1. Definitions as used in this EULA:
- “Access Credentials” means login information, passwords, and security controls through which Users access and use the Synatic Service.
- “Affiliate” means with respect to either Party on any applicable date of determination, any other entity directly or indirectly controlling, controlled by or under common control with such Party as of such date.
- “Aggregate Information” means any information, data and/or metadata derived from use of the Synatic Service that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person and does not identify any Company customer or user or company-specific name and that is stripped of all persistent identifiers, such as device identifiers, IP addresses and cookie IDs.
- “Agreement” has the meaning set forth in the Order Form.
- “Synatic Service” means the version of the Company software as a service offering set forth in an Order Form made generally commercially available by Company to its customers, including all Updates.
- “Company Technology” means the computer software, computer code, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third-party services, and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Synatic Service.
- “Customer Content” means all information, content, text, data and other materials transmitted, uploaded, or stored by Customer or its Users in the Synatic Service. Customer Content expressly excludes all Company Technology and Synatic Service functionality, and all Company-supplied information, content, text, data and other materials.
- “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Synatic Service, and which are made available to Customer by Company with the Synatic Service.
- “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark and service mark rights and other similar rights in Marks, together with all goodwill related thereto; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
- “Marks” means trademarks, service marks, logos, product names, service names, design marks, slogans and other indicia of origin.
- “Order Form” means the order form signed by an authorized representative of each Party or a reseller or other designee thereof, in each case referencing this EULA.
- “Parties” means Company and Customer. Company and Customer are each a “Party”.
- “Professional Services” means the Professional Services available from Company as described in an Order Form.
- “SLA” means the Service Level Agreement for the Synatic Service.
- “Subscription Term” means the period of time set forth in an Order Form.
- “Support Services” means the support services to be provided by Company as described in the Order Form, if any.
- “Updates” means all upgrades, enhancements, improvements, maintenance releases, additions, and modifications, of the Synatic Service made generally commercially available to Company’s customers at no additional charge as part of the Synatic Service during the applicable Subscription Term.
- “Users” means: (a) the employees, customers, brokers, sales agents, and contractors/consultants of Customer, excluding Customer Affiliates; (b) that are granted access by Customer to use the Synatic Service; and (c) which have a bona-fide need to use the Synatic Service for Customer’s internal business purposes.
2. Synatic Service
- Synatic Service; Service Level Agreement. Subject to and in accordance with this Agreement, including, without limitation, payment of all applicable fees, Company will use reasonable commercial efforts to make the Synatic Service available for use and access by Customer. Company will use commercially reasonable efforts to make the Synatic Service available for use or access in accordance with the availability levels set forth in the SLA. Customer’s sole and exclusive remedy, and Company’s sole and exclusive obligation, for any failure to achieve any availability level in the SLA is as provided therein.
- Additional Orders by Affiliates. Affiliates of Customer may place additional orders for access to the Synatic Service by executing a separate Order Form with Company in which each Customer’s Affiliate agrees to pay additional implementation and subscription fees to Company and to be bound by all terms and conditions of this Agreement. Customer shall remain primarily responsible for the compliance of its Affiliates with the terms of this Agreement, including without limitation payment of all fees due thereunder.
- Customer Access. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Synatic Service is dependent upon access to telecommunications and Internet services. Customer and Users will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Synatic Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Company will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. Company may provide notice to Customer from time to time of the version(s) of those products required in order to for Customer and its Users to use the Synatic Service (e.g., supported browser versions).
- Modifications to the Synatic Service. Company reserves the right to modify the Synatic Service from time to time, including without limitation implementing Updates. If any such modification or Update materially and adversely reduces the functionality of the Synatic Service, Customer may terminate any relevant Order Form pursuant to Section 11.2(a). Company may condition the implementation of new features, functionality or other modifications to the Synatic Service on Customer’s payment of additional fees, provided that the Company generally charges other customers for such new features, functionality or other modifications.
