SCHEDULE “A”
SYNERION NORTH AMERICA INC.
TERMS AND CONDITIONS
These Terms and Conditions (“Terms” or this “Agreement”) govern the license to the Software, the purchase and/ or rental of Hardware, and access to Services and the use of the Website by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by Synerion North America Inc. (“we”, “us”, “Synerion”, or “Provider” and terms of similar meaning) and its suppliers.
By accepting this Agreement, by (a) clicking a box indicating acceptance; (b) accepting or executing an Order Form that references this Agreement; or (c) or by accessing or using the Services or the Website, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms.
If the individual accepting this Agreement is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these Terms, such individual must not accept this Agreement and may not use the Services or the Website.
The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
1 DEFINITIONS
1.1 “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription or license to the Services on behalf of the Client.
1.2 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services or Hardware.
1.3 “Anti-Spam Law” means any applicable federal, state, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
1.4 “Client” shall mean the individual or organization who is bound by the terms of an Order Form and this Agreement.
1.5 “Client Data” means any data or content inputted into the Website or the Software, or generated within the Software, by the Client or any of its Users and hosted on the servers of the Cloud Providers.
1.6 “Cloud Providers” has the meaning given in Section 7.2.
1.7 “Fees” means the fees to be paid by the Client pursuant to an Order Form, these Terms and any applicable Schedules.
1.8 “Fee Start Date” means the date that the Client is required to begin paying the Software Subscription Fees as described in the Order Form.
1.9 “Hardware” means the hardware/systems listed in an Order Form.
1.10 “Order Form” means the Provider’s order form;
1.11 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.12 “Privacy Laws” means any applicable federal, state, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals.
1.13 “Project Start Date” means the date of the initial kick-off meeting between the Provider and the project manager of the Client.
1.14 “Provider Data” means any data or content made available through the Software by the Provider and/or its licensors.
1.15 “Schedule” means a schedule or addendum, which is attached to this Agreement, the Order Form, or which may be added hereafter by written agreement of the parties.
1.16 “Services” means the use of the Hardware, and/or Software and/or the Website, and services to be provided by the Provider to the Client as described in this Agreement, the Order Form and/or any Schedule and any additional services authorized by the Client that the Provider agrees to perform or is required to perform hereunder. The Services shall include, but are not limited to, the delivery of the Hardware, the use of the Hardware and Software and/or Website, and other related services to be provided by the Provider to the Client pursuant to the Order Form or any Schedule.
1.17 “Software” means the Synerion workforce management software as a service (SaaS) platform (including the Provider Data) and mobile application licensed to the Client and the number of User licenses purchased by the Client pursuant to the terms of the Order Form.
1.18 “Specifications” means the specifications for the Hardware described in the Order Form.
1.19 “Term” shall have the meaning given in Section 13.1.
1.20 “User” means an individual user who accesses and/or uses the Software and/or the Services; Users may include employees or contractors of the Client who are authorized to use the Services. For better clarity, Users include Client Employees, as defined in Section 9.1.
1.21 “Website” means the Synerion website made available to the Users at www.synerion.com or its subdomains or domains with identical names under other top domains owned by the Provider, however accessed by the Client, the Users, or the Administrator(s).
2 PRIVACY AND SECURITY
2.1 Please refer to the privacy policy available at www.synerion.com/privacypolicy (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
3 HARDWARE
3.1 Hardware. The Provider shall sell or rent out to the Client, and the Client shall purchase or rent from the Provider, the Hardware, in accordance with this Agreement, the Order Form and the applicable Schedule(s).
3.2 Delivery. The Hardware will be delivered by the Provider or a third-party delivery company within a reasonable time after the Effective Date, unless a firm date is agreed to in a Schedule, subject to availability of the Hardware. The Hardware shall be delivered to the location specified in an Order Form (the “Delivery Point”).
3.3 Additional Hardware. The parties hereto may agree upon the purchase of additional Hardware and accompanying Services after the execution of this Agreement by entering into a new Order Form. Any such additional Order Form(s), if any, shall hereinafter be added as a Schedule to this Agreement, subject to the terms and conditions of this Agreement.
4 USER ACCOUNTS
4.1 Provisioning and User Accounts. Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Software and related Services for any User. Access to specific features of the Software and related Services may only be available to specific user types.
4.2 Registration. Administrators and Users agree to: (a) maintain the security of their password; (b) accept all risks of unauthorized access to their User account and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).
5 LICENSE TO SOFTWARE AND LICENSE RESTRICTIONS
5.1 License to Software. The Provider hereby grants to the Client and authorized Users a non-exclusive, non-transferable license to use the Software and solely permits the Client and its Users to use the functionality contained within the Software for legitimate purposes during the Term. The number of User licenses granted may be specified in the Order Form and any changes thereto may result in a change to the Fees specified therein.
