Effective Date: June 1, 2019
2. SUBSCRIBER OBLIGATIONS
2.1 Administrators List. Subscriber shall be responsible for providing a list containing contact information (first name, last name, email address, and optional phone number) for individuals who initially need to access the Service on Subscriber’s behalf and organize its use by Subscriber (the “Administrators List”). For purposes of the EU General Data Protection Regulation (the “GDPR”), only this personal data, and not special category data, will be processed by Centrallo. The Administrators List will be used by Centrallo in connection with the provision of the Service, and Subscriber agrees that it shall make all reasonable efforts to ensure that the Administrators List is accurate. Subscriber Administrators will have the ability to add additional Subscriber users. Such users will be defined using the same personal data as Administrators, and be processed by the Service otherwise identically.
2.2 Subscriber Content/Ownership. All Subscriber Content is the property of Subscriber. For purposes of GDPR, Subscriber is the Data Controller and Centrallo is a Data Processor. “Subscriber Content” consists of the Administrators List and/or any Subscriber-created procedures or Groupdolists, as well as any other Subscriber materials that Subscriber transmits via Subscriber’s account. Subscriber is solely responsible for the content of all transmissions sent via Subscriber’s account, and for the accuracy, quality, integrity, legality, reliability, appropriateness (including offensiveness, indecency, or objectionable nature) and intellectual property ownership or right to use of Subscriber Content. Subscriber acknowledges that the Service, to the extent it transmits Subscriber Content, is simply a passive conduit for the distribution and transmission of Subscriber Content in the provision of the Service. Centrallo shall not be liable for any errors or omissions or for any defamatory, libelous, offensive or otherwise objectionable or unlawful content in any Subscriber Content, or for any loss or damage incurred as a result of the use of any Subscriber Content sent, accessed, posted, or otherwise transmitted via the Service.
2.3 Data Processing. Centrallo acknowledges that Subscriber, as Data Controller, has certain data privacy, handling, and notice obligations under GDPR, and that Article 28 of the GDPR makes similar mandates upon Centrallo as Data Processor, both in its own practices and in support of the Data Controller. Please note that in recognition of these obligations, Centrallo declares that, (a) it has documented and demonstrated appropriate technical and organizational measures to meet GDPR obligations and provide data safety for processed subjects; (b) it does not and will not engage other data processors without specific authorization by Subscriber, the Data Controller, and in the event this occurs, that such processors will be contractually bound by the same data processing and privacy obligations as Centrallo; (c) that the processing of data is governed by written and third-party audited policies designed to ensure transparency and fairness of processing, the legitimate interests pursued in the use of the service, and the other applicable concerns expressed in Article 40 of the GDPR; (d) as declared elsewhere, processing of data is solely for the purposes of providing the software services stipulated in these Terms of Service and/or a specific, other written contract between Subscriber and Centrallo; (e) it has instituted technical and organizational measures to support the Data Controller in the event of inquiries; (f) it has created software and organizational resources to assist the Data Controller with its obligations under Articles 32-36 of the GDPR, specifically by accounting for: (i) security of processing, (ii) notice in the event of a real or suspected data breach, (iii) complying with Subscriber InfoSec reviews as well as conducting independent third-party reviews and making the results available to subscriber, and (iv) minimizing by design personal data processed in order to lower the risk of processing.
2.4 Permission to Use Subscriber Content. Subscriber hereby grants Centrallo (and its Service Providers, as hereinafter defined) the right to process Subscriber Content in connection with its provision of the Service. Centrallo shall process personal data only upon documented instructions received from Subscriber. Centrallo may process related information such as IP address and Service user activity for legitimate purposes, including to ensure the Service's security and successful delivery. In acknowledgement of Section 28.3(g) of the GDPR, Centrallo will, at the Data Controller's instruction, delete any/all personal data upon termination of services; provided that, Centrallo may retain any personal data for data storage purposes as may be required pursuant to law or regulation.
2.5 Unauthorized Use of Service. Subscriber shall promptly inform Centrallo of any actual or potential unauthorized access to, or use of, the Service of which Subscriber has knowledge.
2.7 Proprietary Rights. The Service and any related software or technology, and all intellectual property rights therein and thereto, is owned by Centrallo, its licensors or Service Providers. As used herein the term “Service Provider(s)” refers to communications carriers and data center and hosting services providers that Centrallo uses for the delivery of the Service to its Subscribers. Subscriber shall not modify, reverse engineer, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, transfer, or sell any part of the Service. Without limitation, the previous sentence prohibits the creation of help/training videos published to the Internet, as well as the capture and/or retransmission/reposting of help materials, training sessions, etc. created by Centrallo for Subscriber use. Except as expressly set forth herein, each party agrees not to display or use the other party’s trademarks, Service marks, logos, or other intellectual property without the prior written permission of the other party.