- Support Services. Subject to Company’s receipt of Customer’s payment of all applicable subscription fees payable by Customer for the Synatic Service, Company shall provide Customer with Support Services; provided, however, that Company has no obligation to provide Support Services under a reseller or distributor Order Form. Company shall have no obligation to support: (i) errors caused by Customer’s or any User’s misuse, negligence, abuse, misapplication, or other unpermitted actions or inactions; (ii) use of the Synatic Service other than as specified in the Documentation; (iii) errors beyond the reasonable control of Company; or (iv) any software or other technology other than the Synatic Service.
- Third Party Features, Services and Content. Customer acknowledges and agrees that use of any third-party features, services, content, or materials as may be supplied by Company either in or accessible through the Synatic Service shall be subject to any applicable third-party terms and conditions made available to Customer with such third-party features, services, content, or materials (the “Third Party Agreement”), and Company shall have no liability for any damage or loss caused by such third party features, services, content, or materials or for the use or performance thereof. Customer hereby acknowledges and agrees that each Third Party Agreement applies to Customer’s and all Users’ use of any third party features, services, content, or materials, and Customer agrees to comply, and require its Users to comply, with all Third Party Agreements.
- Data Backup.
(a) Company will follow its standard archival procedures for storage of Customer Content. In the event of any loss or corruption of Customer Content, Company will use commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by Company or its third-party service provider in accordance with its archival procedures.
(b) Company will not be responsible for any loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Content directly or indirectly arising from acts or omissions of Customer, its Users or a third party. COMPANY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION 2.7 WILL CONSTITUTE COMPANY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS, CORRUPTION, DESTRUCTION, ALTERATION, OR UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER CONTENT.
3. Access Grant; Licenses; Ownership
- Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement and the Documentation, Company grants to Customer during the applicable Subscription Term a non-exclusive, non-transferable, worldwide, revocable, non-sublicensable right to allow Users to access and use the Synatic Service for Customer’s internal business purposes, subject to the use limitations in the relevant Order Form.
- Customer Content. Customer grants to Company a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to use, copy, execute, host, store, reformat and display the Customer Content for the sole purposes of enabling Company to provide the Synatic Service to Customer and its Users hereunder. In addition, Customer agrees that Company’s third-party contractors and service providers may exercise the licenses granted to Company in this Section 3.2 for the sole purpose of performing services for or on behalf of Company in connection with the provision of the Synatic Service to Customers. Customer acknowledges that if Customer desires to protect Customer’s transmission of Customer Content to Company, it is Customer’s sole responsibility to use a secure encrypted connection to communicate with and/or use the Synatic Service.
- Users. Customer may grant access to the Synatic Service only to those Users who have been assigned unique Access Credentials. Customer shall be solely responsible for ensuring that all Users comply with the terms of this Agreement. Customer will promptly notify Company of any suspected, alleged, or actual violation of the terms and conditions of this Agreement and will cooperate with Company with respect to: (i) investigation by Company of any suspected, alleged, or actual violation of this Agreement; and (ii) enforcement of this Agreement. Company may suspend or terminate any User’s access to the Synatic Service upon notice to Customer in the event Company reasonably determines that such User has violated any terms of this Agreement. Customer will at all times be responsible for all actions taken under a User’s account and for any breach of this Agreement by its Users. All acts and omissions of Users are deemed to be those of Customer.
- Feedback. In the event Customer or its Users provide Company any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Synatic Service (collectively "Feedback"), including in response to any product plans or roadmaps shared with Customer, Customer hereby grants to Company a worldwide, royalty-free, fully paid, perpetual, exclusive, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of Confidential Information, Intellectual Property Rights or otherwise, and Company may incorporate into the Synatic Service and/or any other service, product, technology, enhancement, documentation or other development incorporating or derived from any Feedback (“Improvement”) with no obligation by Company to license or make available the Improvement to Customer or any other person or entity.
(a) The Company Confidential Information, Synatic Service, the Company Technology, and the Documentation, and all worldwide Intellectual Property Rights in each of the foregoing and all modifications thereto and derivative works thereof, are the exclusive property of Company and its suppliers. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Company and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software underlying the Synatic Service, or any other Company Technology, in either object code or source code form. Company’s name and logo, and all Company product and services names, including the name of the Synatic Service and any product or service associated with it, are trademarks of Company or its licensors, and no right or license to use them is granted in this Agreement. Further, Customer acknowledges and agrees that Company owns all right, title and interest in and to the Aggregate Information it develops and may use Aggregate Information to provide and improve Company’s products and services, and for sales, marketing and other business purposes.
