Cendyn Terms

Cendyn Master Services Access Agreement

Master Services Access Agreement

THE INDIVIDUAL OR ENTITY EXECUTING AN ORDER FORM (“Customer”) THAT INCORPORATES THIS MASTER SERVICES AGREEMENT (collectively Order Form and this MASTER SERVICES ACCESS AGREEMENT, “AGREEMENT”) AGREES THE FOLLOWING TERMS AND CONDITIONS GOVERN ACCESS TO, AND THE PROVISION OF, THE SERVICES BY CENTRAL DYNAMICS, LLC (“CENDYN”) TO CUSTOMER. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER EXECUTED AND RETURNED TO CENDYN AN ORDER FORM (“Effective Date”). A copy of this entire Agreement is available for download and printing by clicking here.  If at any time you do not agree to all of its terms set forth below, or as amended, please immediately discontinue use of this website and the Services (defined below). Your use of the Services (defined below) is subject to this Agreement.

  1. Use of Pronouns or IdentifiersThe terms “you or your”, “Customer” or when applicable “Party” applies to and means both the corporate entity you represent and/or you individually.
  2. Definitions

    “Affiliate(s)” shall mean any entity or person directly or indirectly, through one or more intermediaries, owns, controls, is controlled by or is under common control with, aligned with, or under the influence of any person or entity to which the reference is made. For the purposes of this definition “owned, controlled, aligned with, or under the influence of” shall mean more than fifty percent (50%) ownership of voting power or beneficial interest, or an officer, director, trustee, employee, stockholder of fifteen percent (15%) or more of the voting stock or interests (each an “Affiliate”). The Customer is jointly and severally liable for the acts of its Affiliates in relation to this Agreement and access and use of the Services.

    “Aggregated Data” shall mean numerical or non-numerical data inputted from multiple sources and/or on multiple measures, variables and individuals including the Customer, end users, Customer Data, or data outputted as a result of the Customer’s use of the Services that is masked or are otherwise anonymous and no longer identifiable as to its source. All Aggregated Data shall be the sole property of Cendyn. In no event shall Aggregated Data be considered as, or being comprised of Customer Data or Customer’s Confidential information for the purposes of Section 6 of this Agreement or Customer Data. In addition to Aggregated Data, Cendyn and its Affiliates may collect and use technical information gathered as part of our support services. We may use this information to improve our products and services. We will not disclose this information in a form that personally identifies you.

    “Agreement” shall mean collectively the Order Form and this Master Services Agreement , incorporated thereto in its entirety, as amended from time to time.

    “Authorized Users” Shall mean individuals who are employees of Customer, its Affiliates, subsidiaries or agents under Customer’s control.

    “Cendyn Appliance” shall mean the required hardware, which may be provided by Cendyn for installation at Customer location(s) to enable use of eConnectivity® or other Services.

    Cendyn Data” means any and all information contained in any Cendyn System including, but not limited to, pricing information and the Output, but excluding only the Customer Data.

    “Configuration (s)” shall mean (a) the initial creation of templates, data, files, processing, user names and passwords; and/or (b) any initial changes to the Services requested by the Customer or its Affiliate and performed by Cendyn during implementation, which do not affect the core functionality or core code of the Service.

    “Copyrights” means all U.S. and foreign registered and unregistered copyrights (and applications for registration of the same and any goodwill associated with any and all of the foregoing) in and to any Cendyn System, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, and Instructional Information (or any part, component or expressions of any of foregoing).

    “Custom Enhancement” shall mean an Enhancement that is developed by Cendyn for the benefit of Customer and paid by Customer pursuant to an executed Statement of Work (SOW).

    Customer” shall mean the Customer’s corporate entity listed on the Order Form, its employees, agents, Authorized Users and end users of the Services.

    “Customer Data” shall mean data retrieved from, or inputted by, the Customer or end users of the Services, data added by Customer or an end user to a Services application as a result of Customer or end user access to the Service(s), data acquired for Customer by Cendyn and loaded into a Services application, or any other data or information of Customer or end user accessed, obtained or provided to Cendyn by Customer or an end user pursuant to this Agreement. In no event shall Aggregated Data be considered as, or being comprised of, Customer Data.

    “Customer Documentation” shall mean the technical specifications and functionality that Cendyn shall incorporate into the Services, as may be amended from time to time.

    Deliverables” shall mean the results obtained from the work performed based on this Agreement or a SOW intended to be delivered to the Customer.

    “Documentation” shall mean collectively the End-User Manual and Customer Documentation.

    “End User Manual” shall mean the manual given to the Customer by Cendyn for use by the Customer’s end users or “help” information that is provided by Cendyn with the Services, whether in electronic or hard copy form.

    Enhancements” means any and all enhancements, revisions, upgrades and modifications to any Cendyn solution and all other derivative works thereof, developed and implemented by or on behalf of Cendyn (or its licensors) for Customer or, on a non-exclusive basis, for any other licensees of any Cendyn solution or otherwise developed by or on behalf of Cendyn (or its licensors) and includes the Services.

    “Error” shall mean a reproducible failure of the Services that causes the Services to not perform in substantial accordance with the description outlined in the Documentation.

    “Fees” shall mean the Configuration fees, monthly subscription, marketing, support, maintenance fees and any other fees paid by the Customer to Cendyn pursuant to this Agreement and any related SOW (as defined below).

    “Franchisee” person or entity granted a license to do business under the Customer’s trademark, trade name, and business model. The Customer is jointly and severally liable for the acts of its Franchisees in relation to this Agreement and the Services.

    Go-Live Date” shall mean the date on which the Services are made available to the Customer’s end users.  Specifically, for Revenue Cloud (a) for guestrev, one-way connectivity of live reservation data being sent from Customer’s property management system (“PMS”) to the Revenue Cloud System; (b) for grouprev one-way connectivity of live data being sent from Customer’s sales and catering system to the Revenue Cloud System; (c) for revintel, one-way connectivity of live PMS data being sent from Customer’s PMS to the Revenue Cloud System.

    Host Systems” means all systems used in connection with the hosting of any Cendyn Solution and any and all enhancements, revisions, upgrades and modifications thereto and all other derivative works thereof.

    Instructional Information” means information, documentation or other media that includes information on the installation, maintenance, use, development, improvement, or technical aspects of any Cendyn Solution, including the Enhancements, or the Host Systems.

    Intellectual Property” collectively means Trade Secrets, Copyrights, Patents, Tradenames, Trademarks, Service Marks, Know-How and any other intellectual property rights in and to any Cendyn Solution, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, and Instructional Information (or any part, component or expressions of any of the foregoing).

    Know-How” means a process, idea, concept, technique and other information that is not necessarily a Trade Secret or subject to a Patent, but relates to the a Cendyn Solution, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, or Instructional Information (or any part, component or expressions of any of the foregoing), (e.g., maintenance and service information, scientific, commercial and technical data and other information) and is presently available or which may become available to Cendyn (or its licensors) through its actions or through the actions of others.

    Order Form”. The Cendyn form executed by you on behalf of the Customer from which specific Services were ordered and to which this Agreement in its entirety, as amended from time to time, is incorporated.

    Party” or “Parties” means, respectively, either Cendyn or Customer, and as the context requires both Cendyn and Customer.

    Patents” means the U.S. and foreign patents and patent applications and any additions, divisions, continuations, continuations-in-part, amendments, amalgamations, reissues and re-examination of such applications or patents, including any extensions and renewals thereof, in whatever form and by whatever legal title they are granted (e.g., a supplementary protection certificate), in and to any Cendyn solution, including the Enhancements, the Host Systems (or any part, component or expressions of any of the foregoing), the Cendyn Data, including the Output, and Instructional Information.

    Privacy Information” shall mean collectively: (a) data related to the Customer’s operations, (b) personally identifiable information; (c) protected health information as defined pursuant to the Health Insurance Portability and Accountability Act (HIPAA), as amended; and (d) credit card information and related data, as further defined pursuant to the Payment Card Industry (PCI) Data Security Standards. Aggregated Data shall not be considered as, or being comprised of, Privacy Information.

    “Service(s)” shall mean the Cendyn owned and licensed software system (s) referenced on the on the Order Form for which Customer has paid the required Fees inclusive of any implementation, training, professional services, support or other consulting services to be provided by Cendyn to Customer as set forth in this Agreement..

    Statement of Work” orSOW” shall mean a document signed by both Parties that defines project-specific activities, deliverables and timelines for Cendyn in providing services to Customer in accordance with the terms of this Agreement.

    “Support Services” shall mean the logging, tracking and resolution by Cendyn of Errors reported by Customer pursuant to Section 5 of this Agreement.

    Tradenames, Trademarks and Service Marks” mean the registered and unregistered tradename(s), trademark(s) or service mark(s) (and applications for registration of the same and any goodwill associated with any and all of the foregoing) used by Cendyn with, or in association with, any Cendyn System.

    Trade Secrets” mean information including, but not limited to, the whole or any portion of any scientific or technical information, design, process, formula, pattern, compilation, program, data, device, method, technique, improvement, collection of information, confidential business information or financial information, listing of names, addresses or telephone numbers, or other information relating to any business or profession which is secret and has commercial value, whether through actual use, or informational value, and is maintained as a secret by Cendyn (or its licensors) or is disclosed only with confidentiality restrictions placed on the recipient(s).

    “Updates” shall mean Service versions produced to correct Errors or to accommodate upgraded versions of system operating environments.

