The following terms and conditions and the Order referencing them form the agreement (“Agreement”) between you (“you” or “Customer”) and CenterGrid, LLC (“CenterGrid”) and govern your access to and use of the Services as defined herein.
Your use of the Services is subject to this Agreement. By accessing or using the Services, you accept and agree to this Agreement. If you do not agree to this Agreement, you may not use the Services.
For the purposes of this Agreement, capitalized terms set forth in this Agreement shall have the meanings set forth below:
“Affiliate” means an entity, which directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with, another entity. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Agreement” means the applicable Order, these terms and conditions, and any other documents incorporated by reference thereto.
“Confidential Information” means any non‑public information of the Party disclosing such information (the “Disclosing Party”) including, but not limited to, business plans, products, technical data, specifications, documentations, rules and procedures, contracts (including without limitation any lease, service agreement, data maintenance agreement, or business associate agreement), intellectual property, trade secrets, presentations, know‑how, business methods, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, processes, payment, delivery and inspection procedures, designs, drawings, or other information or material of any kind, whether in paper, electronic, or oral form, or any other information that are designated as “confidential,” “proprietary”, etc., or could reasonably be construed by the Party receiving such information (the “Receiving Party”) as giving the Disclosing Party some competitive business advantage or the opportunity of obtaining that advantage, so that the disclosure or use thereof could be detrimental to the interests of the Disclosing Party (the “Disclosed Materials”). Confidential Information shall further include any information otherwise obtained, directly or indirectly, by a receiving Party through inspection, review or analysis of the Disclosed Materials. Anything to the contrary notwithstanding, Confidential Information shall not include information or materials that the Receiving Party demonstrates:
“Days” shall mean calendar days.
“Effective Date” means the date of execution of the Agreement.
“Intellectual Property” shall mean any and all patents, copyrights, copyright registrations, proprietary models and design registrations, know‑how, ideas, trademarks, service marks, trade names, business names, domain names, trade dress, trade secrets, source code, object code, test results, proprietary techniques, regulatory filing, or other similar information (whether or not patentable and whether in tangible or intangible form), and any other industrial or proprietary right, and any rights to any of the foregoing, and any documentation relating thereto, whether or not registered as of the Effective Date of the Agreement or at any time.
“Order” means an online, paper, or electronic order specifying the Services being ordered by Customer.
“Parties” shall refer to CenterGrid and Customer collectively.
“Party” shall refer to CenterGrid and Customer individually.
“Services” mean any professional or other services to be provided by CenterGrid under this Agreement, as described in more detail in an Order.
“CenterGrid Personnel” shall refer to CenterGrid personnel, including employees, subcontractors, agents, and representatives, who are performing the Services to be provided under this Agreement.
“Terms of Use” means the terms currently located at http://www.centergrid.com/TermsofUse, which may be relocated and updated by CenterGrid from time to time.
“Third Party Products” shall refer to any software, services, hardware or other materials including, without limitation, any Intellectual Property rights of any third party or CenterGrid Affiliate which CenterGrid may from time to time resell to Customer pursuant to an Order under this Agreement and subject to the licensing terms of the third party or CenterGrid Affiliate which govern said software, services, and/or Intellectual Property rights.
“Third Party Terms” shall refer to all third-party terms and conditions applicable to a Third Party Product.
The Parties are entering into this Agreement because Customer has commissioned CenterGrid to perform Services as specified in a particular Order (“Order”). All Services shall be performed at the prices and rates stated in the Order. The Order shall set forth in reasonable detail the scope of such work, any costs and expenses to be paid by Customer, and the specifications for Services to be provided thereunder (the “Specifications”).
Recurring Services. “Recurring Services” as specified in the Order continue for the Term. Initial quantities billed shall be trued up following migration to ensure accurate counts and sizing due to migration discovery. When final post-migration sizing and quantities are set, as confirmed in writing by Customer and CenterGrid, such quantities shall be fixed unless otherwise specifically noted in the Order or a Change Order.
