Centercode, Inc. (“Centercode”) is a provider of a hosted, cloud-based software platform called the “Centercode Platform” used by customers to establish and maintain effective user testing programs. Centercode also offers a collection of related services available to assist its customers in building and maintaining successful user testing programs based on the Centercode Platform.

This Centercode Services Agreement, together with all associated Order Forms entered into between you and Centercode (collectively, the parties’ “Agreement”), specifies the rights and obligations of both you and Centercode regarding your subscription to the Centercode Platform and related services. If you are entering into this Agreement on behalf of a company or other legal entity, the terms “you” and “your” refer to such entity. You are responsible for the actions of your employees, contractors, agents, end users, and Account Holders. This Agreement commences on the Effective Date and continues in effect until terminated in accordance with its terms.

Definitions

As used in this Agreement and in any associated Order Forms:

Account Holder(s) means your end users of the Centercode Platform, including employees, representatives, consultants, contractors, prospective and actual test participants, or other third parties who are invited or allowed to access and/or use the Services, regardless of their account type.

Add-Ons means any additional Centercode Platform enhancements, features, or other add-ons, all as identified in the applicable Order Form.

Applicable Data Protection Laws means legislation and rules and regulations adopted thereunder, as amended or superseded from time to time, relating to data protection and privacy applicable to the processing of Personal Data in connection with the Services, including applicable United States federal laws, Applicable US State Privacy Laws, and Applicable European Data Protection Laws, in each case where and to the extent applicable.

Applicable European Data Protection Laws means data protection and privacy laws in the European Union, the EEA, and their member states, Switzerland, and the United Kingdom and their implementing regulations, as amended or superseded from time to time, including: (i) the GDPR; (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) the GDPR as it forms part of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance (“Swiss FDPA”); and (v) other applicable data protection and privacy laws and regulations of the European Union, the EEA, and their member states, Switzerland, and the United Kingdom, in each case where and to the extent applicable.

Applicable US State Privacy Laws means U.S. state data protection and privacy laws and their implementing regulations, as amended or superseded from time to time, including but not limited to: (i) the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (the “CCPA”); (ii) the Colorado Privacy Act; (iii) the Connecticut Personal Data Privacy and Online Monitoring Act; (iv) Utah Consumer Privacy Act; and (v) Virginia Consumer Data Protection Act, in each case where and to the extent applicable.

Centercode Content means all data, text, software, technology, user interfaces, graphics, images, video, sounds, templates, algorithms, logos, trademarks, trade names, copyrights, and other information incorporated by Centercode into the Centercode Platform or Deliverables, but not including your Customer Data or content provided by or on behalf of you or your Account Holders in connection with the Services.

Centercode Platform means Centercode’s proprietary, cloud-based software-as-a-service platform designed for user testing programs.

Centercode Platform Subscription Services means subscription-based access to the Edition(s) of the web-based Centercode Platform plus any Centercode Platform Subscription Service Add-Ons and Centercode Platform Support, all as further specified in the applicable Order Form.

Customer Data means the data submitted or provided by you or your Account Holders to your implementation(s) of the Centercode Platform while using the Services.

Data Processing Addendum means the parties’ operative data processing terms and conditions as described in Section 6 of this Agreement.

Deliverable means any deliverable created by Centercode for you pursuant to Professional Services.

Edition(s) means the various configurations of the Centercode Platform offered by Centercode.

Effective Date means the date that an Order Form incorporating this Agreement is signed (including electronically) or, if earlier the date you begin using the Services.

Excluded Data means any government-issued identification numbers (drivers’ license, social security, passport, etc.), credit, debit, or other payment card or bank account information (including all information for which Payment Card Industry Data Security Standard (PCI DSS) applies), biometric information, personal health information regulated pursuant to applicable health data protection laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), personal information of children protected under any Applicable Data Protection Laws or other applicable law related to children (including the Children’s Online Privacy Protection Rule (COPPA) and the GDPR), and information that constitutes “special categories of data” as defined under the GDPR (or the equivalent under Applicable Data Protection Laws modeled on the GDPR).

GDPR means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation).

Intellectual Property Rights means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Order Form means the order form evidencing the Centercode Platform Subscription and/or related Professional Services entered into pursuant to this Agreement, either accepted by you electronically online through Centercode’s systems or executed by both parties to this Agreement.

Personal Data means any Customer Data that relates to an identified or identifiable individual where the information is protected as personal data or personal information under Applicable Data Protection Laws.

Platform Support means support provided by Centercode’s Platform Subscription Services support team to you in connection with your use of the Centercode Platform, including any annually-renewing enterprise platform support services where purchased, as further specified in the applicable Order Form.

Professional Services means services provided by Centercode to you other than Centercode Platform Subscription Services, including but not limited to platform onboarding and training, customer support projects, managed testing Services (e.g., tasks related to tests, test projects, and test programs), technical Services, and other professional services designed to help you optimize your Centercode Platform Subscription Services and/or build and run a successful user testing program.

Services means the Centercode Platform Subscription Services and Professional Services as identified in one or more Order Forms.

Service Term means, in the case of Centercode Platform Subscription Services, the period during which you are granted the right to access and use the Centercode Platform Subscription Services as specified in the Order Form, and in the case of Professional Services, the term for such Professional Services engagement as specified in the Order Form.

Standard Contractual Clauses means standard contractual clauses for the transfer of Personal Data to Processors established in third countries which do not ensure an adequate level of data protection as described in Article 46 of the GDPR. 