  3. Limited Access to Services & Limited License
    1. Subject to the Customer’s continual timely payment of all Fees owed to Cendyn on applicable Order Form and abidance by the terms of this Agreement, as amended from time to time, as of the Effective Date Cendyn grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable ,non-assignable (except as permitted under Section 14 below), royalty-free, worldwide license to access, display and use the Services by Customer and its Authorized users solely for internal business purposes in strict accordance with the terms of this Agreement (“License”). All rights to Aggregated Data and all rights not expressly set forth in this Agreement are reserved by, and automatically inure to the sole ownership and benefit of, Cendyn. Customer acknowledges this Agreement is a “Software as a Service” agreement and Cendyn will not deliver copies of any software or code to Customer as part of the Services.
    2. Customer acknowledges the Aggregated Data, the Services and their structure, organization, software code, binary code, compiled code, source code, scripting, code and associated Documentation constitute valuable trade secrets and intellectual property of Cendyn. Accordingly, Customer agrees not to: (1) copy, download, use offline, modify, adapt, alter, translate, or create derivative works, customizations or enhancements from the Services; (2) merge, or in any way alter the Services with or without other software; (3) sublicense, lease, rent, or loan the Services  to any third party;  (4) reverse engineer, decompile, disassemble or otherwise attempt to derive or reveal the software code, binary code, compiled code, source code or the scripting code for the Services; or (5) otherwise use the Services except as expressly allowed in this Agreement.
    3. Cendyn and its licensors retain and reserve exclusive ownership of all worldwide copyrights, trademarks, trade secrets, patent rights, proprietary rights, moral rights, property rights and all other industrial or intellectual property rights in the Services, Deliverables and Documentation, including any derivative works, modifications, Updates or Enhancements made by Cendyn, or by Customer in violation of this Agreement. Cendyn and its licensors reserve all statutory, common law and international ownership, intellectual property rights, property rights, proprietary rights and moral rights in and to the Services, Deliverables and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, any ownership or license of any part of the Services or under any of Cendyn’s existing or future patents, copyrights, trademarks or intellectual property. Customer agrees not to remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the Services or Documentation.
    4. Customer hereby grants to Cendyn a non-exclusive, fully paid, world-wide and irrevocable license to use Customer Data as required to provide the Services, and to copy, anonymize, aggregate, process, disaggregate and display Aggregated Data for the sole purposes of deriving or compiling  or incorporating such Aggregated Data with or into other similar data and information available, derived or obtained from other clients, customers, licensees or users of the Services for internal statistical or performance analysis by Cendyn. Customer’s grant of license herein for Aggregated Data shall survive the expiration or termination of this Agreement.  Cendyn represents and warrants that the scope of use of the Aggregated Data will be limited to the terms of this Section and upon disaggregation the Aggregated Data, will be anonymous and incapable of re-assembly or identification as to its specific source.
    5. Customer agrees not to use the Services, Deliverables or Documentation in any manner that violates any local, state, federal or any law of other nations including but not limited to, any laws related to the posting or production of information that may violate third party rights, defame a third party, be obscene or pornographic, harass or assault others, violate hacking, privacy or computer crime regulations or laws. Cendyn does not monitor, nor edit the content of any transmissions, postings, routings or other materials or communications which Customer may send, post, route, transmit, produce or otherwise move through the Services.  Customer will defend, indemnify and hold Cendyn, its officers, contractors, directors, shareholders, agents and employees harmless, including the payment of reasonable attorney’s fees, from and against any such actions or violation of such laws or regulations by Customer or any of its agents, officers, directors, shareholders, contractors or employees.  Customer is required to ensure, and is strictly liable for, the use of the Services and adherence to the terms of this Agreement by its Authorized Users and end users.
    6. Cendyn acknowledges that Customer Data is the property of Customer. Cendyn agrees to return all Customer Data to Customer within thirty (30) days of written request and upon the remittance by Customer of any fees and expenses required by Cendyn related to the transfer of the Customer Data. Cendyn agrees to keep Customer Data confidential and will use reasonable commercial efforts to maintain the security of the Customer Data. Cendyn agrees to comply with the requisite Payment Card Industry Data Security Standard, Payment Application Data Security Standard, and Payment Brand Rules, only to the extent the Services involve (in whole or in part) the storage, processing, or transmission of credit card data or primary account numbers.
    7. Customer’s end users are required to provide login information to Cendyn in order to access the Services. Cendyn will assign Customer a confidential identification number and password to allow only an authorized officer, partner or principal representative of Customer to manage the Customer’s account, including requesting additional login information (“Administrative Login”). Cendyn will provide additional login information for use by end users designated by the Customer, as requested from time to time by Customer through the use of the Administrative Login.  Customer is solely responsible to secure, maintain and protect its login information and for all actions authorized or undertaken by an end user.  Customer will: (i) protect the confidentiality of all login information, (ii) notify Cendyn of any breach of the confidentiality of any login information, and (iii) notify Cendyn if any individual who knows the login information leaves the employment of Customer, is no longer authorized to use the login information or misuses the login information.  From time to time, Customer will provide Cendyn a machine-readable file that includes the names and login information of persons who are authorized to access and utilize the Services on behalf of Customer.  At no additional charge, within twenty-four (24) hours of receipt of such information, Cendyn will use such information to update the record of end users able to access the Services.   Customer will not provide login information to any person that is not a user designated by a Customer as set forth herein. Customer agrees to indemnify, defend and hold Cendyn, its employees and agents harmless from any and all claims, demands, lawsuits, legal proceedings and judgments that directly or indirectly arise from, or relate to, a breach of this paragraph by the Customer.  This subsection shall survive the termination or expiration of this Agreement.
    8. If the interface to a Customer’s system requires a Cendyn Appliance for the Customer to use the Services, Customer acknowledges the Cendyn Appliance is owned by Cendyn and is provided solely to enable use of eConnectivity® or related products and Services. At its sole cost, Customer must return the Cendyn Appliance within thirty (30) calendar days from the expiration or termination of this Agreement or the use of the Cendyn Appliance, whichever is sooner. Time is of the essence in regard to this subsection and Customer agrees and acknowledges to remit fifteen hundred dollars ($1,500) per Cendyn Appliance for each Cendyn Appliance it fails to timely return as set forth herein.  This subsection shall survive the termination or expiration of this Agreement.
    9. Customer shall ensure that each Authorized User shall access Cendyn System lawfully in accordance with any terms of access that Cendyn provides. Customer is solely responsible for obtaining, at its own cost and expense, the requisite software, equipment and telecommunications service(s) necessary to access the Cendyn System.
    10. Customer and its Authorized User’s right to use the Cendyn System shall terminate immediately upon termination of this Agreement or upon termination of Authorized User’s employment or authorization to access the Cendyn System. Customer shall be solely responsible for monitoring and terminating, when appropriate, its Authorized Users’ access to the Cendyn System. Cendyn shall not be responsible or liable for the use or misuse of any access. Customer shall be solely and exclusively responsible and liable for any use or access of the Cendyn System by any person or entity who, as a result of permission granted by Customer or the negligence or intentional misconduct of Customer or its Authorized Users, gains access to the Cendyn System through the use of Customer’s access.
    11. Customer shall be responsible for providing the hardware and software necessary to access the Services.
  4. Payment Terms
    1. Customer shall pay Cendyn any Upfront, Software Subscription Fees, Configuration and Services Fees in the amounts and at the times specified in the Order Form (and such other Fees as set forth in any additional Order Forms agreed upon and executed by the Parties).
    2. Cendyn shall invoice Customer according to the applicable Order Form. All Fees and expenses invoiced shall be due in full within twenty (20) days of receipt of invoice or be subject to late fees in the amount of one (1) percent per month on the outstanding balance.
    3. Customer will reimburse Cendyn for all reasonable out-of-pocket expenses, including, but not limited to, air fare, lodging, meals and rental of automobiles incurred by Cendyn during the delivery of the Services on behalf of Customer. Reimbursement will be subject to Customer’s travel policy then in-effect and provided to Cendyn otherwise will utilized Cendyn travel policy.
    4. If Customer makes payments via electronic debit (as further provided in Attachment A), payments shall be initiated by Cendyn 20 days following invoice date or the first business day thereafter.
    5. Customer shall pay any applicable sales, use, ad valorem, stamp or other taxes based on the license granted or services received under this Agreement or Customer’s use of the Cendyn System, exclusive, however, of income taxes levied upon Cendyn’s income.
  5. Support Services

    Customer shall have access to Support Services twenty-four (24) hours a day, seven (7) days a week, three hundred and sixty-five (365) days a year by calling 800-324-8709 or emailing support@cendyn.com.

    Cendyn shall have no obligation to provide support, maintenance or enhancements for the Cendyn System to Customer if: (1) the Cendyn System was not used in accordance with the Instructional Information without Cendyn authorization; (2) the Cendyn System was altered, modified or converted by Customer without Cendyn’s prior written consent; (3) Customer’s computer malfunctioned and the malfunction caused a defect in the Cendyn System; or (4) any other cause within the control of Customer without Cendyn authorization that caused the Cendyn System to not perform substantially in accordance with the Instructional Information.