(b) The Customer Confidential Information and Customer Content, and all worldwide Intellectual Property Rights in the Customer Content and all modifications and derivative works thereof, are the exclusive property of Customer and its suppliers. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Customer and its suppliers. Customer hereby grants Company a worldwide, perpetual, irrevocable, royalty-free, fully paid up, nonexclusive, right and license (with right of sublicense) to use and copy all Customer Content for purposes of performing under this Agreement.
4. Customer Responsibilities
- Registration Data; Access Credentials. Customer shall: (1) keep all Access Credentials secure and confidential; (2) not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (3) not permit others to use Customer’s Access Credentials. Customer will immediately notify Company if it learns of any unauthorized access to or use of the Synatic Service, Customer’s account or any Access Credentials assigned to Customer or its Users, or if Customer learns of any other known or suspected breach of security with respect to the Synatic Service, Customer’s account or any Access Credentials assigned to Customer. Company reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Company deems reasonable to ensure the security of the Synatic Service and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
- Restrictions. Customer will not, directly or indirectly, and will ensure that its Users do not: (a) provide access to or use of the Synatic Service or Documentation to any third-party technical contractor or consultant, or to any third party that is not an authorized User; (b) copy, adapt, alter, modify, improve, translate or create derivative works of the Synatic Service, Company Technology or Documentation; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code or underlying ideas or algorithms to all or any portion of the Synatic Service; (d) license, sublicense, sell, resell, rent, lease, transfer, assign, sublicense, distribute, time share or otherwise commercially exploit or otherwise provide or make the Synatic Service or Documentation available to any third party (including, without limitation, offering the Synatic Service to third parties on an application service provider or time-sharing basis, or otherwise providing third-party hosting, or third-party application integration or application service provider-type services, or for any similar services); (e) use the Synatic Service in any manner inconsistent with this Agreement; (f) challenge, directly or indirectly, the right, title and/or interest of Company in and to the Synatic Service, Company Technology or Documentation, or any Company registration related thereto; (g) without Synatic’s prior written consent conduct any technical security integrity review, penetration test, or vulnerability scan; or (h) access the Synatic Service by any means other than through the interface that is provided by Company for use in accessing the Synatic Service.
- Customer Content Restrictions. Customer is responsible for providing all Customer Content. Customer represents, warrants and covenants: (a) that Customer has all rights and licenses necessary to upload the Customer Content to the Synatic Service, and to grant the rights to use the Customer Content for purposes of performing the Synatic Service for Customer; and (b) that the Customer Content:
(i) will not and does not infringe any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right;
(ii) will not and does not violate the privacy, publicity, or other right of any third party, or any other law, statute, ordinance or regulation;
(iii) will not and does not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, payment card data, information subject to HIPAA or other regulatory requirement, or other proprietary or confidential information of any third party;
(iv) will not and does not contain or transmit any virus, Trojan horse, spyware. malware, worm, time bomb, cancelbot, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
(v) will not and does not enable, permit, advocate or encourage any illegal activity or any conduct that would, or would be likely to, violate any applicable law or regulation or give rise to civil liability.
5. Professional Services
- Professional Services. Company will use commercially reasonable efforts to perform Professional Services in accordance with the Order Form and consistent with generally accepted industry standards; provided, however, that Company has no obligation to provide Professional Services under a reseller or distributor Order Form.. Company’s sole and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing will be for Company to use commercially reasonable efforts to promptly reperform the applicable Professional Services.
- Customer Responsibilities. Customer and its third-party contractors will make available in a timely manner, at no charge to Company, all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by Company as Company reasonably requires to perform the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness, consistency, facilitation, or provision thereof to Company by Customer or any third party.
6. Fees and Payment
- Fees. In consideration for the rights granted hereunder, Customer will pay to Company the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Customer is responsible for payment of all subscription fees for all Users granted access during the Subscription Term, whether or not such User has actually accessed the Synatic Service during the Subscription Term. All fees are subject to automatic 5% annual increases. Subscription fees are calculated based on the “Licensing Tier and Limits” set forth in the Order Form. If Customer’s use of the Synatic Service exceeds a selected licensing tier or any other limit or restriction set forth in the Order Form, Company may, in its discretion and without limiting any of its other remedies, automatically increase the subscription fee to the next tier.