Sub-Processor means a third-party engaged by Centercode in connection with Centercode’s performance of the Services that Processes Customer’s Personal Data. The term Sub-Processor does not include any Centercode personnel, whether employee or independent contractor.

Test Materials means test product, applications, and technology, or related project information or materials owned by you or your affiliates, partners, or third-party contacts.

1. Services and Order Forms

Centercode Platform Subscription Services and Professional Services are ordered by entering into an Order Form. Each Order Form includes the Service Term(s), the fees for the Service(s) (the “Fees”), any pre-authorized expenses, invoicing and billing terms, and any other additional terms and conditions. An Order Form for Centercode Platform Subscription Services will specify the details and limits of the Centercode Platform subscription, including the number of instances of the Centercode Platform ordered, the Edition(s), the maximum permitted number of total Account Holders and/or limits on the number/types of specified roles you can assign to your Account Holders, limitations on the number of concurrent active projects, and other subscription parameters. If you have a legacy Centercode Platform subscription, you may have limitations and features that differ from Centercode’s current offerings. Centercode may choose to discontinue a legacy offering at any time, effective at the end of your then-current Centercode Platform Subscription Services Term.

An Order Form including Professional Services or Add-Ons will include details regarding the Professional Services or Add-Ons. Items may be added to the Services by executing additional Order Forms. Unless otherwise agreed in the Order Form, additions to the Services will be coterminous with the preexisting Service Term.

Each such Order Form is incorporated into and becomes a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail. You are authorized to use Centercode’s Services only for their intended purpose, and you may not license, sublicense, sell, resell, transfer, assign, or distribute the Services.

2. Centercode Platform Subscription and Related Professional Services

2.1 Centercode Platform Subscription Services

Centercode offers its Centercode Platform Subscription Services in the form of Editions, which are structured to meet a variety of needs and uses related to user testing programs. Each Centercode Platform Subscription is on your own dedicated database on shared cloud-based infrastructure unless otherwise expressly specified in an Order Form. Subject to your compliance with the terms and conditions of the Agreement, you may access and use any Centercode Platform Subscription Services you have ordered for the Service Term set forth in the associated Order Form and solely for your own internal business purposes. A Centercode Platform Subscription is an agreement for access and use, and you are not granted a license to any software under this Agreement or any Order Form. You acknowledge that Centercode may update or modify any component of the Centercode Platform at any time in its sole discretion. Centercode Platform Subscription Services are sold with a maximum number of total Account Holders and/or specific Account Holder types. If you exceed the maximums specified in your Order Form, you will be required to reduce your use to within the Order Form limit(s) or, alternatively, execute a new Order Form to increase your limit(s), and in addition, upon renewal, you will renew at limits that reflect your current Account Holders.

2.2 Professional Services

Centercode offers Professional Services designed to help Centercode Platform Subscription Service customers build and/or maintain their user testing programs. Centercode shall provide the Professional Services to you as specified in the associated Order Form and, where applicable, as further described in any project or program plan(s) approved by both parties under any Order Form (including by email approval by your project team) (the “Project Plan”). Professional Services typically involve prospective and actual product and service test participants who apply for and/or join your Centercode Platform community and/or test project(s) as Account Holders (“Participants”). The Order Form for Professional Services will also specify the applicable limits to the Professional Services, including the Service Term, and any other limits such as the length of the engagement(s), limits on the number of Participants, any total or periodic hours limit, or other Professional Service parameters. You agree to provide any assistance and cooperation reasonably necessary to facilitate the Professional Services or as called for in the Order Form or any Project Plan.

‍The additional terms and conditions in the Professional Services Addendum attached to this Agreement apply to Professional Services.

2.3 Centercode’s Use of Your Platform Implementation for Professional Services

Professional Services are performed by Centercode using the Centercode Platform. Unless otherwise expressly agreed in a written document executed by both parties, Professional Services are conducted on your own subscribed implementation(s) of the Centercode Platform and you must therefore have an active Centercode Platform Subscription with a sufficient number of available projects and Account Holders (and account types) in that implementation to allow for performance of the Professional Services. Professional Services do not include a Centercode Platform Subscription. If your Centercode Platform Subscription Services Term expires during the Professional Services Term you will be required to renew your Centercode Platform Subscription Services to allow for the performance of the Professional Services. If you do not renew, or you terminate your Subscription Services, at the expiration or other termination of your Centercode Platform Subscription Services, all Professional Services shall be deemed fully performed and notwithstanding anything to the contrary in an Order Form (including any invoice schedule), Centercode shall be entitled to full payment for such Professional Services, to be invoiced immediately upon termination or expiration of the Subscription Services. Additionally, if you do not have sufficient available projects on your implementation or available Account Holders (and account types), you will be required to modify your Centercode Platform Subscription Services to allow for the performance of the Professional Services.

3. Confidential Information

3.1 Definition of Confidential Information

As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including but not limited to pricing and other terms reflected in all Order Forms hereunder, the Customer Data, business and marketing plans, technology and technical information, present or proposed product designs, engineering and technical data, and business processes). Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received by the Receiving Party from a third party without breach of any obligation it owes to the Disclosing Party.