  6. Confidential Information. Cendyn and Customer shall each retain in confidence all information transmitted to it by or under authorization of the other Party pursuant to or in connection with this Agreement in which the disclosing Party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, would in good faith be treated as proprietary and/or confidential (“Confidential Information”).  Neither Party will make use of the other Party’s Confidential Information except pursuant to the terms of this Agreement.  By way of example, but not limitation the following information is considered Confidential Information: (a) this Agreement and its terms, (b) the technology, ideas, formulae, know how, documentation, procedures, algorithms and trade secrets embodied in the Services, technical documentation, solution methodology, end user manuals, Documentation and Deliverables, (c) Customer Data, end user ID’s and passwords; and/or (d) any other information, in any form identified in writing as confidential. If Cendyn obtains information relating to Customer from third parties to whom it is directed by Customer, then Cendyn shall treat such information as Customer’s Confidential Information under this Agreement. Cendyn agrees, without limitation, that Customer Data is part of the Customer’s Confidential Information.
    1. The receiving Party shall not disclose Confidential Information or use it in any manner not expressly authorized by this Agreement. Unless written authorization is received from the disclosing Party, the receiving Party shall not: (a) disclose the disclosing Party’s Confidential Information or allow it or cause it to be disclosed to any third parties; (b) destroy any disclosing Party’s Confidential Information or cause it to be inaccessible to the disclosing Party (other than in accordance with its standard document retention policy); or (c) use the disclosing Party’s Confidential Information or allow it to be used for purposes other than in furtherance of this Agreement.
    2. Either Party’s written or oral designations of confidentiality may include the designations “confidential,” “proprietary,” “secret,” “not subject to disclosure,” or words of similar import. Such designations may appear on or in the subject document, item, or information.  However, absence of a designation shall not support a presumption information provided is not Confidential Information.  Rather, both Party’s will assume information provided in such a manner is Confidential Information.
    3. The receiving Party shall immediately inform the disclosing Party in writing of any suspected, actual or threatened disclosure or unauthorized use of the disclosing Party’s Confidential Information. If a third Party seeks disclosure of Confidential Information from the receiving Party, through discovery in a judicial process or otherwise, the receiving Party shall, except to the extent prohibited by applicable law, immediately notify the disclosing Party and shall cooperate with the disclosing Party’s attempts, at its sole cost, to prevent such disclosure via by a protective order or similar means. If disclosure is ordered by a court or similar tribunal with jurisdiction, and all appeals have been waived or exhausted by the disclosing Party, such disclosure is limited to only such Confidential Information necessary to comply with the order.
    4. Confidential Information shall not include any information: (1) generally known to the public or otherwise publicly available without restriction (other than through the wrongful act of the Party receiving the information, g., breach of this Agreement); (2) lawfully received from a third party source without restriction and without violation of this Agreement; (3) as demonstrated through documentary evidence, contemporary at the time of the development, developed independently by the receiving Party without the use of or access to Confidential Information; (4) as demonstrated through documentary evidence, contemporary at the claimed pre-Agreement or pre-disclosure period, known to the receiving Party prior to the date of this Agreement (or first disclosure by the disclosing Party, if earlier); or (5) released generally by the owner of the rights in the Confidential Information to other persons, firms, or entities without any restrictions. The public availability of some information, separately, or in an uncollected or incomplete form, shall not support a presumption against the confidential status on such information as part of a confidential compilation or collection.
    5. Upon termination or expiration of this Agreement, or upon the disclosing Party’s request, the receiving Party shall immediately deliver to disclosing Party all disclosing Party’s Confidential Information in its custody or under its control, except where this Agreement provides for retention of such Confidential Information.
  7. Warranties; Limitation of Liability. The following warranties shall constitute Customer’s sole and exclusive warranties at law, common law, implied, expressed in this Agreement or otherwise.
    1. Services Warranty. If Customer is unable to use the Services due to an Error, the Service is not compatible or does not effectively operate or the Service is not in substantial conformity with the Service description outlined in the Documentation, written notice thereof shall be promptly given to Cendyn in accordance with the Error reporting requirement set forth in this Agreement.   If Cendyn is able to reproduce the Error, Cendyn will use technically reasonable efforts to remove the Error.  Cendyn may, at its own discretion, implement a by-pass solution or supply a modified or improved or enhanced version of the Services.  If Cendyn is unable to rectify the Error within sixty (60) days from the date Customer reported the Error, Cendyn will provide a pro-rated refund of monthly Fees paid in advance by Customer, subject to the terms of this Agreement.  Cendyn’s Services warranty shall not apply to Errors caused by improper use, improper installation, improper handling or maintenance, improper operating means, modifications or customizations made by Customer or any third party under its direction, Errors caused by the Customer or any third party under its direction or any Error arising from or related to a breach of this Agreement by Customer.
    2. ADA. Cendyn warrants that as of the Go-Live Date, public end user websites developed by Cendyn (“Websites”) as delivered will be compliant with the Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) (“ADA”). However, due to uncertain and dynamic statutory and common law applicability of the ADA, and the Customer’s own updating or modification of its Websites, Cendyn does not warrant, and specifically disclaims, the Websites will remain ADA compliant after the Go-Live Date. The Customer acknowledges and agrees Cendyn will not monitor the Customer’s use of the Websites for ADA compliance after their respective delivery to the Customer. Customer further acknowledges and agrees, Cendyn has, without any express or implied warranty as to their performance, recommended independent vendors for the Customer to interview, research and consider retaining for the purposes of ensuring ADA compliance with the Websites after their respective Go-Live Date.
    3. Intellectual Property. Cendyn represents and warrants: (1) it has title and ownership of, or a license to use as contemplated in this Agreement, such copyrights, patents, trademarks, trade secrets, and other intellectual property comprising the Services and Documentation; and (2) the Services do not violate, or in any way, infringe upon, any rights of third parties including, without limitation, any property, contractual, employment, proprietary information, non-disclosure, trade secrets or any intellectual property rights.
    4. LIMITED WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7, THE SERVICES, INCLUDING, BUT NOT LIMITED TO CONFIGURATION(S), ENHANCEMENTS AND UPDATES, ARE PROVIDED “AS-IS” AND AS AVAILABLE WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY WHATSOEVER. EXCEPT AS PROVIDED IN THIS SECTION 7, CENDYN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO REPRESENTATION, STATEMENT OR OTHER AFFIRMATION OF FACT REGARDING THE SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF CENDYN WHATSOEVER.  CUSTOMER ACKNOWLEDGES AND AGREES IT HAS NOT RELIED ON ANY REPRESENTATION, STATEMENT OR OTHER AFFIRMATION OF FACT OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION.
    5. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, REMOTE, UNFORESEEABLE, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, INDEMNIFICATION, LOST PROFITS, REVENUE, DATA OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA OR REVENUE. EXCEPT FOR VIOLATIONS OF SECTION 6, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER WHETHER STATUTORY, IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID TO CENDYN UNDER THIS AGREEMENT FOR THE PRECEDING TWELVE (12) MONTH PERIOD.  THE PARTIES ACKNOWLEDGE THE FEES PAID BY THE CUSTOMER ADEQUATELY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND CENDYN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
    6. Customer Acknowledgements. The Customer acknowledges the following:
      1. It is not possible to completely preclude all Errors, technical software problems or interruptions in access or use of the Services.
      2. Cendyn does not warrant the absence of any Errors, defects, or operation of the Services without any interruption. Transmission or ISP errors outside of Cendyn’s control are specifically excluded from any warranties set forth in this Agreement.
      3. Customer is solely responsible for: (i) compliance with this Agreement by all of its end users; (ii) the accuracy, quality, and legality of any of its content or Customer Data; (iii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Services; (iv) promptly notifying Cendyn of any such unauthorized access or use; (v) using the Services only in accordance with the Documentation, acceptable use policies, applicable laws and this Agreement; and (vi) obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use the Services.
      4. Customer is solely responsible for obtaining all licenses, permits or authorizations as required from time to time by the United States and any other government for any export or use of the Services.
    7. Survival. This Section shall survive the termination or expiration of this Agreement.
  8. Mutual Indemnification
    Subject to the limitations of liability set forth in Section 7, each Party (as an “Indemnifying Party”) shall indemnify the other (as an “Indemnified Party”) against all losses arising out of any proceeding brought by either a third party or an Indemnified Party that arises out of the Indemnifying Party’s willful misconduct or gross negligence.
  9. No Solicitation
    During the Term of this Agreement and for a period of one year thereafter, unless otherwise agreed to in writing, neither party shall solicit for employment nor retain the services of those of the current or former personnel of the other party who materially participated in the provision of Services hereunder. General employment advertisements shall not be considered, in and of themselves, a breach of this Section.
  10. Intellectual Property
    1. Should any portion of the Services become, or in Cendyn’s reasonable opinion be likely to become, the subject of a claim of Infringement, Cendyn may, at its sole option and expense, and in addition to the indemnity provided below in subsection (b), provide the following as the Customer’s sole remedy: (i) procure for Customer the right to use the Services free of any liability for Infringement; (ii) replace or modify the applicable portion of the Services with a non-infringing substitute otherwise complying substantially with all the requirements of this Agreement; or (iii) terminate this Agreement and immediately refund to Customer all Monthly Fees paid in advance for the balance of the then current Term.
    2. Provided Cendyn is promptly informed in writing and furnished a copy of each communication, notice or other action relating to an alleged infringement and is given authority, information and assistance as necessary to defend or settle such claim, Cendyn will defend, indemnify, and hold Customer and its directors, officers, employees, and agents (“Indemnitees”) harmless from and against any action brought against Customer to the extent such action is based on a claim of direct infringement of any duly issued patent or copyright resulting from Customer’s use of the Services in accordance with the terms of this Agreement (”Infringement”). Cendyn may, upon written notice to the Indemnitees, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof and take all other required or appropriate steps to settle or defend any such claims.