5.2 License Restrictions. Except as set forth in this Agreement, the Order Form, any Schedule: the Client and any User may not (a) make or distribute copies of the Software; (b) use the Software to provide services to third-parties; (c) alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble; (d) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Hardware or Software (except as is incidental or necessary for the provision of the Software to Users); (e) disassemble or modify the Software or create derivative works based upon the Software; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (f) use the Software or the Services in a manner that breaches the rights of any third-party, any contract (including this Agreement or Third-Party Licenses, as defined in this Agreement) or legal duty or violate any Applicable Law; (g) copy the Software or any part, feature, function or user interface thereof; (h) access or use the Software or Services in any way for the purposes of competing with the Software or Services or in order to build a competitive product or service; (i) use the Services or the Software other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage; and/or (j) do anything to interfere with or impair the intended operation of the Software.
6 SERVICES
6.1 Services. The Provider shall perform the Services in accordance with this Agreement, the Order Form and the applicable Schedule(s), and in a timely, diligent and professional manner. The Provider warrants to the Client that the Services will be performed by or on behalf of the Provider in a good, workmanlike and professional manner, in accordance with Applicable Law and in accordance with generally accepted industry standards for the provision of similar services.
6.2 Work Schedule. Subject to Section 15.5 of these Terms, unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a Schedule represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The Client acknowledges that the Provider’s successful and timely performance of the Services is dependent on the active participation and collaboration of the Client, its Users, employees and representatives. The Client shall, and shall cause its User, employees and representatives, to act reasonably and co-operate fully with the Provider with respect to the Provider’s performance of the Services. The Provider shall not be liable for any delay or cost or expense caused as a result of the delay of the Client, its Users, employees and representatives, provided that the Provider has notified the Client of such delay.
7 SUPPORT, HOSTING AND BACKUP
7.1 Support and Maintenance. Support and maintenance Services are provided to the Client and its Users in accordance with the terms of the Provider’s Service Level Agreement, as attached hereto in Addendum “A”.
7.2 Hosting and Backups. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”), in accordance with the Provider’s Hosting Policy, as attached hereto in Addendum “B”, which may be amended from time to time. The location of the servers where Client Data is stored on, the Provider’s backup and disaster recovery policies are also governed by the Provider’s Hosting Policy.
8 CLIENT REPRESENTATIONS AND WARRANTIES AND RESPONSIBILITIES
8.1 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and the Software and the use of the Services and Software by the Client’s Users will (a) be consistent with this Agreement, any licenses provided and any Third-Party Agreement; and (b) comply with Applicable Law, including Privacy Laws and Anti-Spam Law. The Client also represents and warrants that it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Client shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
8.2 Responsibilities. The Client agrees (a) that it shall be responsible for maintaining its own Internet access (unless otherwise instructed by the Provider) with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Services; (b) the Client represents and warrants that it has the right to enter into this Agreement and to allow the Provider to provide the Hardware and perform the Services; and (c) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
8.3 Biometric Laws. The Client shall be responsible for ensuring its, and its Users, use of the Services and Software complies with all applicable laws relating to the processing of biometric information (“Biometric Laws”), including, without limitation and to the extent applicable, Illinois’s Biometric Information Privacy Act (740 ILCS 14/5) and Division II of Quebec’s Act to establish a legal framework for information technology, CQLR c C-1.1 (the “Quebec IT Act”). For greater certainty, the Client shall be responsible for (i) providing any notices to individuals and/or obtaining consent in the form and manner required under Biometric Laws; and (ii) providing any disclosures to regulatory authorities for the processing and/or storage of biometric information, as required by Biometric Laws, including any disclosures required under section 44 and 45 of the Quebec IT Act. Provider shall not be liable to the Client, whether in contract, tort, or under any other legal theory (including, without limitation, strict liability and negligence), for any damages arising out of or in connection with the Client or its User’s processing of biometric information in connection with the Services and Software.
8.4 Required Programs and Hardware. The Client acknowledges that the performance of the Services and/or operation of the Hardware may require that the Client obtain and/or install certain additional services, software programs or add-ons (“Required Programs”) and/or certain additional hardware (“Required Hardware”, collectively with Required Programs shall be referred to as “Required Programs and Hardware”). Unless indicated in a Schedule or the Order Form, the Client shall be responsible, at its own expense, to acquire or rent, maintain, upgrade, and replace as necessary, the Required Programs and Hardware. The Client further acknowledges that the operation of the Hardware and/or the Required Programs and Hardware may require the Client’s own hardware (i.e. not the Hardware purchased under this Agreement) to be of a sufficient quality, condition and repair, and the Client shall be responsible, at its sole expense, to maintain its hardware in the appropriate quality, condition and repair as necessary to operate the Hardware and/or the Required Programs and Hardware.
8.5 Client Indemnity Regarding Use of Services, the Software and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services, the Software and all Client Data or other data transmitted, received or created using the Services or the Software, even if transmitted, received or created by someone else, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Users of this Agreement, including any requirements relating to laws relating to the processing of biometric information, as discussed in section 8.3 above.
