Effective Date: August 23, 2016
Acknowledgment and Acceptance of the GroupDoLists Business Agreement
The use of the GroupDoLists service (the “Service”) is governed by this GroupDoLists Business Agreement (the “Agreement”). This Agreement constitutes a contract between Centrallo LLC, a Delaware limited liability company (“Centrallo”), and the organization agreeing to this Agreement (the “Customer”). You are required to accept this Agreement on behalf of the Customer as a condition to creating a business administrator account (an “Administrator Account”). The Agreement is effective as of the date Centrallo makes the Administrator Account available to the Customer (the “Effective Date”). By accepting this Agreement, you confirm that you have reviewed the Agreement on behalf of the Customer and are authorized to accept, and make legally binding, this Agreement on behalf of Customer. If you do not have the legal authority to bind such Customer, please do not check the box signifying that you accept the terms of this Agreement.
In addition to this Agreement, Customer's use of the Service is governed by the terms of service governing the use of Centrallo's services (the “Terms of Service”), as published at the Centrallo web site https://www.centrallo.com/terms. If there is any conflict between the Terms of Service and this Agreement, the terms of this Agreement shall govern with respect to the Service.
CUSTOMER’S use of the Service shall be deemed as acceptance of the Agreement.
The GroupDoLists Service provides an application for the Customer to create interactive group checklists that can be shared with anyone who has an email address. This application is available on numerous computer devices and systems and is provided through the GroupDoLists Software (as defined below) and other services and web sites hosted or made available by Centrallo.
Upon completing the account creation process and confirming acceptance of this Agreement, Customer shall be provided with access to its Administrator Account, which shall include a console (a “Console”) that shall allow the Customer to perform a number of administrative functions relating to (i) the Administrator Account, (ii) end users (each, an “End User”) and (iii) Customer’s group checklists, notes and templates (each, a “Group List”).
The Customer acknowledges that authorizing an End User to use the Service, enables such End User to store data, text, images, software, sounds, graphics, video, messages, tags and other materials, in a variety of forms and technical structure (“Content”) in Group Lists. Customer also acknowledges that an End User may copy, transfer or otherwise export Content from the Group Lists they are permitted to access and that while any suspension or termination of access to Group Lists shall prevent the End User from accessing the previously accessible Group Lists, it will not delete or otherwise affect any Content that such End User had previously copied from or transferred out of the Group Lists.
The Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by Centrallo regarding future functionality or features.
Centrallo may occasionally update the Service. If any changes are made that materially reduce the functionality of the Service, Centrallo will inform the Customer.
Notwithstanding anything in this Agreement, if there is a Security Emergency, then Centrallo may automatically suspend use of the Service. Centrallo will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Service that does or could disrupt the Services, other customers' use of the Service, or the infrastructure used to provide the Service and (ii) unauthorized third-party access to the Service.
Obligations and Acknowledgments of the Customer
The Customer is responsible for (a) payment of all fees relating to the Service (“Fees”); (b) administering all End Users' access to Group Lists through the Console; (c) maintaining the confidentiality of the password of each Administrator Account; (d) maintaining accurate and current account and contact information for each Administrator Account; and (e) ensuring that any and all use of each Administrator Account complies with this Agreement and applicable laws. Customer may grant administrative privileges to multiple Customer personnel (each, an “Administrator”), and shall be solely responsible for ensuring that it has designated appropriate individuals as Administrators and for removing administrative privileges from individuals who no longer require administrative privileges. CUSTOMER ACKNOWLEDGES THAT IF NO ACCOUNT ADMINISTRATOR(S) IS/ARE ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CUSTOMER OTHERWISE FAILS TO MAINTAIN CONTROL OF THE ADMINISTRATOR ACCOUNT(S), CUSTOMER MAY BE UNABLE TO ACCESS OR CONTROL THE GROUPDOLISTS BUSINESS ACCOUNT; IN SUCH EVENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES.
The Customer acknowledges and agrees that prior to an End User using the Service, Centrallo shall require each End User to accept Centrallo's Terms of Service, and such Terms of Service shall govern each End User's use of the Service. Customer acknowledges that a violation of the Terms of Service by an End User may result in the termination of such End User's personal account and Customer's GroupDoLists business account. Customer shall not make any representation, warranty or guaranty for or on behalf of Centrallo, or otherwise obligate Centrallo in any manner, to any End User.
The Customer shall prevent unauthorized use of its GroupDoLists business account or Group Lists and immediately terminate any unauthorized use of which it becomes aware. Customer will promptly notify Centrallo of any unauthorized use of or access to the Service of which it becomes aware.