- Payment. Unless otherwise specified in any Order Form, all subscription fees are invoiced annually in advance on the Effective Date and on each anniversary of the Effective Date, and all invoices issued by Company will be due and payable Thirty (30) days of the date of Company’s invoice. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event of any dispute of an invoice, Customer shall notify Company in writing within fifteen (15) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the Parties agree to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Amounts not disputed within such fifteen (15) day period will be deemed valid and may not later be disputed.
- Taxes. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Customer’s receipt or use of the Synatic Service, except for taxes based on Company’s net income, employees or property. In the event that Company is required to collect or pay any tax for which Customer is responsible, Company will invoice Customer and Customer will pay such taxes and duties directly to Company unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, the existence and terms of this Agreement, and other confidential or proprietary information regardless whether disclosed orally, in writing or visually, or that is learned by the Receiving Party from observing the Synatic Service (“Confidential Information”). For the avoidance of doubt, Company’s pricing, Synatic Service functionality, features, capabilities and product road maps, Synatic Service, Documentation and Company Technology all constitute Confidential Information of Company. Customer Content constitutes Confidential Information of Customer.
- Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a bona-fide need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both Parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 7 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek: (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret; or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
- Exceptions. The Receiving Party’s obligations under this Section 7 will not apply to any portion of the Disclosing Party’s Confidential Information, if the Receiving Party can provide contemporaneous documentation that such information: (a) was lawfully known to the Receiving Party prior to the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is or has become through no fault of the Receiving Party generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and without reliance on any individual who has or had access to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly in writing, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Return of Confidential Information. The Receiving Party shall return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s and its third-party contractors’ possession or control, and shall permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party shall certify in writing signed by an officer of the Receiving Party that the Receiving Party has fully complied with its obligations under this Section 7.4. Notwithstanding the foregoing, Customer acknowledges that Company may retain a copy of the Customer Content in accordance with Company’s record retention guidelines.
- Warranties by Both Parties. Each Party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement, and this Agreement is the valid and binding obligation of such Party, enforceable against such Party in accordance with this Agreement’s terms; (b) the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.
- Synatic Service Warranty. Company represents and warrants that the Synatic Service does and will include the functionality described in the Documentation. In the event of a breach of the foregoing representation or warranty, Customer’s sole and exclusive remedy and Company’s sole liability shall be to modify the Synatic Service so that it is conforming to the Documentation. Notwithstanding the foregoing, Company shall have no liability for any nonconformity resulting from Customer’s or any of its Users’ act or omission, or from any Customer Content or interoperability of Customer infrastructure or Customer Content with the Synatic Service.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8 (WARRANTIES), COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SYNATIC SERVICE OR THE COMPANY TECHNOLOGY OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
COMPANY SHALL NOT BE RESPONSIBLE FOR ENSURING, AND DOES NOT REPRESENT OR WARRANT THAT: (I) THE SYNATIC SERVICE WILL MEET CUSTOMER'S BUSINESS REQUIREMENTS; (II) THE SYNATIC SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED, OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SYNATIC SERVICE CAN BE FOUND OR CORRECTED. COMPANY WILL NOT BE RESPONSIBLE FOR: (A) ANY FAILURE TO MEET THE SYNATIC SERVICE WARRANTY OF SECTION 8.2 CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER, OR CAUSED BY INTEROPERABILITY OF CUSTOMER CONTENT OR CUSTOMER INFRASTRUCTURE WITH THE SYNATIC SERVICE; (B) LOSS OR CORRUPTION OF DATA; OR (C) THE INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH THE SYNATIC SERVICE DUE TO ANY INTERNET OR NETWORK FAILURE.
COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USERS’ USE OF AND ACCESS TO THE SYNATIC SERVICE IS IN ACCORDANCE WITH APPLICABLE LAW.