3.2 Confidentiality

The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and the Services (including the provision of customer and technical support), except with the Disclosing Party’s prior written permission (including by email) or as provided in Section 3.3 (Compelled Disclosure), Section 5 (Customer Data), or the Professional Services Addendum. Notwithstanding the foregoing, Centercode may disclose Confidential Information to its third-party subcontractors in connection with the performance of the Services, but prior to doing so, it shall ensure that the third-party subcontractors are bound by appropriate confidentiality obligations and Centercode shall remain responsible for the actions of such subcontractors. In addition, you understand and agree that Centercode will identify itself as your service provider when interacting with your Account Holders and other third parties as required to perform the Services. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

3.3 Compelled Disclosure

If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

3.4 Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality provisions in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

4. Your Responsibilities

You are responsible for the use of the Services by your Account Holders. You represent, warrant, and agree that you and your Account Holders will use the Services, and collect, share, and otherwise process the Customer Data in accordance with the terms of this Agreement, in compliance with the Centercode Terms of Use (https://www.centercode.com/terms/), and in compliance with all applicable local, state, national and foreign laws, treaties and regulations, including but not limited to those related to data privacy. Your Account Holders must be at least 18 years of age (or older where required under law that applies to you or your use of the Services). Each Account Holder must have a unique account with a unique user identification and password. The sharing of Account Holder accounts is prohibited. You agree that neither you nor your Account Holders will use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third-party privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree that neither you nor your Account Holders will interfere with or disrupt the integrity or performance of the Centercode Platform, the Services, or the data contained therein, attempt to gain unauthorized access to the Centercode Platform, the Services, or related systems or networks (whether through the Services or otherwise), or reverse engineer, decompile, decipher, translate, disassemble, or otherwise attempt to access source code related to the Centercode Platform.

IN ADDITION, YOU ACKNOWLEDGE THAT THE SERVICES HAVE NOT BEEN DESIGNED TO COLLECT OR PROCESS EXCLUDED DATA AND ACCORDINGLY AGREE NOT TO USE THE SERVICES TO COLLECT OR PROCESS EXCLUDED DATA. CENTERCODE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE OUT OF OR RESULT FROM YOUR USE OF THE SERVICES TO COLLECT OR PROCESS EXCLUDED DATA.

You are responsible for (a) providing to your Account Holders, and complying with, legally adequate privacy notices; and (b) obtaining and maintaining any necessary consent from your Account Holders for the collection, use, transfer, and storage of any Personal Data of any individual that you (or any third-party or service provider you use, including Centercode) may access in connection with your use of the Services. You agree to notify Centercode immediately of any known or suspected unauthorized use of the Centercode Platform or the Services.

Centercode reserves the right to suspend any Account Holder’s account and/or the Services in the event it reasonably suspects a violation of the provisions in this Section 4 as needed to investigate and respond to the violation, provided that Centercode has no duty (except as provided in applicable law) to monitor or edit your Customer Data or monitor your Account Holders’ use of the Services. Centercode will act in good faith to limit the suspension to the affected Services and to promptly resolve the issues leading to the suspension. Nothing in this paragraph limits any rights Centercode has to terminate for cause as described in Section 12.

5. Customer Data

Customer Data is and shall remain your property, and as against Centercode, you shall have all right, title, and interest, including worldwide ownership of all Intellectual Property Rights in and to the Customer Data. You hereby grant Centercode a royalty-free, nonexclusive, perpetual, worldwide, and irrevocable right and license during the term of this Agreement (or any period after the term during which Centercode processes your Customer Data) to access, copy, process, and use the Customer Data solely for the purpose of (i) providing the Services (including customer and technical support) to you, including without limitation providing customer support to you and your Account Holders; (ii) creating aggregate and not personally identifying measures of any Centercode Platform usage, engagement, and performance; and (iii) maintaining and improving any component of the Services.

You agree that Centercode may, in connection with its performance of Services for you and promotion of your user testing program, identify you by name, trademark, and/or logo as a customer and as directed or approved by your employee or other representative (including by email), use your name, trademark, service mark, logo, or other proprietary content (e.g., use of your proprietary content in your Centercode Platform implementation or in a third-party communication or notice to Participants).

As part of the Services, Centercode is responsible for creating and maintaining backups of the Customer Data. You are responsible for exporting any archive or copy of Customer Data that you wish to have using the export capabilities of the Centercode Platform prior to deleting this data from your Centercode Platform implementation.

Confidential Information, including Customer Data, is processed on the cloud-based infrastructure underlying the Centercode Platform at a secure third-party data center (US-based location unless otherwise specified in the Agreement or Order Form), including Amazon Web Services, Inc. In addition, Platform Support is provided to your Account Holders with certain administrative or internal support team types through Centercode Platform features hosted by HubSpot, Inc. Information about this and other Centercode Sub-Processors are described at https://www.centercode.com/legal/sub-processors, which Centercode may update from time to time upon written notice to you (including by email to your administrative users of the Centercode Platform). By entering into this Agreement, you approve of these Sub-Processors. Regardless of which country you are based in, you authorize Centercode to process the Customer Data in the United States, where Centercode is located, and in the jurisdictions of processing by its Sub-Processors. Where required by applicable law, you shall provide your Account Holders with clear notice of and/or obtain their consent to the processing of Account Holders’ Personal Data in these countries.

You shall have sole control of and are solely responsible for your Customer Data and all information and data you or your Account Holders collect, store, or process using the Services. You warrant that you own or otherwise have sufficient rights in this data (including the Customer Data), and shall maintain all rights necessary to grant to Centercode the rights granted in this Section 5.

