Subscription License Terms (Version 1.0)

Effective 6-1-2017

Centilytics Subscription Terms of Service (“Agreement”) constitutes a legally binding agreement between you (“you” or “Subscriber”) and Nspire Automation, LLC , a Delaware Corporation dba Centilytics (“we” or “Centilytics”) governing your use and access to www.centilytics.com and Centilytics mobile applications (collectively the “Platform”) and the software and services made available through the Platform (collectively the “Services”). Centilytics and Subscriber shall individually be referred to as a “Party” and collectively as the “Parties.”

By clicking the “I Agree to the Centilytics Subscription Terms of Service and Privacy Policy” box, you agree to be bound by this Agreement.

This Agreement includes provisions for binding arbitration on an individual basis – which includes a waiver of a right to a jury trial or a right to file a class action.

Internet technology, and the applicable laws, rules and regulations change frequently. We reserve the right to make changes to this Agreement at any time.  Continued access and/or use of the Platform in any manner constitutes assent to any new Agreement that may be posted on the Platform.

In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
   1. Authorized Users. The term “Authorized Users” refers to all individuals authorized by Subscriber to access and use the Services.
   2. Content. The term “Content” shall mean any and all text, data, software, graphics, information, images, or other materials submitted, uploaded, imported, communicated or exchanged with Subscriber to facilitate the provision of Services under this Agreement.
   3. The term “Platform” refers to the website and applications owned and operated by Centilytics at www.centilytics.com.
   4. Third Party Cloud Services Provider. The term “Third Party Cloud Services Provider” refers to the Amazon Web Services (“AWS”) and/or Microsoft Azure cloud services utilized by Subscriber.
   5. Subscription Services Agreement. A separate, additional written agreement between Centilytics or its partner and the Subscriber which sets forth the scope and terms of Subscriber’s subscription to the Services, which is incorporated by reference as though fully set forth herein.  To the extent the Subscription Services Agreement provides conflicting terms to this Agreement, the terms of the Subscription Services Agreement shall prevail.
2. Services. Centilytics shall provide to Subscriber its cloud-based software services offered through the Platform to enable Subscriber to govern, analyze, and optimize its third party cloud expenses and obtain notifications, recommendations and actionable billing insights, in accordance with the terms and conditions of the Subscription Services Agreement selected by Subscriber.  Centilytics may from time to time issue updated versions of the software and Services. You consent to such automatic updates and agree that this Agreement will apply to all such updates.
3. Free and/or Beta Services. Any beta or other Services offered at no charge to Subscribers may be terminated by either Party at any time. Centilytics further reserves, in its sole and absolute discretion, to disable, suspend, modify or impose fees on any Services, at any time. Centilytics will notify its users of any changes in fees for Services and Subscribers will be free to terminate their account prior to the imposition of any newly imposed fees.
4. Subscriber’s Centilytics Account. To be eligible to use the Services, you must be at least 18 years of age or have the power to enter into a binding contract in your country of residence, establish an online account and accept this Agreement.
5. Authorized Users. Access by Subscriber and its Authorized Users shall be subject to the terms and conditions of this Agreement. Subscriber shall be responsible for maintaining the confidentiality and security of login credentials. Subscriber is responsible and shall be liable for any and all activities that occur under Subscriber’s account. Subscriber must immediately notify Centilytics of any change in authorization, any unauthorized use of Subscriber’s account or, or other account related security breach of which Subscriber becomes aware.
6. Use Restrictions. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.
7. Reseller Unless a Reseller Option is explicitly designated as part of Subscriber’s Subscription Service Agreement, Subscriber will not make the Services available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.
8. Content Responsibility. Subscriber is responsible for all of its Content. Centilytics shall not be responsible for the receipt and/or transmission of any Subscriber Content to/from Subscriber and the applicable third party cloud infrastructure service provider. Centilytics does not have any obligation to prescreen, monitor, edit or remove any Subscriber Content. Centilytics shall not be liable for any damages relating to the receipt, transmission, or use of any Subscriber Content.  It is Subscriber’s obligation to monitor its Content and any reports generated by its third party cloud infrastructure service provider if Subscriber desires to limit Centilytics’ automatic access to such Content.
9. Due Diligence. Centilytics does not offer the recommendation and/or actionable insights made available through the Services in a professional, licensed capacity. Centilytics is not a certified public accountant or other licensed professional and the recommendations and/or actionable insights are not intended to and do not constitute tax or other professional advice.  The accuracy, completeness, adequacy or validity of the recommendations and/or actionable insights is not warranted or guaranteed.  Subscriber shall be solely responsible for conducting any due diligence on any recommendations and/or actionable insights provided by Centilytics to Subscriber before taking any action in reliance thereon.
10. Licenses.
    1. End User License Agreement. Centilytics hereby grants to Subscriber a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and utilize the Services during the Subscription Term pursuant to the terms of the Master Subscription Service Agreement.  Unless otherwise stated herein, nothing in this Agreement gives Subscriber or its Authorized Users a right or license to use any of Centilytics copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.