One-Time Services and Products. One-Time Installation Services, One-Time Acceptance Services, One-Time Migration Services, and Other One-Time Services (all “One-Time Services”) and One-Time Products are based on the facts known by CenterGrid as of the Effective Date and are subject to adjustment and change based on discovery of previously undisclosed Customer environment complexity or volume after the Effective Date. Any such required revisions shall be negotiated by Customer and CenterGrid in good faith and shall be documented in writing as a Change Order.
Additional Services. “Additional Services” means all Services other than Recurring Services and One-Time Services, as well as any service hours for Recurring Services and One-Time Services in excess of the number of hours included in the Order for such Services, if specified. Additional Services will be provided on a time and materials basis at CenterGrid’s then-current hourly rates for engineering services and all other services unless otherwise specified in the Order. CenterGrid shall maintain daily time records of hours and tasks performed as Additional Services.
Schedules. An Order may contain a time schedule for completion of the Services required thereunder (the “Schedule”). Unless otherwise specified in the Order, Customer and CenterGrid expressly acknowledge and agree that all Schedules reflecting performance milestones are estimates only, and CenterGrid shall make commercially reasonable efforts to complete such Services in accordance with the Schedule.
The following shared security responsibility model sets forth the responsibilities of CenterGrid and Customer for security and compliance:
Each Party may request changes that affect the scope, duration, Specifications, Services, Schedule, or pricing of the Order. If a Party requests any such change, the Parties shall then negotiate in good faith a reasonable and equitable adjustment to each or any of the scope, duration, Specifications, Services, Schedule, or pricing of the Order. Until such change has been accepted in writing by the other Party, the Order shall remain unchanged and CenterGrid shall continue to perform pursuant to the existing Order. Additional items may be added to the Order using the pricing provided in the Order (if set forth therein) or as may be separately negotiated between the Parties.
CenterGrid may resell to Customer certain Third Party Products through the Order under this Agreement. The use of such Third Party Products will be subject to the terms of a separate licensing or subscription agreement or other terms of use (“Third Party Terms”), including but not limited to provisions regarding warranty, indemnification, limitation of liability, and confidentiality. If Third Party Terms are not provided during the transaction contemplated, it is Customer’s responsibility to obtain the relevant Third Party Terms to the Third Party Products.
The acceptance criteria for Services shall be based on the accuracy, completeness and quality of the Services in the context of the Order and Specifications. Upon activation of the Services, Customer shall have a period of ten (10) Days to review and test the Services for substantial conformity with the Specifications of the Order. In the event that the Services do not substantially conform to the Specifications of the Order in the reasonable opinion of Customer, Customer shall provide a written statement that identifies in reasonable detail all deficiencies and issues identified by Customer. If no such written statement is received from Customer within ten (10) Days of delivery of the Services, such Services shall be deemed accepted.
Within thirty (30) Days after receipt of a written statement detailing any deficiencies, CenterGrid shall do one of the following:
Customer shall have ten (10) business days to complete a review of the corrective actions or changes made to the Services in response to Customer’s written statement of deficiencies and notify CenterGrid in writing of acceptance or rejection. If no written statement of deficiencies is received from Customer within ten (10) business days of Customer receiving the Services with the corrective actions or changes, the Services shall be deemed accepted. In the event CenterGrid disputes Customer’s finding of substantial non‑conformity, the Parties shall meet within ten (10) business days thereafter to negotiate in good faith towards a resolution of the dispute. Notwithstanding the foregoing, in the event the Parties are unable to resolve any such dispute within ten (10) business days thereafter, Customer shall have the right to follow the procedures with respect to termination established in the Agreement under Section 5(B).
CenterGrid shall be compensated for Services according to the rates or fees set forth in the applicable Order. CenterGrid reserves the right to increase the rates or fees upon 30 Days’ notice before the end of the current Initial Term or Renewal Term. Customer may not withhold or “set-off” any amounts due hereunder and CenterGrid reserves the right to cease work without prejudice and assert appropriate liens if amounts are not paid when due. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and a half percent (1.5%) per month or fraction thereof until paid.
