may be required to provide us with some information about yourself and your business such as your name,business’ name, business logo, phone numbers, email address, the types of services you provide, and othercontact information. You agree that any and all information you provide to us is accurate and that you willkeep it accurate and up-to-date at all times. When you register, you will be asked to provide a login name andpassword. You are solely responsible for maintaining the confidentiality of your account and password, andyou accept responsibility for all activities that occur under your account. If you believe that your account is nolonger secure, then you must immediately notify us atsupport@Cenergim.com. By registering an account andcreating a professional profile, you warrant and covenant as follows:3.1Authorization. You are a principal or an employee authorized to create a profile on behalf of yourself or abusiness.3.2Accurate Information. You will provide accurate, truthful, and complete information regarding yourbusiness, products, and services, and keep such information up to date.3.3Update Information. You agree to immediately notify us if: (i) any information you have provided to us,or any relevant information about you, has changed, (ii) a user has notified you that they have acomplaint with you or any products or services provided by you, or (iii) you have received notice of anycomplaint, investigation, fine or adverse action taken by a governmental authority with respect to yourproducts or services or your professional license.3.4Professional License. If your profession or business requires licensure, you agree to provide all licensinginformation necessary to participate in a Challenge. In addition, you represent that any licensinginformation you provide is accurate and up to date.4.SERVICES, REWARDS, AND FEES4.1Posting Challenges. A Challenger may post an unlimited number of Challenges on the Platform. AllChallenges are posted discreetly. When submitted, a Challenge is only visible to the Managed ServicesTeam who review and invite qualified Innovators to solve the Challenge. The Challenger may be notifiedto repost the Challenge with modified terms if no Innovator accepts the Challenge.This notice mayinclude suggestions to implement a higher Reward, a clearer definition of the Challenge, more detaileddeliverables, or different milestones. Cenergim reserves the right to reject submitted Challenges for anyor no reason. For more information on posting Challenges, click here.4.2Challenge Agreement. Upon an Innovator being Awarded a specific Challenge, the issuing Challenger andAwarded Innovator (collectively the “Parties”) must enter into a Challenge Agreement within five (5)business days of the Award. The Challenge Agreement sets forth the rights, obligations, terms, andconditions of the Parties for that specific Challenge. Each Challenge Agreement includes details regardingdevelopment and delivery milestones, Reward payment terms, intellectual property ownership rightsandlicenses,confidentialityandindemnification.FormoreinformationontermsofChallengeAgreements, click here.4.3Challenge Reward.The “Reward” is the amount that the Challenger is willing to solve the challenge.Once Cenergim notifies the Challenger that the Challenge has been conditionally accepted by anInnovator, the Challenger must remit payment of the Reward to Cenergim’s escrow partner (Escrow.comor other approved escrow services) within ten (10) business days.4.4Reward Fee.Cenergim’s “Reward Fee” for Challenges will be assessed at 25% of the Reward. Escrow.comwill pay Cenergim and the Innovator installments based on the milestones achieved as specified in theChallenge Agreement. Notwithstanding Section 4.14 below, the Reward Fee is non-refundable. Upon thereceipt of funds by Escrow.com, the Parties must sign a Challenge Agreement containing specificinformation of both parties as well the Challenge specific requirements. For more information about theReward Fee, click here.