2.8 Third Party Factors and Centrallo’s Scope of Control. Subscriber acknowledges that Centrallo’s provision of the Service is dependent on the facilities, networks, connectivity, or any acts and/or omissions of Service Providers (“Third Party Factors”). Subscriber acknowledges that the performance of the Service may be affected by such Third-Party Factors. Centrallo’s “Scope of Control” is defined as those areas of functionality and technology, including hardware (if any) and software used in the provision of the Service that are under the direct control of Centrallo (excluding Third Party Factors).
2.9 Mobile Fees. Under no circumstances shall Centrallo be liable to Subscriber or to any other person for any charges or fees that arise from a Subscriber’s or an individual person’s receipt of a text message, usage of carrier network data on or off network (roaming), or any other mobile fee accrued by the use of the Service. Any cost, expected or unexpected, of accessing the Service shall be borne solely by Subscriber under all circumstances.
2.10 Suspension or Discontinuation of Service. In the event that Centrallo believes that Subscriber is using the Service in a manner that (i) threatens to compromise the functioning of the Service, (ii) is in violation of any applicable Laws, or (iii) is in violation of the Terms of Service, then Centrallo shall notify Subscriber and may immediately suspend Subscriber’s access to the Service.
3. CONFIDENTIAL INFORMATION
3.1 Confidential Information Defined. “Confidential Information” consists of the following: all information disclosed by one party or its agent or representative (the “Disclosing Party”) to the other party or its agent or representative (the “Receiving Party”) in connection with the Services Agreement or these Terms of Service, unless the information, by its nature, cannot reasonably be considered confidential information. Without limitation, all written or oral pricing and contract proposals exchanged between the parties, and Subscriber Content, shall be Confidential Information, whether or not so designated. Confidential Information is the property of the Disclosing Party. Information made known to the public by the Disclosing Party or a third party, or previously known to the Receiving Party free of any obligation to keep it confidential, or independently developed by the Receiving Party, shall not be Confidential Information.
3.2 Confidentiality Obligations. A Receiving Party shall hold all Confidential Information in confidence and: (a) shall use such Confidential Information only for the purposes of providing the Service, or using the Service; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to personnel and professional advisors that have a need to know for such purposes, and shall advise those persons of the obligations of these Terms of Service; (e) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in these Terms of Service; and (f) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. Each party shall notify the other party as soon as practicable upon receipt of a subpoena or court or governmental order requiring the receiving party to disclose Confidential Information of the disclosing party with the intention of providing the disclosing party with the opportunity to oppose the disclosure. Individuals and third parties authorized to process personal data to perform the Services, shall commit to abide by the foregoing confidentiality obligations.
4. REPRESENTATIONS; DISCLAIMER OF WARRANTIES
4.1 Each party represents and warrants that: (i) it has the full right, power and authority to enter into these Terms of Service, to grant the rights granted hereunder and to fully perform under these Terms of Service; (ii) the execution of these Terms of Service by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such party is a party or by which it is otherwise bound; and (iii) these Terms of Service will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
5. INDEMNIFICATION; LIMITATIONS OF LIABILITY
5.1 Indemnification. Centrallo shall indemnify, defend, and hold harmless Subscriber and each of its officers, directors, owners, employees, and agents from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, “Third-Party Claims”) arising out of (i) a material breach of any of its representations or warranties set forth in these Terms of Service by Centrallo; or (ii) a claim that the Service directly infringes a copyright, a U.S. or Canadian patent, or other intellectual property right of a third party, except that Centrallo will have no liability for any portion of any infringement claim (including, potentially, the entire claim) that was caused by: (a) Subscriber’s use of the Service other than in accordance with applicable documentation or instructions provided or approved by Centrallo; (b) Subscriber’s unauthorized modification of the Service or any part thereof (c); Subscriber’s use or combination of the Service with software, hardware, system, data, or other materials that are prohibited by Centrallo; (d) information supplied by Subscriber (including Subscriber Content) to Centrallo that is used in or with the Service; or (e) Subscriber’s continued use of the Service after Subscriber was notified of actual or potential infringement from Subscriber’s use of the Service. Except to the extent prohibited by applicable law, Subscriber agrees to indemnify, defend, and hold harmless Centrallo, its Service Providers, and each of its and their officers, directors, owners, employees, and agents from all Third-Party Claims arising out of (i) a material breach of any of its representations or warranties set forth in these Terms of Service by Subscriber or any user that accesses the Service through Subscriber; or (ii) a claim alleging that Subscriber Content, or any use of such content by Subscriber, Centrallo or a Service Provider in connection with the performance or use of the Service, infringes the rights of, or has caused harm to, a third party.