Fees for Third-Party Products. The fees for any Third-Party Product in the Order are based on availability and pricing as of the date of preparation of the Order. If payment is not made when due under this Agreement for any such Third-Party Products, availability and pricing for such Third-Party Products is subject to change. If the Third-Party pricing to CenterGrid for the applicable Third-Party Product has increased, then any such increase shall be added to the price for the applicable item under this Agreement and be payable from Customer to CenterGrid upon invoice. If the applicable Third-Party Product is no longer available, then CenterGrid will provide a new quote to Customer for a suitable replacement, subject to agreement of the Parties to be documented in a Change Order.
Minimum monthly fees for Recurring Services. The “Base Monthly Rate” for Recurring Services is the total fees charged during the first full month of the full scope of Recurring Services under the Order following the date of completion of implementation services for the Recurring Services, which date shall be determined by CenterGrid and communicated to Customer in writing. Customer’s “Minimum Monthly Rate” for the duration of the Order shall be eighty percent (80%) of the Base Monthly Rate. Customer shall pay the Minimum Monthly Rate for the duration of the Order notwithstanding Customer’s utilization of the features, functions or services or any Change Request that would otherwise lower the rate.
Recurring Services. CenterGrid shall bill Recurring Services monthly in advance, commencing on the earlier of (i) the commencement date for the applicable Services, or (ii) the first Day of the third calendar month after the Effective Date, with the following exceptions:
One-Time Services and Products. CenterGrid shall bill for One-Time Services and One-Time Products on the Effective Date. CenterGrid will not order any Third-Party Products for Customer until it has paid CenterGrid in full for the purchase of such Third-Party Products.
Additional Services. Fees for Additional Services shall be billed monthly in advance, except that Additional Services performed on a time and materials basis shall be payable monthly in arrears.
CenterGrid may dictate whether payments for Orders shall be made online at the time of purchase or by invoice.
For payments made online, Customer shall provide CenterGrid with a payment method to charge. Customer may change its payment method through its customer account or by contacting CenterGrid. Customer agrees to promptly update its payment method details as needed and to permit CenterGrid to use any updated payment method. Customer represents that it is authorized to use the payment method that it provides and that payment information is true and accurate. Customer authorizes CenterGrid to charge it for the Products and Services ordered using the payment method provided.
Online Payments for Recurring Services. When Customer orders Recurring Services involving online payments, it agrees to authorize recurring payments for the duration of the Recurring Services. Customer authorizes CenterGrid to store its payment information and process payments on a recurring basis as electronic debits, fund transfers, electronic drafts from a designated account (for Automated Clearing House or similar payments), or as charges to a designated credit card account (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, CenterGrid reserves the right to collect any applicable rejection fee and process any such payment as an Electronic Payment.
For Orders not paid for online, CenterGrid will issue Customers invoices for payment. Invoices shall be sent to Customer at the address set forth in the Notice section hereof (or such other physical or email address as may be provided by Customer to CenterGrid for such purpose) and shall include a description of all fees and expenses included in such invoice. In the event Customer disputes any invoice or any portion thereof, Customer shall notify CenterGrid in writing of the grounds for such dispute within fifteen (15) Days after receipt of such invoice. Any invoice or portions thereof not disputed by Customer in writing within fifteen (15) Days of receipt of the invoice shall be deemed accepted and payable by Customer.
All Fees are exclusive of any applicable taxes and shipping, which will be included with the applicable invoices. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, CenterGrid’s income, revenues, gross receipts, personnel or real or personal property or other assets.
This Agreement shall commence as of the Effective Date specified above and shall continue for the duration specified in the Order plus any renewal periods specified in the Order or this Section until the Agreement expires or is terminated under Section 5(B) (“Term”). Unless otherwise specified in the Order, the Term for Services ordered on a monthly or annual subscription basis shall automatically renew for the next period unless Customer cancels the subscription before the expiration of the current Term.