4.5Managed Services Team.Cenergim’s “Managed Services Team” will assist users during different stagesof the Challenge cycle. Some Managed Services Team services are complimentary while others areperformed for a Service Fee. For more information about our Managed Services Team or the relatedService Fees, click here.4.6Selecting an Innovator. Users post profiles about themselves and their business on the Platform.Innovators have been preliminarily vetted by Cenergim to provide solutions to Challenges; however,Challengers should always exercise due care and diligence when selecting an Innovator. It is up to theChallenger to assess an Innovator’s qualifications and vet the Innovator as appropriate for the Challenge.Challengers assume all risks when using the Platform, including but not limited to all of the risksassociated with any online or offline interactions with users. For more information on the Innovatorselection process, click here.We disclaim any and all representations or warranties with regard to anyInnovator’s performance on a Challenge or the outcome or quality of the services performed.4.7Challenge Reposting.If an Innovator is Awarded a Challenge but the Challenger fails to execute aChallenge Agreement within ten (10) business days, the Challenger will submit a Challenge re-posting feeto Cenergim assessed at 2% of the Reward. Similarly, if the Innovator backs-out of the Challenge prior tosigning a Challenge Agreement, Cenergim will re-post the Challenge at the same Reward amount at noadditional fee for Challenger.However, if the Innovator backs-out of the Challenge after signing aChallenge Agreement, Cenergim will recover the re-posting fee from the Innovator. If any penalties areimposed by Escrow.com, the user at fault will be fully liable for the incurred penalties.4.8Innovator Obligations.As an Innovator, you agree that you will accept Challenges only if you possess thequalifications, experience and skill necessary to complete such work, and you will complete such workwith the degree of skill and care that is required by current good and sound professional procedures andpractices in accordance with applicable industry standards. You also agree that you have (and willcontinue to maintain) current valid licenses, authorizations, insurance and bonding required by allapplicable authorities for any work you accept or perform. For more information on Innovatorobligations, click here.4.9Sub-contracting or Third Party Assistance.Innovators agree that they may not sub-contract theresolution of any Challenge in whole or in part to any third party. As an Innovator, you represent andwarrant that you are fully capable of solving the Challenge without the aid of a third party. Anymisrepresentations may result in penalties and damages to Cenergim and the Challenger.4.10Independent Will.You acknowledge and agree that undertaking certain Challenges may pose risks toyou; if you accept any Challenge you do so of your own accord and you take such Challenge at your ownrisk and fully discharge Cenergim from any liability relating to your acceptance of any Challenge.4.11Declining an Innovator.If a Challenger desires to decline an Innovator, the Challenger may be required tosubmit a written explanation as to why they chose to decline the Innovator. By declining an Innovator,the Challenger forfeits their right to engage that specific Innovator and agrees to honor the Non-Circumvention provision described in Section 6.2 and refrain from contacting, communicating, orengaging with the Innovator in any way.4.12Regulatory Requirements. You represent and warrant that should any Challenge require compliance withany regulatory body including any local, state, or Federal agency including but not limited to the FoodandDrugAdministration;UnitedStatesDepartmentofAgriculture;FederalCommunicationsCommission; Bureau of Alcohol, Tobacco, Firearms and Explosives; Federal Trade Commission; UnitedStates Environmental Protection Agency; Nuclear Regulatory Commission; The Occupational Safety andHealth Administration; Securities and Exchange Commission; Federal Energy Regulatory Commission; orUnited States Department of Health and Human Services, both the Challenger and the Innovator have
iii.Accept proposals or solicit users identified through the Platform to contact, deliverservices, invoice, or receive payment outside the Platform;iv.Cancel any Challenge for the purpose of contracting or hiring an Innovator who you metthrough the Platform;v.Report an Agency Fee amount lower than that actually agreed between users.6.3Prior Relationship Representing Special Circumstances. If any user claims to have had a prior relationshipwith another user and those users wish to conduct business with each other for matters not related toany Challenge posted on the Cenergim Platform, those users must provide proof of the existence of suchprevious relationship to be exempted from the Non-Circumvention provision described in Section 6.2. Aprior relationship will not release either user from these Terms or any other contract or agreementfacilitated by the Platform.6.4Notification.You agree to immediately notify Cenergim if another user improperly contacts you orsuggests making or receiving payments outside of the Platform. If you are aware of a potential breach orbreach of this non-circumvention provision, please submit a confidential report to us by sending an emailmessage to:support@Cenergim.com.7.DISPUTES BETWEEN USERS; RELEASE FROM DAMAGES AND CLAIMSALL DISPUTES BETWEEN USERS, INCLUDING DISPUTES BETWEEN CHALLENGERS AND INNOVATORS, ARE SOLELYBETWEEN SUCH PARTIES AND MUST BE ADDRESSED BETWEEN THOSE USERS. SHOULD YOU HAVE A DISPUTE WITHRESPECT TO ANY PRODUCT OR SERVICE PROVIDED BY ANY INNOVATOR OR THE REWARD PAID BY ANY CHALLENGER,YOU MUST ADDRESS THE DISPUTE DIRECTLY WITH THAT USER. YOU HEREBY RELEASE CENERGIM (AND OUROFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENT, SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS,ASSIGNEES,AGENTS,REPRESENTATIVES,ADVERTISERS,MARKETINGPARTNERS,LICENSORS,CONSULTANTS,INDEPENDENT CONTRACTORS, RECRUITERS, OR CORPORATE PARTNERS, HEREINAFTER “CENERGIM ENTITIES”)FROM ANY AND ALL DISPUTES ARISING OUT OF OR IN ANY WAY CONNECTED WITH INTERACTIONS BETWEEN USERSINCLUDING CHALLENGERS AND INNOVATORS. CENERGIM IS NOT RESPONSIBLE FOR ANY DAMAGE OR HARMRESULTING FROM YOUR INTERACTIONS WITH ANY USER. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVECALIFORNIA CIVIL CODE, SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICHTHE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”8.USER CONDUCTBY USING THE PLATFORM, YOU AGREE TO:a.treat all users respectfully;b.collaborate, co-create, solve conflicts, and handle disputes in a professional manner;c.be dependable and deliver on milestones as scheduled;d.listen carefully to users and give them a chance to explain their position;e.demonstrate the necessary skill and knowledge to perform the work;f.demonstrate integrity in your workmanship; andg.be truthful and upfront about products, services and abilities.PROHIBITED CONDUCT BY USERS. BY USING THE PLATFORM, YOU AGREE NOT TO OR CAUSE ANY THIRD PARTYTO:a.use the Platform for any illegal purpose or in violation of any local, state, national, or internationallaw;b.harass, threaten, demean, embarrass, or otherwise harm any other user of the Platform;c.violate, or encourage others to violate, any right of a third party, including by infringing ormisappropriating any third party intellectual property right;d.interfere with security-related features of the Platform, including by: (i) disabling or circumventingfeatures that prevent or limit use or copying of any content; or (ii) reverse engineering or
otherwise attempting to discover the source code of any portion of the Platform except to theextent that the activity is expressly permitted by applicable law;e.take any action or upload, post, e-mail or otherwise transmit to or via the Platform any UserContent that violates any law or regulation;f.take any action or upload, post, e-mail or otherwise transmit to or via the Platform any UserContent as determined by Cenergim at its sole discretion that is illegal, harmful, threatening,violent, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasiveof another’s privacy, hateful, or racially, ethnically or otherwise objectionable;g.interfere with the operation of the Platform or any user’s use or enjoyment of the Platform,including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or othermalicious code; (ii) making any unsolicited offer or advertisement to another user of the Platform;(iii) collecting personal information about another user or third party without consent; or (iv)interfering with or disrupting any network, equipment, or server connected to or used to providethe Platform;h.“stalk”, abuse or attempt to abuse, or otherwise harass another user;i.perform any fraudulent activity including impersonating any person or entity, claiming a falseaffiliation, accessing any other Platform account without permission, or falsifying your age or dateof birth;j.sell or otherwise transfer the access granted under these Terms or any Materials (as defined inSection 10) or any right or ability to view, access, or use any Materials;k.take any action, written or otherwise, which is intended, or would reasonably be expected, toharm Cenergim or Cenergim’s affiliates or their reputation or which would reasonably beexpected to lead to unwanted or unfavorable publicity to Cenergim;l.take any actions or upload, post, e-mail or otherwise transmit to or via the Platform any UserContent that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots orother computer programming routines that are intended to damage, detrimentally interfere with,surreptitiously intercept or expropriate any system, data or Personally Identifiable Information;m.take any action or upload, post, email or otherwise transmit to or via the Platform any informationor content that would violate any right or duty under any law or under contractual or fiduciaryrelationships (including, but not limited to, any inside information, proprietary and confidentialinformation learned or disclosed as part of employment relationships or under nondisclosureagreements);n.upload, post, email or otherwise transmit to or via the Platform any unsolicited or unauthorizedadvertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chainletters,” “pyramid schemes,” or any other form of solicitation that Cenergim considers in its solediscretion to be of such nature;o.attempt to gain access to any other user’s account or password;p.charge any third party for use of the Platform;q.attempt to do any of the acts described in this Section 8 or assist or permit any person in engagingin any of the acts described in this Section 8. Any violation by you of the Terms of the foregoingmay result in immediate and permanent suspension or cancellation of your account.9.LICENSES9.1Limited License.Subject to your complete and ongoing compliance with these Terms, Cenergim grantsyou a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and usethe Platform.9.2License Restrictions.Except and solely to the extent such a restriction is impermissible under applicablelaw, you will not or cause any third party to: (a) reproduce, distribute, publicly display, or publiclyperform the Platform; (b) make modifications to the Platform; or (c) interfere with or circumvent any
