Version Date: June 1, 2023
Thanks for using the Centercode Platform! The Centercode Platform is a hosted, cloud-based software platform used by customers to establish and maintain highly-effective product and service testing programs. These Centercode Platform Subscription Terms (the “Terms”) describe your rights and responsibilities as a Centercode customer with access to monthly Centercode Platform subscription services (the “Subscription”). If you are a Centercode Platform customer on an annual or greater subscription service term or a Centercode Platform professional services customer, these Terms do not apply to you. Instead, please refer to your mutually-executed Centercode order form for the agreement that applies to your services.
These Terms are between you and Centercode, Inc. (“Centercode”). “You” means the company that you represent in accepting these Terms, as identified by you in the account creation process. UPON ACCOUNT CREATION, YOU HAVE IDENTIFIED THE COMPANY/LEGAL ENTITY THAT YOU REPRESENT AND HAVE PROVIDED YOUR WORK EMAIL ADDRESS FOR THIS COMPANY. IT IS THIS COMPANY THAT HAS OBTAINED THE SUBSCRIPTION. YOU REPRESENT AND WARRANT THAT: (A) YOU ARE AT LEAST 18 YEARS OLD; (B) YOU HAVE FULL LEGAL AUTHORITY TO BIND THAT COMPANY TO THESE TERMS; (C) YOU HAVE READ AND UNDERSTAND THESE TERMS; AND (D) YOU AGREE TO THESE TERMS ON BEHALF OF THAT COMPANY. If you do not have all legal authority to bind that company, do not click “Subscribe,” “I Accept,” “Get Started,” or the similar button or checkbox that is presented to initiate the Centercode Platform Subscription.
These Terms become binding and effective as of the date you first click a “Subscribe,” “I Accept,” “Get Started,” or the similar button or check box to obtain the Subscription or use the Subscription, whichever is earlier (the “Effective Date”). You agree that by clicking this button or check box, you have agreed to these Terms, with your acceptance being the same as a handwritten signature for the purposes of validity, enforceability, and admissibility.
Capitalized terms not otherwise defined in the body of these Terms have the meanings provided in Section 23 (Definitions).
1. Subscription Services
1.1 Ordering a Centercode Platform Subscription. You have ordered the Subscription by either signing up for a free account or by entering into a paid monthly Subscription through an Order. Your Order is incorporated into and subject to these Terms.
1.2 Subscription Features and Limits. Your Subscription has limits based on the Edition you have obtained, such as limits on the number of total End Users, limits on the types of End Users, feature and functionality limits, limits on the number of active projects, and other subscription limits. These limits are described in these Terms, Centercode’s Product Descriptions, and/or your Order. Free Subscriptions have significant limits that may not apply to paid Subscriptions. Centercode may choose to discontinue any Edition or modify any sales offering at any time, effective at the end of your then-current Service Term, however, you acknowledge that Centercode may update or modify any component of the Centercode Platform at any time in its sole discretion without liability to you.
1.3 Administration of Your Subscription. For a paid Subscription, the Subscription allows you to designate certain End Users as Administrators. In the case of a free Subscription, your Account Owner is your sole Administrator. Your Administrators have important controls over use of the Subscription, including modifying and configuring the Subscription, creating and modifying accounts, and assigning, removing, and managing permissions and access to Customer Data. These actions may cause you to incur additional Fees as described in Section 8.4 (Fees) of these Terms. You are responsible for managing your Administrators and agree that Centercode is not responsible for the internal management or administration of your Subscription. You are responsible for understanding the settings and controls of the Subscription, controlling who you allow to become or remain an Account Owner, Administrator, and/or other End User, assigning and revoking privileges and roles to your End Users, and monitoring your End Users’ use of the Subscription.
1.4 Branding and Posted Centercode Content/Opportunities. You agree that Centercode may, in connection with its provision of the Subscription and promotion of your product and service testing program, identify you by name, trademark, and/or logo as a customer and as directed or approved by your employee or other representative (including by email), use your name, trademark, service mark, logo, or other proprietary content (e.g., use your proprietary content in your Subscription or in a third party communication or notice you approve for Participant recruiting, if applicable). You further agree that Centercode may post its Centercode Platform Terms of Use for End Users (https://www.centercode.com/platform-terms/) (the “End User Terms”) in your Subscription. Additionally, your End Users may be presented with an opportunity inside of your Subscription to join Centercode’s Betabound portal. You expressly permit this and agree that nothing in these Terms or the Centercode DPA (defined below) prohibits Centercode from presenting your End Users with this opportunity. Customers, other than those with free accounts, may optionally request that this notification be removed by contacting Centercode Support.
2. Access, Support, and Restrictions
2.1 Centercode Platform Access. Subject to your compliance with these Terms and during the applicable Service Term, Centercode grants you the right to access and use the Subscription in the Edition and with the limits you have ordered. You are not granted a license to any software. You are authorized to access and use the Subscription only for their intended purpose and solely for your own internal business purposes. The rights granted in this Section 2.1 are non-exclusive, non-sublicensable, and non-transferable.