- Company Indemnity. Company shall at Company’s expense defend, indemnify and hold Customer and its affiliates, employees, officers and directors harmless from and against any liability, loss or damage (including reasonable attorneys' fees) incurred in connection with any claim, suit, or proceeding brought by a third party (“Claim”) against Customer or its officers, directors or employees contending that Customer’s use of the Synatic Service in accordance with the Documentation infringes any valid Intellectual Property Right of a third party, and Company shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Company in settlement of the Claim. In the event that the Synatic Service or any part thereof becomes – or, in Company’s sole opinion, is likely to become the subject of an infringement-related Claim: (a) Company may at its option and expense procure for Customer the right to continue using the Synatic Service, or modify the Synatic Service to make it noninfringing; or (b) if Section 9.1(a) is not commercially reasonable, then Company may terminate this Agreement and all Order Forms with notice to Customer, and Company will provide Customer with a refund of any pre-paid fees for the unexpired portion of the remaining Subscription Term. Company shall have no liability for any Claim or demand arising from: (i) an allegation that does not state with specificity that the Synatic Service is the basis of the Claims; (ii) the use or combination of the Synatic Service or any part thereof with software, hardware, or other materials not developed by Company, if the Synatic Service or use thereof would not infringe without such combination; (iii) modification of the Synatic Service by a Party other than Company, if the use of unmodified Synatic Service would not constitute infringement; (iv) a breach by Customer or any User of any obligation under this Agreement, or a use of the Synatic Service by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Documentation, if the claim would not have arisen but for such breach or unauthorized use; (v) an allegation made against Customer arising out of or related to any Customer Content; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement. The foregoing states Company’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
- Customer Indemnity. Customer shall at Customer’s expense defend, indemnify and hold Company, its affiliates, employees, officers, and directors harmless from and against any liability, loss, or damage (including reasonable attorneys' fees) incurred in connection with any Claim: (i) arising out of or related to any Customer Content, including without limitation any claim that any Customer Content infringes the Intellectual Property Right of, or has otherwise harmed, a third party; (ii) based upon Customer’s or any User’s use of the Synatic Service not in accordance with the terms hereof, or not in accordance with the Documentation, or in violation of Section 3 or 4; or (iii) based on any failure or alleged failure of the Customer or any User to comply with any applicable law, rule, regulation or guideline in connection with its use of the Synatic Service, including without limitation any data privacy and security laws.
- Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of each Claim; (b) reasonably cooperating and assisting in the defense of each Claim at the indemnifying Party’s expense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying Party; provided, that the indemnifying Party may not settle any claim that imposes any duty on or diminishes any right of the indemnified Party without the indemnified Party’s prior written consent.
10. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY’S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT, AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY (A) LOSS OF ACTUAL OR ANTICIPATED PROFITS, (B) LOSS OF BUSINESS, (C) LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, (D) LOSS OF USE, (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (F) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, REGARDLESS WHETHER (I) ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, (II)THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (III) SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
- Exclusions. The foregoing limitations shall not apply to: (i) amounts payable by Customer to Company under any Order Form; (ii) liability arising from the indemnification obligations in Section 9; (iii) violation or misappropriation of a Party’s intellectual property rights; (iv) damages arising from a breach by Customer of Section 3 or 4; or (v) damages arising from a Party’s gross negligence or wilful misconduct.
- Savings Clause. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither Party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other Party to comply with its obligations under this Agreement.
- Limitation of Action. To the maximum extent permitted by applicable law, and except for any action for non-payment or for breach of either Party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than one (1) year after the cause of action has accrued.
- Allocation of Risk. Each Party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the Parties – including the disclaimer of warranties in Section 8.3, the limitation of liability in Section 10.1, and the exclusion of consequential and related damages in Section 10.2 –, and that the other Party would not enter into this Agreement without these limitations on its liability.
11. Term and Termination
- Term. The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms have terminated or expired, or until earlier termination of this Agreement as provided in this Section 11 (the “Term”). The term for each Order Form shall be as set forth therein, and shall automatically renew for successive one (1) year periods, unless otherwise set forth in the Order Form. Upon termination of this Agreement for any reason, all Order Forms shall immediately terminate. However, termination or expiration of any Order Form shall not necessarily cause the termination or expiration of this Agreement.