  11. Data Security
    1. When receiving or accessing Privacy Information, Cendyn agrees to: (i) collect, receive, transmit, store, dispose, use and disclose such Privacy Information in accordance with all privacy and data protection laws, as well as all other applicable regulations, (ii) keep and maintain such Privacy Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure and (iii) use and disclose such Privacy Information solely and exclusively for the purposes for which the Privacy Information, or access to it, is provided pursuant to the terms and conditions of this Agreement. Cendyn shall be responsible for, and remain liable to, Customer for the actions and omissions of all employees, contractors or other representatives who are engaged by Cendyn concerning the treatment of Privacy Information as if they were Cendyn’s own actions and omissions.
    2. Cendyn shall notify Customer of (i) any act or omission that compromises either the security, confidentiality or integrity of Privacy Information collected from End Users in connection with this Agreement or (ii) a breach or alleged breach of this Agreement relating to the privacy practices of Cendyn. Customer shall likewise promptly notify Cendyn of any suspicious or malicious activity, potential vulnerabilities, or security weaknesses of which it becomes aware by emailing security@cendyn.com. Cendyn shall cooperate with Customer as reasonably requested to investigate any security breach, and Cendyn shall use best efforts to remedy any security breach as soon as commercially possible and prevent any further security breach at Cendyn’ s expense in accordance with applicable privacy rights, laws, regulations and standards.
    3. In the event of any unauthorized access to and acquisition of Privacy Information by a third party while in the possession of Cendyn or in transit from Cendyn, which materially compromises the security, confidentiality or integrity of such Privacy Information (“Data Security Breach”), Cendyn shall promptly investigate the cause of such Data Security Breach and shall at its sole expense take all reasonable steps to: (i) mitigate any harm caused to affected individuals, (ii) prevent any future reoccurrence, and (iii) comply at its sole expense with applicable data breach notification laws.
  12. Term, Renewal and Termination.
    1. For Cause Termination.This Agreement may only be terminated: (1) by Cendyn for cause upon thirty (30) calendar days’ written notice to Customer if Customer is in material breach of this Agreement and such breach remains uncured at the expiration of such thirty (30) calendar day period; (2) by Customer upon thirty (30) calendar days’ written notice to Cendyn if Cendyn is in material breach of this Agreement and such breach remains uncured at the expiration of such thirty (30) calendar day period; or (3) by Cendyn for nonpayment of any Fees due hereunder upon thirty (30) calendar day written notice to Customer and such nonpayment remains uncured at the expiration of such thirty (30) calendar day period  (collectively items 1,2 & 3 “For-Cause Termination”).  A For-Cause Termination in no way limits any other rights or remedies the non-breaching Party may be entitled to in law or in equity pursuant to this Agreement.
    2. Customer Data.Upon termination or expiration of this Agreement, Cendyn shall cooperate in data retrieval and transfer necessary to Customer.  Cendyn shall prepare and deliver to Customer an estimate of the projected costs of such retrieval and transfer.  The data retrieval and transfer work will be performed at the rate of $125 per hour for Customer Data. Cendyn shall deliver the Customer Data in either text, .xls or comma delimited format. If requested, Cendyn will use its best efforts to accommodate the Customer’s request for a data format other than those set forth herein.  Customer acknowledges it may incur additional charges depending on the complexities of the Customer’s requested data transfer format.  A condition precedent to Cendyn cooperating with any data retrieval request is the prepayment of all estimated data transfer charges, which shall constitute the Customer’s acceptance to pay additional data transfer charges if the amount estimated by Cendyn was insufficient.
  13. Force Majeure
    Other than the Customer’s obligations related to the payment of Fees, neither Party shall be deemed in default of this Agreement to the extent any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods or strikes (“Force Majeure”)
  14. Joint Marketing Effort
    Cendyn may make general references to its relationship with Customer in appropriate marketing materials, such as press releases, white papers, testimonials etc. Customer agrees to provide reasonable assistance to Cendyn in these efforts
  15. Assignment
    Neither Party may assign this Agreement, or assign or delegate any right or obligation hereunder, without the prior written consent of the other Party.  Notwithstanding the foregoing, either Party may assign this Agreement or assign or delegate its rights and obligations under this Agreement to an Affiliate or a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, operation of law or otherwise without notice to the other Party. In the event of an assignment, the original Party and its assignee shall become jointly and severally liable for their obligations pursuant to this Agreement.  Other than the names of the respective Parties, an assignment permitted pursuant to this Section shall not cause or be considered an amendment or modification to this Agreement.
  16. Relationship Cendyn is acting as an independent contractor with respect to the Services provided to Customer. Employees of Cendyn performing Services for Customer will not be considered employees or agents of Customer. Cendyn is responsible for all employee tax and withholding and will comply with all applicable laws with respect to hiring and employment of such employees. Nothing contained in this Agreement shall be construed to imply a joint venture, partnership or principal-agent relationship between the Parties and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
  17. Notice By submitting your email address You: (a) consent to receive communications from us in an electronic form via the email address you have submitted; and (b) agree that all Agreements, notices, disclosures, and other communications Cendyn provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in written paper form. The foregoing does not affect your non-waivable rights. Cendyn may also use your email address to send you other messages, including information about the Services, Cendyn, its Affiliates and/or special offers. You may opt out of such promotional email, but not Cendyn’s official notices pertaining to this Agreement or the Services, by changing your account settings, using the “Unsubscribe” link in the message, or by sending an email to support@cendyn.com or mail to the following postal address:
    Customer Support
    Central Dynamics LLC
    Attn:  Support c/o COO
    980 North Federal Highway, Suite 200
    Boca Raton, FL 33432
    To Cendyn: Central Dynamics LLC
    Attn:  President and CEO
    980 North Federal Highway, Suite 200
    Boca Raton, FL 33432
  18. Survival In addition to the instances of survival specifically set forth in this Agreement, any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
  19. Statute of Limitations
    The Parties hereby agree the statute of limitations for any claims brought related to, or arising from, this Agreement, whether in contract, tort, common law or by statute, must be brought within one year of the date of accrual of such cause of action, and any claim or cause of action of a Party shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such one-year period.
  20. Amendment
    This Agreement may be amended by Cendyn from time to time.  Cendyn may amend this Agreement by emailing and/or posting revised terms for your review and acceptance, providing advanced notice to you and giving you the option to discontinue using the Services if you do not agree to the amended terms of this Agreement.  If you continue to use the Services after this Agreement is amended you will be deemed to have agreed to all of the Agreement’s amended terms
  21. United States Compliance
    You represent and warrant that (i) you are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) you are not listed on any United States government list of prohibited or restricted parties.
  22. Acknowledgement
    Cendyn acknowledges that some of its Customers may intend to conduct a business subject to licenses issued by governmental authorities in the State of Nevada or elsewhere that regulate gaming and related matters (“Governmental Authority”). The Parties acknowledge the Governmental Authority may revoke, suspend, limit or restrict any registrant, licensee or person found suitable if associated with an unsuitable person. Cendyn will disclose to any such Customer information reasonably required to enable Customer or any affiliate of Customer to conduct background investigations generally necessary to satisfy requirements imposed on Customer and its affiliates by such Governmental Authority. If Cendyn, or any person or entity connected with Cendyn is found unsuitable by the regulating Governmental Authority, or if Customer is advised by the regulating Governmental Authority to cease doing business with Cendyn, or if Customer, its parent or affiliates, in its reasonable, good faith belief determines its licenses or applications for licensure could be adversely affected by its association with Cendyn, Customer shall have, upon the expiration of written notice to Cendyn from Customer with a sixty day opportunity to cure, or more time if reasonably necessary, the right to terminate this Agreement without further liability for Fees except any Fees that had accrued and were due as of the date of such termination.
  23. Governing Law; Jurisdiction
    This Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof shall be construed in accordance with and governed by and enforced under the laws of the State of Florida (without giving effect to its conflict of laws principles). Any legal action or proceeding relating to this Agreement shall be instituted exclusively in the state or federal courts sitting in the State of Florida. Cendyn and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. Each Party waives its right to a jury trial in any litigation. In any action or proceeding brought by Cendyn to enforce any provision of this Agreement, Cendyn shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding including, but not limited to, attorneys fees.
  24. Miscellaneous For the purposes of this Agreement, both Parties consent to the personal jurisdiction and venue of the state and federal courts located in Palm Beach County in the state of Florida.  The prevailing Party in any dispute related to, or arising from, this Agreement shall be entitled to the payment of its attorneys’ fees and costs from the prelitigation stage through and including the trial and all appellate levels. Additionally, the prevailing party shall be entitled to include the attorneys’ fees and costs expended in securing entitlement to, and the amount of, its prevailing party attorneys’ fees (A/K/A “fees for fees”). If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereto shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.  Any waiver of a provision of this Agreement must be in writing and signed by the Party to be charged.  This Agreement constitutes the entire agreement between the Parties related to the subject matter hereof, supersedes or merges any prior or contemporaneous oral or written agreement between the Parties relating to the Services and shall not be changed except by written agreement signed by each Party.  This Agreement includes and incorporates all Schedules as if fully set forth herein.  If any terms in the Schedules differ or conflict with this Agreement, the terms of this Agreement shall control. This Agreement will not be governed by the U.N. Convention on the International Sale of Goods, the application of which is expressly excluded.