Either Party may terminate this Agreement in the event of a material breach if such breach remains uncured thirty (30) Days after giving written notice of such breach. Either Party shall be in default hereof if it makes an assignment for the benefit of creditors; a receiver is appointed; a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) Days; or is adjudicated bankrupt. Customer shall remain obligated to pay for Services performed up to and including the date of final termination, including the notice period.
CenterGrid may terminate this Order early for its convenience by submitting a written notice of early termination to Customer at least 30 days in advance of the date of termination. Customer may not terminate this Agreement for convenience unless otherwise specified in the Order.
Upon the termination or expiration of this Agreement:
The Parties agree that the relationship created by this Agreement is that of Customer-independent contractor and is not that of employer-employee for any purpose including employee benefits, taxation, and insurance. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Neither Party shall have the authority to make any statement, representation nor commitment of any kind, or to take any action that shall be binding on the other Party except as authorized in writing by the Party to be bound. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all federal, state and local, personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees.
During the term of this Agreement and for a period of one (1) year thereafter, the Parties agree not to hire, solicit, nor attempt to solicit, whether directly or indirectly, the services of any CenterGrid Personnel, employee, consultant, or subcontractor of the other Party without the prior written consent of that Party. Violation of this provision shall, in addition to other relief, be considered a material breach of this Agreement. Notwithstanding the foregoing, nothing herein shall prevent either Party from hiring any person who responds to an advertisement placed in the ordinary course of business by that Party and/or who initiates contact with that Party without any direct solicitation of that person by that Party or any agent of that Party.
All Confidential Information supplied by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any third party any of the Disclosing Party’s Confidential Information. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees and their respective contractors who have a need to know it for the purposes of this Agreement and who have executed a written non-disclosure agreement containing terms substantially similar to this section regarding such Confidential Information. The Receiving Party shall protect the Confidential Information of the Disclosing Party with the same level of care with which it protects its own Confidential Information, but in no event with less than reasonable care. Each Party shall be responsible for any unauthorized use or disclosure of any of the other Party’s Confidential Information received by its employees, agents, representatives or contractors. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that, to the extent permitted by applicable law, the Receiving Party shall first notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
The parties recognize that CenterGrid’s performance of the Services may take advantage of both CenterGrid’s pre-existing Intellectual Property (“CenterGrid Pre-Existing IP”) and derivative works of the CenterGrid Pre-Existing IP, including modifications, enhancements, or adaptations made by CenterGrid in the course of providing the Services (collectively, “CenterGrid Intellectual Property”). Subject to the rights granted to Customer by CenterGrid in the Agreement, all CenterGrid Intellectual Property shall remain with CenterGrid, and CenterGrid shall have the unlimited right to use such CenterGrid Intellectual Property, including without limitation any CenterGrid Intellectual Property utilized in the performance of Services. Customer shall not translate, decompile, disassemble or reverse engineer any part of the CenterGrid Intellectual Property nor permit any third party to do the same.
CenterGrid may use any computer programs, specifications, content or other Customer-provided materials provided by Customer to CenterGrid (“Customer Materials”) only for purposes of performing the Services hereunder. Except as set forth in the foregoing sentence, all right, title and interest in and to the Customer Materials are reserved by Customer. Except as expressly granted herein, nothing in this Agreement shall be construed as conferring upon CenterGrid any right, title, interest or license by implication, estoppel or otherwise with respect to the Customer Materials upon.
The Parties agree that Customer’s use of any Third Party Products purchased by Customer pursuant to an Order under this Agreement will be subject to Third Party Terms that govern the use of such Third Party Products, including but not limited to such terms’ provisions regarding warranty, indemnification, limitation or liability and confidentiality. If Third Party Terms are not provided during the transaction contemplated under this section, it is Customer’s responsibility to obtain the relevant Third Party Terms to the Third Party Products. Nothing contained in this Agreement is intended to convey ownership in Third Party Products.