(a) Any Order Form may be terminated by Customer in accordance with Section 2.4 by providing detailed, written notice to Company within five (5) days after any modification to the Synatic Service that materially and adversely reduces the functionality of the Synatic Service, provided that:
(i)Company shall have an additional ninety (90) day cure period, or such other period of time as mutually agreed upon by the parties (“Cure Period”), after receipt of Customer’s notice to remedy such reduction in functionality;
(ii) Customer shall fully cooperate with Company’s reasonable requests for information regarding any such reduction in functionality; and
(iii) Such termination shall not be effective, if Company substantially remedies such reduction in functionality within the Cure Period.
(b) This Agreement or any Order Form may be terminated by Company if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from Company of such failure (regardless whether Company avails itself of its right to suspend the Synatic Service pursuant to Section 11.4 hereof).
(c) This Agreement or any Order Form may be terminated by either Party (the “Non-breaching Party”) upon written notice containing an explanation of the alleged breach to the other Party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.
- Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event that: (a) the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed by a third party, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of the other Party’s creditors. Upon termination of the Agreement by Customer due to Company’s bankruptcy or insolvency, Company shall refund to Customer any pre-paid fees previously paid by Customer for services not performed as of the date of termination.
- Suspension of Services. At any time during the Term, Company may immediately upon notice to Customer, and in Company’s sole reasonable discretion, suspend Company’s performance under this Agreement and any Order Form or may suspend any and all Users’ access to the Synatic Service for any of the following reasons: (a) breach or threatened breach of Section 4.1 or Section 4.2; (b) a reasonable threat to the technical security or technical integrity of the Synatic Service exists as determined by Company in its sole and absolute discretion, provided that Company promptly recommences performance upon the cessation of the threat; or (c) if any amount due under any Order Form is not received by Company within fifteen (15) days after it was due, and Company provided written notice of same.
- Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. In the event of termination by Customer pursuant to Sections 11.2(a), 11.2(c), or 11.3, Company shall refund to Customer on a pro-rata basis any prepaid fees paid by Customer for the remainder of the then current Subscription Term under the terminated Order Forms. In the event of termination by Company pursuant to Sections 11.2(b) 11.2(c) or 11.3, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable.
- Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of an Order Form or this Agreement, Customer’s and its Users’ rights to access and use the Synatic Service will immediately terminate, and Customer and its Users will immediately cease all use of the Synatic Service. Company may destroy any Customer Content in its possession or control; provided, that Customer shall have at least thirty (30) days following the effective date of the expiration or termination of an Order Form or this Agreement to download its Customer Content from the Synatic Service. Notwithstanding the foregoing, Company will not provide access to the Customer Content from Customer’s account if Company believes that such Customer Content violates the rights of Company or third parties, or if Customer has not paid all undisputed fees owing to Company. Company shall have no liability to Customer or any third party for any termination or expiration of this Agreement.
- Survival. Sections 1, 3.4, 3.5, 6, 7, 8.3, 9, 10, 11.5, 11.6, and 12 shall survive any termination or expiration of this Agreement.
- Arbitration. Disputes under this Agreement will be resolved through arbitration conducted in accordance in accordance with the procedures in this Agreement and administered by the American Arbitration Association under its Commercial Arbitration Rules (the “AAA Rules”), and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof; provided, however, a Party shall not be required to use the foregoing dispute resolution procedures or otherwise follow the provisions of this Section regarding any dispute with respect to which a Party is seeking purely injunctive or other equitable, non-monetary, relief and such Party shall be entitled to seek such relief before federal court in Delaware, which the parties agree has jurisdiction over such dispute. In the event of a conflict between the AAA Rules and this Agreement, the provisions of this Agreement shall control. For all disputes regardless of the amount in dispute, the arbitration shall be conducted by one arbitrator mutually agreed upon by the parties. Should the parties be unable to agree on an arbitrator, such arbitrator selection shall be made pursuant to the AAA Rules. The arbitrator may construe or interpret this Agreement but may not vary or ignore any of the terms of this Agreement. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be resolved by the arbitrator. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrator have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. All aspects of the arbitration shall be treated as confidential. The location of any hearing under this arbitration provision shall be conducted in Delaware. The prevailing Party shall be entitled to recover attorneys’ fees, expert fees, and other expenses of the arbitration.
