GENERAL TERMS AND CONDITIONS FOR SERVICES
- These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Centurica, LLC, a Wyoming limited liability company (“Provider”).
- The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Provider and “Customer” as identified in the Order Confirmation, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern. The Order Confirmation will be subsequently emailed to the Customer if they have used the Provider’s website, or will be included with this Agreement if the Customer has worked directly with an agent of the Provider.
- These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
- These Terms are subject to the acceptance by the Company of the Customer’s order through an emailed Order Confirmation to the Customer. The Company retains the right to not accept the Customer’s order.
- The Customer may terminate its order for a full refund within forty-eight (48) hours of placing the order by notice to Provider. All other refunds will be at the Company’s sole and absolute discretion.
2. Services. Provider shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms. The Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
3. Customer’s Obligations. Customer shall:
- Cooperate with Provider in all matters relating to the Services;
- Respond promptly to any Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Provider to perform Services in accordance with the requirements of this Agreement;
- Provide the Provider with a single point of contact, which shall presumed to be the Customer’s Representative as provided in the Order Confirmation, with authority to bind the Customer for purposes of this Agreement and who is readily available to make all relevant decisions with respect to the Agreement.
4. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
- All non-public, confidential or proprietary information of Customer, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Customer to Provider, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Provider without the prior written consent of Customer.
- Confidential Information does not include information that is:
- in the public domain;
- known to Provider at the time of disclosure; or
- rightfully obtained by Provider on a non-confidential basis from a third party.
- Notwithstanding any other provision of this Agreement:
- Provider will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
- is made:
- in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and
- solely for the purpose of reporting or investigating a suspected violation of law; or
- is made:
- is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
- Provider will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
- If Customer files a lawsuit for retaliation by Provider for reporting a suspected violation of law, Provider may disclose Customer’s trade secrets to Provider’s attorney and use the trade secret information in the court proceeding if Provider:
- files any document containing the trade secret under seal; and
- does not disclose the trade secret, except pursuant to court order.
CUSTOMER HEREBY REPRESENTS, WARRANTS, AND COVENANTS THAT IT CAN CONVEY ANY CONFIDENTIAL INFORMATION PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO PROVIDER AND HEREBY INDEMNIFIES PROVIDER FROM ANY BREACH OF NON-FULFILLMENT BY CUSTOMER RELATED TO SUCH CONFIDENTIAL INFORMATION.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Provider in the course of performing the Services, including any items identified as such in the final report (collectively, the “Deliverables”) shall be owned by Provider. Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
7. Waiver. No waiver by Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
8. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Provider, which may be withheld in Provider’s sole and absolute discretion. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Provider may freely, and without notice to Customer, assign any of rights and delegate any of its duties under this Agreement.
9. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
11. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Montana without giving effect to any choice or conflict of law provision or rule (whether of the State of Montana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Montana.
12. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Montana in each case located in the City of Missoula and County of Missoula, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or by email (provided that the original is also sent by a manner previously described). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section 13.
14. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Limitation on Liability, Submission to Jurisdiction, and Survival.
16. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
- In addition to any remedies that may be provided under this Agreement, Provider may terminate this Agreement with immediate effect upon notice to Customer, if Customer:
- fails to pay any amount when due under this Agreement;
- has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part;
- has failed to respond to Provider within seven (7) days, or has not provided requested data or information to Provider within thirty (30) days; or
- becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- If Provider terminates this Agreement pursuant to Section 17(a), Provider shall provide Customer an invoice describing the Services completed as of the date of termination and calculating what amount, if any, should be refunded to Customer based on the work Provider had completed.
- Provider may terminate this Agreement at any time, and for any reason, upon Notice to Customer if it refunds all amounts paid by Customer to Provider. If Provider elects to terminate this Agreement pursuant to this Section 17(c), Provider shall have no further obligations to Customer, including, with respect to the representations and warranties provided under Section 18.
18. Representation and Warranty.
- Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. Customer hereby specifically acknowledges and understands that Provider is not providing professional services to Customer (such as valuation, accounting, or legal) as part of the Services provided hereunder.