5.2 Consequential Damages Exclusion; Direct Damages Limitation. IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF CENTRALLO, ITS AFFILIATES, SERVICE PROVIDERS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FOR ANY DAMAGES INCURRED BY SUBSCRIBER EXCEED THE FEES ACTUALLY PAID BY SUBSCRIBER FOR THE TWELVE (12) MONTHS OF SERVICE IMMEDIATELY PRECEDING INITIATION OF ANY CLAIM FOR DAMAGES. THE PRECEDING SENTENCE SHALL NOT APPLY TO CENTRALLO’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.1(ii) WITH RESPECT TO A CLAIM THAT THE SERVICE DIRECTLY INFRINGES AN INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR SERVICE PROVIDERS LIABLE TO SUBSCRIBER) OR ANY OTHER PERSON FOR ANY LOSS OF DATA, REVENUES, PROFITS, OR OTHER ECONOMIC ADVANTAGE, OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND OR NATURE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SERVICE EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.1 Termination on Breach. In the event that the Subscriber breaches or fails to perform hereunder, Centrallo may immediately cease providing Service to the Subscriber; provided that, if such breach or failure to perform is immaterial and capable of being cured by Subscriber, then Centrallo shall provide Subscriber the opportunity to cure the breach or failure within thirty (30) days of Centrallo’s notice to Subscriber of such breach or failure, after which, upon Subscriber’s failure to cure such breach or failure, Centrallo may immediately cease providing Service to the Subscriber. Furthermore, if the Subscriber: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Subscriber fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Subscriber; or (iv) Subscriber makes a general assignment for the benefit of creditors, Centrallo may immediately cease providing Service to the Subscriber by giving a termination notice.
6.2 Effect of Termination. Termination shall, as of the effective date of such termination, terminate Subscriber’s access to the Service and any other rights granted to Subscriber hereunder.
7. IN GENERAL
7.1 Assignment. Neither party shall assign any of the rights and obligations hereunder without the prior written consent of the other party, except to a corporate affiliate, or an acquirer of or successor to all or substantially all of the assigning party’s business. Such consent, when necessary, shall not be unreasonably withheld or delayed.
7.2 Force Majeure. Except for obligations to make payments for the Service, neither party shall be responsible for delays or failures of performance resulting from foreseeable or unforeseeable acts beyond the reasonable control of such party, including, but not limited to acts of God, acts of war, riots, acts of terror and other acts or omissions of third parties such as interruptions, delays, or malfunctions of service by Service Providers.
7.3 Governing Law and Choice of Law. These Terms of Service shall be governed by the laws of the State of New York without reference to conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law). Subscriber agrees that regardless of any statute or law to the contrary, any claim arising out of or related to these Terms of Service shall be commenced by Subscriber in accordance with Section 7.4 within one (1) year after such claim arose or be forever waived and barred.
7.4 Dispute Resolution by Arbitration. Any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, other than a claim for injunctive relief, shall be settled by the American Arbitration Association within the City of New York in accordance with its rules and judgment upon the award may be entered in any court having jurisdiction thereof.
7.5 Failure to Pay Fees; Litigation. Subscriber shall pay the fees for the Service when due as set forth on the invoice(s), without setoff or deductions. In the event that invoice(s) are not paid in full when due, Centrallo shall be entitled to interest on the unpaid balance, at the highest rate permitted by law, commencing on the date that payment was due. Except as prohibited by Law, Subscriber hereby submits to the jurisdiction of any court of the State of New York sitting in New York County or the United States District Court for the Southern District of New York for the purpose of any suit, action or proceeding brought by Centrallo for the collection of fees or for injunctive relief. Centrallo shall be entitled to all costs of enforcement of this Section 7.5, including, but not limited to, filing fees, costs, and reasonable attorneys’ fees.
7.6 Subscriber is Centrallo’s Customer. Subscriber consents to the disclosure of Subscriber by name as one of Centrallo’s customers.
7.7 Survival of Terms. The rights and obligations of either party that by their nature would continue beyond the termination or expiration of these Terms of Service shall survive termination or expiration of these Terms of Service. For example, the provisions of these Terms of Service regarding indemnification and/or limitation of liability shall survive termination of these Terms of Service as to any cause of action arising under these Terms of Service.
7.8 Independent Contractor. Centrallo’s relationship with Subscriber shall be that of an independent contractor, and nothing in these Terms of Service shall be construed to create a partnership, joint venture, principal-agent, or employer-employee relationship.
7.9 Third-Party Beneficiaries. Each party agrees that each of its affiliates shall be a third party beneficiary to these Terms of Service and that such affiliates shall be entitled to directly enforce, and rely upon, any provision of these Terms of Service which confers a benefit on them. No other person or company shall be a third party beneficiary to these Terms of Service.
7.10 Severability. If any term or provision of these Terms of Service or the application thereof is to any extent held invalid or unenforceable, the remainder of these Terms of Service shall not be affected thereby, and each term and provision hereof shall be valid and enforced to the fullest extent of the law.
7.11 Entire Agreement. These Terms of Service embody the entire agreement and understanding between Subscriber and Centrallo and supersedes all prior agreements and understandings between the parties, and these Terms of Service cannot be modified except by a writing signed by authorized representatives of each party.
7.12 Notice. All notices given pursuant to these Terms of Service shall be in writing and addressed to the party at such address as either party may from time to time designate. Any such notice shall be effective as of the date it is delivered. For notice by email, the sender must receive written receipt confirmation, and must also send written notice by other non-electronic means on same day.