Master Services Access Agreement (EMEA)

THE INDIVIDUAL OR ENTITY EXECUTING AN ORDER FORM (“Customer”) THAT INCORPORATES THIS MASTER SERVICES AGREEMENT (collectively Order Form and this MASTER SERVICES ACCESS AGREEMENT, “AGREEMENT”) AGREES THE FOLLOWING TERMS AND CONDITIONS GOVERN ACCESS TO, AND THE PROVISION OF, THE SERVICES BY CENTRAL DYNAMICS, LLC (“CENDYN”) TO CUSTOMER. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER EXECUTED AND RETURNED TO CENDYN AN ORDER FORM (“Effective Date”). A copy of this entire Agreement is available for download and printing by clicking here.  If at any time you do not agree to all of its terms set forth below, or as amended, please immediately discontinue use of this website and the Services (defined below). Your use of the Services (defined below) is subject to this Agreement.

  1. Use of Pronouns or IdentifiersThe terms “you or your”, “Customer” or when applicable “Party” applies to and means both the corporate entity you represent and/or you individually.
  2. Definitions

    “Affiliate(s)” shall mean any entity or person directly or indirectly, through one or more intermediaries, owns, controls, is controlled by or is under common control with, aligned with, or under the influence of any person or entity to which the reference is made. For the purposes of this definition “owned, controlled, aligned with, or under the influence of” shall mean more than fifty percent (50%) ownership of voting power or beneficial interest, or an officer, director, trustee, employee, stockholder of fifteen percent (15%) or more of the voting stock or interests (each an “Affiliate”). The Customer is jointly and severally liable for the acts of its Affiliates in relation to this Agreement and access and use of the Services.

    “Aggregated Data” shall mean numerical or non-numerical data inputted from multiple sources and/or on multiple measures, variables and individuals including the Customer, end users, Customer Data, or data outputted as a result of the Customer’s use of the Services that is masked or are otherwise anonymous and no longer identifiable as to its source. All Aggregated Data shall be the sole property of Cendyn. In no event shall Aggregated Data be considered as, or being comprised of Customer Data or Customer’s Confidential information for the purposes of Section 6 of this Agreement or Customer Data. In addition to Aggregated Data, Cendyn and its Affiliates may collect and use technical information gathered as part of our support services. We may use this information to improve our products and services. We will not disclose this information in a form that personally identifies you.

    “Agreement” shall mean collectively the Order Form and this Master Services Agreement , incorporated thereto in its entirety, as amended from time to time.

    “Authorized Users” Shall mean individuals who are employees of Customer, its Affiliates, subsidiaries or agents under Customer’s control.

    “Cendyn Appliance” shall mean the required hardware, which may be provided by Cendyn for installation at Customer location(s) to enable use of eConnectivity® or other Services.

    Cendyn Data” means any and all information contained in any Cendyn System including, but not limited to, pricing information and the Output, but excluding only the Customer Data.

    “Configuration (s)” shall mean (a) the initial creation of templates, data, files, processing, user names and passwords; and/or (b) any initial changes to the Services requested by the Customer or its Affiliate and performed by Cendyn during implementation, which do not affect the core functionality or core code of the Service.

    “Copyrights” means all U.S. and foreign registered and unregistered copyrights (and applications for registration of the same and any goodwill associated with any and all of the foregoing) in and to any Cendyn System, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, and Instructional Information (or any part, component or expressions of any of foregoing).

    “Custom Enhancement” shall mean an Enhancement that is developed by Cendyn for the benefit of Customer and paid by Customer pursuant to an executed Statement of Work (SOW).

    Customer” shall mean the Customer’s corporate entity listed on the Order Form, its employees, agents, Authorized Users and end users of the Services.

    “Customer Data” shall mean data retrieved from, or inputted by, the Customer or end users of the Services, data added by Customer or an end user to a Services application as a result of Customer or end user access to the Service(s), data acquired for Customer by Cendyn and loaded into a Services application, or any other data or information of Customer or end user accessed, obtained or provided to Cendyn by Customer or an end user pursuant to this Agreement. In no event shall Aggregated Data be considered as, or being comprised of, Customer Data.

    “Customer Documentation” shall mean the technical specifications and functionality that Cendyn shall incorporate into the Services, as may be amended from time to time.

    Deliverables” shall mean the results obtained from the work performed based on this Agreement or a SOW intended to be delivered to the Customer.

    “Documentation” shall mean collectively the End-User Manual and Customer Documentation.

    “End User Manual” shall mean the manual given to the Customer by Cendyn for use by the Customer’s end users or “help” information that is provided by Cendyn with the Services, whether in electronic or hard copy form.

    Enhancements” means any and all enhancements, revisions, upgrades and modifications to any Cendyn solution and all other derivative works thereof, developed and implemented by or on behalf of Cendyn (or its licensors) for Customer or, on a non-exclusive basis, for any other licensees of any Cendyn solution or otherwise developed by or on behalf of Cendyn (or its licensors) and includes the Services.

    “Error” shall mean a reproducible failure of the Services that causes the Services to not perform in substantial accordance with the description outlined in the Documentation.

    “Fees” shall mean the Configuration fees, monthly subscription, marketing, support, maintenance fees and any other fees paid by the Customer to Cendyn pursuant to this Agreement and any related SOW (as defined below).

    “Franchisee” person or entity granted a license to do business under the Customer’s trademark, trade name, and business model. The Customer is jointly and severally liable for the acts of its Franchisees in relation to this Agreement and the Services.

    Go-Live Date” shall mean the date on which the Services are made available to the Customer’s end users.  Specifically, for Revenue Cloud (a) for guestrev, one-way connectivity of live reservation data being sent from Customer’s property management system (“PMS”) to the Revenue Cloud System; (b) for grouprev one-way connectivity of live data being sent from Customer’s sales and catering system to the Revenue Cloud System; (c) for revintel, one-way connectivity of live PMS data being sent from Customer’s PMS to the Revenue Cloud System.

    Host Systems” means all systems used in connection with the hosting of any Cendyn Solution and any and all enhancements, revisions, upgrades and modifications thereto and all other derivative works thereof.

    Instructional Information” means information, documentation or other media that includes information on the installation, maintenance, use, development, improvement, or technical aspects of any Cendyn Solution, including the Enhancements, or the Host Systems.

    Intellectual Property” collectively means Trade Secrets, Copyrights, Patents, Tradenames, Trademarks, Service Marks, Know-How and any other intellectual property rights in and to any Cendyn Solution, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, and Instructional Information (or any part, component or expressions of any of the foregoing).

    Know-How” means a process, idea, concept, technique and other information that is not necessarily a Trade Secret or subject to a Patent, but relates to the a Cendyn Solution, including the Enhancements, the Host Systems, the Cendyn Data, including the Output, or Instructional Information (or any part, component or expressions of any of the foregoing), (e.g., maintenance and service information, scientific, commercial and technical data and other information) and is presently available or which may become available to Cendyn (or its licensors) through its actions or through the actions of others.

    Order Form”. The Cendyn form executed by you on behalf of the Customer from which specific Services were ordered and to which this Agreement in its entirety, as amended from time to time, is incorporated.

    Party” or “Parties” means, respectively, either Cendyn or Customer, and as the context requires both Cendyn and Customer.

    Patents” means the U.S. and foreign patents and patent applications and any additions, divisions, continuations, continuations-in-part, amendments, amalgamations, reissues and re-examination of such applications or patents, including any extensions and renewals thereof, in whatever form and by whatever legal title they are granted (e.g., a supplementary protection certificate), in and to any Cendyn solution, including the Enhancements, the Host Systems (or any part, component or expressions of any of the foregoing), the Cendyn Data, including the Output, and Instructional Information.

    Privacy Information” shall mean collectively: (a) data related to the Customer’s operations, (b) personally identifiable information; (c) protected health information as defined pursuant to the Health Insurance Portability and Accountability Act (HIPAA), as amended; and (d) credit card information and related data, as further defined pursuant to the Payment Card Industry (PCI) Data Security Standards. Aggregated Data shall not be considered as, or being comprised of, Privacy Information.

    “Service(s)” shall mean the Cendyn owned and licensed software system (s) referenced on the on the Order Form for which Customer has paid the required Fees inclusive of any implementation, training, professional services, support or other consulting services to be provided by Cendyn to Customer as set forth in this Agreement..

    Statement of Work” orSOW” shall mean a document signed by both Parties that defines project-specific activities, deliverables and timelines for Cendyn in providing services to Customer in accordance with the terms of this Agreement.

    “Support Services” shall mean the logging, tracking and resolution by Cendyn of Errors reported by Customer pursuant to Section 5 of this Agreement.

    Tradenames, Trademarks and Service Marks” mean the registered and unregistered tradename(s), trademark(s) or service mark(s) (and applications for registration of the same and any goodwill associated with any and all of the foregoing) used by Cendyn with, or in association with, any Cendyn System.

    Trade Secrets” mean information including, but not limited to, the whole or any portion of any scientific or technical information, design, process, formula, pattern, compilation, program, data, device, method, technique, improvement, collection of information, confidential business information or financial information, listing of names, addresses or telephone numbers, or other information relating to any business or profession which is secret and has commercial value, whether through actual use, or informational value, and is maintained as a secret by Cendyn (or its licensors) or is disclosed only with confidentiality restrictions placed on the recipient(s).

    “Updates” shall mean Service versions produced to correct Errors or to accommodate upgraded versions of system operating environments.