- The Provider shall not be liable for a breach of the warranty set forth in Section 18(a) unless Customer gives notice of the defective Services, reasonably described, to Provider within thirty (30) days of the time when Customer discovers or ought to have discovered that the Services were defective, but in no case no later than six (6) months after Provider delivers any final report or completes the Services.
- Subject to Section 18(b), Provider shall, in its sole discretion, either:
- re-perform such Services (or the defective part); or
- credit or refund the price of such Services.
- THE REMEDIES SET FORTH IN SECTION 18(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 18(a).
19. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 18(a) ABOVE, PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
20. Limitation of Liability.
- IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THIS AGREEMENT.
21. Attorneys’ Fees. In the event that any party hereto institutes any legal suit, action or proceeding, including arbitration, against another party in respect of a matter arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs. This includes, subject to any limits under applicable law, attorneys’ fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services.
22. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission, as well as photocopies of such facsimile transmission or email correspondence (E.G. DocuSign), pursuant to the Uniform Electronic Transactions Act, Mont. Code Ann. § 30-18-100, et seq. shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23. ARBITRATION. IN THE EVENT A DISPUTE ARISES BETWEEN THE PARTIES AND THE PARTIES ARE UNABLE TO RESOLVE THE DISPUTE, THE DISPUTE SHALL BE DECIDED BY ARBITRATION. ARBITRATION MAY BE INITIATED BY EITHER PARTY GIVING NOTICE TO THE OTHER PARTY.
- SELECTION OF ARBITRATOR. THE PARTIES SHALL FIRST ATTEMPT TO AGREE UPON ONE INDIVIDUAL TO ARBITRATE THE MATTER. IF THE PARTIES ARE UNABLE TO AGREE UPON AN ARBITRATOR, THEN THE PARTIES WILL SUBMIT A REQUEST TO THE EXECUTIVE DIRECTOR, OR HIS INTERIM REPLACEMENT, OF THE STATE BAR OF MONTANA TO SELECT ONE ARBITRATOR TO DECIDE THE MATTER. THE PARTIES AGREE TO SUBMIT THEIR DISPUTE TO THE ARBITRATOR SELECTED BY THE EXECUTIVE DIRECTOR, AND RELEASE THE EXECUTIVE DIRECTOR AND THE STATE BAR OF MONTANA FROM ANY AND ALL LIABILITY ASSOCIATED WITH SUCH SELECTION. IF THE EXECUTIVE DIRECTOR OF THE STATE BAR OF MONTANA REFUSES OR FAILS TO ACT UPON THE REQUEST WITHIN FOURTEEN (14) DAYS OF RECEIPT OF ANY REQUEST TO APPOINT, EITHER PARTY MAY PETITION THE FOURTH JUDICIAL DISTRICT COURT FOR THE STATE OF MONTANA TO APPOINT AN ARBITRATOR PURSUANT TO MONT. CODE ANN. § 27-5-211.
- TIMING OF ARBITRATION. THE ARBITRATOR SHALL HOLD AN ARBITRATION HEARING AND MAKE A DECISION WITHIN ONE-HUNDRED AND TWENTY (120) DAYS OF THE NOTICE OF ARBITRATION, UNLESS OTHERWISE STIPULATED BY THE PARTIES.
- CONDUCT OF ARBITRATION. THE ARBITRATOR SHALL CONDUCT THE ARBITRATION PROCEEDINGS IN ACCORDANCE WITH THE MONTANA UNIFORM ARBITRATION ACT THEN IN EFFECT, EXCEPT WHERE THIS AGREEMENT MAKES A SPECIAL PROVISION.
- EFFECT OF ARBITRATION DECISION. THE ARBITRATOR’S DECISION SHALL BE CONCLUSIVE AND BINDING UPON THE PARTIES.
IN WITNESS WHEREOF, the Customer hereby acknowledges having read and reviewed these Terms and that the Services are subject to these Terms.