feature of the Platform, including any security or access control mechanism. If you are prohibited underapplicable law from using the Platform, you may not use it.9.3Feedback. If you choose to provide input and suggestions regarding problems with or proposedmodifications or improvements to the Platform (“Feedback”), then you hereby grant Cenergim anunrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedbackin any manner and for any purpose, including to improve the Platform and create other products andservices.10.OWNERSHIPThe Platform is owned and operated by Cenergim. The visual interfaces, graphics, design, compilation,information, data, computer code (including source code or object code), products, software, services,and all other elements of the Platform (“Materials”) provided by Cenergim are protected by intellectualproperty and other laws. All Materials included in the Platform are the property of Cenergim or its thirdparty licensors. Except as expressly authorized by Cenergim, you may not make use of the Materials.Cenergim reserves all rights to the Materials not granted expressly in these Terms.11.CONFIDENTIALITY11.1Confidential Information.“Confidential Information” means any proprietary information, data, tradesecrets, or know-how, including any information disclosed either directly or indirectly in writing, orally orby inspection of tangible objects (including, without limitation, designs, research, product plans,products, services, equipment, customers, inventions, discoveries, ideas, processes, drawings, hardware,specifications,productconfigurationinformation,marketingandfinancedocuments,prototypes,samples, data sets, and equipment), whether or not designated as “confidential” disclosed by one party(“Discloser”) to the other (“Recipient”) under these Terms. For the avoidance of doubt, Challengedescription and information is Confidential Information. Confidential Information does not includeinformation which Recipient can demonstrate (i) is known to Recipient without a confidentialityobligation at the time of disclosure to Recipient by Discloser, (ii) has become publicly known and madegenerally available through no wrongful act of Recipient, or (iii) has been rightfully received by Recipientfrom a third party who is authorized to make such disclosure.11.2Use of Confidential Information.Notwithstanding anything contrary in these Terms, Recipient will not,during or subsequent to these Terms, use the Discloser’s Confidential Information for any purpose otherthan the performance of Recipient’s obligations under these Terms, or disclose Discloser’s ConfidentialInformation to any third party. For the avoidance of doubt, Cenergim may disclose certain Challengeinformation to Innovators in performance of its obligations to these Terms. As between the parties, it isunderstood that Confidential Information of Discloser shall remain the sole property of Discloser.Recipient further agrees to take all reasonable precautions to prevent any unauthorized disclosure ofDiscloser’s Confidential Information including, but not limited to, having each employee or contractor ofRecipient, if any, with access to any Discloser’s Confidential Information, execute a nondisclosureagreement containing provisions at least as protective of Confidential Information as these Terms.11.3Compelled Disclosure.If Recipient becomes legally compelled to disclose any Confidential Information,other than pursuant to a confidentiality agreement, Recipient will provide Discloser with prompt writtennotice, if legally permissible, and will use its best efforts to assist Discloser in seeking a protective orderor another appropriate remedy. If Discloser waives Recipient’s compliance with these Terms or fails toobtain a protective order or other appropriate remedy, Recipient will furnish only that portion of theConfidential Information that is legally required to be disclosed; provided that any ConfidentialInformation so disclosed shall maintain its confidentiality protection for all purposes other than suchlegally compelled disclosure.
11.4Return of Materials.Upon the termination of these Terms, or upon Discloser’s earlier request, Recipientwill destroy all Confidential Information that Recipient may have in Recipient’s possession or control andprovide written certification of such destruction.12.THIRD PARTY TERMS12.1Third Party Services and Linked Websites. Cenergim may provide tools through the Platform that enableyou to export information, including User Content, to third party services, including through features thatallow you to link your account on Cenergim with an account on the third party service, such ascollaboration tools for co-creation or ecommerce services for revenue sharing. By using one of thesetools, you agree that Cenergim may transfer that information to the applicable third party service. Thirdparty services are not under Cenergim’s control, and, to the fullest extent permitted by law, Cenergim isnot responsible for any third party service’s use of your exported information. The Platform may alsocontain links to third party websites. Linked websites are not under Cenergim’s control, and Cenergim isnot responsible for their content.12.2Third Party Software.The Platform may include or incorporate third party software components that aregenerally available free of charge under licenses granting recipients broad rights to copy, modify, anddistribute those components (“Third Party Components”). Although the Platform is provided to yousubject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrictyou from obtaining Third Party Components under the applicable third party licenses or to limit your useof Third Party Components under those third party licenses.13.USER CONTENT13.1User Content Generally. Certain features of the Platform may permit users to upload content to thePlatform, including messages, reviews, photos, video, images, folders, data, text, and other types ofworks (“User Content”) and to publish User Content on the Platform. You retain any copyright and otherproprietary rights that you may hold in the User Content that you post to the Platform.13.2Limited License Grant to Cenergim. By providing User Content to or via the Platform, you grant Cenergima worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right tosublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting fordisplay, and distribute your User Content, in whole or in part, in any media formats and through anymedia channels now known or hereafter developed.13.3Limited License Grant to Other Users. By providing User Content to or via the Platform to other users ofthe Platform, you grant those users a non-exclusive license to access that User Content as permitted bythese Terms and the functionality of the Platform.13.4User Content Representations and Warranties. Cenergim disclaims any and all liability in connection withUser Content. You are solely responsible for your User Content and the consequences of providing UserContent via the Platform. By providing User Content via the Platform, you affirm, represent, and warrantthat:a.you are the creator and owner of the User Content, or have the necessary licenses, rights,consents, and permissions to authorize Cenergim and users of the Platform to use and distributeyour User Content as necessary to exercise the licenses granted by you in this Section, in themanner contemplated by Cenergim, the Platform, and these Terms;b.your User Content, and the use of your User Content as contemplated by these Terms, does notand will not: (i) infringe, violate, or misappropriate any third party right, including any copyright,