  3. Limited Access to Services & Limited License
    1. Subject to the Customer’s continual timely payment of all Fees owed to Cendyn on applicable Order Form and abidance by the terms of this Agreement, as amended from time to time, as of the Effective Date Cendyn grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable ,non-assignable (except as permitted under Section 14 below), royalty-free, worldwide license to access, display and use the Services by Customer and its Authorized users solely for internal business purposes in strict accordance with the terms of this Agreement (“License”). All rights to Aggregated Data and all rights not expressly set forth in this Agreement are reserved by, and automatically inure to the sole ownership and benefit of, Cendyn. Customer acknowledges this Agreement is a “Software as a Service” agreement and Cendyn will not deliver copies of any software or code to Customer as part of the Services.
    2. Customer acknowledges the Aggregated Data, the Services and their structure, organization, software code, binary code, compiled code, source code, scripting, code and associated Documentation constitute valuable trade secrets and intellectual property of Cendyn. Accordingly, Customer agrees not to: (1) copy, download, use offline, modify, adapt, alter, translate, or create derivative works, customizations or enhancements from the Services; (2) merge, or in any way alter the Services with or without other software; (3) sublicense, lease, rent, or loan the Services  to any third party;  (4) reverse engineer, decompile, disassemble or otherwise attempt to derive or reveal the software code, binary code, compiled code, source code or the scripting code for the Services; or (5) otherwise use the Services except as expressly allowed in this Agreement.
    3. Cendyn and its licensors retain and reserve exclusive ownership of all worldwide copyrights, trademarks, trade secrets, patent rights, proprietary rights, moral rights, property rights and all other industrial or intellectual property rights in the Services, Deliverables and Documentation, including any derivative works, modifications, Updates or Enhancements made by Cendyn, or by Customer in violation of this Agreement. Cendyn and its licensors reserve all statutory, common law and international ownership, intellectual property rights, property rights, proprietary rights and moral rights in and to the Services, Deliverables and Documentation. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, any ownership or license of any part of the Services or under any of Cendyn’s existing or future patents, copyrights, trademarks or intellectual property. Customer agrees not to remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the Services or Documentation.
    4. Customer hereby grants to Cendyn a non-exclusive, fully paid, world-wide and irrevocable license to use Customer Data as required to provide the Services, and to copy, anonymize, aggregate, process, disaggregate and display Aggregated Data for the sole purposes of deriving or compiling  or incorporating such Aggregated Data with or into other similar data and information available, derived or obtained from other clients, customers, licensees or users of the Services for internal statistical or performance analysis by Cendyn. Customer’s grant of license herein for Aggregated Data shall survive the expiration or termination of this Agreement.  Cendyn represents and warrants that the scope of use of the Aggregated Data will be limited to the terms of this Section and upon disaggregation the Aggregated Data, will be anonymous and incapable of re-assembly or identification as to its specific source.
    5. Customer agrees not to use the Services, Deliverables or Documentation in any manner that violates any local, state, federal or any law of other nations including but not limited to, any laws related to the posting or production of information that may violate third party rights, defame a third party, be obscene or pornographic, harass or assault others, violate hacking, privacy or computer crime regulations or laws. Cendyn does not monitor, nor edit the content of any transmissions, postings, routings or other materials or communications which Customer may send, post, route, transmit, produce or otherwise move through the Services.  Customer will defend, indemnify and hold Cendyn, its officers, contractors, directors, shareholders, agents and employees harmless, including the payment of reasonable attorney’s fees, from and against any such actions or violation of such laws or regulations by Customer or any of its agents, officers, directors, shareholders, contractors or employees.  Customer is required to ensure, and is strictly liable for, the use of the Services and adherence to the terms of this Agreement by its Authorized Users and end users.
    6. Cendyn acknowledges that Customer Data is the property of Customer. Cendyn agrees to return all Customer Data to Customer within thirty (30) days of written request and upon the remittance by Customer of any fees and expenses required by Cendyn related to the transfer of the Customer Data. Cendyn agrees to keep Customer Data confidential and will use reasonable commercial efforts to maintain the security of the Customer Data. Cendyn agrees to comply with the requisite Payment Card Industry Data Security Standard, Payment Application Data Security Standard, and Payment Brand Rules, only to the extent the Services involve (in whole or in part) the storage, processing, or transmission of credit card data or primary account numbers.
    7. Customer’s end users are required to provide login information to Cendyn in order to access the Services. Cendyn will assign Customer a confidential identification number and password to allow only an authorized officer, partner or principal representative of Customer to manage the Customer’s account, including requesting additional login information (“Administrative Login”). Cendyn will provide additional login information for use by end users designated by the Customer, as requested from time to time by Customer through the use of the Administrative Login.  Customer is solely responsible to secure, maintain and protect its login information and for all actions authorized or undertaken by an end user.  Customer will: (i) protect the confidentiality of all login information, (ii) notify Cendyn of any breach of the confidentiality of any login information, and (iii) notify Cendyn if any individual who knows the login information leaves the employment of Customer, is no longer authorized to use the login information or misuses the login information.  From time to time, Customer will provide Cendyn a machine-readable file that includes the names and login information of persons who are authorized to access and utilize the Services on behalf of Customer.  At no additional charge, within twenty-four (24) hours of receipt of such information, Cendyn will use such information to update the record of end users able to access the Services.   Customer will not provide login information to any person that is not a user designated by a Customer as set forth herein. Customer agrees to indemnify, defend and hold Cendyn, its employees and agents harmless from any and all claims, demands, lawsuits, legal proceedings and judgments that directly or indirectly arise from, or relate to, a breach of this paragraph by the Customer.  This subsection shall survive the termination or expiration of this Agreement.
    8. If the interface to a Customer’s system requires a Cendyn Appliance for the Customer to use the Services, Customer acknowledges the Cendyn Appliance is owned by Cendyn and is provided solely to enable use of eConnectivity® or related products and Services. At its sole cost, Customer must return the Cendyn Appliance within thirty (30) calendar days from the expiration or termination of this Agreement or the use of the Cendyn Appliance, whichever is sooner. Time is of the essence in regard to this subsection and Customer agrees and acknowledges to remit fifteen hundred dollars ($1,500) per Cendyn Appliance for each Cendyn Appliance it fails to timely return as set forth herein.  This subsection shall survive the termination or expiration of this Agreement.
    9. Customer shall ensure that each Authorized User shall access Cendyn System lawfully in accordance with any terms of access that Cendyn provides. Customer is solely responsible for obtaining, at its own cost and expense, the requisite software, equipment and telecommunications service(s) necessary to access the Cendyn System.
    10. Customer and its Authorized User’s right to use the Cendyn System shall terminate immediately upon termination of this Agreement or upon termination of Authorized User’s employment or authorization to access the Cendyn System. Customer shall be solely responsible for monitoring and terminating, when appropriate, its Authorized Users’ access to the Cendyn System. Cendyn shall not be responsible or liable for the use or misuse of any access. Customer shall be solely and exclusively responsible and liable for any use or access of the Cendyn System by any person or entity who, as a result of permission granted by Customer or the negligence or intentional misconduct of Customer or its Authorized Users, gains access to the Cendyn System through the use of Customer’s access.
    11. Customer shall be responsible for providing the hardware and software necessary to access the Services.
  4. Payment Terms
    1. Customer shall pay Cendyn any Upfront, Software Subscription Fees, Configuration and Services Fees in the amounts and at the times specified in the Order Form (and such other Fees as set forth in any additional Order Forms agreed upon and executed by the Parties).
    2. Cendyn shall invoice Customer according to the applicable Order Form. All Fees and expenses invoiced shall be due in full within twenty (20) days of receipt of invoice or be subject to late fees in the amount of one (1) percent per month on the outstanding balance.
    3. Customer will reimburse Cendyn for all reasonable out-of-pocket expenses, including, but not limited to, air fare, lodging, meals and rental of automobiles incurred by Cendyn during the delivery of the Services on behalf of Customer. Reimbursement will be subject to Customer’s travel policy then in-effect and provided to Cendyn otherwise will utilized Cendyn travel policy.
    4. If Customer makes payments via electronic debit (as further provided in Attachment A), payments shall be initiated by Cendyn 20 days following invoice date or the first business day thereafter.
    5. Customer shall pay any applicable sales, use, ad valorem, stamp or other taxes based on the license granted or services received under this Agreement or Customer’s use of the Cendyn System, exclusive, however, of income taxes levied upon Cendyn’s income.
  5. Support Services

    Customer shall have access to Support Services twenty-four (24) hours a day, seven (7) days a week, three hundred and sixty-five (365) days a year by calling 800-324-8709 or emailing support@cendyn.com.

    Cendyn shall have no obligation to provide support, maintenance or enhancements for the Cendyn System to Customer if: (1) the Cendyn System was not used in accordance with the Instructional Information without Cendyn authorization; (2) the Cendyn System was altered, modified or converted by Customer without Cendyn’s prior written consent; (3) Customer’s computer malfunctioned and the malfunction caused a defect in the Cendyn System; or (4) any other cause within the control of Customer without Cendyn authorization that caused the Cendyn System to not perform substantially in accordance with the Instructional Information.