If Customer is unsuccessful in obtaining access to an Administrator Account, Centrallo reserves the right to contact via email some or all End Users and any billing email listed in the Console of the Administrator Account (“Billing Contact”) to request one or more of them to serve as an Administrator and receive credentials to enable access to an Administrator Account. The process and means by which an End User or other designated contact is selected and provided such credentials is subject to Centrallo’s discretion. If no person is provided credentials for an Administrator Account through such process (a “Loss of Administration”), then Centrallo may, in its sole discretion, determine whether an individual requesting access to an Administrator Account may be provided the credentials necessary to do so on behalf of Customer. In such event, an individual may attempt to demonstrate to Centrallo authorization to act on behalf of Customer in regaining access to an Administrator Account by providing proof satisfactory to Centrallo. Customer acknowledges and agrees that, in the event of a Loss of Administration, Centrallo is empowered and authorized by this Agreement to use its discretion in determining whether to provide Administrator Account credentials to an individual offering proof of authority to act on behalf of Customer, and Customer hereby waives any and all claims against Centrallo as a result of, or in any way relating to, such actions. Customer has been made aware of, and understands, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Customer expressly, knowingly and intentionally waives any and all rights, benefits and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
The Customer shall not, and will ensure that End Users or third parties do not: (a) offer for sale or lease, sell, resell or lease access to the Service through the GroupDoLists business account; (b) attempt to reverse engineer the Service or any software or other component used therein; (c) use the Service in a manner or under circumstances where use or failure of the Service could lead to death, personal injury or environmental damage; (d) use the Service in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data, including the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act and its implementing regulations, the Privacy Rule and the Safeguards Rule or the Dodd-Frank Wall Street Reform and Consumer Protection Act, including the regulations issued thereunder, and as each may be amended from time to time; or (e) attempt to create a substitute or similar service through use of, or access to, the Service.
The Customer acknowledges and agrees that it is responsible for responding to a request from a third party for records relating to Customer's or an End User's use of, or Content contained within, the Service (a “Third Party Request”). If Centrallo receives a Third Party Request (including but not limited to criminal or civil subpoenas or other legal process requesting Customer or End User data), Centrallo shall, to the extent allowed by the law and by the terms of the Third Party Request, direct the third party to the Customer to pursue the Third Party Request. Centrallo retains the right to respond to Third Party Requests for Customer data where Centrallo determines, in its sole discretion, that it is required by law to comply with such a Third Party Request.
The Customer shall be required to select its method of payment when it sets up its GroupDoLists business account. Administrators and Billing Contacts of GroupDoLists business accounts may change payment information for such accounts by contacting Centrallo. Billing Contacts will need to contact Centrallo and demonstrate to Centrallo’s satisfaction, control of the payment method last used for Customer’s GroupDoLists business account to make any changes.
The Customer is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties or governmental impositions, excluding only taxes on Centrallo’s net income (collectively, “Taxes”), and Customer shall pay Centrallo all Fees due hereunder without any reduction for Taxes. If Centrallo is obligated to collect or pay Taxes, Centrallo will invoice Customer for the Taxes unless Customer provides Centrallo with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to Centrallo, Customer must provide Centrallo with an official tax receipt or other appropriate documentation to support such payments.
The Customer shall, at its own expense, be responsible for providing support to its End Users regarding issues that are particular to their End Users' access of Group Lists. Customer shall use commercially reasonable efforts to resolve any such support issues before escalating them to Centrallo. If Customer cannot resolve a support issue as set forth above, Customer's Administrator may escalate the issue to Centrallo.
Centrallo uses industry standard technical and organizational security measures to transfer, store, and process Content, and Centrallo has taken measures to prevent accidental loss of and unauthorized access to and use of Content stored in the Service. However, Centrallo does not guarantee that unauthorized third parties will be unable to obtain access to the Service, and Customer acknowledges that all Content stored by Customer and its End Users in the Service is done so at Customer's and its End Users' own risk. In addition, Centrallo cannot guarantee that Content stored in the Service will not be lost. In the event Centrallo becomes aware that a third party has accessed, without authorization, Customer's GroupDoLists business account, or has obtained, without authorization, the credentials of an Administrator for Customer’s GroupDoLists business account, Centrallo shall provide reasonably prompt notice to Customer’s Administrator of such unauthorized access. Customer agrees that Centrallo may transfer, store, and process Content in the United States and locations other than Customer's country.
Trademarks and Publicity
Centrallo may, in its sole discretion, allow Customer to upload its logo or other trademarks (together, “Customer Trademarks”) for display in the version of the Service accessed by Customer's End Users, either in conjunction with Centrallo's trademarks or as a Customer-branded service. Accordingly, Customer hereby grants Centrallo a non-exclusive license to display, perform and distribute the Customer Trademarks and to modify for technical purposes, such trademarks solely in connection with making the Service available to Customer's End Users.
Centrallo shall only be allowed to reference Customer on Centrallo's website and in marketing materials if Centrallo obtains Customer's permission.
