Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is effective as of the date the last party has signed an Order Form (“Effective Date”) by and between CenterSeat, Inc., a Delaware corporation with offices at 3800 N. Lamar Blvd., Austin, Texas 78756 (“Provider”), and the customer identified in the applicable Order Form referencing this Agreement (“Customer”).
This Agreement governs Provider’s provision of the Services (as defined herein) and Customer’s access to and use of the Services. This Agreement contains general terms and conditions applicable to all such Services and any Order Forms executed by the parties contain additional terms specific to the Services provided thereunder. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect the Services provided under such Order Form. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions
(a) “Aggregated Data” means Customer Data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify Customer as the source of such data or reveal the identity, whether directly or indirectly, of Customer, any individual.
(b) “Analytics Reports” means analytical and financial reports, models and insights generated by the Services with respect to Customer Data and otherwise.
(c) “Analytics Templates” means Provider’s proprietary algorithms, models, and other data analytics templates and tools which are provided by Provider to Customer via the Services.
(d) “API” means any proprietary application programming interface made accessible by Provider that enables Customer to, among other things, pull Customer Data from any approved Integrations via the Services.
(e) “Credentials” means any End User accounts, passwords and other authentication credentials associated with use of the Services by Customer or End Users.
(f) “Customer Facilities” means Credentials and any account, database, hardware, system or other facility within Customer’s custody or control.
(g) “Emergency Security Issue” means any: (i) use of the Services by Customer or End Users in violation of the terms and conditions of this Agreement or the TOU that disrupts or is reasonably likely to disrupt the availability of the Services to other users; or (ii) access to the Services by any unauthorized third party through use of any Customer Facilities.
(h) “End Users” means employees and contractors of Customer who are authorized by Customer to access and use the Services on Customer’s behalf and pursuant to unique Credentials which are associated with Customer’s account on the Services.
(i) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
(j) “Integrations” means any integration of the Services with Customer Facilities or Third-Party Offerings which is authorized by Provider and which is enabled by an API provided by Provider which enables Customer to input Customer Data into the Services from such Customer Facilities or Third Party Offerings.
(k) “Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.
(l) “Order Form” means each Order Form entered into in writing by the parties under this Agreement specifying the Services, including the Fees, number of authorized End Users, the Term, and any additional terms applicable to the Customer’s access to and use of the Services.
(m) “Platforms” means any proprietary online platforms hosted by Provider which are specified in an Order Form, including any related domain and subdomains, software, code, algorithms, Analytics Templates, hosted services and web interfaces.
(n) “Services” means any and all of the services, software and other offerings provided by Provider pursuant to this Agreement, including the Platforms, Integrations, APIs, Analytics Templates, any mobile applications provided by Provider, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. The Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, and sample data sets as provided by Provider.
(o) “Third Party Offerings” means services delivered or performed by third parties independently of the Services, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Services.
(p) “TOU” means the End User Terms of Use governing each End User’s access to and use of the Services, provided by Provider on the Services.
2. Grant of Rights and Restrictions
(a) Grant of Rights. During the term of this Agreement and subject to Customer’s and its End Users’ compliance with the terms and conditions of this Agreement (including those in an applicable Order Form), Provider hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable right under each Order Form to access and use the Services as specified in each applicable Order Form and download Analytics Reports, as applicable and made available to Customer on the Services, only during the term of the applicable Order Form, in the form and through the means made available by Provider under such Order Form and only for internal business purposes in the ordinary course of Customer’s business and within Customer’s Facilities. Customer hereby agrees that Provider may collect or generate Aggregated Data in connection with providing Customer and End Users with access to the Services.
(b) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party (including End Users) to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Services; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of any part of the Services; (iii) access the Services for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Services or related infrastructure or that negatively affects the ability of others to access or use the Services; (v) use spiders, crawlers, robots, scrapers or other similar means to access the Services, or otherwise substantially download, reproduce or archive any portion of the Services; (vi) rent, lease, lend, sell or sublicense the Services, or otherwise provide access to the Services to anyone who is not an End User or as part of a service bureau or similar fee-for-service purpose; (vii) use the Services to transmit Malicious Code; (viii) use the Services as a substitute for any data license to which Customer is or reasonably should be a party; or (ix) access or use the Services in any manner that does not comply with all applicable laws and regulations.