CENTERGRID WARRANTIES. CenterGrid represents and warrants that, as of the date of performance, CenterGrid’s performance of the Services does not violate any applicable law, rule or regulation.
CUSTOMER WARRANTIES. Customer hereby represents and warrants that: (i) it has all necessary powers and authority to enter into this Agreement and provide CenterGrid with access to and use of Customer Materials; (ii) this Agreement and Customer’s performance hereunder do not violate the terms of any contract, covenant or agreement between Customer and any third party; (iii) it will provide CenterGrid with reasonable direct and unrestricted access to Customer data, equipment, facilities and Customer personnel as required by CenterGrid; and (iv) it will comply with CenterGrid’s Terms of Use. Customer hereby agrees that it is bound by the Terms of Use, which are incorporated herein by reference.
DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10(A), CENTERGRID DISCLAIMS ALL WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHETHER SUCH WARRANTY BE EXPRESS OR IMPLIED, WITH RESPECT TO THIRD PARTY PRODUCTS, SERVICES, AND ANY OTHER MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CENTERGRID PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES, THIRD PARTY PRODUCTS, OR ANY OTHER MATERIALS THAT MAY BE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, EQUIPMENT, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. CENTERGRID DOES NOT WARRANT THAT ALL ERRORS WILL BE RESOLVED, OR WILL BE RESOLVED WITHIN A SPECIFIED PERIOD OF TIME.
IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY CUSTOMER TO CENTERGRID FOR THE PARTICULAR CENTERGRID SERVICES WITH RESPECT TO WHICH SUCH LIABILITY RELATES (OR IN THE CASE OF ANY LIABILITY NOT RELATED TO A PARTICULAR PORTION OF THE SERVICES, THE TOTAL FEES PAID BY CUSTOMER TO CENTERGRID UNDER THE AGREEMENT), IN THE PREVIOUS TWELVE MONTHS, WHETHER SUCH LIABILITY IS BASED ON AN ACTION IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST DATA, PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Each Party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage for statutory workers’ compensation, comprehensive general liability for bodily injury and property damage, as well as adequate insurance coverage of vehicles.
Indemnification by CenterGrid. CenterGrid shall indemnify, defend and hold Customer, its Affiliates and their respective officers, directors, agents and employees harmless from and against claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from any third party claim that the Services infringe, misappropriate or violate such third party’s United States patent, United States trademark, United States trade secret, or United States copyright. CenterGrid shall not be obligated to indemnify Customer, however, to the extent that such claim is caused by: (A) Customer’s use of the Services other than in accordance with applicable documentation or instructions supplied by CenterGrid; (B) any alteration, modification or revision of the Services not expressly authorized in writing by CenterGrid; (C) Customer’s failure to use or implement corrections or enhancements to the Services made available free of charge to Customer by CenterGrid; (D) any combination of the Services with any hardware, system or other software not provided or authorized in writing by CenterGrid, if such infringement would not have occurred but for such combination; or (E) any action relating to Third Party Products.
Indemnification by Customer. Customer shall indemnify, defend and hold CenterGrid, its Affiliates and their respective officers, directors, agents and employees harmless from and against any third party claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) Customer’s use, creation, publication, or storage of any unlawful or defamatory images, statements, information, or data on CenterGrid’s property or equipment; (b) any third party claim that any Customer Materials infringe, misappropriate or violate such third party’s patent, trademark, trade secret, copyright or other Intellectual Property or proprietary right; or (c) Customer’s breach of its obligations under Section 2(B)(ii).