2.2 Support. Centercode has customer support (“Centercode Support”) available to you during your Service Term if you have paid a Subscription. This support is exclusively available through an in-platform chat feature available to your Builders that have the “Administrator” or “Project Creator” community roles or the “Project Manager” role in a project. If you have a free Subscription, customer support consists exclusively of access to Centercode’s community-based support site.
2.3 Restrictions. You will not: (a) license, sublicense, rent, lease, sell, resell, transfer, assign, or distribute the Subscription, Centercode Platform, or Centercode Content; (b) reproduce, modify, adapt, or create derivative works based on the Subscription, Centercode Platform, or Centercode Content; (c) use the Subscription for the benefit of any third party; (d) incorporate the Subscription, Centercode Platform, or Centercode Content into a product or service you provide to a third party; (e) interfere with or disrupt the integrity or performance of the Centercode Platform as a whole, the Subscription, or mechanisms intended to limit your use; (f) attempt to gain unauthorized access to the Centercode Platform, the Subscription, or related systems or networks (whether through the Subscription or otherwise); (g) reverse engineer, decompile, decipher, translate, disassemble, or otherwise attempt to discover or recreate source code, underlying ideas, algorithms, file formats, or non-pubic APIs related to the Centercode Platform; (h) use the Subscription or Centercode Content to build a competitive product; or (i) encourage, allow, or assist your End Users or any third party to do any of the foregoing. The Subscription is not intended for use by United States federal, state, and local government customers (“Government Customers”). If you are a Government Customer or are seeking a Centercode Platform subscription to be used for the benefit of a Government Customer, please reach out to Centercode sales to discuss available products.
3. Security and Data Privacy
3.1 Centercode Security. Considering the nature and types of Customer Data, Centercode maintains physical, technical, and administrative security measures designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. Centercode maintains a compliance program that includes written policies and independent third-party audits.
3.2 Centercode Privacy. Centercode collects data and information about you and your End Users in accordance with its Privacy Policy and its Customer Data Handling Practices Privacy Policy for Customer Data, which you acknowledge and which are incorporated into these Terms.
3.3 Subpoenas. Nothing in these Terms prevents Centercode from disclosing Customer Data to the extent required by regulations, laws, subpoenas, or court orders, but Centercode will use commercially reasonable efforts to notify you where it is permitted to do so.
3.4 Data Processing Addendum. Subject to the last sentence of this Section 3.4, Centercode’s Data Processing Addendum for monthly customers (the “Centercode DPA”) applies and is incorporated into, and governed by, these Terms with respect to your Customer Data that constitutes Personal Data. If requested by Centercode, you agree to separately execute the Centercode DPA. If you have a free Subscription, in order for the provisions applicable to European Personal Data in Centercode’s DPA to apply, Centercode is required to collect additional contact information from you and because of this, you (the company that you identified in your account creation process) are required to complete and execute the document available here, in order for these provisions of Centercode’s DPA to apply and prior to collecting Customer Data that is subject to Applicable European Data Protection Laws.
4. Your Responsibilities, Representations & Warranties
4.1 Intellectual Property Rights and Domain Name Ownership. You represent and warrant that you have provided Centercode with your correct company information and that you have all necessary rights, including Intellectual Property Rights, to use the name, trademark, logo, and web address/URL that you provide to Centercode in connection with your Subscription. Where you supply a domain for the operation of the Subscription, Centercode may verify that you own or control that domain. If you do not, then Centercode will have no obligation to provide you with the Subscription and may terminate your Subscription immediately for cause.
4.2 Age Requirement for End Users. Your End Users must be at least 18 years old (or older where required under law that applies to your use of the Subscription). You are responsible for ensuring that your End Users are at least 18 years old.
4.3 Responsibility for End Users. You are responsible for the actions of your employees, contractors, agents, and End Users and their use of the Subscription, whether or not they are from your organization. You represent, warrant, and agree that you and your End Users will use the Subscription, and collect, share, and otherwise process the Customer Data, in accordance with these Terms, in compliance with the End User Terms, and in compliance with all applicable local, state, national, and foreign laws, treaties, and regulations, including but not limited to Applicable Data Privacy Laws. You agree that neither you nor your End Users will use the Subscription to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; or (c) send or store material containing viruses, worms, time bombs, Trojan horses, or other harmful computer code, files, scripts, agents or programs. You agree to notify Centercode immediately of any known or suspected unauthorized use of the Centercode Platform or the Subscription.
4.4 Account Credentials. Each End User must be a unique, named person with a unique user identification and password. The sharing of accounts is prohibited, and you agree to immediately notify Centercode of any unauthorized use of an account that you become aware of. You must require that all End Users keep their account credentials confidential and to not share them with another person.
5. Your Customer Data
5.1 Ownership of Your Customer Data. Customer Data is and will remain your property, and as against Centercode, you retain all right, title, and interest in and to your Customer Data. Through your configuration and use of the Subscription you control the types and amounts of Customer Data collected on the Subscription and submitted for Processing by Centercode. By submitting Customer Data to the Subscription, you hereby grant Centercode the right and license, and expressly instruct Centercode, to access, copy, display, use, and otherwise Process the Customer Data and access your Subscription solely for the purpose of (a) providing the Subscription to you (including to calculate Fees); (b) providing customer and technical support to you and your End Users, including providing insights and announcements about Centercode services; (c) creating aggregate and not personally identifying measures of any Centercode Platform usage, engagement, and performance; and (d) maintaining and improving any component of the Centercode Platform and Centercode Content.