(c) Analytics Reports. Subject to Customer’s and its End Users’ compliance with the terms and conditions of this Agreement (including those in an applicable Order Form), Provider hereby grants Customer a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the Analytics Reports and the Analytics Templates (solely to the extent incorporated into the Analytics Reports) solely for Customer’s internal business purposes.
(d) Changes. Customer acknowledges and agrees that Provider may improve, modify, add or remove functions or features to or from the Services from time to time, with or without notice to Customer.
(e) End Users. End Users may access and use the Services on Customer’s behalf contingent upon such End User’s compliance with the terms and conditions of this Agreement and the TOU, provided that: (i) Customer is responsible for ensuring that all End Users agree in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s internal business purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder (including an increase in the number of authorized End Users); and (iv) Customer remain fully responsible and liable for any and all acts or omissions by such End Users related to this Agreement and the TOU.
(f) Third Party Offerings. Provider may make Third Party Offerings available to Customer for use in connection with the Services. Customer acknowledges and agrees that any use by Customer or any End User of any Third Party Offerings may be subject to a separate agreement with such third party provider, which will govern Customer’s and each End User’s use of such Third Party Offerings. Provider makes no warranties of any kind and assumes no liability whatsoever for Customer’s or any End User’s use of (or inability to use) Third Party Offerings, which are made available by Provider “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.”
3. Customer Responsibilities
(a) Technical Requirements. Customer and End Users shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Services, including computers, operating systems, web browsers and storage devices.
(b) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. If Customer becomes aware of any unauthorized access to or use of the Services through use of Customer Facilities, Customer shall promptly give written notice to Provider of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Services through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.
(c) Integrations. Customer acknowledges and agrees that enabling certain Integrations in the Services will require Customer to register and create accounts with various Third Party Offerings, or to link and enable such Integrations with existing Third Party Offerings with respect to which Customer may already have an account. Customer acknowledges and agrees that it shall remain solely responsible for its and its End Users’ conduct with respect to such Integrations and any credentials, authorizations, permissions, Customer data, or other information or actions required or permitted in connection therewith.
(d) Policies. In addition to the terms and conditions of this Agreement, access to and use of the Services shall comply with and be subject to any terms of service (including the TOU), acceptable use policy, privacy policy, end user license agreement and other guidelines instituted by Provider or its licensors or service providers (collectively, “Policies”).
4. Fees and Taxes
(a) Fees. Customer shall pay Provider the applicable fees set forth in the Order Form pursuant to the payment terms therein. Unless otherwise set forth in an Order Form, all fees shall be due by Customer to Provider within thirty (30) days after the date of applicable invoice. Customer shall provide Provider with complete and accurate billing contact information including a valid email address. All payments to Provider are non-refundable except as otherwise expressly provided in this Agreement and the applicable Order Form. All payments will be made in United States dollars via electric funds transfer or otherwise as per the instructions of Provider. Provider may invoice parts of an Order Form separately or all in one invoice.
(b) Late Payments. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(c) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If Provider has the legal obligation to collect any Taxes, Customer shall reimburse Provider upon invoice by Provider. If Customer is required by law to withhold any taxes from its payments to Provider, Customer shall provide Provider with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
5. Intellectual Property
(a) Responsibility for Data. All information, data, and other materials accessible through the Services (“Data”) are the sole responsibility of the party from whom such materials originated. Customer acknowledges and agrees that: (i) the Services may provide access to or rely on Data from third parties (including without limitation, via Third Party Offerings), and such third parties, and not Provider, are entirely responsible for such Data; (ii) Customer and End Users, and not Provider, are entirely responsible for the accuracy, quality and legality of all Data (if any) that Customer and End Users submit, upload, email, transmit or otherwise make available through the Services or to Provider (“Customer Data”); and (iii) Customer and End Users are solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data (if any) through or to the Services or Provider.
(b) Provider Ownership. Customer acknowledges and agrees that, as between Provider and Customer, Provider owns all right, title and interest (including all Intellectual Property) in and to the Services and Aggregated Data.
(c) Customer Ownership. Provider acknowledges and agrees that, as between Customer and Provider, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data and any results therefrom, except for Analytics Templates, Analytics Reports and Aggregated Data. Customer hereby grants Provider and its service providers a royalty-free, non-exclusive license to use, process, store, transmit and reproduce Customer Data (including Aggregated Data) as necessary for Provider to provide the Services to Customer and End Users.