Reservation of Rights
The Customer agrees to indemnify and hold Centrallo, its subsidiaries, affiliates, officers, agents, employees, advertisers, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of the Service (including all actions taken under your GroupDoLists business account), or any violation of this Agreement. In the event of such claim, Centrallo shall provide notice of the claim, suit, or action to the contact information we have for your GroupDoLists business account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTY. ALL WARRANTIES ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. CENTRALLO DOES NOT WARRANT THAT ANY INFORMATION WILL BE ACCURATE, COMPLETE, FREE FROM ERROR OR TIMELY WHETHER IN CONTENT OR PRESENTATION, NOR THAT ALL OR ANY ASPECT OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS. CENTRALLO MAKES NO WARRANTY REGARDING CONTENT, SOFTWARE OR SERVICES PROVIDED BY THIRD PARTIES.
Centrallo shall have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Service or GroupDoLists Software.
LIMITATION OF LIABILITY
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT CENTRALLO, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, AND SUCCESSORS SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF CENTRALLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF THE CUSTOMER’S TRANSMISSIONS, CONTENT OR DATA; (IV) STATEMENTS, CONTENT, OR CONDUCT OF ANY USER OR THIRD PARTY ON OR USING THE SERVICE; (V) THE CUSTOMER’S FAILURE TO PROTECT THE CONFIDENTIALITY OF ITS ACCOUNT INFORMATION; (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (VII) THE TERMINATION OF THE CUSTOMER’S ACCOUNT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT; OR (VIII) ANY OTHER MATTER RELATING TO THE SERVICE. CENTRALLO’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CUSTOMER TO CENTRALLO UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATON OF ANY CLAIM FOR DAMAGES.
Term and Termination
This Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period specified in the Console (the "Subscription Period"), unless and until terminated in accordance with the provisions of this section.
At the end of the initial Subscription Period, the Subscription Period shall automatically renew for an additional Subscription Period, except as set forth below. Customer will pay Centrallo the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Customer may cancel its GroupDoLists business subscription or reduce the number of accounts with access to GroupDoLists though the Console, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period for the immediately following Subscription Period.
Customer may terminate this Agreement at any time by deactivating its GroupDoLists business account through the Console, provided that in no circumstances shall Customer be entitled to any refund for Fees it has paid or any credit against Fees that are due to Centrallo as of the date of such termination. Centrallo may terminate this Agreement by providing thirty (30) days written notice to Customer and shall refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement, and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its confidentiality obligations under this Agreement and (ii) Centrallo may terminate this Agreement immediately in the event of a material breach by Customer of any of its obligations under this Agreement. If Customer terminates this Agreement for breach by Centrallo, Customer's sole and exclusive remedy and the entire liability of Centrallo for such breach shall be a refund of Fees paid by Customer to Centrallo under this Agreement.
If the Customer: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Customer 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 Customer; or (iv) Customer makes a general assignment for the benefit of creditors, Centrallo may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Customer's and its End Users' access to GroupDoLists and all other rights granted to Customer hereunder. Upon termination by Centrallo on less than thirty (30) days' notice, and unless prohibited by law, Centrallo shall provide a mechanism for Customer to download or export the information that Customer has uploaded using GroupDoLists within a limited period of time.
Sections 3 through 13 shall survive termination of this Agreement.
GOVERNING LAW AND CLAIMS
This Agreement and the use of the Service and GroupDoLists Software shall be governed by and construed in accordance with the laws of the state of New York, without regard to conflicts of laws provisions.
The Customer and Centrallo agree that any and all disputes or claims that have arisen or may arise, except any dispute relating to the enforcement or validity of intellectual property rights, shall be resolved exclusively through final and binding arbitration, rather than in court, except that the Customer may assert claims in small claims court, if the Customer’s claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
The arbitration proceedings would be conducted by the American Arbitration Association (the “AAA”) under its rules and procedures applicable at that time. The Customer may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. If the value of the relief sought is US$15,000 or less, either Party may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on both parties, subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by the Customer and/or Centrallo, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Centrallo Customers, but is bound by rulings in prior arbitrations involving the same Customer to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
THE CUSTOMER AND CENTRALLO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THIS IS REFERRED TO AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH CENTRALLO AND THE CUSTOMER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN A CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER CENTRALLO CUSTOMERS OR USERS.
Except where this Agreement or another agreement provide otherwise, any notice to Centrallo must be delivered by email to email@example.com.
This Agreement supersedes any prior agreements or earlier versions of this Agreement between the Customer and Centrallo for the use of the Service.
The Customer agrees that that each affiliate of Centrallo shall be a third party beneficiary to this Agreement and that such other individuals or companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement which confers a benefit on them. No other person or company shall be a third party beneficiary to this Agreement.
Neither party shall assign this Agreement or any right or interest under this Agreement, without the other party's prior written consent, except that Centrallo may assign this Agreement to any Centrallo affiliate or successor. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the permitted successors and assigns, and shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law. If the Customer desires to request Centrallo’s consent to an assignment of this Agreement, the Customer shall send a formal request for consent by notice to Centrallo, setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Customer shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, Centrallo shall not provide any passwords to Customer's Administrator Account to any party.
No agency, partnership, joint venture or employment relationship is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party shall be excused from performance for the period of the delay and for a reasonable time thereafter.
Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.