The Services may provide you with the capability to integrate the Services with other third-party products (“Third-Party Products”) and/or add Customer Data to the Services from, or share Customer Data from the Services to, the systems, applications, and/or platforms of these third parties. Centercode is not a party to the terms under which you order Third-Party Products and/or collect or share the data from the third party. Centercode is not responsible for, and makes no warranties with respect to, your Third-Party Products, the actions of such third parties, or the data that you obtain or process using Third-Party Products.

Where, as a part of the Services, you direct or approve the use of any Centercode Platform feature that integrates your Centercode Platform implementation with a Third-Party Product, you understand and agree that where you have the contractual relationship with the third party, the third party is your direct service provider/sub-processor and not Centercode’s Sub-Processor, and where Centercode has the contractual relationship with the third party, it is Centercode’s Sub-Processor, and that by using the third-party feature, you approve such third-party Sub-Processor.

6. Data Security and Privacy

Centercode collects data and information about you and your End Users in accordance with its Privacy Policy and its Customer Data Handling Practices Privacy Policy for Customer Data, which you acknowledge and which are incorporated into this Agreement.

Centercode agrees to maintain commercially appropriate administrative, physical, and technical safeguards designed to maintain the security and integrity of the Centercode Platform and the Customer Data that Centercode holds. The terms and conditions of Centercode’s Data Processing Addendum (the “Centercode DPA”) apply and are hereby incorporated by reference into this Agreement to the extent any Customer Data includes Personal Data and/or to the extent Centercode shares Betabound Personal Data with you in connection with its performance of Professional Services (as described in Section 2.4 of the Professional Services Addendum). Your execution of an Order Form incorporating this Agreement by reference constitutes your execution of the then-current Centercode DPA and the applicable appendices thereto, which are incorporated by reference into, and governed by, this Agreement. If requested by Centercode at any time, you agree to separately execute the Centercode DPA and applicable appendices thereto promptly upon request. The Centercode DPA supersedes and replaces any prior data protection/processing agreement(s) executed by the parties except for a Controlling DPA (as defined below).

Where the applicable Order Form identifies a data protection or processing agreement mutually executed by you and Centercode (other than the Centercode DPA) as applying (a “Controlling DPA”), the Controlling DPA, and not the Centercode DPA, shall apply and is hereby incorporated by reference into, and is governed by, this Agreement. Notwithstanding the foregoing, to the extent that the Controlling DPA is not compliant with then-current Applicable Data Protection Laws (including but not limited to it not including Standard Contractual Clauses where such clauses are required under Applicable Data Protection Laws), the Centercode DPA shall apply to the extent necessary to comply with then-current Applicable Data Protection Laws, and to that extent shall also be incorporated by reference into and governed by this Agreement. In the event of any conflict between the Controlling DPA and the Centercode DPA, the Controlling DPA shall apply except as required to comply with Applicable Data Protection Laws.

7. Data Storage

Each Centercode Platform Subscription is provided without a predetermined limit on the amount of disk space allowed for data storage. However, Centercode reserves the right to review the volume of disk space being used for any given implementation of the Centercode Platform. If Centercode determines the volume is excessive in relation to the size of the implementation, you may be asked to remove or archive some of your data or if appropriate, you may be offered an alternative or additional subscription. If you do not agree to make the requested reduction in volume, Centercode reserves the right to impose a limit on the amount of disk space available to you.

8. Intellectual Property Ownership

You acknowledge and agree that Centercode alone shall own all right, title, and interest, including all related Intellectual Property Rights, in and to, the Centercode Platform, including without limitation all software and technology used to provide the Centercode Platform and the Centercode Content included in or reproduced through the Centercode Platform or Deliverables. The Agreement is not a sale and does not convey to you any ownership or Intellectual Property Rights, including without limitation in the Centercode Platform and the Centercode Content. You agree not to copy, sell, rent, create derivative works based on, or distribute the Centercode Platform or the Centercode Content in whole or in part, provided that to the extent that Centercode Content is incorporated into your Deliverables, you are permitted to use the Centercode Content as reasonably necessary in connection with your internal use of any Deliverables. You agree that Centercode is permitted to use and/or incorporate any of the feature requests, ideas, comments, or suggestions by you or your Account Holders into the Centercode Platform, Centercode Content and/or Centercode Services (the “Suggestions”) and that Centercode owns all rights to use and incorporate the Suggestions, without payment or attribution to you or your Account Holders. Centercode reserves all rights not expressly granted to you under this Agreement.

9. Services Fees and Expenses

The Fees for the Services are as specified in the Order Form(s) and are exclusive of all taxes, levies, or duties imposed by taxing authorities, including but not limited to sales tax, VAT, and GST (“Taxes”) relating to the provision of Services to you (excluding Taxes based on Centercode’s gross revenues or net income), and you shall be responsible for payment of all such Taxes. All Fees and other monetary amounts in Order Forms and invoices are stated in U.S. dollars. You are responsible for paying all Fees for the entire Service Term(s), whether or not you actively use the Services for the entire Service Term(s). In addition to the Fees, you must reimburse Centercode for expenses as described in any Order Form or as pre-approved in writing by you, including by email.

10. Billing and Renewal

Invoices are due within thirty (30) days of the date the invoice is delivered to you, unless otherwise provided in the Order Form. Fees for Centercode Platform Subscription Services are billed in advance of the Service Term, unless otherwise specified in an Order Form. Fees and expenses for Professional Services are billed in accordance with the invoice schedule specified in the Order Form. No text or information set forth on any purchase order, preprinted form, or other purchasing document you provide to Centercode (other than an Order Form) shall be applicable or add to, delete, or vary the terms and conditions of this Agreement.