5.2 Your Data Compliance Obligations. You have sole control of and are solely responsible for your Customer Data and all information and data you or your End Users collect, store, or process using the Subscription. You are responsible for properly configuring the Subscription and managing the collection and retention of Customer Data during the Service Term. You represent and warrant that: (a) you have sufficient rights, releases, and permissions in the Customer Data and agree to maintain all rights, necessary to grant to Centercode the rights granted in Section 5; (b) your Customer Data, its submission to Centercode, and Centercode’s use as described in these Terms will not violate any applicable laws, third party Intellectual Property Rights, privacy or publicity rights, or any of your policies or third-party policies governing your Customer Data; (c) you have provided to your End Users and will comply with legally adequate privacy notices; and (d) you have obtained and will maintain any necessary consent from your End Users for the collection, use, transfer, and storage of any Customer Data in connection with the Subscription.
5.3 Excluded Data Prohibited. YOU AGREE THAT NEITHER YOU NOR YOUR END USERS WILL USE THE SUBSCRIPTION TO COLLECT OR PROCESS EXCLUDED DATA (DEFINED IN SECTION 23 (DEFINITIONS)). YOU ACKNOWLEDGE THAT THE SUBSCRIPTION HAS NOT BEEN DESIGNED TO COLLECT OR PROCESS EXCLUDED DATA. CENTERCODE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE OUT OF OR RESULT FROM THE SUBMISSION OF EXCLUDED DATA TO THE SUBSCRIPTION OR CENTERCODE’S PROCESSING OF EXCLUDED DATA.
5.4 Consent to Centercode’s Sub-Processors and United States Processing. Centercode uses third-party Sub-Processors in connection with the Subscription and customer support as described in the Centercode DPA. By entering into these Terms, you approve of these Sub-Processors. Regardless of which country you are based in, you authorize Centercode and its Sub-Processors to process the Customer Data in the United States, where Centercode is located, and in the jurisdictions of processing by its Sub-Processors.
5.5 Retrieval of Customer Data. If you are have a paid Subscription, You understand and agree that you only have the ability to export your Customer Data at termination of the Subscription and only by requesting access to retrieve your Customer Data in generic file format from Centercode Support no later than fifteen (15) days after termination of the Subscription. Centercode will then provide you with a seven (7) day window of access for You to export Customer Data in generic file format. If you have a free Subscription, you do not have the ability to export your Customer Data during or after the Service Term, except as otherwise required by applicable law.
5.6 Deletion of Customer Data. You understand and agree that thirty (30) days following termination of your Subscription, Centercode may permanently delete your Subscription and your Customer Data without further notice to you. Except to the extent otherwise required by applicable law or court or governmental order, Centercode will delete your Customer Data no later than the date specified in the Centercode DPA.
6. Data Storage/Volume Limits
Centercode reserves the right to impose or modify limits on disk space, storage volume, or file sizes or types. If Centercode determines (a) your data storage or volume is excessive in relation to your Subscription, (b) you are using the Subscription for file sharing, file/data storage, or other purposes unrelated to product and service testing, or (c) that limits are necessary for the overall health of its services offered to its customers, or in the case of a free Subscription, for any other reason in Centercode’s sole discretion, you will be asked to modify your use, remove some of your data, or if appropriate, you may be required to upgrade your Subscription.
7. Use of Third-Party Products
The Subscription may provide you and your End Users with the capability to integrate the Subscription with other third-party products or services (“Third-Party Products”). Centercode is not a party to the terms under which you order Third-Party Products and/or collect or share the data from the third party. Where you integrate a Third-Party Product with your Subscription, you understand and agree that the third party is your direct service provider and not Centercode’s Sub-Processor and you are responsible for complying with all applicable third-party terms, including ensuring that all necessary rights have been secured to allow for the integration and any resulting sharing of Customer Data. Centercode is not responsible for and makes no warranties with respect to your Third-Party Products, the actions of such third parties, or the data that you obtain or process using Third-Party Products. You are solely responsible for your decision to permit any Third-Party Product to access and/or use your Customer Data. CENTERCODE DISCLAIMS ALL LIABILITY FOR ANY THIRD-PARTY PRODUCT OR FOR THE ACTS OR OMISSIONS OF ANY OF YOUR THIRD-PARTY PROVIDERS.
8. Billing, Renewals, and Payment
8.1 Service Term. Your Subscription is offered with a monthly service term (the “Service Term”) that commences at the start date of your Subscription and renews as described in Section 8.2 (Renewal), unless terminated as described in Section 8.3 (Cancellation).
8.2 Renewal. At the completion of each monthly Service Term, your Subscription will automatically renew for another month unless either party terminates the Subscription before the next renewal date. All renewals are subject to the continued offering by Centercode of the Subscription and will be charged at then-current rates. You will not receive a separate notice prior to renewal, but your designated Account Owner has access to your subscription details through the subscription management page in your Subscription.
