Master Services Access Agreement

www.cendyn.com

 

Terms and Conditions Updated: April 7, 2021

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 EFFECTIVE DATE AS DEFINED IN THE EXECUTED ORDER FORM (“Effective Date”). 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) 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 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.

“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.

“Fees” shall mean the professional services, 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).

“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).

“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.

“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.

2) LIMITED ACCESS TO SERVICES & LIMITED LICENSE

a) 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.

b) 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.

c) 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.

d) 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.

e) 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.

f) 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.

g) 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

h) Customer shall be responsible for providing the hardware and software necessary to access the Services.

3) PAYMENT TERMS

a) Customer shall pay Cendyn any Fees due as per the terms outlined in the executed Order Form.

b) 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.

c) Interest & Taxes: Interest on late payments shall accrue at the rate of 10% per annum, from the date such amount is due until finally paid. Customer shall be responsible for all reasonable costs and expenses resulting from collection of unpaid amounts through the date of actual collection. Customer shall pay sales tax and any other taxes imposed on Cendyn arising from this Agreement, excluding U.S. income or comparable taxes.

4) 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

5) WARRANTIES; LIMITATION OF LIABILITY

Cendyn and its suppliers provide the services “as-is” and “as available” and disclaim all warranties of any kind not provided herein, whether express, implied, or statutory

a) 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 SIX (6) 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.

b) Survival. This Section shall survive the termination or expiration of this Agreement.

6) 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.

7) DATA SECURITY

a) 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.

b) 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.

c) 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.

8) TERMINATION

a) 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.

b) 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 $175 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.

9) 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”).

10) 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.

11) 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, which consent shall not unreasonably be withheld or delayed. 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.

12) 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.

13) 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

14) 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.

15) STATUE 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.

16) 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.

17) 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.

18) 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. 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.

19) 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.