(d) Analytics Templates. In connection with Customer’s use of the Services, Customer may generate Analytics Reports as provided by the Services. Except as specifically set forth in this Agreement, Provider owns all right, title and interest (including all Intellectual Property) in and to the Analytics Templates and the Analytics Reports. Without limiting the foregoing, Provider will retain exclusive ownership of (i) all Provider know-how, concepts, techniques, methodologies, ideas, templates, software, interfaces, utilities and tools, and (ii) all updates, modifications, improvements, enhancements and derivative works of the Analytics Templates and the Analytics Reports. Notwithstanding the foregoing, Customer shall remain the sole and exclusive owner of all right, title and interest (including all Intellectual Property) in and to the Customer Data.
(e) Feedback. If Customer or End Users elect to provide or make available to Provider any suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback (whether in oral, electronic or written form) related to the Services (“Feedback”), Customer hereby assigns, at no charge, all rights, title and interests in Feedback to Provider, and agrees that Provider is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require Provider to comply with any additional obligations with respect to any Services that incorporates Customer’s Feedback.
(f) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Services.
(g) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
6. Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of all Order Forms.
(b) Suspension. Provider reserves the right to suspend Customer or any End User’s access to the Services in the event of an Emergency Security Issue or any non-payment by Customer. Provider will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue. Provider further reserves the right to suspend or revoke access to the Services by any End User who violates any Policy.
(c) Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement or any Order Form, as applicable: (i) upon written notice to the other party of a material breach of this Agreement or any Order Form, as applicable, by the other party, which breach the other party does not cure within thirty (30) days after receipt of written notice of the breach; provided that, where the breach affects only a particular Order Form, termination will be limited to that Order Form; or (ii) in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement or any Order Form for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.
(d) Events upon Termination of Order Form. Upon termination of an Order Form for any reason: (i) all rights granted by the parties under such Order Form shall immediately terminate; (ii) Customer shall immediately cease all use of the Services made available under such Order Form; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) made available under such Order Form and return or destroy all copies of such Confidential Information that are within its custody or control.
(e) Events upon Termination of Agreement. Upon termination of this Agreement for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; (ii) Customer shall immediately cease all use of all Services; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) and return or destroy all copies of such Confidential Information that are within its custody or control.
(f) Retrieval of Customer Data. Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Provider will make Customer Data available to Customer through the Service on a limited basis and at no additional cost to Customer solely for purposes of Customer's retrieving Customer Data. After such thirty (30) day period, Provider will have no obligation to maintain or provide any Customer Data (unless Customer has made arrangements with Provider to retain such Customer Data for a longer period of time for a fee) and shall thereafter, unless legally prohibited, delete all Customer Data in accordance with its then-current protocols for secure deletion of such Customer Data. Customer Data stored in backups will be deleted in accordance with Provider's then-current schedule for deletion/overwriting of such backups, not to exceed one (1) year. Additionally, during the Term of the Agreement Customers can extract data using Provider's standard web services. If Customer requires Provider's assistance, Customer may acquire Provider professional services at Provider's then-current billing rates pursuant to a separately executed statement of work and professional services agreement.
(g) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(b) (Restrictions); 4 (Fees and Taxes); 5 (Intellectual Property); 6(d) (Events upon Termination of Order Form); 6(e) (Events upon Termination of Agreement); 6(g) (Survival); 8 (Indemnification); 9 (Confidential Information); 10 (Disclaimer of Warranties); 11 (Limitation of Liability); and 12 (Miscellaneous)
7. Representations and Warranties
Provider and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
8. Indemnification
(a) Provider Indemnification. Provider shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Claim”) asserting that Customer or End Users’ use of the Services infringes the Intellectual Property of such third party; provided, however, that Provider shall have no obligation to indemnify Customer from any Claim to the extent it arises from: (i) use of the Services by or on behalf of Customer in any manner that does not comply with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of the Services by or on behalf of Customer in combination with any hardware or software not provided or approved by Provider; (iii) modifications to the Services made by or on behalf of Customer that are not authorized by Provider; or (iv) any Customer Data (Sections 8(a)(i) through 8(a)(iv), collectively, “Customer Acts”). In the event that any part of the Services becomes the subject of a Claim or Provider reasonably determines that any part of the Services is likely to become the subject of a Claim, Provider may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by Provider under this Agreement; (2) modify or replace the infringing portion of the Services to avoid infringement; or (3) terminate the applicable Order Form and provide a pro rata refund of the fees paid by Customer to Provider for the unused portion of the Initial Term or Renewal Term, as applicable, under such Order Form.