  6. Confidential Information. Cendyn and Customer shall each retain in confidence all information transmitted to it by or under authorization of the other Party pursuant to or in connection with this Agreement in which the disclosing Party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, would in good faith be treated as proprietary and/or confidential (“Confidential Information”).  Neither Party will make use of the other Party’s Confidential Information except pursuant to the terms of this Agreement.  By way of example, but not limitation the following information is considered Confidential Information: (a) this Agreement and its terms, (b) the technology, ideas, formulae, know how, documentation, procedures, algorithms and trade secrets embodied in the Services, technical documentation, solution methodology, end user manuals, Documentation and Deliverables, (c) Customer Data, end user ID’s and passwords; and/or (d) any other information, in any form identified in writing as confidential. If Cendyn obtains information relating to Customer from third parties to whom it is directed by Customer, then Cendyn shall treat such information as Customer’s Confidential Information under this Agreement. Cendyn agrees, without limitation, that Customer Data is part of the Customer’s Confidential Information.
    1. The receiving Party shall not disclose Confidential Information or use it in any manner not expressly authorized by this Agreement. Unless written authorization is received from the disclosing Party, the receiving Party shall not: (a) disclose the disclosing Party’s Confidential Information or allow it or cause it to be disclosed to any third parties; (b) destroy any disclosing Party’s Confidential Information or cause it to be inaccessible to the disclosing Party (other than in accordance with its standard document retention policy); or (c) use the disclosing Party’s Confidential Information or allow it to be used for purposes other than in furtherance of this Agreement.
    2. Either Party’s written or oral designations of confidentiality may include the designations “confidential,” “proprietary,” “secret,” “not subject to disclosure,” or words of similar import. Such designations may appear on or in the subject document, item, or information.  However, absence of a designation shall not support a presumption information provided is not Confidential Information.  Rather, both Party’s will assume information provided in such a manner is Confidential Information.
    3. The receiving Party shall immediately inform the disclosing Party in writing of any suspected, actual or threatened disclosure or unauthorized use of the disclosing Party’s Confidential Information. If a third Party seeks disclosure of Confidential Information from the receiving Party, through discovery in a judicial process or otherwise, the receiving Party shall, except to the extent prohibited by applicable law, immediately notify the disclosing Party and shall cooperate with the disclosing Party’s attempts, at its sole cost, to prevent such disclosure via by a protective order or similar means. If disclosure is ordered by a court or similar tribunal with jurisdiction, and all appeals have been waived or exhausted by the disclosing Party, such disclosure is limited to only such Confidential Information necessary to comply with the order.
    4. Confidential Information shall not include any information: (1) generally known to the public or otherwise publicly available without restriction (other than through the wrongful act of the Party receiving the information, g., breach of this Agreement); (2) lawfully received from a third party source without restriction and without violation of this Agreement; (3) as demonstrated through documentary evidence, contemporary at the time of the development, developed independently by the receiving Party without the use of or access to Confidential Information; (4) as demonstrated through documentary evidence, contemporary at the claimed pre-Agreement or pre-disclosure period, known to the receiving Party prior to the date of this Agreement (or first disclosure by the disclosing Party, if earlier); or (5) released generally by the owner of the rights in the Confidential Information to other persons, firms, or entities without any restrictions. The public availability of some information, separately, or in an uncollected or incomplete form, shall not support a presumption against the confidential status on such information as part of a confidential compilation or collection.
    5. Upon termination or expiration of this Agreement, or upon the disclosing Party’s request, the receiving Party shall immediately deliver to disclosing Party all disclosing Party’s Confidential Information in its custody or under its control, except where this Agreement provides for retention of such Confidential Information.
  7. Warranties; Limitation of Liability. The following warranties shall constitute Customer’s sole and exclusive warranties at law, common law, implied, expressed in this Agreement or otherwise.
    1. Services Warranty. If Customer is unable to use the Services due to an Error, the Service is not compatible or does not effectively operate or the Service is not in substantial conformity with the Service description outlined in the Documentation, written notice thereof shall be promptly given to Cendyn in accordance with the Error reporting requirement set forth in this Agreement.   If Cendyn is able to reproduce the Error, Cendyn will use technically reasonable efforts to remove the Error.  Cendyn may, at its own discretion, implement a by-pass solution or supply a modified or improved or enhanced version of the Services.  If Cendyn is unable to rectify the Error within sixty (60) days from the date Customer reported the Error, Cendyn will provide a pro-rated refund of monthly Fees paid in advance by Customer, subject to the terms of this Agreement.  Cendyn’s Services warranty shall not apply to Errors caused by improper use, improper installation, improper handling or maintenance, improper operating means, modifications or customizations made by Customer or any third party under its direction, Errors caused by the Customer or any third party under its direction or any Error arising from or related to a breach of this Agreement by Customer.
    2. ADA. Cendyn warrants that as of the Go-Live Date, public end user websites developed by Cendyn (“Websites”) as delivered will be compliant with the Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990) (“ADA”). However, due to uncertain and dynamic statutory and common law applicability of the ADA, and the Customer’s own updating or modification of its Websites, Cendyn does not warrant, and specifically disclaims, the Websites will remain ADA compliant after the Go-Live Date. The Customer acknowledges and agrees Cendyn will not monitor the Customer’s use of the Websites for ADA compliance after their respective delivery to the Customer. Customer further acknowledges and agrees, Cendyn has, without any express or implied warranty as to their performance, recommended independent vendors for the Customer to interview, research and consider retaining for the purposes of ensuring ADA compliance with the Websites after their respective Go-Live Date.
    3. Intellectual Property. Cendyn represents and warrants: (1) it has title and ownership of, or a license to use as contemplated in this Agreement, such copyrights, patents, trademarks, trade secrets, and other intellectual property comprising the Services and Documentation; and (2) the Services do not violate, or in any way, infringe upon, any rights of third parties including, without limitation, any property, contractual, employment, proprietary information, non-disclosure, trade secrets or any intellectual property rights.
    4. LIMITED WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7, THE SERVICES, INCLUDING, BUT NOT LIMITED TO CONFIGURATION(S), ENHANCEMENTS AND UPDATES, ARE PROVIDED “AS-IS” AND AS AVAILABLE WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY WHATSOEVER. EXCEPT AS PROVIDED IN THIS SECTION 7, CENDYN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO REPRESENTATION, STATEMENT OR OTHER AFFIRMATION OF FACT REGARDING THE SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF CENDYN WHATSOEVER.  CUSTOMER ACKNOWLEDGES AND AGREES IT HAS NOT RELIED ON ANY REPRESENTATION, STATEMENT OR OTHER AFFIRMATION OF FACT OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION.
    5. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, REMOTE, UNFORESEEABLE, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, INDEMNIFICATION, LOST PROFITS, REVENUE, DATA OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA OR REVENUE. EXCEPT FOR VIOLATIONS OF SECTION 6, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER WHETHER STATUTORY, IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY PAID TO CENDYN UNDER THIS AGREEMENT FOR THE PRECEDING TWELVE (12) MONTH PERIOD.  THE PARTIES ACKNOWLEDGE THE FEES PAID BY THE CUSTOMER ADEQUATELY REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND CENDYN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
    6. Customer Acknowledgements. The Customer acknowledges the following:
      1. It is not possible to completely preclude all Errors, technical software problems or interruptions in access or use of the Services.
      2. Cendyn does not warrant the absence of any Errors, defects, or operation of the Services without any interruption. Transmission or ISP errors outside of Cendyn’s control are specifically excluded from any warranties set forth in this Agreement.
      3. Customer is solely responsible for: (i) compliance with this Agreement by all of its end users; (ii) the accuracy, quality, and legality of any of its content or Customer Data; (iii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Services; (iv) promptly notifying Cendyn of any such unauthorized access or use; (v) using the Services only in accordance with the Documentation, acceptable use policies, applicable laws and this Agreement; and (vi) obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use the Services.
      4. Customer is solely responsible for obtaining all licenses, permits or authorizations as required from time to time by the United States and any other government for any export or use of the Services.
    7. Survival. This Section shall survive the termination or expiration of this Agreement.
  8. Mutual Indemnification
    Subject to the limitations of liability set forth in Section 7, each Party (as an “Indemnifying Party”) shall indemnify the other (as an “Indemnified Party”) against all losses arising out of any proceeding brought by either a third party or an Indemnified Party that arises out of the Indemnifying Party’s willful misconduct or gross negligence.
  9. No Solicitation
    During the Term of this Agreement and for a period of one year thereafter, unless otherwise agreed to in writing, neither party shall solicit for employment nor retain the services of those of the current or former personnel of the other party who materially participated in the provision of Services hereunder. General employment advertisements shall not be considered, in and of themselves, a breach of this Section.
  10. Intellectual Property
    1. Should any portion of the Services become, or in Cendyn’s reasonable opinion be likely to become, the subject of a claim of Infringement, Cendyn may, at its sole option and expense, and in addition to the indemnity provided below in subsection (b), provide the following as the Customer’s sole remedy: (i) procure for Customer the right to use the Services free of any liability for Infringement; (ii) replace or modify the applicable portion of the Services with a non-infringing substitute otherwise complying substantially with all the requirements of this Agreement; or (iii) terminate this Agreement and immediately refund to Customer all Monthly Fees paid in advance for the balance of the then current Term.
    2. Provided Cendyn is promptly informed in writing and furnished a copy of each communication, notice or other action relating to an alleged infringement and is given authority, information and assistance as necessary to defend or settle such claim, Cendyn will defend, indemnify, and hold Customer and its directors, officers, employees, and agents (“Indemnitees”) harmless from and against any action brought against Customer to the extent such action is based on a claim of direct infringement of any duly issued patent or copyright resulting from Customer’s use of the Services in accordance with the terms of this Agreement (”Infringement”). Cendyn may, upon written notice to the Indemnitees, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof and take all other required or appropriate steps to settle or defend any such claims.