    2. Promotional License. Subscriber grants to Centilytics a license to use your individual and/or company name, logo and/or relevant trademarks (“Properties”) to market and promote the Services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Properties as incorporated into Centilytics’ marketing and promotional materials. Centilytics is granted no other rights to the Properties and acknowledges that it shall not gain any proprietary interest in the Properties. Centilytics shall be the exclusive owner of all right, title, and interest, including copyrights, in Centilytics’ marketing and promotional materials.
11. Infrastructure Account Credentials & Authorization. To enable Centilytics to provide the Services, Subscriber shall provide to Centilytics the account credentials for customer’s third party cloud infrastructure service providers and hereby authorizes Centilytics to access and utilize Subscriber’s account credentials for purposes of providing the Services under this Agreement.  Subscriber shall be solely responsible to (a) ensure that Centilytics has the appropriate permissions to provide the Services, and (b) otherwise limit Centilytics permissions and access to restricted data not otherwise required for the performance of the Services. Centilytics shall not be liable to Subscriber for any damages in the event its third party cloud infrastructure service provider terminates Subscriber’s account or access to their services as a result of providing Centilytics with the authorization to access Subscriber’s account.
12. Support and Availability. Centilytics will make commercially reasonable efforts to make the Platform available to Subscriber 24 hours a day, 7 days a week except for (i) planned downtime for routine maintenance or periodic updating, (ii) any unavailability caused by circumstances beyond its reasonable control, including Force Majeure exclusions.
13. 1. Automatic Termination. This Agreement shall automatically terminate upon the bankruptcy or insolvency of either Party.
    2. Breach. Either party may terminate this Agreement if the other party breaches any material provisions of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach.
    3. Survival. The following Sections survive termination of these Agreement:  Individual Arbitration, Feedback License, Subscriber Promotional License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Third Party Disclaimer, Indemnity, Limitation of Liability, and Governing Law.
14. Confidentiality & Non-Disclosure. Centilytics may have access to Subscriber’s confidential and proprietary information in providing and supporting the Services to Subscriber. (“Confidential Information”). To the extent Confidential Information is disclosed to Centilytics:
    1. Non-Disclosure Obligation. Centilytics shall not to disclose any Confidential Information to any third party for any reason without your prior written consent.  Centilytics will not disclose any Confidential Information to any person or entity other than its employees or agents who have a need to know about such information in order to provide the Services.  You understand and agree that Centilytics’ employees shall be able to access Confidential Information to enable the delivery of the Services in accordance with this Agreement.
    2. Required Disclosure. In the event Centilytics is requested or required by legal process to disclose any of the Confidential Information, Centilytics shall give you prompt notice so that you may seek a protective order or other appropriate relief prior to any such disclosure.  In the event that such protective order is not obtained, Centilytics shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the owner of such Confidential Information to minimize the extent and effect.
15. Safeguarding Confidential Information. Centilytics agrees to protect the security of Confidential Information according to all applicable laws and regulations, by commercially acceptable standards, and no less rigorously than it protects its own confidential information, but in no case less than reasonable care.  Centilytics will implement, maintain and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of the Confidential Information.
16. Anonymized Data. Centilytics may collect anonymous usage data with respect to the use of the Services to measure and analyze response rates and performance of the Services, for internal business purposes only, including improving, testing and providing the Services.
17. Privacy. We respect your privacy and will only use personal information in accordance with our Privacy Policy.
18. Representations and Warranties. The Parties represent and warrant as follow:
    1. Good Standing. Each Party is a business duly incorporated and in good standing under the laws of its state of incorporation.
    2. Corporate Authority. Each Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement.
    3. Compliance with Applicable Laws. Each Party shall comply with all federal or state laws or regulations applicable to the performance of its obligations under this Agreement.
    4. Export Compliance. Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit access or use any Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
19. Feedback License. Any suggestions, ideas, proposals or other material submitted by Subscriber, whether solicited or unsolicited, (collectively, the "Feedback") shall be treated as non-confidential and non-proprietary. Centilytics shall not be liable for the disclosure, use or exploitation of such Feedback. You hereby grant to Centilytics a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Feedback for any purpose whatsoever, commercial or otherwise, without compensation or accounting.
20. Customer Questions. Customer questions may be directed by email to support@centilytics.com to address any issues you may have regarding your use of the Platform. Most concerns can be quickly resolved in this matter.
21. Individual Binding Arbitration. Any claim or controversy with Centilytics arising out of or relating to the Services and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered:
    1. Within the U.S.: By the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.  The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at adr.org.  
    2. Outside the U.S.: By the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.  The rules, as well as forms for initiating arbitration proceedings, are available at icdr.org.

ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY.  THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS.  YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY.  IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.

22. Future Functionality. Subscriber agrees that subscription to the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Centilytics regarding future functionality or features.
23. The Platform ’s Intellectual Property
    1. The Platform ’s logos, design, text, graphics, and other files, and the selection arrangement and organization thereof, are owned by Centilytics. Centilytics 2017ALL RIGHTS RESERVED.
    2. Trademarks: The Platform and its logos, page headers, custom graphics, button icons and scripts are trademarks or trade dress of Centilytics.
    3. Ownership and Use: Unless otherwise stated herein, nothing in this Agreement or your use of the Platform and Services gives you a right or license to use any of our copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.
24. Force Majeure. Centilytics shall not be liable or responsible for any delay or failure to provide the Services as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight embargoes, terrorism, natural disaster, war or acts of God.
25. DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS AGREEMENT, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  CENTILYTICS DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR SERVICES (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, CENTILYTICS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS, AND SERVICES.
26. DISCLAIMER OF THIRD PARTY CONDUCT. CENTILYTICS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CENTILYTICS MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES, GOODS, RESOURCES AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD PARTY SERVICES, GOODS, RESOURCES OR INFORMATION.
27. LIMITATION OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CENTILYTICS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SOFTWARE OR SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, EVEN IF CENTILYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CENTILYTICS’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE PLATFORM OR SERVICES, EXCEED THE FEES CHARGED BY CENTILYTICS FOR ITS SERVICES (EXCLUSIVE OF SERVICE FEES CHARGED BY THIRD PARTY CLOUD SERVICES PROVIDERS) IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM.
28. 1. By Centilytics: Centilytics agrees to indemnify, defend and hold harmless Subscriber for (1) any damages award issued by a court of competent jurisdiction against Subscriber, and (2) direct expenses, including reasonable attorneys' fees (but excluding any lost revenues, lost profits or other consequential economic damages of Subscriber) as a result of any action brought against Subscriber, if and to the extent the action is based on a valid claim that the Platform and/or Services infringe another person's U.S. patent, copyright, trade secret or trademark.
    2. By Subscriber: To the maximum extent permitted by law, Subscriber agrees to indemnify, defend and hold harmless Centilytics, and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Indemnified Parties arising out of or relating to  Subscriber’s (i) Content, (ii) use of the Services (ii) breach of this Agreement, (iv) violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, and/or (v) a breach of Subscriber’s representation or warranties under this Agreement.
    3. The Parties’ obligations under this Section will be conditioned upon the affected Party promptly notifying the other in writing of the existence of any such claim, giving the Indemnifying Party full authority to conduct the defense and settlement of the claim, at the Indemnifying Party’s expense and with counsel of the Indemnifying Party’s selection, and cooperating fully with such counsel.
29. Miscellaneous Provisions.
    1. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. 
    2. Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of the Parties herein.
    3. Choice of Law. These Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to or application of Delaware’s conflict of law principles. 
    4. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party.  However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
    5. Successors and Assigns. These Agreements are binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
    6. No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
    7. No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
    8. Headings are for reference purposes only and do not limit the scope or extent of such section.
    9. All notices required or permitted to be given under these Agreement will be in writing and delivered to the Parties at the addresses identified herein.
    10. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
30. Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.