(b) Customer Indemnification. Customer shall indemnify, defend and hold Provider harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement of any Claim to the extent arising from: (i) Customer Acts or Customer’s breach of Section 9; (ii) any violation of applicable laws or regulations by Customer or End Users; (iii) any breach by Customer or End Users of any agreement governing use of Third Party Offerings; (iii) any use by Customer or End Users of Analytics Reports or Customer Data except as permitted by this Agreement or otherwise and as separate from Customer’s or End Users’ use of or access to the Services; and (v) any claim by a third party provider that Customer or an End User has used the Services as a substitute for a data license with such provider.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any Claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any Claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
9. Confidential Information
(a) Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information shall include the terms and conditions of this Agreement; the source code and architectural framework of the Services; Aggregated Data, API specifications; information relating to future releases of the Services; and pricing information and business plans provided by either party.
(b) Non-Disclosure. Each party may use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party may disclose to a third party Confidential Information of the other party. The receiving party shall protect Confidential Information of the disclosing party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than reasonable care. The foregoing obligations in this Section 9(b) shall not apply to any Confidential Information that: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement by the receiving party; (ii) was known by or in the lawful possession of the receiving party prior to receipt from the disclosing party; (iii) is or has been independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; (iv) is or has been made known or disclosed to the receiving party by a third party without a breach of any obligation of confidentiality to the disclosing party; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, Provider shall be permitted to identify Customer as a Provider customer.
10. DISCLAIMERS
(a) Disclaimer of Warranties. ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS A V AILABLE” AND “WITH ALL FAULTS.” PROVIDER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY , ACCURACY , CURRENCY OR COMPLETENESS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER OR END USERS’ REQUIREMENTS.
(b) No Advice or Endorsement. Customer hereby acknowledges, understands and agrees that: (i) Analytics Reports and any other content or information provided on the Services (“Services Materials”) are for informational purposes only; (ii) Services Materials are not intended to be, and Customer and End Users should not construe Services Materials as, legal, tax, investment, financial or other advice; (iii) nothing on the Services constitutes professional and/or financial advice, nor do any Services Material constitute a comprehensive or complete statement of the matters discussed or the law or regulations relating thereto; (iv) Provider is not a fiduciary by virtue of Customer’s or any End User’s use of or access to the Services and/or Services Materials; (v) Customer alone assumes the sole responsibility of evaluating the merits and risks associated with the use of or reference to Services Material before making any decisions based on such Services Material; and (vi) Provider shall not be held responsible or liable for any possible claim for damages arising from any decision Customer or its End Users make based on information or Services Material made available to Customer and/or End Users.
11. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF USE RESTRICTIONS UNDER SECTION 2(b), OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF COVER, OR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) SUBJECT TO CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY PROVIDER FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
12. Miscellaneous
(a) Independent Contractors. The relationship between Provider and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 12(b): To Provider: CenterSeat, Inc. 3800 N. Lamar Blvd. Austin, Texas 78756 Attn: CEO. To Customer: As set forth in the most-recent Order Form
(c) Public Announcement. Customer hereby agrees that Provider may use Customer’s logo, name, tradename and other indicia for purposes including Customer in lists of Provider’s current and former customers and otherwise in promotional and/or marketing material, including on Provider’s website.
(d) Assignment. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Provider. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict among this Agreement, an Order Form, and any Policy, the terms and conditions of each shall take precedence in the following order: this Agreement, an Order Form, and any Policy.
(g) Modifications. Provider reserves the right, in its discretion, to change, modify, add to, or remove portions of the Agreement (collectively, "Changes"), at any time. Provider will notify you of Changes by sending an email to the address identified in your account and by posting a revised version of the Agreement incorporating the Changes on Provider’s website. Your continued use of the Services following notice of the Changes (or posting of the Agreement incorporating the Changes in the event your email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Provider website.
(h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Delaware, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(j) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(l) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.