8.3 Cancellation. You may cancel your Subscription at any time. Cancellations will take effect at the end of the current monthly Service Term and no refunds will be issued. For paid Subscriptions, the Account Owner must initiate the cancellation through the billing and subscription management page in your Subscription. For free Subscriptions, the Account Owner must initiate the cancellation through methods or functionalities provided by Centercode from time to time.
8.4 Fees. In the case of a paid Subscription, the fees for your Subscription (the “Fees”) are initially as specified in your Order and are then adjusted for each monthly renewal Service Term as described in this Section 8.4. Total Fees for the monthly Service Term are based on your total number of Builder Accounts as of the start of each monthly Service Term. Centercode will not adjust your Fee mid-Service Term if you reduce or increase the number of Builder Accounts after the start of the monthly Service Term but will adjust the Fee accordingly for the next monthly Service Term. In addition to the Account Owner, any Administrator has the authority to add additional End Users and to assign roles to End Users that cause the accounts to be tagged as Builder Accounts. You hereby authorize your Account Owner and Administrators to create/designate Builder Accounts, which will increase your Fees as described in this paragraph. If you believe any amount charged to your account is incorrect, you must contact Centercode in writing within ten (10) days of the date of the charge to be eligible to receive an adjustment or credit.
8.5 Payment and Authorization of Recurring Payments. You acknowledge that a paid Subscription involves monthly Fees that are due in advance of the monthly billing term, and you accept responsibility for the resulting recurring payment obligations. All Fees and other monetary amounts in the Order and monthly invoices are stated in U.S. dollars. You hereby authorize Centercode to charge your credit card on file in your account with Centercode for the Fees and Taxes (defined below) and any other amount due under these Terms, including upon first ordering the Subscription and at each monthly renewal of the Service Term. You agree to maintain complete and accurate payment card information and company contact information for billing, including your legal company name, street address, and a name, email, and phone number of your billing contact. If you provide written notice to stop using a previously designated payment method and fail to designate an alternative method, Centercode may immediately suspend or terminate the Subscription. Any notice from you to change your billing account information will not affect charges Centercode submits to your account before it can reasonably act on your request. Centercode uses a third-party intermediary to manage its credit card processing. Notice from this third-party intermediary to you (including notice by email) that your credit card has been declined will be deemed to be valid notice from Centercode to you. Centercode does not accept purchase orders, preprinted forms, or other purchasing documents and any such documents sent to Centercode will be of no effect.
8.6 Late Payment. Except in the event of a good faith dispute regarding Fees, if you fail to make a payment when due, without limiting Centercode’s other rights and remedies, Centercode may charge interest on the past due amounts at a rate of 1.5% per month or, if lower, the highest rate permitted under applicable law. You agree to reimburse Centercode for all reasonable costs it incurs in collecting late payments, including attorneys’ fees. You further agree that if the failure to pay any amount due continues for five (5) days or more, without limiting any other rights or remedies Centercode may have, Centercode may suspend your Subscription until your account is paid in full.
9. Taxes and Withholding
Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including any sales tax, VAT, and GST (“Taxes”) relating to the provision of the Subscription to you (excluding Taxes based on Centercode’s gross revenues or net income), and you are responsible for payment of all such Taxes. To the extent any such Taxes are payable by Centercode, you must pay the amount of such Taxes to Centercode in addition to Fees. If you have obtained an exemption from relevant Taxes as of the time the Taxes are levied or assessed, you may provide Centercode with exemption information and Centercode will use reasonable efforts to provide you with documents designed to enable you to obtain a refund or credit from the taxing authority if available. In addition, if you are required to deduct or withhold any Taxes under applicable laws outside of the United States, you will remit those Taxes in accordance with those applicable laws and provide Centercode with reasonable proof of payment where requested, and Fees will be increased so that Centercode receives an amount equal to the sum it would have received had no withholding or deduction been made.
10. Intellectual Property Rights and Suggestions
You acknowledge and agree that Centercode alone owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Centercode Platform, including all code, software, and related or underlying technology used to provide the Centercode Platform, modifications or derivative works of the foregoing, and the Centercode Content included in or reproduced through the Centercode Platform. These Terms are not a sale and do not convey to you any ownership or Intellectual Property Rights, including in the Centercode Platform, the Subscription, or the Centercode Content. From time to time, you or your End Users may choose to submit or provide feature requests, ideas, comments, bug reports, or suggestions about the Centercode Platform, the Subscription, and/or the Centercode Content (the “Suggestions”). Centercode may freely use, copy, disclose, license, distribute, and exploit any Suggestions in any manner in connection with any of its products or services without any obligation, royalty, payment, restriction, or attribution based on intellectual property rights or otherwise. Suggestions will not be considered your Confidential Information, and nothing in these Terms limits Centercode’s right to independently use, develop, evaluate, or market products or services, whether incorporating Suggestions or otherwise.
11. Confidentiality
11.1 Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party, its affiliates, employees, agents, or contractors (collectively, the “Disclosing Party”) disclosed to the other party, its affiliates, employees, agents, or contractors (collectively, the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, code, inventions, technology, performance or audit information, know-how, and business, technical, and financial information.
