your Confidential Information includes Your Data and Our Confidential Information includes the Subscription Service, Related Software, Documentation and Feedback. For the Service, Related Software, Documentation and Feedback, the foregoing obligations in this “Confidentiality” section are perpetual and shall survive termination of this Agreement. For all other Confidential Information, the foregoing obligations shall extend for five years from the date of initial disclosure of such Confidential Information.


11.2 Exceptions.  (a) The obligations under the preceding paragraph will not apply with respect to information that the receiving Party can demonstrate: (i) was in its possession at the time of receipt under this Agreement, without any related obligation of confidentiality; (ii) is or becomes generally available to the public through no breach of this Section 11 by the receiving Party or its Representatives; (iii) following receipt of such information under this Agreement, is received from a third party under no duty of confidentiality; or (iv) is independently developed by or for the benefit of the receiving Party without use of or resort to Confidential Information of the disclosing Party.  (b) The receiving Party may disclose Confidential Information to the extent required to comply with applicable law or judicial or governmental order or process, provided that the receiving Party, to the extent legally permitted, promptly notifies the disclosing Party in writing, and in advance, of such required disclosure and reasonably cooperates with the disclosing Party, at the disclosing Party’s expense, in its efforts to limit such disclosure or obtain a protective order or other confidential treatment with respect thereto.  (c) Notwithstanding anything to the contrary, We may report any activity that we suspect violates any law or regulation to appropriate governmental or law enforcement officials or other appropriate third parties, which reporting may include disclosing appropriate Customer information, and may cooperate with appropriate governmental or law enforcement officials or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing information related to alleged violations of law.


12. Indemnification


12.1 By Us.  We shall defend You and Your Participating Affiliates and Your and their directors, officers, employees and agents against any third party claim that the Subscription Service or any Related Software infringes or misappropriates a third party patent, trademark, copyright or trade secret, and shall pay any resulting damages awarded to such claimant or any settlement agreed to Us and any related costs and expenses reasonably incurred by You.  If the Service or any Related Software becomes (or in Our opinion is likely to become) the subject of a claim of infringement or injunction, We may, at our option and expense: (a) procure a license to enable Your continued use of the Service or Related Software as set forth in this Agreement; (b) replace or modify the Service or Related Software so that it becomes non-infringing; or (c) terminate this Agreement and the relevant Order(s) and refund the prepaid unused subscription fee(s) paid by You for the then-current Service subscription term.  We and Our Affiliates, licensors and other providers shall have no liability under this Agreement for any infringement which arises out of or relates to: (i) use or combination of the Service or Related Software with any third party software, hardware, application, content or service; (ii) use of the Service or Related Software in a manner that does not comply with this Agreement; (iii) any modification not made by Us or Our representatives; or (iv) Customer Data.  THIS PARAGRAPH STATES YOUR SOLE AND EXCLUSIVE REMEDY, AND OUR AND OUR AFFILIATES’ SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.


12.2 By You.  You shall indemnify, defend and hold Us and Our Affiliates and Our and their directors, officers, employees, agents and providers harmless against any third party claim, cost, liability, damage, fine or penalty arising out of or relating to Your Data or Your use of the Service, including without limitation any breach of the access and use restrictions in this Agreement, and shall pay any resulting damages awarded to such claimant or any settlement agreed to by You and any related costs and expenses reasonably incurred by Us.


12.3 Indemnity Procedures.  The indemnifying Party’s obligations in Sections 12.1 and 12.2 above with respect to third party claims are subject to the following conditions: (a) The indemnified party shall notify the indemnifying Party promptly in writing of such claim except to the extent the delay in notification has no prejudicial effect on the indemnifying Party’s ability to defend or settle such claim. (b) The indemnifying Party shall have sole control over the defense and settlement of such claim.  The indemnified party shall have the right, at its own expense, to participate in such claim and advise the indemnifying Party on any proposed settlements, to the extent that such participation and advice do not unreasonably interfere with the indemnifying Party’s ability to perform its obligations under this “Indemnification” Section.  (c) The indemnified party shall provide all information, cooperation and assistance reasonably requested by the indemnifying Party, at the indemnifying Party’s expense.  (d) No settlement of a claim that involves a remedy other than the payment of money by the indemnifying Party or that imposes liability or attributes any fault or wrongdoing to the indemnified party shall be entered into without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld.


13. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS OR OTHER PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR LOSS OF BUSINESS REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, LOSS, CORRUPTION OR MODIFICATION OF DATA OR COST OF COVER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICE OR ANY RELATED SOFTWARE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EXCEPT FOR OUR INDEMNITY OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL OUR AND OUR AFFILIATES’ MAXIMUM COMBINED AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED (I) WITH RESPECT TO THE SUBSCRIPTION SERVICE AND SUPPORT, THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY YOU TO US FOR THE 6MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE AND (II) WITH RESPECT TO RELATED SERVICES, THE AMOUNT PAID OR PAYABLE BY YOU TO US FOR SUCH RELATED SERVICESUNDER THE RELEVANT ORDER. The limitations and exclusions in this paragraph shall not apply to fraud, gross negligence or willful misconduct, or to any other liability to the extent it cannot be limited or excluded under applicable law.


14. Term and Termination


14.1 Term of Agreement.  The initial term of this Agreement will begin on the Effective Date and end on the first anniversary of the Effective Date, and thereafter shall automatically renew for consecutive periods of one year each unless either Party delivers written notice of non-renewal to the other Party at least 60 days before the end of the then-current term, in each case unless earlier terminated in accordance with the terms of this Agreement (“Term“).


14.2 Termination for Breach.  Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within 30 days of delivery of written notice thereof, except that We may terminate this Agreement upon written notice to You if You fail to cure a payment default within 10 days of delivery of written notice thereof. Either Party may terminate this Agreement immediately upon written notice if the other Party: becomes insolvent; files a petition, or has a petition filed against it, under any laws relating to bankruptcy, insolvency or liquidation; or ceases to carry on business in the ordinary course.


14.3 Suspension of Service. If You fail to pay any fees within 10 days of the due date, or if You breach any of the access and use restrictions of this Agreement, then, in addition to any other available rights and remedies, We may suspend providing the Subscription Service and/or Support to You, without notice, until the breach is cured.  All fees shall continue to accrue during any suspension under this Agreement.


14.4 Effect of Termination. (a) Termination of this Agreement shall automatically terminate all Orders.  Upon termination of this Agreement, all rights and licenses granted by Us under this Agreement and all Orders shall automatically terminate, You shall immediately cease all use of the Service and the Related Software. Each Party shall promptly return or destroy all Confidential Information of the other Party in its possession.  All payment obligations incurred, accrued or arising prior to the effective date of termination shall survive and be payable in accordance with the applicable payment terms herein.  (b) If this Agreement is terminated by You under Section 14.2, We will refund to You any prepaid unused fees under all Orders.  In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.  b) All Your Data reports and Invoice images that You want to export for Your own storage need to be downloaded before the effective date of termination. As an option You have an opportunity before the effective termination date to upon a Written request and Order convert  Your Service license into an annual  “View only” – license.  Which means that You will still have access to and can view Your Data but it is not an operational Service. (c) After 30 days from the effective termination date We will have no obligation to maintain Your Data and will thereafter delete, destroy or otherwise render inaccessible all copies of Your Data in accordance with Our standard data destruction policies and applicable law.


14.5 Survival.  The following provisions of this Agreement will survive its termination: Sections 3.3 (Your Data), 3.4 (Restrictions), 8.2 (Payment), 8.3 (Taxes), 9.5 (Warranty Disclaimer), 10 (Ownership), 11 (Confidentiality), 12 (Indemnification), 13 (Limitation of Liability), 14.4 (Effect of Termination), 14.5 (Survival) and 15 (General).


15. General


15.1 Who You are Contracting With.  If You are domiciled in the United States and Canada, You are contracting with Palette Software, Inc., an Affiliate of Centsoft AB.  If You are domiciled outside of the United States and Canada, You are contracting with Centsoft AB.


15.2 Notices.  Except as otherwise specified in this Agreement, all notices required under this Agreement shall be in writing and delivered personally or sent by email, certified, registered or express mail (return receipt requested, postage prepaid) or internationally recognized overnight delivery service which tracks receipt, and shall be deemed given upon personal, confirmed or documented delivery.  Notices to a Party shall be sent to the address specified in the applicable Order.  Either Party may, by written notice to the other, designate another address or person for receipt of notices.


15.3 Governing Law. This Agreement (including the Orders) shall be governed by and construed in accordance with the laws of Sweden if You are contracting with Centsoft AB, or the laws of the State of New York if You are contracting with Palette Software, Inc., in each case without regard to its conflict of law rules.  Application of the United Nations Convention on Contracts for the International Sale of Goods and the U.S. Uniform Computer Information Transactions Act is expressly excluded.