You agree to provide Centercode with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and at least one designated individual authorized to purchase Services via Order Forms and otherwise administer your use of the Services. You agree to update this information within 30 days of any change to it. If you believe your bill is incorrect, you must contact Centercode in writing within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Where you have been permitted by Centercode in its sole discretion to pay amounts due under your Order Form(s) by credit card or ACH bank transfer through Centercode’s online payment interface: (i) you hereby authorize Centercode to charge your card or bank account for all amounts due under the Order Form(s), including immediately upon first ordering the Services and at each renewal of the Service Term as applicable; (ii) if you provide written notice to stop using a previously designated payment method, you must designate an alternative method of credit card or ACH bank transfer payment; (iii) any notice from you to change your billing account information will not affect charges Centercode submits to your account before it can reasonably act on your request; and (iv) Centercode uses a third-party to manage its credit card and ACH bank transfer processing and notice from the third-party to you (including notice by email) that your credit card or ACH transfer has been declined will be deemed to be valid notice from Centercode to you.

At the completion of any annual Service Term for Centercode Platform Subscription Services, your Centercode Platform Subscription Services and any platform consulting services you have ordered that have the same term as your Centercode Platform Subscription Services will automatically renew for an additional one-year Service Term at a price equal to 108% of the Fees for the prior year’s Service Term, unless either party provides written notice at least thirty (30) days before the end of the then-current Service Term. All other Service renewals, including Centercode Platform Subscription Services with a Service Term greater than one year and/or Professional Services, will be documented in an Order Form. 

In the event of a renewal of Services accomplished by your issuance of a purchase order, preprinted form, or other non-Order Form document that is acknowledged or agreed to by both parties, the terms and conditions of the Order Form(s) being renewed shall govern and not the terms and conditions of such purchase order or other document. Except as otherwise specified in this Agreement, Centercode reserves the right to modify its Fees and charges at the start of any new Service Term.

11. Term; Retrieval of Customer Data

Except as expressly provided in an Order Form or as provided in Section 12, termination of, or reduction of any Service under an Order Form during its Service Term shall not relieve you of your obligation to pay all Fees under that Order Form in full for the entirety of that Service Term thereunder and upon any such termination by you without cause, all Fees shall become due and payable immediately notwithstanding any invoice schedule specified in the Order Form. If there is no active Order Form under the Agreement, either party may terminate this Centercode Services Agreement by providing the other party with written notice.

You understand and acknowledge that you can obtain copies of your Customer Data via the data export capabilities of the Centercode Platform. For a period of at least thirty (30) days following termination of your Centercode Platform Subscription Services, you may access your Centercode Platform implementation to retrieve your Customer Data except as provided in Section 12. You further acknowledge that thirty (30) days following termination of this Agreement or any Order Form, Centercode may remove your terminated account and all Customer Data held in that terminated account may be irretrievably deleted. Centercode shall delete your Customer Data, except to the extent Centercode is legally prohibited, no later than the date specified in the Data Processing Addendum.

12. Termination for Cause

Notwithstanding Section 11, either party may terminate the Agreement (including all Order Forms under the Agreement) upon advance written notice if the other party materially breaches a term, condition, or warranty of the Agreement, where such breach has not been cured within 30 days of written notice of such breach. Any breach of your payment obligations or unauthorized use of the Centercode Platform will be deemed a material breach of this Agreement. In the case of termination by Centercode for cause, all Fees shall become due and payable immediately notwithstanding any invoice schedule specified in the Order Form. Centercode will, upon your request made within seven (7) days of termination, provide you with an 8-hour time period at an agreed date to access your Centercode Platform implementation for the purpose of you obtaining copies of your Customer Data via the data export capabilities of the Services. After that time, Centercode may remove your account and all Customer Data may be irretrievably deleted.

13. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it will comply with all applicable local, state, federal, and foreign laws, treaties, and regulations in connection with its delivery and use of the Services.

Any Professional Services performed under this Agreement will be performed in a professional and workmanlike manner by trained and qualified individuals. Centercode represents and warrants that it will provide the Centercode Platform Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Centercode Platform Subscription and Deliverables will not contain or transmit to you or your Account Holders any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”), excluding any Malicious Code included in your data or content, including the Customer Data, or otherwise originating from you or your Account Holders. Centercode warrants that it owns or otherwise has sufficient rights in the Services to grant to you the right to use the Services under this Agreement. Centercode personnel performing Services shall be considered employees or agents of Centercode and not your employees or agents.

Centercode provides a service level agreement to its Centercode Platform Subscription Service customers as set forth in Centercode Service Level Agreement (https://www.centercode.com/sla). If Centercode Platform Subscription Services do not conform to the standards set forth in the Service Level Agreement, your sole remedy shall be the service credits provided in the Service Level Agreement.

14. Disclaimer of Warranties; Internet Delays

Centercode does not represent or warrant that (a) the use of the Services will be uninterrupted or error-free or operate in combination with any other hardware, software, system, or data, (b) the Services will meet your requirements or expectations, (c) any stored data will be accurate or reliable, or (d) errors or defects will be corrected. Except as expressly provided otherwise in this Agreement, the Services are provided to you strictly on an “as is” and as available basis and all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Centercode and its licensors. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Centercode is not responsible for any delays, delivery failures, or other damage resulting from such problems to the extent there is reasonable evidence they are beyond Centercode’s control.

