Centauri Consulting Customer Agreement
This Centauri Consulting Customer Agreement (the “Agreement”) is between Customer and Centauri Consulting and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Centauri Consulting presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.
These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”
FOR INDIVIDUAL USERS, ADDITIONAL TERMS UNDER “SUPPLEMENTAL INDIVIDUAL USER TERMS” APPLY.
License to use Centauri Consulting Products
- License grant. Products are licensed and not sold. Upon Centauri Consulting’s acceptance of each order and subject to Customer’s compliance with this Agreement, Centauri Consulting grants Customer a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.
- Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Customer continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.
- Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Customer orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Customers with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Centauri Consulting may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.
- End Users. Customer will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.
- Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Centauri Consulting. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.
- Reservation of Rights. Centauri Consulting reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device do not give Customer any right to implement Centauri Consulting patents or other Centauri Consulting intellectual property in the device itself or in any other software or devices.
- Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):
- reverse engineer, decompile, or disassemble any Product, or attempt to do so;
- install or use non-Centauri Consulting software or technology in any way that would subject Centauri Consulting’s intellectual property or technology to any other license terms;
- work around any technical limitations in a Product or restrictions in Product documentation;
- separate and run parts of a Product on more than one device;
- upgrade or downgrade parts of a Product at different times;
- transfer parts of a Product separately; or
- distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.
- License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Product and render any copies unusable. Customer must notify Centauri Consulting of a License transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.
- Customer Eligibility. Customer agrees that if it is purchasing academic, government or nonprofit offers, Customer meets the respective eligibility requirements as set out by Centauri Consulting. Centauri Consulting reserves the right to verify eligibility and suspend product use if requirements are not met.
Non-Centauri Consulting Products.
Non-Centauri Consulting Products are provided under separate terms by the Publishers of such products. Customer will have an opportunity to review those terms prior to placing an order for a Non-Centauri Consulting Product through a Centauri Consulting online store or Online Service. Centauri Consulting is not a party to the terms between Customer and the Publisher. Centauri Consulting may provide Customer’s contact information and transaction details to the Publisher. Centauri Consulting makes no warranties and assumes no responsibility or liability whatsoever for Non-Centauri Consulting Products. Customer is solely responsible for its use of any Non-Centauri Consulting Product.
Customer must keep records relating to Products it and its Affiliates use or distribute. At Centauri Consulting’s expense, Centauri Consulting may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Centauri Consulting may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Centauri Consulting or the auditor reasonably requests related to the verification and access to systems running the Products. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Centauri Consulting’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Centauri Consulting for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
- Personal Data. Customer consents to the processing of Personal Data by Centauri Consulting and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Centauri Consulting, Customer will obtain all required consents from third parties (including Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.
- Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the Netherlands or any other country in which Centauri Consulting or its Affiliates, or their respective agents and subcontractors, maintain facilities. Centauri Consulting will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.
- Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
- Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Customer Data.
- Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
- Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
- Duration of Confidentiality obligation. These obligations apply (1) for Customer Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
- Limited warranties and remedies.
- Online Services. Centauri Consulting warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are described in the SLA.
- Centauri Consulting warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not, and Customer notifies Centauri Consulting within the warranty term, Centauri Consulting will, at its option, (a) return the price Customer paid for the Software license or (b) repair or replace the Software.
The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any warranty claims not made during the warranty period.
- The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.
- Except for the limited warranties above and subject to applicable law, Centauri Consulting provides no other warranties or conditions for Products and disclaims any other express, implied or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.
Defense of third-party claims.
The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.
- By Centauri Consulting. Centauri Consulting will defend Customer against any third-party claim to the extent it alleges that a Product made available by Centauri Consulting for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Centauri Consulting and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Centauri Consulting is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Centauri Consulting will not be liable for any claims or damages due to Customer’s continued use of a Product after being notified to stop due to a third-party claim.
- By Customer. To the extent permitted by applicable law, Customer will defend Centauri Consulting and its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Centauri Consulting Product hosted in an Online Service by Centauri Consulting on Customer’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.
Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Products during the term of the applicable licenses, subject to the following:
- For Products ordered on a subscription basis, Centauri Consulting’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.
- Free Products and distributable code. For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Centauri Consulting, Centauri Consulting’s liability is limited to direct damages finally awarded up to US$5,000.
- In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
- No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.
- Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Centauri Consulting. Partners and other third parties are not agents of Centauri Consulting and are not authorized to enter into any agreement with Customer on behalf of Centauri Consulting.
- Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer consents to Centauri Consulting and its Affiliates providing the Partner with Customer Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Centauri Consulting’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Centauri Consulting. Customer may terminate the Partner’s administrative privileges at any time.
- Support and Professional Services. Customer’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Centauri Consulting. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.
Pricing and payment.
If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner. Pricing and payment terms related to orders placed by Customer directly with Centauri Consulting are set by Centauri Consulting, and Customer will pay the amount due as described in this section.
- Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Centauri Consulting with a payment method, Customer (1) consents to Centauri Consulting’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Centauri Consulting to charge Customer using that payment method for orders under this Agreement.
- Centauri Consulting may invoice eligible Customers. Customer’s ability to elect payment by invoice is subject to Centauri Consulting’s approval of Customer’s financial condition. Customer authorizes Centauri Consulting to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Unless the Customer’s financial statements are publicly available, Customer may be required to provide their balance sheet, profit and loss and cash flow statements to Centauri Consulting. Customer may be required to provide security in a form acceptable to Centauri Consulting to be eligible for invoicing. Centauri Consulting may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Centauri Consulting of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.
- Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Centauri Consulting for the period corresponding to the invoice. Customer will pay all amounts due within thirty (30) calendar days following the invoice date.
- Late Payment. Centauri Consulting may, at its option, assess a late fee on any payments to Centauri Consulting that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.
- Cancellation fee. If a subscription permits early termination and Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.
- Recurring Payments. For subscriptions that renew automatically, Customer authorizes Centauri Consulting to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Centauri Consulting to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Centauri Consulting or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.
- Centauri Consulting prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Centauri Consulting, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Centauri Consulting is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Centauri Consulting shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.
If any taxes are required to be withheld on payments invoiced by Centauri Consulting, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Centauri Consulting an official receipt for those withholdings and other documents reasonably requested to allow Centauri Consulting to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.
Term and termination.
- This Agreement is effective until terminated by a party, as described below.
- Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.
- Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:
- All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.
- All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
- If Centauri Consulting is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
- Centauri Consulting may suspend use of an Online Service without terminating this Agreement during any period of material breach. Centauri Consulting will give Customer notice before suspending an Online Service when reasonable.
- Termination for regulatory reasons. Centauri Consulting may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Centauri Consulting to continue offering the Product without modification; or (3) causes Centauri Consulting to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Centauri Consulting terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
- Independent contractors. The parties are independent contractors. Customer and Centauri Consulting each may develop products independently without using the other’s Confidential Information.
- Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.
- Centauri Consulting may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Centauri Consulting may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.
- Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Centauri Consulting may have under this Agreement to receive payment and enforce Customer’s payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.
- If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
- Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
- No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
- All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.
- Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Centauri Consulting must be sent to the following address:
Centauri Consulting Limited
7th Floor, The Address,
Workstyle co-working space
Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Centauri Consulting may send notices and other information to Customer by email or other electronic form.
- Applicable law. This Agreement will be governed by and construed in accordance with the laws of The Republic of Kenya. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.
- Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:
- If Centauri Consulting brings the action, the venue will be where Customer has its headquarters.
- If Customer brings the action against Centauri Consulting or any Centauri Consulting Affiliate located outside of Europe, the venue will be the high courts in Nairobi County, The Republic of Kenya.
- If Customer brings the action against Centauri Consulting or any Centauri Consulting Affiliate located in Europe, and not also against Centauri Consulting or a Centauri Consulting Affiliate located outside of Europe, the venue will be the Republic of Ireland.
The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.
- Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
- Centauri Consulting Affiliates and contractors. Centauri Consulting may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Centauri Consulting remains responsible for their performance.
- Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.
“Administrator Data” means the information provided to Centauri Consulting or its Affiliates during sign-up, purchase, or administration of Products.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer” means the entity identified as such on the account associated with this Agreement.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Centauri Consulting or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.
“End User” means any person Customer permits to use a Product or access Customer Data.
“Licensing Site” means https://www.centauri.co.ke/licensing-contracts or a successor site.
“Centauri Consulting” means Centauri Consulting Limited.
“Non-Centauri Consulting Product” means any third-party-branded software, data, service, website or product, unless incorporated by Centauri Consulting in a Product.
“Online Services” means Centauri Consulting-hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.
“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.
“Partner” means a company Centauri Consulting has authorized to distribute Products to Customer.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Product” means all Software and Online Services identified in the Product Terms that Centauri Consulting offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Centauri Consulting. Product availability may vary by region. “Product” does not include Non-Centauri Consulting Products.
“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.
“Publisher” means a provider of a Non-Centauri Consulting Product.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.
“Software” means licensed copies of Centauri Consulting software identified in the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.
“use” means to copy, download, install, run, access, display, use or otherwise interact with.
“Use Rights” means the license terms and terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.
Supplemental Individual User Purchase Terms
FOR INDIVIDUAL USERS (AS DEFINED BELOW), THE FOLLOWING ADDITIONAL TERMS BELOW ALSO APPLY.
IF INDIVIDUAL USER LIVES IN THE THE REPUBLIC OF KENYA, PLEASE READ THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” CLAUSE IN THE “MISCELLANEOUS” SECTION. IT AFFECTS HOW DISPUTES CONCERNING THE CENTAURI CONSULTING PRODUCT (INCLUDING ITS PRICE, ADVERTISING, MARKETING, OR COMMUNICATIONS), THE PURCHASE TRANSACTION, BILLING, OR THIS AGREEMENT ARE RESOLVED.
- Definitions applicable to these Supplemental Individual User Purchase Terms:
“Customer” means the entity or individual identified as such on the account associated with this Agreement.
“Customer Individual User” means an Individual User who subscribes for or orders Products using an authentication identity (such as an email address) provided by the Individual User’s organization (such as an employer or school).
“Individual User” means any individual person (other than an Administrator) subscribing to Online Services for use by a member or members of the subscriber’s organization, and if such Online Services require payment of a fee, providing a payment method for which Individual User is personally responsible.
- The paragraph titled “Affiliates” in the “License to use Centauri Consulting Products” section of this Agreement does not apply to Individual Users.
- The “License Transfer” paragraph under the “License to use Centauri Consulting Products” section is replaced as follows:
For Individual User purchases, Customer may not assign this Agreement either in whole or in part or transfer licenses without Centauri Consulting’s consent, except in case of an Administrator assumption of control as permitted in this Agreement.
- The below paragraphs are added under the “License to use Centauri Consulting Products” section:
Individual User and Customer rights. The following applies to Individual User purchases: To the extent Individual User is acting on behalf of its organization, the organization is the Customer and the owner of all rights and licenses to the Products that Individual User is purchasing hereunder, and Individual User’s access and rights thereto are granted to Individual User in its capacity as an end-user within such organization. In such case, if there is another agreement in effect with Centauri Consulting pursuant to which the same organization maintains active subscriptions to Online Services (a “Prior Agreement”), then the terms of that Prior Agreement shall also govern the Customer’s use of and rights in and to the Online Services and control over any conflicting terms in the Agreement, but these Supplemental Terms shall continue to apply to Individual User.
Authorization to use Customer domain and acknowledgement of shared directory data. For Customer Individual User purchases, Customer Individual User (1) represents that they have the authority to use that organization’s domain to sign up for a subscription or order Products in their capacity as a member of that organization; and (2) acknowledges that they will be added to a directory of users that share the same domain, and that directory data (name, date of signup, and email address) may be visible to other users of the Online Services within the same organization’s domain. All of the terms of the Agreement applicable to Customer (as amended and supplemented by these Individual User Purchase Terms) also apply to Customer Individual User.