11.2 Confidentiality Obligations. Except as expressly authorized in these Terms, the Receiving Party will hold in confidence and not disclose any Confidential Information to third parties, and will not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives (including, in the case of Centercode, disclosure of your Confidential Information and Customer Data to its Sub-Processors) with a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than those in this Section 11, and provided that the Receiving Party remains responsible for compliance by them with the confidentiality obligations in these Terms. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information from the Disclosing Party; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.
11.3 Compelled Disclosure. If the Receiving Party is required by regulation, law, or court or governmental order to disclose Confidential Information of the Disclosing Party (a “Compelled Disclosure”), it will provide the Disclosing Party with prior notice of such Compelled Disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the Compelled Disclosure.
11.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality provisions in these Terms, the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. Suspension and Removals
Centercode reserves the right to suspend any End User’s account and/or the Subscription in the event it reasonably suspects a violation of these Terms as needed to investigate and respond to the violation, and/or to remove your Customer Data from the Subscription, provided that Centercode has no obligation to monitor your Customer Data or your End Users’ use of the Subscription. Centercode will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if it determines that your actions endanger the operation of Centercode’s systems or the Centercode Platform or other individuals or entities, Centercode may suspend your access or remove your Customer Data immediately without notice. Centercode has no liability to you for removing or deleting your Customer Data from or suspending your access to the Subscription as described in this Section 12. Nothing in this paragraph limits Centercode’s rights or remedies, including its right to terminate under Section 13 (Term and Termination).
13. Term and Termination
13.1 Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of your Subscription.
13.2 Termination for Cause. Either party may terminate these Terms along with all related Orders upon advance written notice if the other party: (a) fails to cure any material breach of these Terms within ten (10) days after notice; (b) ceases operation without a successor; or (c) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. Without limitation, any breach of your payment obligations, if any, your obligations of confidentiality under these Terms, or unauthorized use of the Centercode Platform will be deemed a material breach of these Terms.
13.3 Termination for Convenience. You may terminate your Subscription for convenience at any time by cancelling your subscription as provided in Section 8.3 (Cancellation), but upon any such termination, you will still be obligated to pay all Fees for your current monthly Service Term. Centercode may terminate your Subscription at any time by providing written notice to you under these Terms, effective as of the end of your then-current Service Term unless a later effective date is provided in the notice.
13.4 Other Effects of Termination. Upon expiration or termination of these Terms, you must cease using the Subscription and delete (or at Centercode’s request, return) all Centercode Confidential Information in your possession, certifying deletion upon Centercode’s request. You will have access to your Customer Data only if and as provided in Section 5.5 (Retrieval of Customer Data) and Centercode may delete your Customer Data after termination as provided in Section 5.6 (Deletion of Customer Data).
13.5 Survival. The following provisions will survive any termination or expiration of these Terms: The following provisions will survive any termination or expiration of these Terms: Sections 1.3 (Administration of Your Subscription), 2.3 (Restrictions), 3 (Security and Data Privacy) (but only as long as your Customer Data is Processed by Centercode), 4 (Your Responsibilities, Representations & Warranties), 5 (Your Customer Data) (but only as long as your Customer Data is Processed by Centercode), 7 (Use of Third-Party Products), 8 (Billing, Renewals, and Payment) (but solely with respect to Fees, Payment, and Late Payment), 9 (Taxes and Withholding), 10 (Intellectual Property Rights and Suggestions), 11 (Confidentiality), 13 (Term and Termination), 14 (Evaluations and Free Accounts), 15.2 (Centercode’s Warranty) (final two sentences only), 15.3 (Warranty Disclaimers), 15.4 (No Participant Warranties), 16 (Your Indemnity), 17 (Limitations of Liability), 18 (Centercode’s IP Indemnification) (but solely with respect to claims arising from your use of the Subscription during the Service Term), 19 (Governing Law; Jurisdictions; Injunctive Relief), 22 (General Provisions), and 23 (Definitions).
14. Evaluations and Free Accounts
Where Centercode offers the Subscription to you at no charge, including free Subscriptions and trial use Subscriptions in other Editions, your use of the Subscription is subject to any additional terms that Centercode specifies from time to time and is only permitted during the Service Term. Notwithstanding anything in these Terms, Centercode may modify or terminate your right to use the free/ trial use Subscription at any time and for any reason in its sole discretion, without liability to you. To the maximum extent permitted by applicable law, Centercode disclaims all obligations or liabilities with respect to any free/trial use Subscription. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, CENTERCODE’S MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF A FREE/TRIAL USE SUBSCRIPTION WILL BE US$100.
15. Warranties
15.1 Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
15.2 Centercode’s Warranty. Centercode represents and warrants, for your benefit only, that it will use commercially reasonable efforts to prevent the introduction of viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”) into the Subscription, but Centercode is not responsible for any Malicious Code included in your data or content (including the Customer Data) or otherwise originating from you or your End Users. Centercode will use commercially reasonable efforts to correct reported non-conformance with the warranty in this Section 15.2. If Centercode determines corrections to be impracticable, either party may terminate the Subscription and you will receive a refund of any Fees you have pre-paid for the Subscription for the terminated portion of the Service Term. The warranty in this Section 15.2 will not apply: (a) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity; (b) if the non-conformity was caused by misuse, unauthorized modifications, or Third-Party Products or equipment; or (c) to a free Subscription. Centercode’s sole liability, and your exclusive remedy, for breach of the warranty in this Section 15.2 is set forth in this Section 15.2.