15. Indemnification

You shall indemnify, defend and hold Centercode and its parent organizations, subsidiaries, affiliates, contractors, officers, directors, employees, attorneys and agents harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including attorneys’ fees and costs) arising out of or in connection with or alleging: (i) that your data or content processed using the Services, including the Customer Data, or the Test Materials, infringed the Intellectual Property Rights of a third party; (ii) the injury, death, personal, or property damages arising out of or related to distribution of, or the third party’s use of, the Test Materials; (iii) a violation by you or your employees, contractors, agents, or Account Holders of applicable law or regulations or the Centercode Terms of Use; or (iv) your negligence or breach of your obligations under this Agreement.

Centercode shall notify you promptly in writing of any matters for which the indemnity may apply to allow you to investigate and defend the matter; provided, however, the failure to give such notice will only relieve you of your indemnity obligations hereunder to the extent that you are prejudiced thereby. You shall have sole control of the defense and all negotiation for any settlement or compromise, provided, however that no such third-party claim or action may be settled or compromised by you without the express written consent of Centercode, which shall not be unreasonably withheld. Centercode shall have the right at its sole cost and expense to participate in any such legal proceeding with counsel of its own choosing and agrees to reasonably assist you in the defense of the claim.

16. Limitation of Liability

IN NO EVENT SHALL CENTERCODE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, WARRANTY, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, PROVIDED, HOWEVER, THAT IN THE CASE OF BREACH OF THE OBLIGATIONS SET FORTH IN SECTIONS 3 OR 6, THIS LIABILITY CAP SHALL BE $100,000, IF GREATER.

IN NO EVENT WILL CENTERCODE BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

THE LIABILITIES LIMITED BY THIS SECTION 16 APPLY: (A) TO ALL LIABILITY (INCLUDING FOR NEGLIGENCE); (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF CENTERCODE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 16, Centercode’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Centercode’s liability limits and other rights set forth in this Section 16 apply likewise to Centercode’s affiliates, licensors, suppliers, Sub-Processors, agents, directors, officers, employees, consultants, and other representatives.

17. Local Laws and Export Control

Certain software and technology are subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You acknowledge and agree that the Services shall not be used to transfer or otherwise export or re-export any such software or technology to countries which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and foreign export and import laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. You agree that you are responsible for any sales, services, use, excise, import, export, property, value added, or other taxes or duties assessed or imposed on Centercode or its service providers in connection with or as a result of the processing of your data or the distribution of your data or Test Materials through the Services.

Centercode makes no representation that the Services are appropriate or available for use in other locations. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

18. Modification

Centercode may modify or amend any part of this Centercode Services Agreement by posting a revised version at http://centercode.com/CSA. The revised version will become effective and binding thirty (30) days after Centercode sends you notice of the revision unless you provide Centercode with a written notice of objection before that effective date, in which case your then-existing Services will continue to be governed by the terms and conditions of the prior version until the date specified in the final sentence of this Section 18, except with respect to modifications that Centercode reasonably determines are required based on applicable law. Notwithstanding the foregoing, upon execution of any Order Form (including execution of a new Order Form, a renewal Order Form, or change Order Form), the then-applicable Centercode Services Agreement version linked to in the Order Form will apply to your Services without any obligation for Centercode to provide you with notice of revision.

19. Notice

Centercode may give notice by electronic mail to your email address on record in the Centercode Platform account information, or by written communication sent by first class postage prepaid to your address on record in the Centercode Platform’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class postage prepaid) or 12 hours after sending (if sent by email). You may give notice to Centercode at any time by any of the following: letter delivered by nationally recognized overnight delivery service, or first-class postage prepaid mail to 25950 Acero, Suite 110, Mission Viejo, CA 92691, Attention: President & CEO, or by email to legal@centercode.com.

20. Assignment; Change in Control

This Agreement may not be assigned by either party without the prior written approval of the other party, except that it may be assigned upon notice by either party to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of the assets, stock, or ownership interests of a party, or (iii) a successor by merger. Any purported assignment in violation of this Section 20 shall be void.

21. Non-Solicitation

Neither party may solicit the employees of the other party for employment during the course of the Agreement and for a period of one (1) year following termination of the Agreement without the written consent of the other party, provided that either party may at any time make general solicitations for employment to a broad class of persons that may include the other party’s employees but that are not targeted to one or more of the other party’s employees, and provided further that this Section 21 shall not apply to the extent prohibited by applicable law.

22. General

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. If either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control without its fault or negligence, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Centercode as a result of this Agreement or use of the Services, and neither party may bind the other party by contract or otherwise to any obligation or act which implies a relationship other than that of independent contractor. Nothing in this Agreement is intended to confer any right, benefit, or remedy upon any third party under or by reason of this Agreement. The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Order Forms may be executed in counterparts. The parties agree that execution of any Order Form incorporating this Agreement by reference constitutes execution of this Agreement, and that any Order Form may be electronically signed and that such electronic signature(s) are the same as handwritten signatures for the purposes of validity, enforceability and admissibility. This Agreement, together with any applicable Order Form and any document expressly incorporated herein, comprises the entire agreement between you and Centercode and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Except as provided in Section 18, this Agreement and any Order Form(s) may only be amended by written agreement of the parties, provided that nothing in this Agreement shall prohibit Centercode from amending its privacy policies and Centercode Terms of Use at any time by posting a new version of either on its website, and such new version will become effective on the date it is posted.