Assignment and assumption of rights and responsibilities.
- For Customer Individual User purchases, the organization within which Online Services are used, as the owner of the domain associated with the authentication identity used for the purchase, may assume control over and manage Customer Individual User’s use of the Online Services. If it does, the organization’s designated administrator (the “Administrator”) may (i) control and administer Customer Individual User’s account, including modifying and terminating Customer Individual User’s access, and (ii) access and process Customer Individual User’s data, including the contents of Customer Individual User’s communications and files. For other Individual User purchases, the Administrator has the rights described in (i) and (ii) above from the time of purchase.
- For any Individual User purchase, the Administrator may assume responsibility for future subscription fees or renewal fees. In such case, the Individual User must cancel the original subscription prior to the next renewal to avoid incurring any further payment obligation with respect to such subscription.
- Effective upon any assumption of control or responsibility by the Administrator over the Online Services, the subscription or associated fees, Individual User hereby assigns to such Customer organization all of its right, title and interest, if any, in the Products arising out of this Agreement. Centauri Consulting may inform Individual User that Customer’s organization has assumed control of the Online Services covered by Individual User’s subscription or responsibility for the associated payment obligations, but Centauri Consulting is under no obligation to provide such notice.
Data Subject Requests. Except where the Administrator has assumed control over the account, Customer Individual Users should direct data subject requests and privacy inquiries directly to Centauri Consulting. For other Individual Users, since the organization is managing the account associated with Individual User’s subscription and administering use of the Online Services, Individual User should direct data subject requests and privacy inquiries to its Administrator.
- The “Privacy” section is replaced as follows.
Individual User’s privacy is important to Centauri Consulting. Please read the Centauri Consulting Privacy Statement https://www.centauri.co.ke/privacy ) as it describes the types of data Centauri Consulting collects from Individual user and Individual User’s devices (“Data”), how Centauri Consulting uses that Data, and the legal bases Centauri Consulting has to process that Data.
- The sections entitled “Confidentiality” and “Partners” do not apply to Individual Users.
- The first paragraph of the “Pricing and Payment” section is replaced as follows:
For Individual User purchases, pricing and payment terms for a given order are set by Centauri Consulting, and Individual User will pay the amount due to Centauri Consulting. In such case, Individual User remains solely responsible for timely payment of all amounts due to Centauri Consulting in connection with the Products ordered by Individual User under this Agreement until they terminate the Agreement.
- The “Independent Contractors”, “Agreement not exclusive”, and “Assignment” paragraphs included in the “Miscellaneous” section do not apply to Individual Users.
- The “Amendments” paragraph included in the “Miscellaneous” section is replaced as follows:
Centauri Consulting may modify this Agreement from time to time by notifying Customer. Changes to the Use Rights will apply as provided in this Agreement. Other changes are deemed to be accepted if Customer continues to purchase or consume Centauri Consulting and/or Non-Centauri Consulting Products. Centauri Consulting may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.
- The below paragraph is added to the “Severability” paragraph of the “Miscellaneous” section:
For Individual User purchases, the “Binding arbitration and class action waiver” clause below describes what happens if parts of that “Binding arbitration and class action waiver” clause are found to be illegal or unenforceable. The “Binding arbitration and class action waiver” clause prevails over this section if inconsistent with it.
- The “No third-party beneficiary” paragraph of the “Miscellaneous” section is replaced as follows:
For Individual User purchases, except for the “Binding arbitration and class action waiver” clause below, this Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
- The “Applicable Law” paragraph of the “Miscellaneous” section is replaced as follows:
For Individual User purchases, If Customer lives in (or if an organization has assumed the obligations of Customer under of the “License to Use Centauri Consulting Products” section above, and has its principal place of business in) the The Republic of Kenya, the laws of the state where Customer lives (or where the organization’s principal place of business is located) govern all claims, regardless of conflict of laws principles, except that the Federal Arbitration Act governs all provisions relating to arbitration. Customer and Centauri Consulting irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Nairobi County, for all disputes arising out of or relating to this Agreement or the Centauri Consulting Product that are heard in court (excluding arbitration and small claims court). The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.