15.3 GENERAL WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THESE TERMS, THE SUBSCRIPTION IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND AS AVAILABLE BASIS, AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FUNCTIONALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CENTERCODE AND ITS SUPPLIERS AND LICENSORS. Without limiting its express obligations in these Terms, Centercode does not represent or warrant that (a) your use of the Subscription will be uninterrupted or error-free or operate (or continue to operate) in combination with any other hardware, software, system, or data, (b) Centercode will review Customer Data for accuracy or preserve or maintain Customer Data without loss; (c) the Subscription will meet your requirements or expectations, (d) errors or defects will be corrected; or (e) that unauthorized third parties will never be able to defeat the security measures of Centercode and its Sub-Processors. The Subscription may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Centercode is not responsible for any delays, delivery failures, or other damage resulting from such problems to the extent they are beyond Centercode’s control.
15.4 No Participant Warranties. Product and service testing typically involves the use of test participants who apply for and/or join your Centercode Platform community and/or test project(s) as End Users (“Participants”). Participants may include persons originating from Centercode’s Betabound community and/or other Participants. The Participants, including those sourced from Betabound, are unrelated third parties and NOT employees or contractors of Centercode. Centercode has no control of, or responsibility for any act or statement on the part of any individual Participant, or the group of Participants as a whole. CENTERCODE DOES NOT PERFORM IDENTITY VERIFICATION SERVICES AND MAKES NO WARRANTIES REGARDING THE PARTICIPANTS, INCLUDING THE PARTICIPANTS’ IDENTITIES OR THE ACCURACY OF THE INFORMATION THAT THE PARTICIPANTS PROVIDE TO BETABOUND OR TO YOU, OR REGARDING ANY PROMISES PROVIDED BY, OR ACTIONS OF, THE PARTICIPANTS, EVEN IF THE PARTICIPANTS ARE SOURCED FROM BETABOUND.
16. Your Indemnity
You agree to indemnify, defend and hold Centercode and its parent organizations, subsidiaries, affiliates, contractors, officers, directors, employees, attorneys and agents harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including attorneys’ fees and costs) arising out of or in connection with or alleging: (a) that your data or content processed using the Subscription, including the Customer Data or the Test Materials, infringed the Intellectual Property Rights of a third party; (b) the injury, death, personal, or property damages arising out of or related to distribution of, or use of, the Test Materials; (c) a violation by you or your employees, contractors, agents, or End Users of applicable law or regulations or the End User Terms; or (d) your negligence or breach of your obligations under these Terms. Centercode will notify you promptly in writing of any matters for which the indemnity may apply to allow you to investigate and defend the matter; provided, however, the failure to give such notice will only relieve you of your indemnity obligations to the extent that you are prejudiced by that failure. You will have sole control of the defense and all negotiation of any settlement or compromise, provided, however that no third-party claim or action may be settled or compromised by you without the express written consent of Centercode, which will not be unreasonably withheld, but no such settlement may impose any obligation on Centercode, require Centercode to make an admission, or impose liability on Centercode not covered by your indemnification obligations. Centercode agrees to reasonably assist you in the defense of the claim at your expense.
17. Limitation of Liability
17.1 Consequential Damages Waiver. IN NO EVENT WILL CENTERCODE BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS AND/OR YOUR SUBSCRIPTION.
17.2 Liability Cap. IN NO EVENT WILL CENTERCODE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND/OR YOUR SUBSCRIPTION, WHETHER IN CONTRACT, WARRANTY, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
17.3 Nature of Claims and Failure of Essential Purpose. The liabilities limited by Section 17 and elsewhere in the Terms apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and will survive even if Centercode is advised in advance of the possibility of the damages in question or the damages were foreseeable, and even if any limited remedy specified in these Terms is found to have failed of its essential purpose. For the avoidance of doubt, Centercode’s liability limits in these Terms apply likewise to Centercode’s affiliates, licensors, suppliers, Sub-Processors, agents, directors, officers, employees, consultants, and other representatives.
17.4 Limitations Under Applicable Law. If applicable law limits the application of the provisions of these Terms limiting liability, Centercode’s liability will be limited to the maximum extent permissible.
18. Centercode’s IP Indemnification
Centercode will indemnify, defend, and hold you harmless against any claim brought against you by an unaffiliated third party alleging that the Subscription, when used as authorized under these Terms, infringes the Intellectual Property Rights of a third party (an “IP Claim”), provided that Centercode has received from you: (a) prompt written notice of the IP Claim (but in any event notice in sufficient time for Centercode to respond without prejudice); (b) reasonable assistance in the defense and investigation of the IP Claim; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the IP Claim.