1. User Testing and Professional Services Generally

Professional Services typically involve user testing Services conducted by Centercode on your behalf. In most circumstances, these user testing Services are documented either in the Order Form alone, or an Order Form and a Project Plan. These Professional Services can be scoped for discrete tasks, a complete user testing project or projects, or a user testing program that spans a longer period. The scope can include wide variety of tasks, such as project design, sourcing, selection, and onboarding of Participants, coordination of Test Materials delivery, running of the project using the Centercode Platform, reporting on the Participant feedback, and project closure (meetings, reports, and distribution of thank-you gifts to Participants). 

Unless otherwise expressly agreed in a written document executed by both parties, Professional Services are conducted on your own subscribed implementation(s) of the Centercode Platform.

2. Participants

2.1 Generally; No Warranty by Centercode re Participants

Professional Services typically involve the use of Participants. Participants may include persons originating from the community of third-party volunteers interested in serving as test participants who are registered in Centercode’s online test participation portal and database known as “Betabound” and/or other Participants. The Participants are unrelated third parties and NOT employees or contractors of Centercode. The Participants do NOT become employees or contractors of Centercode as a result of their participation in a test of your product or service. Centercode has no control of, or responsibility for any act or statement on the part of any individual Participant, or the group of Participants as a whole. In connection with Professional Services involving recruitment by Centercode, data is self-provided by these third parties and CENTERCODE DOES NOT PERFORM IDENTITY VERIFICATION SERVICES AND MAKES NO WARRANTIES REGARDING THE PARTICIPANTS’ IDENTITIES OR THE ACCURACY OF THE INFORMATION THAT THE PARTICIPANTS PROVIDE TO CENTERCODE OR TO YOU, OR REGARDING ANY PROMISES PROVIDED BY, OR ACTIONS OF, THE PARTICIPANTS TO CENTERCODE, TO YOU, OR OTHERWISE, EVEN IF CENTERCODE SOURCES THE PARTICIPANTS.

2.2 Voluntary Participation

Participation by any Participant in a user testing project performed as a part of the Professional Services is strictly voluntary. The Participants may receive thank-you gifts from you or from Centercode, as provided in the Order Form or in the Project Plan. Participants receive no cash compensation from Centercode or guaranteed thank-you gift resulting from their involvement in any such test unless specified in the Project Plan.

2.3 Recruitment

Where Centercode sources Participants for you as a part of the Professional Services other than from your proprietary lists provided by you to Centercode, notwithstanding anything to the contrary in the Agreement, you hereby grant Centercode permission to recruit those Participants into and/or from Centercode’s Betabound portal prior to inviting those Participants to join your own project and/or Participant community. In this case, Centercode is entitled to retain the information it collects from those Participants into its Betabound portal following termination of your Services, as long as that information does not include information specific to your user testing projects.

2.4 Your Obligations with Respect to any Personal Data Centercode Shares With You

Professional Services do not typically involve Centercode sharing Personal Data of Participants with you. Rather, Participants generally provide their Personal Data directly to you (e.g., through their accounts on your Centercode Platform implementation). However, in any unique circumstance where Centercode shares the Personal Data of members of its Betabound community (the “Betabound Personal Data”) with you, you understand and agree that Centercode does so exclusively for purpose of your internal use of the user testing project results that are included within the Deliverables (the “Purpose”). At no time does any sharing of information about these Participants by Centercode with you reduce, alter, or eliminate any right that Centercode has in this data, even if it is included within the Deliverables provided to you. Centercode has made promises to these Participants regarding the use of their personal data in its privacy policy available at https://www.betabound.com/privacy/ for Participants registered on Betabound. Therefore, in circumstances where Centercode shares this Betabound Personal Data with you, you agree to hold this Betabound Personal Data in a secure manner, protecting it as provided in the Agreement and with at least the same degree of care as you protect your own confidential and proprietary information and as applicable, to the standards specified in the parties’ Data Processing Addendum. In addition, unless you independently, and in compliance with applicable law, including Applicable Data Protection Laws, have or obtain the rights to use the Betabound Personal Data for another purpose, you agree (i) to retain, use, and/or disclose it solely for the Purpose; and (ii) that at no time will you sell it or use it in an effort to sell or promote your products or services to such individuals outside of the context of the applicable project. You agree to indemnify, defend, and hold harmless Centercode from and against, and Centercode shall have no liability for, all claims, actions, and expenses, arising out of or related to your misuse of the Betabound Personal Data. You acknowledge that any breach of this paragraph by you would cause irreparable injury to Centercode for which monetary damages would not be an adequate remedy and, therefore, Centercode will be entitled to injunctive relief.

2.5 Participant Agreements

If you wish to obtain any agreement of prospective or actual Participants in your Centercode Platform implementation community or in your user testing projects, including an agreement to: (a) not disclose information regarding the Test Materials, the project, or other confidential or proprietary information, (b) actively participate in the project, (c) return or uninstall any Test Materials at the conclusion of the project, (d) obtain rights to their feedback, (e) secure for yourself specific rights to use their personal data, or (f) any other item, you must provide an appropriate Participant agreement in advance of Community onboarding (in the case of a community agreement) or the start of a project (in the case of a Participant agreement for a project), and SUCH AGREEMENT MAY NOT HAVE CENTERCODE AS A PARTY (i.e., it must be executed exclusively between you and the individual Participants). You additionally permit Centercode to require Participants to agree to Centercode’s Centercode Terms of Use (https://www.centercode.com/terms/) when the Participants join your community or a particular project.