Indemnification Procedures. Promptly after receipt by an indemnified Party of a notice of any third party claim or the commencement of any action, such indemnified Party shall: (1) notify the indemnifying Party in writing of any such claim; (2) provide the indemnifying Party with reasonable assistance to settle or defend such claim, at the indemnifying Party’s own expense; and (3) grant to the indemnifying Party the right to control the defense and/or settlement of such claim, at the indemnifying Party’s own expense; provided, however, that: (a) the failure to so notify, provide assistance and grant authority and control shall only relieve the indemnifying Party of its obligation to the indemnified Party to the extent that the indemnifying Party is prejudiced thereby; (b) the indemnifying Party shall not, without the indemnified Party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement which: (x) makes any admission on behalf of the indemnified Party; or (y) consents to any injunction against the indemnified Party (except an injunction relating solely to the indemnified Party’s continued use of any infringing Services or Customer Materials); and (c) the indemnified Party shall have the right, at its expense, to participate in any legal proceeding to contest and defend a claim and to be represented by legal counsel of its choosing, but shall have no right to settle a claim without the indemnifying Party’s written consent.
Sections 4, 5(C), 6, 7, 9, 10, 11, 13, and 14 shall survive termination of this Agreement. Section 8 shall survive termination of this Agreement for a period of two (2) years. Unless stated otherwise in the applicable section, all other Sections of this Agreement which, by their nature, are intended to survive termination shall so survive any termination or cancellation of this Agreement.
This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Ohio, excluding its conflict of law provisions. The Parties to this Agreement consent to the jurisdiction and venue of the courts in Hamilton County, Ohio. The Parties to this Agreement agree to waive any defenses based on venue, the inconvenience of the forum, the lack of personal jurisdiction, and the adequacy of service of process (as long as notice of the suit or action is made in accordance with this Agreement) in any suit or action brought in the State of Ohio. This section shall survive termination of this Agreement.
The section and subsection headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
The Agreement constitute the entire and exclusive agreement between the Parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by both Parties.
This Agreement may not be assigned by Customer without the prior written consent of CenterGrid, which shall not be unreasonably withheld or delayed, provided, however, in case of a merger, consolidation, acquisition, reorganization, or sale of all or substantially all of the assets of Customer, then the assignment shall be permitted without consent of CenterGrid. This Agreement is freely assignable by CenterGrid. The terms and conditions of this Agreement will inure to the benefit of, and shall be binding upon, each Party’s successors and permitted assigns.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
The Parties shall use commercially reasonable efforts to develop a joint communications plan with respect to this Agreement and each party shall use commercially reasonable efforts to ensure that all press releases and other public statements with respect to the transactions contemplated hereby shall be consistent with such joint communications plan (e.g., press release, blog, social media announcements, emails for marketing purposes, and/or other marketing materials). In the absence of any plan, however, CenterGrid may, at least, provide Customer’s identity (e.g., name/logo) as an example of its work in discussions with current/potential clients, in case studies, and on CenterGrid’s website.
The termination or expiration of this Agreement shall not affect or prejudice either Party’s accrued rights hereunder.
All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally, by registered or certified airmail letter (return receipt requested), by courier or international overnight delivery service, to the Parties at the addresses below set forth (or such other address as may have been furnished by or on behalf of such Party by like notice). Communications sent by registered or certified airmail letter shall be deemed effectively served five (5) Days after mailing. Communications sent by courier shall be deemed effectively served one (1) Day after deposit with a courier or international overnight delivery service.
CENTERGRID:
CenterGrid, LLC
Attn: Chief Financial Officer with copy to General Counsel
Vora Innovation Center
10290 Alliance Road
Blue Ash, OH 45242
email: [email protected] with copy to [email protected]
CUSTOMER:
Address provided in the Order or otherwise communicated to CenterGrid
Neither Party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, communications failures, or acts of any third-parties (“Force Majeure Event”). Notwithstanding anything to the contrary contained herein, if either Party is unable to perform hereunder or under an Order for a period of fifteen (15) consecutive Days due to a Force Majeure Event, then the other Party may terminate this Agreement or the Order, as applicable, immediately without liability by written notice to the other.
Revised 11/15/2024
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