- Governing Law; Jurisdiction. Subject to Section 12.1, this Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The Parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation.
- Export; Anti-Corruption. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Synatic Service. Without limiting the foregoing: (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Synatic Service in violation of any U.S. export embargo, prohibition or restriction. Both Parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act and/or the Organization for Economic Cooperation and Development prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, Each Party represents and warrants that it has not and shall not at any time during the Term of the Agreement pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of any government official, political party, or candidate for political office, or any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with this Agreement.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into this Agreement, unless such untrue statement was made fraudulently. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form, or dependent upon any oral or written, public or private comments made by Company with respect to future functionality or features for the Synatic Service. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
- Attorney’s Fees. Customer shall pay on demand all of Company’s reasonable attorney fees and other costs incurred by Company to enforce this Agreement or to collect any fees or charges due Company under this Agreement following Customer’s breach of its payment obligations under this Agreement.
- No Assignment. Neither Party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. For the avoidance of doubt, a change of control, merger or other consolidation, acquisition or reorganization of Customer shall be deemed an assignment hereunder and is not permitted without Company’s prior written consent, which may be reasonably withheld or conditioned in Company’s sole and absolute discretion. Notwithstanding the foregoing, without Customer’s prior consent, Company may: (a) assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of Company’s assets, stock or business; and (b) engage third party subcontractors, service providers or agents in performing Company’s duties and exercising its rights hereunder. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement, if, and only if, such delay is caused by a labor dispute, strike, shortage of materials, fire, earthquake, flood, terrorism, Internet disruption, failure of an ISP, utility or telecommunications disruption, denial of service attack, failure of supplier, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts under the circumstances to notify the other Party of the cause of such delay and to resume performance as soon as commercially practicable.
- Independent Contractors. Company’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
- No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories, and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it.
- Notices. All notices under this Agreement shall be in writing. All notices shall be given and deemed effective: (a) by delivery in person; (b) by a nationally recognized next day courier service with tracking notice of delivery; (c) by first class, registered or certified mail, postage prepaid with tracking notice of delivery; (d) by facsimile with explicit acknowledgment of receipt by the intended recipient; or (e) by electronic mail to the address of the Party specified in this Agreement or an Order Form with explicit acknowledgment of receipt by the intended recipient (other than an automated response). Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
- Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement or any Order Form delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or the Order Form.
- Construction. The titles of the sections of this Agreement are for convenience of reference only, and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) “or” has the inclusive meaning frequently identified with the phrase “and/or”; (c) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”; and (d) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The Parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party, and that ambiguities shall not be interpreted against the drafting Party.
Limitation of Liability
Any liability we have to you in connection with these Terms, under any cause of action or theory, is strictly limited to $100 per user, in aggregate for all violations. Without limiting the previous sentence, in no event shall we or any of our affiliates be liable to you for any indirect, special, incidental, consequential, punitive, or exemplary damages arising out of or in connection with, these Terms. The foregoing limitations apply whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we or our affiliates have been advised of the possibility of such damages.
You agree to indemnify and hold us harmless for any breach of security or any compromise of your Account.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential; therefore, the above limitations may not apply to you. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
You agree to indemnify and hold harmless us, our affiliates and our and their officers, directors, partners, agents, and employees from and against any loss, liability, claim, or demand, including reasonable attorneys’ fees (collectively, “Claims”), made by any third party due to or arising out of your use of the Site and Services in violation of these Terms, any breach of the representations and warranties you make in these Terms, or your User Content. You agree to be solely responsible for defending any Claims against or suffered by us, subject to our right to participate with counsel of our own choosing.
Electronic Signatures and Notices
Certain activities on the Services may require you to make an electronic signature. You understand and accept that an electronic signature has same legal rights and obligations as a physical signature.
If you have an Account, you agree that we may provide you any and all required notices electronically through your Account or other electronic means. You agree that we are not responsible for any delivery fees charged to you as a result of your receipt of our electronic notices.