2.6 Use of Test Materials by Participants

Centercode shall not be responsible for loss or damage to the Test Materials other than where the Test Materials are in the possession and control of Centercode and are damaged or lost due to Centercode’s gross negligence. Centercode shall not be responsible for injury (personal or property), loss, or damages of any kind due to use of the Test Materials by any Participant or installer. You will indemnify, defend, and hold harmless Centercode from and against, and Centercode shall have no liability for, all claims, actions, and expenses, arising out of or related to a Participant’s or any installer’s use of the Test Materials or the Test Materials’ failure to comply with applicable law or regulation.

3. User Testing Professional Service Details

3.1 Disclosure of Your Confidential Information to Participants, Installers, and Application Distributors

The Services may involve Centercode providing, on your behalf, Test Materials to Participants (and, where called for in connection with the Services, to Test Material installers or application distributors). If your team directs Centercode to disclose confidential or proprietary Test Materials to any Participant or installer/application distributor in connection with the Services, you warrant that you have the right to provide those Test Materials to Centercode, the Participants, and any installers or application distributors. Centercode shall not be in breach of any provision in the Agreement regarding non-disclosure of confidential and/or proprietary information or non-publicity in delivering the Test Materials to these third parties and Centercode has all required consent under the Agreement to do so.

3.2 Shipment of Test Materials to Participants

Where the Professional Services involve shipment or delivery of Test Materials by Centercode, on your behalf, to (and/or back from) Participants and/or any installers, you agree that you are solely responsible for payment of all related taxes, duties, and tariffs. Where any shipment or delivery by Centercode in connection with the Professional Services is made to individuals located outside of the United States, while Centercode may prepare the packages for shipment, it does so on your behalf and you are responsible for any export-related approvals or filings related to the Test Materials. You (and not Centercode) serve as the exporter of record with respect to the export from the United States and serve as the selling party on the commercial invoice that is required to be included with the international shipment. You also serve as the ultimate recipient of any Test Materials sent into the United States from a foreign country for purposes of Test Material distribution to your Participants, and for shipment of Test Materials back to the United States (whether directly sent to you or sent indirectly through Centercode). Centercode is not your agent for purposes of any export or import related approvals and filings. Where Centercode prepares the commercial invoices and/or shipments for you, it does so based on information provided by you and relies upon the accuracy of this information and your determination that the delivery or shipment of the Test Materials to Participants and any installers complies with applicable law and regulation. You will indemnify, defend, and hold harmless Centercode from and against, and Centercode shall have no liability for (a) all claims, actions, and expenses, arising out of or related to any failure of such shipment or delivery to comply with applicable law or regulation (other than due to Centercode’s negligence), (b) any taxes, duties, tariffs, etc. related to delivery or shipment of the Test Materials to Participants or the return delivery or shipment of the Test Materials back from the Participants, or (c) any liability (other than due to Centercode’s gross negligence) arising out of or relating to Centercode having shipped or received Test Materials on your behalf.

4. Centercode Training and Onboarding Services

Centercode training and onboarding Services, including program onboarding and platform training, are available as Professional Services offered at an additional cost. Training and onboarding Services are as specified in the Order Form, and unless the Order Form provides for customer-site training or onboarding, all onboarding and training Services are provided remotely from Centercode’s office.

5. Technical Services

Your Order Form will provide details about any task-based technical Professional Services (e.g., Centercode Platform integration work or Centercode Platform configuration work). The scope and limits of any such Services are designated in an Order Form.

6. Additional Approved Sub-Processors for Professional Services

To perform Professional Services involving user testing Professional Services (tasks, projects, or programs), Centercode will have the need to remove your Customer Data from the Centercode Platform and your Customer Data is consequently processed by additional third-party Sub-Processors. Therefore, in addition to the Sub-Processors approved in Section 5 of the Agreement, when performing the Professional Services, Centercode may use the following additional third-party Sub-Processors, which you expressly consent may process your Customer Data at Centercode’s direction:

• General Office Services/Email – Google LLC (data center locations worldwide as specified by Google from time to time), and HubSpot, Inc. (data center locations worldwide as specified by HubSpot from time to time);
• Shipping – If you engage Centercode to ship on your behalf, the contact information and shipping address of the Participant is provided to the shipping provider on your behalf, as is always the case when shipping;
• Application Distributors – If you engage Centercode to distribute your application on your behalf, the relevant personal information of Participants and others receiving the application (e.g., email, name, etc. as needed) will be provided to the selected third-party application distributor (e.g., TestFairy);
• Product Installers – If your Professional Services involve product installers, the relevant personal information of Participants receiving installations (e.g., email, name, phone number, address, etc. as needed) will be provided to the third-party installer.
• Incentive Distributors – If you engage Centercode to distribute incentives to Participants as part of Professional Services, Centercode may share the Participants’ names and email addresses with the gift card/incentive provider to allow the provider to send the incentive to the Participant (e.g., Amazon and TangoCard).
• Centercode’s Sub-Processors are described at https://www.centercode.com/legal/sub-processors, which Centercode may update from time to time upon written notice to you (including by email to your administrative users of the Centercode Platform).

Centercode Confidential – v.06.24.2026