All disputes and controversies arising out of or relating to this Agreement shall be finally and bindingly resolved under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three (3).  The place of arbitration shall be Stockholm, Sweden if You are contracting with Centsoft AB, or New York, New York if You are contracting with Palette Software, Inc.  The language of the arbitration shall be English.  Any award, verdict or settlement issued under such arbitration may be entered by any Party for order of enforcement by any court of competent jurisdiction. However, notwithstanding anything to the contrary, each Party agrees that, in addition to any other available remedies, the other Party shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction to enforce the terms of this Agreement relating to protection of, and to otherwise protect, its intellectual property rights and Confidential Information at any time.


TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CAUSE OF ACTION AGAINST US, WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.


15.4 Publicity.  You agree that We may list Your name and Your approved logo on Our customer lists with Your prior written approval (which may be given by email).  Any press release or other public statement by a Party that refers to the other Party shall require the prior written approval of the other Party.


15.5 Trademarks.  Each Party and its licensors and other providers reserve all rights in and to their respective trademarks, trade names, service marks and logos (“Marks”) and no right to use, modify or reproduce any Marks is granted except as expressly provided in this Agreement. Each Party agrees not to take any action that may jeopardize the owner’s rights in and to its Marks.  Any and all uses of Marks, or applications for or registrations of Marks, shall inure to the benefit of the owner of the Marks.


15.6 Remedies.  Except as otherwise expressly provided in this Agreement, all remedies shall be cumulative and shall be in addition to every other remedy given in this Agreement or existing at law or in equity, by statute or otherwise.


15.7 Compliance with Laws.  The Subscription Service and Related Software may be subject to export laws and regulations of the United States and other jurisdictions.  Without limitation, You shall not, and shall not permit Your Affiliates or Users to, access, use, export or re-export the Service or any Related Software, or use the Service to access, use, export or re-export Your Data, in or to a U.S.-embargoed country or in violation of any applicable export law, regulation, order or sanction.  Each Party represents that neither it nor any of its Affiliates is named on any U.S. government denied-party list.  You shall at all times comply and cause Your Affiliates and Users to comply with applicable laws and regulations in connection with the use of the Service.


15.8 Federal Government End Use Provisions.  We provide the Subscription Service, Related Software and Documentation, including related software and technology, for ultimate U.S. federal government end use solely in accordance with the following: Government technical data and software rights related to the Service, Related Software and Documentation include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).


15.9 Relationship of the Parties.  The Parties are independent contractors.  This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.  We shall be solely responsible for the conduct and supervision of Our employees and contractors in the performance of Our obligations hereunder.  Neither Party shall have any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or to bind the other Party in any way whatsoever.


15.10 No Third-Party Beneficiaries.  There are no third party beneficiaries under this Agreement.  Any person or entity that is not a Party to this Agreement shall have no right to enforce any part of it.


15.11 Assignment.  You shall not assign (including by operation of law) or delegate any of Your rights or obligations under this Agreement or any Order, in whole or in part, without Our prior written consent.  If You undergo a change of control (as defined in the definition of Affiliate), that shall be deemed an assignment.  We may assign this Agreement and all outstanding Orders, as a whole, to an Affiliate or in connection with a merger or reorganization or the sale of all or substantially all of Our stock, business or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each Party and its successors and assigns.


15.12 Force Majeure.  Except for payment obligations, neither Party shall be deemed in default under this Agreement or any Order as a result of any delay or failure to perform due to causes beyond its reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, Internet failure or delay, failure of equipment or providers or denial of service attack.


15.13 Entire Agreement, Amendment, Waiver, Severability, Order of Precedence.  (a) This Agreement and the Orders constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior and contemporaneous agreements, proposals and representations, written or oral, concerning such subject matter.  (b) Section headings in this Agreement are provided for convenience only and shall not affect its construction or interpretation.  (c) We reserve the right to change this Agreement at any time at our sole discretion, and if You continue using the Service after a change, that will mean You have agreed to the change.  We will notify You electronically of any change to this Agreement, either through Your Account or by email.  An Order may be amended only by written agreement signed by both Parties. Any failure or delay by a Party to enforce or exercise any right or remedy shall not be deemed a waiver of such or any other right or remedy.  Any waiver of any breach shall not be deemed to be a waiver of any other or subsequent breach.  All waivers must be in a mutually signed writing.  (d) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, that provision shall be deemed null and void, and the remaining provisions of this Agreement will remain in effect.  (e) Any terms appearing on any purchase order, acknowledgment or confirmation that are different from or in addition to the terms of this Agreement or the applicable Order shall not be binding on the parties, even if signed and returned. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement; (2) the applicable Order except to the extent the Order expressly supersedes a specified provision of this Agreement; and (3) the Documentation.