Centercode’s indemnification obligations in this Section 18 do not apply: (1) if the total aggregate fees Centercode receives with respect to your Subscription in the twelve (12) month period immediately preceding the IP Claim is less than US$30,000; (2) if the Subscription is modified by any party other than Centercode, but solely to the extent the alleged infringement is caused by such modification; (3) if the Subscription is used in combination with any non-Centercode product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of the Subscription; (5) to any IP Claim arising as a result of Customer Data or circumstances covered by your indemnification obligations in Section 16 (Your Indemnity); or (6) if you settle or make any admissions with respect to an IP Claim without Centercode’s prior written consent. CENTERCODE’S OBLIGATION TO INDEMNIFY UNDER THIS SECTION 18 IS CAPPED AT THE AMOUNT SPECIFIED IN SECTION 17.2 (LIABILITY CAP). THIS SECTION 18 STATES CENTERCODE’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SUBSCRIPTION.
If your use of the Subscription is (or in your reasonable opinion is likely to be) enjoined, whether by court order or by settlement, or if Centercode determines such actions are reasonably necessary to avoid material liability, Centercode may, at its option and in its discretion: (i) modify the Subscription or provide you with a substitute Subscription that is non-infringing; or (ii) obtain a license or permission for you to continue to use the Subscription, at no additional cost to you; or (iii) if neither (i) nor (ii) is, in Centercode’s judgment, commercially practicable, terminate your access to the Subscription (or to a portion of the Subscription as necessary to resolve the claimed infringement) and refund any prepaid amounts for the terminated portion of the Service Term.
19. Governing Law; Jurisdictions; Injunctive Relief
The parties agree that these Terms are governed by and construed in accordance with the applicable laws of the State of California, USA, and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The terms of the United Nations Convention on Contracts for the Sale of Goods, the Uniform Commercial Code, the Uniform Computer Information Transactions Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to these Terms. Each party irrevocably agrees that any legal action, suit, or proceeding arising out of or related to these Terms or the Subscription must be brought solely and exclusively in and will be subject to the service of process and other applicable procedural rules of, the state and federal courts located in Orange County, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Orange County, California, USA. Nothing in these Terms will prevent Centercode from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations, or enforcement or recognition of any award or order in the appropriate jurisdiction.
20. Export Restrictions
The Subscription is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download from the Subscription (or any part thereof). You will not (and will not allow any third-party to) remove, export, or otherwise deliver from the United States or allow the export, re-export, or delivery of any part of the Subscription: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); or (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country and are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to permit use of the Subscription by prohibited countries or Prohibited Persons. Centercode makes no representation that the Subscription is appropriate or available for use in other locations. You are solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
21. Changes to These Terms
Centercode may modify or amend any part of these Terms by posting a revised version at https://centercode.com/legal/subscription-terms. The revised version will automatically apply as of your next renewal date without any obligation for Centercode to provide you with notice of modification unless you elect not to renew pursuant to Section 8.3 (Cancellation), except that in some cases (e.g., to comply with laws or regulations, or as needed where new features are added to the Subscription), the modifications will be effective immediately. If the effective date of modifications to these Terms is during your then-current monthly Service Term, Centercode will provide you with notice, and if you object to the modifications, then (as your exclusive remedy) you may terminate your affected Subscription upon written notice to Centercode, and Centercode will refund you any fees you have pre-paid for use of the affected Subscription for the terminated portion of the applicable Service Term. Nothing in these Terms prohibits Centercode from amending its privacy policies, list of Sub-Processors, and the End User Terms at any time by posting a new version of either on its website, and the new version will become effective on the date it is posted.
22. General Provisions
22.1 Notices. Any notice under these Terms must be given in writing. Centercode may provide notice to you through your Account Owner or Administrator’s email addresses in the Centercode Platform or via an in-platform notification. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after Centercode sends it. You will provide notice to Centercode by mail to 23422 Mill Creek Dr. #105, Laguna Hills, CA 92653, Attention: Legal Notices, or by email to legal@centercode.com.
22.2 Assignment; Change in Control. You may not assign or transfer these Terms, your Order, or the Subscription without Centercode’s prior written consent, except to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, but only if you provide Centercode with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms and your Order(s). Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. Centercode may assign its rights and obligations under these Terms (in whole or in part) without your consent. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
22.3 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay Fees and Taxes) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
22.4 Interpretation. As used in these Terms, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision in these Terms is held by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect.
22.5 Independent Contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power, or authority to create any duty or obligation of the other party.
22.6 Conflicts. In the event of any conflict between these Terms and the Product Description or Order, the terms of the Product Description or Order will control.
22.7 No Third-Party Beneficiaries. These Terms do not confer any right, benefit, or remedy upon any third party.
22.8 Waivers; Modifications. The failure of an injured party to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing. Except as provided in Section 21 (Changes to These Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
22.9 Entire Agreement. These Terms, together with the Order and any document expressly incorporated in these Terms or the Order, are the entire agreement between you and Centercode relating to the Subscription and any other subject matter covered by these Terms and supersede all prior or contemporaneous oral or written negotiations, discussions, representations, or agreements between you and Centercode regarding the Subscription and any other subject matter covered by these Terms and/or the Order. No provision of any purchase order or other business form by you will supersede or supplement these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
23. Definitions
Certain capitalized terms are defined in this Section 23, and others are defined contextually in these Terms.