b.a description of the copyrighted work or other intellectual property that you claim has beeninfringed;c.a description of the material that you claim is infringing and where it is located on the Platform;d.your address, telephone number, and email address;e.a statement by you that you have a good faith belief that the use of the materials on the Platformof which you are complaining is not authorized by the copyright owner, its agent, or the law; andf.a statement by you that the above information in your notice is accurate and that, under penaltyof perjury, you are the copyright or intellectual property owner or authorized to act on thecopyright or intellectual property owner’s behalf.14.2Repeat Infringers. Cenergim will promptly terminate the accounts of users that are determined byCenergim to be repeat infringers.15.MODIFICATIONS15.1Modification of these Terms of these Terms.We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If achange to these Terms materially modifies your rights or obligations, we may require that you accept themodified Terms in order to continue to use the Platform. Material modifications are effective upon youracceptance of the modified Terms. Immaterial modifications are effective upon publication. Except asexpressly permitted in this Section 15, these Terms may be amended only by a written agreement signedby authorized representatives of the parties to these Terms. Disputes arising under these Terms will beresolved in accordance with the version of these Terms that was in effect at the time the dispute arose.15.2Modification of the Platform.Cenergim reserves the right to modify or discontinue the Platform at anytime (including by limiting or discontinuing certain features of the Platform), temporarily or permanently,without notice to you. Cenergim will have no liability for any change to the Platform or any suspension ortermination of your access to or use of the Platform.16.TERMS AND TERMINATION16.1Term.These Terms are effective beginning when you accept the Terms or first download, install, access,or use the Platform, and ending when terminated as described in Section 220.127.116.11Termination.If you violate any provision of these Terms, your authorization to access the Platform andthese Terms automatically terminate. In addition, Cenergim may, at its sole discretion, terminate theseTerms or your account on the Platform, or suspend or terminate your access to the Platform, at any timefor any reason or no reason, with or without notice. You may deactivate your account and these Terms atany time by sending us a letter or by contacting customer service atsupport@Cenergim.com.16.3Effect of Termination.Upon termination of these Terms: (a) your license rights will terminate and youmust immediately cease all use of the Platform; (b) you will no longer be authorized to access youraccount or the Platform; (c) you must pay Cenergim any unpaid amount that was due prior totermination; and (d) all payment obligations accrued prior to termination. Sections 6, 7, 9.3, 10, 11, 16.3,17, 18, 19, 20, and 21 survive any termination or expiration of these Terms.17.INDEMNITYTo the fullest extent permitted by law, you are responsible for your use of the Platform, and you will defendand indemnify Cenergim and Cenergim Entities (as defined in Section 7) from and against every claim broughtby a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and
costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Platform; (b) yourviolation of any portion of these Terms, any representation, warranty, or agreement referenced in theseTerms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectualproperty right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue betweenyou and any third party. We reserve the right, at our own expense, to assume the exclusive defense andcontrol of any matter otherwise subject to indemnification by you (without limiting your indemnificationobligations with respect to that matter), and in that case, you agree to cooperate with our defense of thoseclaims.18.DISCLAIMERS; NO WARRANTIESTHE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS”AND ON AN “AS AVAILABLE” BASIS. CENERGIM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS ORIMPLIED, RELATING TO THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM,INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING,USAGE, OR TRADE. CENERGIM DOES NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, ORANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OFERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CENERGIM DOES NOT WARRANT THAT ANY OF THOSEISSUES WILL BE CORRECTED.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM ORCENERGIM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANYWARRANTY REGARDING ANY OF THE CENERGIM ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED INTHESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PLATFORM AND YOURDEALING WITH ANY OTHER PLATFORM USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THEPLATFORM AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TOYOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THEPLATFORM) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BYLAW. CENERGIM DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT CENERGIM IS PROHIBITED FROMDISCLAIMING UNDER APPLICABLE LAW.19.LIMITATION OF LIABILITYTO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CENERGIM ENTITIES BE LIABLE TO YOU FORANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OFPROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USEOF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM,WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGALTHEORY, AND WHETHER OR NOT ANY CENERGIM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.EXCEPT AS PROVIDED IN SECTION 20.