  11. Data Security
    1. When receiving or accessing Privacy Information, Cendyn agrees to: (i) collect, receive, transmit, store, dispose, use and disclose such Privacy Information in accordance with all privacy and data protection laws, as well as all other applicable regulations, (ii) keep and maintain such Privacy Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure and (iii) use and disclose such Privacy Information solely and exclusively for the purposes for which the Privacy Information, or access to it, is provided pursuant to the terms and conditions of this Agreement. Cendyn shall be responsible for, and remain liable to, Customer for the actions and omissions of all employees, contractors or other representatives who are engaged by Cendyn concerning the treatment of Privacy Information as if they were Cendyn’s own actions and omissions.
    2. Cendyn shall notify Customer of (i) any act or omission that compromises either the security, confidentiality or integrity of Privacy Information collected from End Users in connection with this Agreement or (ii) a breach or alleged breach of this Agreement relating to the privacy practices of Cendyn. Customer shall likewise promptly notify Cendyn of any suspicious or malicious activity, potential vulnerabilities, or security weaknesses of which it becomes aware by emailing security@cendyn.com. Cendyn shall cooperate with Customer as reasonably requested to investigate any security breach, and Cendyn shall use best efforts to remedy any security breach as soon as commercially possible and prevent any further security breach at Cendyn’ s expense in accordance with applicable privacy rights, laws, regulations and standards.
    3. In the event of any unauthorized access to and acquisition of Privacy Information by a third party while in the possession of Cendyn or in transit from Cendyn, which materially compromises the security, confidentiality or integrity of such Privacy Information (“Data Security Breach”), Cendyn shall promptly investigate the cause of such Data Security Breach and shall at its sole expense take all reasonable steps to: (i) mitigate any harm caused to affected individuals, (ii) prevent any future reoccurrence, and (iii) comply at its sole expense with applicable data breach notification laws.
  12. Term, Renewal and Termination.
    1. For Cause Termination.This Agreement may only be terminated: (1) by Cendyn for cause upon thirty (30) calendar days’ written notice to Customer if Customer is in material breach of this Agreement and such breach remains uncured at the expiration of such thirty (30) calendar day period; (2) by Customer upon thirty (30) calendar days’ written notice to Cendyn if Cendyn is in material breach of this Agreement and such breach remains uncured at the expiration of such thirty (30) calendar day period; or (3) by Cendyn for nonpayment of any Fees due hereunder upon thirty (30) calendar day written notice to Customer and such nonpayment remains uncured at the expiration of such thirty (30) calendar day period  (collectively items 1,2 & 3 “For-Cause Termination”).  A For-Cause Termination in no way limits any other rights or remedies the non-breaching Party may be entitled to in law or in equity pursuant to this Agreement.
    2. Customer Data.Upon termination or expiration of this Agreement, Cendyn shall cooperate in data retrieval and transfer necessary to Customer.  Cendyn shall prepare and deliver to Customer an estimate of the projected costs of such retrieval and transfer.  The data retrieval and transfer work will be performed at the rate of $125 per hour for Customer Data. Cendyn shall deliver the Customer Data in either text, .xls or comma delimited format. If requested, Cendyn will use its best efforts to accommodate the Customer’s request for a data format other than those set forth herein.  Customer acknowledges it may incur additional charges depending on the complexities of the Customer’s requested data transfer format.  A condition precedent to Cendyn cooperating with any data retrieval request is the prepayment of all estimated data transfer charges, which shall constitute the Customer’s acceptance to pay additional data transfer charges if the amount estimated by Cendyn was insufficient.
  13. Force Majeure
    Other than the Customer’s obligations related to the payment of Fees, neither Party shall be deemed in default of this Agreement to the extent any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods or strikes (“Force Majeure”)
  14. Joint Marketing Effort
    Cendyn may make general references to its relationship with Customer in appropriate marketing materials, such as press releases, white papers, testimonials etc. Customer agrees to provide reasonable assistance to Cendyn in these efforts
  15. Assignment
    Neither Party may assign this Agreement, or assign or delegate any right or obligation hereunder, without the prior written consent of the other Party.  Notwithstanding the foregoing, either Party may assign this Agreement or assign or delegate its rights and obligations under this Agreement to an Affiliate or a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, operation of law or otherwise without notice to the other Party. In the event of an assignment, the original Party and its assignee shall become jointly and severally liable for their obligations pursuant to this Agreement.  Other than the names of the respective Parties, an assignment permitted pursuant to this Section shall not cause or be considered an amendment or modification to this Agreement.
  16. Relationship Cendyn is acting as an independent contractor with respect to the Services provided to Customer. Employees of Cendyn performing Services for Customer will not be considered employees or agents of Customer. Cendyn is responsible for all employee tax and withholding and will comply with all applicable laws with respect to hiring and employment of such employees. Nothing contained in this Agreement shall be construed to imply a joint venture, partnership or principal-agent relationship between the Parties and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
  17. Notice By submitting your email address You: (a) consent to receive communications from us in an electronic form via the email address you have submitted; and (b) agree that all Agreements, notices, disclosures, and other communications Cendyn provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in written paper form. The foregoing does not affect your non-waivable rights. Cendyn may also use your email address to send you other messages, including information about the Services, Cendyn, its Affiliates and/or special offers. You may opt out of such promotional email, but not Cendyn’s official notices pertaining to this Agreement or the Services, by changing your account settings, using the “Unsubscribe” link in the message, or by sending an email to support@cendyn.com or mail to the following postal address:
    Customer Support
    Central Dynamics LLC
    Attn:  Support c/o COO
    980 North Federal Highway, Suite 200
    Boca Raton, FL 33432
    To Cendyn: Central Dynamics LLC
    Attn:  President and CEO
    980 North Federal Highway, Suite 200
    Boca Raton, FL 33432
  18. Survival In addition to the instances of survival specifically set forth in this Agreement, any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
  19. Statute of Limitations
    The Parties hereby agree the statute of limitations for any claims brought related to, or arising from, this Agreement, whether in contract, tort, common law or by statute, must be brought within one year of the date of accrual of such cause of action, and any claim or cause of action of a Party shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such one-year period.
  20. Amendment
    This Agreement may be amended by Cendyn from time to time.  Cendyn may amend this Agreement by emailing and/or posting revised terms for your review and acceptance, providing advanced notice to you and giving you the option to discontinue using the Services if you do not agree to the amended terms of this Agreement.  If you continue to use the Services after this Agreement is amended you will be deemed to have agreed to all of the Agreement’s amended terms
  21. United States Compliance
    You represent and warrant that (i) you are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) you are not listed on any United States government list of prohibited or restricted parties.
  22. Acknowledgement
    Cendyn acknowledges that some of its Customers may intend to conduct a business subject to licenses issued by governmental authorities in the State of Nevada or elsewhere that regulate gaming and related matters (“Governmental Authority”). The Parties acknowledge the Governmental Authority may revoke, suspend, limit or restrict any registrant, licensee or person found suitable if associated with an unsuitable person. Cendyn will disclose to any such Customer information reasonably required to enable Customer or any affiliate of Customer to conduct background investigations generally necessary to satisfy requirements imposed on Customer and its affiliates by such Governmental Authority. If Cendyn, or any person or entity connected with Cendyn is found unsuitable by the regulating Governmental Authority, or if Customer is advised by the regulating Governmental Authority to cease doing business with Cendyn, or if Customer, its parent or affiliates, in its reasonable, good faith belief determines its licenses or applications for licensure could be adversely affected by its association with Cendyn, Customer shall have, upon the expiration of written notice to Cendyn from Customer with a sixty day opportunity to cure, or more time if reasonably necessary, the right to terminate this Agreement without further liability for Fees except any Fees that had accrued and were due as of the date of such termination.
  23. Governing Law; Jurisdiction
    This Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof shall be construed in accordance with and governed by and enforced under the laws of England and Wales (without giving effect to its conflict of laws principles). Any legal action or proceeding relating to this Agreement shall be instituted exclusively in courts located within England and Wales. Cendyn and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. Each Party waives its right to a jury trial in any litigation. In any action or proceeding brought by Cendyn to enforce any provision of this Agreement, Cendyn shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding including, but not limited to, attorneys fees.
  24. Miscellaneous For the purposes of this Agreement, both Parties consent to the personal jurisdiction and venue of the state and federal courts located in Palm Beach County in the state of Florida. The prevailing Party in any dispute related to, or arising from, this Agreement shall be entitled to the payment of its attorneys’ fees and costs from the prelitigation stage through and including the trial and all appellate levels. Additionally, the prevailing party shall be entitled to include the attorneys’ fees and costs expended in securing entitlement to, and the amount of, its prevailing party attorneys’ fees (A/K/A “fees for fees”). If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereto shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. Any waiver of a provision of this Agreement must be in writing and signed by the Party to be charged. This Agreement constitutes the entire agreement between the Parties related to the subject matter hereof, supersedes or merges any prior or contemporaneous oral or written agreement between the Parties relating to the Services and shall not be changed except by written agreement signed by each Party. This Agreement includes and incorporates all Schedules as if fully set forth herein. If any terms in the Schedules differ or conflict with this Agreement, the terms of this Agreement shall control. This Agreement will not be governed by the U.N. Convention on the International Sale of Goods, the application of which is expressly excluded.
Last Modified: July 28, 2020