- The “Dispute resolution” paragraph of the “Miscellaneous” section is replaced as follows:
- Binding arbitration and class action waiver. For Individual User purchases, If you live in (or if an organization has assumed the obligations of Customer under the “License to Use Centauri Consulting Products” section above, and has its principal place of business in) The Republic of Kenya.
Customer and Centauri Consulting agree to try for 60 days to resolve any dispute informally. If no resolution is reached, Customer and Centauri Consulting agree to binding individual arbitration before the Chartered Institute of Arbitrators (CIArb) Kenya under the Arbitration Act, and not to sue in court in front of a judge. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the ACT. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. For purposes of this “Binding arbitration and class action waiver” clause, “Centauri Consulting” includes Centauri Consulting and its affiliates, and “Customer” includes any organization that assumed Customer’s obligations under the “License to Use Centauri Consulting Products” section above.
- Disputes covered – everything except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between Customer and Centauri Consulting concerning the Product, its price, advertising, marketing, communications, the purchase transaction, billing, or this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Customer’s, Customer’s licensors’, Centauri Consulting’s, or Centauri Consulting’s licensors’ intellectual property rights.
- Mail a Notice of Dispute first. If Customer has a dispute and Centauri Consulting’s customer service representatives can’t resolve it, send a Notice of Dispute by Mail to Centauri Consulting Limited, ATTN: LTT Arbitration, Kirawa Road, Nairobi, Kenya. Include Customer’s name and contact information, what the problem is, and what Customer wants. Centauri Consulting will do the same if it has a dispute with Customer. After 60 days, Customer or Centauri Consulting may start an arbitration if the dispute is unresolved.
- Small claims court option. Instead of mailing a Notice of Dispute, Customer may sue Centauri Consulting in small claims court in Customer’s county of residence (or, if an organization assumed Customer’s obligations, its principal place of business) or Nairobi County, Republic of Kenya. if the dispute meets the court’s requirements.
- Arbitration procedure. The CIArb will conduct any arbitration under its Commercial Arbitration Rules (or its Consumer Arbitration Rules if Customer is an individual and Uses the Product for personal or household use, or if the value of the dispute is Kshs2,000,000 or less, whether or not Customer is an individual and regardless of how Customer Uses the Product). In a dispute involving Kshs500,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in Customer’s county of residence (or, if an organization assumed Customer’s obligations, its principal place of business) or Nairobi County. Customer chooses. The arbitrator may award the same damages to Customer individually as a court could. The arbitrator may award declaratory or injunctive relief only to Customer individually to satisfy Customer’s individual claim. Under CIArb Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
- Arbitration fees and payments.
- Disputes involving Kshs2,000,000 or less. Centauri Consulting will promptly reimburse Customer’s filing fees and pay the CIArb’s and arbitrator’s fees and expenses. If Customer rejects Centauri Consulting’s last written settlement offer made before the arbitrator was appointed, Customer’s dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards Customer more than this last written offer, Centauri Consulting will: (i) pay the greater of the award or Kshs50,000; (ii) pay Customer’s reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that Customer’s attorney reasonably accrues for investigating, preparing, and pursuing Customer’s claim in arbitration.
- Disputes involving more than Kshs2,000,000. The CIArb rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Must file within one year. Customer and Centauri Consulting must file in small claims court or arbitration any claim or dispute (except intellectual property disputes) within one year from when it first could be filed. Otherwise, it is permanently barred.
- If any part of the “Binding arbitration and class action waiver” clause is found to be illegal or unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow class-wide or representative arbitration, the section will be unenforceable in its entirety.
- Conflict with CIArb rules. This Agreement governs to the extent it conflicts with the CIArb’s Commercial Arbitration Rules or Consumer Arbitration Rules.