Account Owner means your End User that is the designated “Account Owner” in your Subscription account information and/or the Centercode billing center interface provided to you from time to time.
Administrators means the End Users designated by you who are assigned roles within the Subscription that enable them to administer some or all of the Subscription, including End Users assigned the role(s) of Community Administrators, Project Creators, and/or Project Managers.
Applicable Data Protection Laws means legislation and rules and regulations adopted thereunder, as amended or superseded from time to time, relating to data protection and privacy applicable to the processing of Personal Data in connection with the Subscription, including applicable United States federal laws, Applicable US State Privacy Laws, and Applicable European Data Protection Laws, in each case where and to the extent applicable.
Applicable European Data Protection Laws means data protection and privacy laws in Europe and their implementing regulations, as amended or superseded from time to time, including: (a) the GDPR; (b) the EU e-Privacy Directive (Directive 2002/58/EC); (c) the GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018; (d) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; and (e) other applicable data protection and privacy laws and regulations of the European Union, the EEA, and their member states, Switzerland, and the United Kingdom, in each case where and to the extent applicable.
Applicable US State Privacy Laws means U.S. state data protection and privacy laws and their implementing regulations, as amended or superseded from time to time, including but not limited to: (a) the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (the “CCPA”); (b) the Colorado Privacy Act; (c) the Connecticut Personal Data Privacy and Online Monitoring Act; (d) Utah Consumer Privacy Act; and (e) Virginia Consumer Data Protection Act, in each case where and to the extent applicable.
Betabound means Centercode’s web-based portal and community used by Centercode to register third parties interested in participating in product and service tests of Centercode’s customers and other third parties and to announce these tests.
Builder Account means an End User’s account that has been assigned a “Community Administrator,” “Project Creator,” “Project Manager,” and/or “Support” role within your Subscription. For the sake of clarity, once an account is tagged as a Builder Account, it retains that status for its duration even if the Community Administrator, Project Creator, Project Manager, and Support roles are removed from that account.
Centercode Content means all data, text, software, technology, user interfaces, graphics, images, video, sounds, templates, algorithms, logos, trademarks, trade names, copyrights, and other information incorporated by Centercode into the Subscription, or any reports or other content generated through use of the Centercode Platform, but not including your Customer Data or content provided by you or your End Users in connection with your use of the Subscription.
Customer Data means the data submitted or provided by you or your End Users to your Subscription. For the sake of clarity, data collected by Centercode in its Betabound portal is not Customer Data.
Edition means a particular configuration or feature package of the Centercode Platform, including the limits specified for the Edition.
End User(s) means your end users of the Centercode Platform, including employees, representatives, consultants, contractors, prospective and actual test participants, or other third parties who are invited or allowed to access and/or use the Subscription, regardless of their account type.
Europe means member states of the EEA, the United Kingdom, and Switzerland.
European Personal Data means Personal Data that is subject to the protection of European Data Protection Laws.
Excluded Data means any (a) information that constitutes “special categories of data” as defined under the GDPR (or the equivalent under other Applicable Data Protection Laws); (b) patient, medical or other health information regulated pursuant to applicable health data protection laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or biometric data; (c) credit, debit, or other payment card or bank account information (including all information for which Payment Card Industry Data Security Standard (PCI DSS) applies); (d) government-issued identification numbers (drivers’ license, social security, passport, etc.); (e) personal information of children protected under any Applicable Data Protection Laws or other applicable law related to children (including the Children’s Online Privacy Protection Rule (COPPA) and the GDPR); (f) any data similar to the foregoing that is protected under foreign or domestic laws or regulations; and (g) for free Subscription customers only, European Personal Data, until such time as you have entered into the Centercode DPA as described in Section 3.4 (Data Protection Addendum).
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) and applicable national implementations thereof, including as implemented, replaced, or adopted under the laws of the and in respect of the United Kingdom, or any successor legislation.
Intellectual Property Rights means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
Order means Centercode’s applicable online order page(s), flows, or other Centercode-provided ordering processes describing the Edition, applicable fees, and other details of the Subscription you are ordering from Centercode.
Personal Data means any Customer Data that relates to an identified or identifiable individual where the information is protected as personal data or personal information under Applicable Data Protection Laws. For the sake of clarity, as applicable, Personal Data includes “Personal Information” as defined in Applicable US State Privacy Laws.
Product Descriptions means Centercode’s description of the features and limits of Centercode Platform subscription services Editions covered by these Terms, as set forth on Centercode’s website from time to time or as identified in your Order.
Sub-Processor means a third-party engaged by Centercode in connection with Centercode’s provisioning of the Subscription that Processes Customer’s Personal Data and/or Customer Data as described at https://www.centercode.com/legal/sub-processors, which Centercode may update from time to time. The term Sub-Processor does not include any Centercode personnel, whether employee or independent contractor.
Test Materials means test product, applications, and technology, or related project information or materials owned by you or your affiliates, partners, or third-party contacts.