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITYOF THE CENERGIM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANYINABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT,TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO CENERGIM FORACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISETO CLAIM; OR (B) $100.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES,OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESETERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACHOF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THELIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.20.DISPUTE RESOLUTION AND ARBITRATION
20.1Generally. In the interest of resolving disputes between you and Cenergim in the most expedient andcost effective manner, and except as described in Section 20.2, you and Cenergim agree that everydispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is lessformal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allowfor more limited discovery than in court, and can be subject to very limited review by courts. Arbitratorscan award the same damages and relief that a court can award. This agreement to arbitrate disputesincludes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort,statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arisesduring or after the termination of these Terms.YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTOTHESE TERMS, YOU AND CENERGIM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE INA CLASS ACTION.20.2Exceptions. Despite the provisions of Section 20.1, nothing in these Terms will be deemed to waive,preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claimscourt; (b) pursue an enforcement action through the applicable federal, state, or local agency if thataction is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in acourt of law to address an intellectual property infringement claim.20.3Arbitrator. Any arbitration between you and Cenergim will be settled under the Federal Arbitration Actand administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules(collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are availableonline atwww.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cenergim. The arbitratorhasexclusiveauthoritytoresolveanydisputerelatingtotheinterpretation,applicability,orenforceability of this binding arbitration agreement.20.4Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice ofthe dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only ifthat other party has not provided a current physical address, then by electronic mail (“Notice ofArbitration”). Cenergim’s address for Notice is: Cenergim, Corp., 15166 Los Gatos Blvd, Los Gatos, CA95032. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b)set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve theclaim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice ofArbitration is received, you or Cenergim may commence an arbitration proceeding. All arbitrationproceedings between the parties will be confidential unless otherwise agreed by the parties in writing.During the arbitration, the amount of any settlement offer made by you or Cenergim must not bedisclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If thearbitrator awards you an amount higher than the last written settlement amount offered by Cenergim insettlement of the dispute prior to the award, Cenergim will pay to you the higher of: (i) the amountawarded by the arbitrator; or (ii) $10,000.20.5Fees. If you commence arbitration in accordance with these Terms, Cenergim will reimburse you for yourpayment of the filing fee, unless your claim is for more than $10,000, in which case the payment of anyfees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreedupon in San Jose, California, but if the claim is for $10,000 or less, you may choose whether thearbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b)through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by theAAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substanceof your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (asmeasured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of allfees will be governed by the AAA Rules. In that case, you agree to reimburse Cenergim for all moniespreviously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless ofthe manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision
Challenges, Challenge resolutions, Confidential Information, technical data, intellectual property,technology, software and/or items (collectively “Technology”) exchanged between users and Cenergimmay not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S.Treasury Department’s list of Specially Designated Nationals or the U.S. Department of CommerceDenied Person’s List or Entity List. By entering into these Terms, you represent and warrant that you arenot located in any such country or on any such list. Furthermore, you represent and warrant that youwill not use any Technology exchanged for any purposes prohibited by United States law, including,without limitation, the development, design, manufacture or production of missiles, or nuclear,chemical or biological weapons. In the event you become aware of any suspected violations of thisparagraph, you must promptly notify Cenergim of such suspected violation, and cooperate withCenergim in any subsequent investigation.21.14Language.All communications and notices made or given pursuant to these Terms must be in theEnglish language. If we provide a translation of the English language version of these Terms, the Englishlanguage version of these Terms will control if there is any conflict.
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