8.6 Acceptable Use of the Services. The Client and its Users may not:
(a) use, or encourage, promote, facilitate or instruct others to use the Services or the Software for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive;
(b) use the Services or the Software to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(c) interfere with or disrupt the Services, the Software or servers or networks connected to the Services or the Software or disobey any requirements, procedures, policies or regulations of networks connected to the Services or Software or misuse the Software by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;
(d) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials the Client or its Users receive or access pursuant to this Agreement;
(e) make network connections to any users, hosts, or networks unless the Client and its User have permission to communicate with them;
(f) distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements; and/or
(g) use the Services or the Website in any way so as to bring the Services, the Website or any part thereof or any third-party related thereto, or the Provider into disrepute.
The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services or the Software.
9 FEES, EXPENSES AND PAYMENT
9.1 Fees. In consideration for the Hardware purchase or rental, licensing of the Software and the Provider’s provision of related Services, the Client shall pay the Fees more particularly described in the Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, (i) the Fees are based on the Services purchased and not actual usage; (ii) payment obligations are non-cancelable and Fees paid are non-refundable; and (iii) a subscription type (pertaining to the number of Client employees, each a “Client Employee”, using the Services). Furthermore, the Fees are based on the peak number of active Client Employees for the period in question and the fee per Client Employee agreed upon by the Parties. The Parties will agree upon a minimum number of Client Employees in a given time period, as set out in the Order Form, for which the Client will be invoiced, even if less than the agreed upon minimum number of Client Employees uses the Services for the given time period.
9.2 Change to Fees. Unless as otherwise provided in the Order Form, the Provider reserves the right to amend the Fees on or related to the Services from time to time, upon providing the Client with thirty (30) days advanced written notice, prior to any Renewal Term (defined below), by e-mailing the Client. If the Client does not accept the amended or new Fees, the Client must terminate these Terms or amend its Services prior to the end of the thirty (30) day period. After such period, if the Terms are not terminated or the Services are not amended, the Client or any of its Users continued use or purchase of the Services after the effective date of the change indicates the Client’s agreement with the new or changed Fees.
9.3 Invoices and Payments. The Provider shall invoice the Client for the Services in accordance with the terms of the Order Form. The Client shall pay such invoices within thirty (30) calendar days of receipt (or such other time as specified in the Order Form or any Schedule). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month (twenty-four percent (24%)) on overdue amounts and interest thereon.
9.4 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay such taxes, levies and charges which the Provider is registered to charge and collect.
10 INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
10.1 Ownership of the Software and the Website. Nothing in this Agreement, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software and the Website.
10.2 Ownership of Client Data. The Provider acknowledges and agrees that, it has no right or interest in the Client Data, other than pursuant to Section 10.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement.
10.3 License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to this Agreement, including, without limitation, allowing the Provider to fix any bugs or problems related to the Services, in accordance with the terms and conditions of this Agreement.
10.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
10.5 Privacy Laws. The Client and authorized Users represent that (a) they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in this Agreement or our Privacy Policy.
10.6 Third-Party/Open Source Software and Sites. The Software and/or the Hardware may contain third-party software, firmware, services, products and/or open-source software, which may be subject to third-party licenses and require notices and/or additional terms and conditions (“Third-Party Licenses”). By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms. The Client agrees that the Provider has no liability arising from such third-party software, firmware, services, products and/or open-source software.
10.7 License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software, the Website or the Services.
11 DISCLAIMER AND LIMITATION OF LIABILITY
11.1 Disclaimer. Except as set out in the Order Form, this Agreement, or any Schedules (including the Service Level Agreement), the Services, the Software and the Hardware are provided to the Client and authorized Users on an “as-is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, unless otherwise specified in the applicable Order Form. The Provider does not warrant that the Services or the Software will be error-free or will operate without interruption.
11.2 No Indirect, Etc. Damages. Under no circumstances shall the Provider be liable for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement, the Order Form, any Schedules or any Services, even if advised of the possibility thereof.
11.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement or any Order Form, the liability of the Provider for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the six (6) months preceding the Loss.
11.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 11 are reasonable in scope and form an integral part of this Agreement.
12 INDEMNIFICATION
12.1 Indemnity by Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third-party claim relating to or resulting from (a) any negligence, willful misconduct or breach by the Client or its Users of the Client’s or its Users obligations under this Agreement, including its obligation to comply with all Applicable Law; or (b) any third party claim that the Client’s use of any Client Data infringes, misappropriates or otherwise violates the intellectual property rights of any third-party.
12.2 Indemnity by Provider. The Provider agrees to defend, indemnify and hold the Client, its Users, directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client may incur as a result of or in connection with any valid claim that the Software or any portion of it infringes the intellectual property rights of any third-party.
13 TERM
13.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date set out in the Order Form, and will continue for the period of time prior to the Fee Start Date, then thereafter for the length of time described in the Order Form as the Initial Term (“Initial Term”). Thereafter, this Agreement will automatically renew for the length of time as described in the Order Form (“Renewal Terms”), unless terminated in accordance with this Agreement
13.2 Termination.
(a) Prior to Renewal. Either party may terminate this Agreement by providing written notice to the other party at least thirty (30) days prior to the end of the then current term. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
(b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Insolvency. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
13.3 Early Termination. If this Agreement is terminated pursuant to Section 13.2 prior to the end of such current term, the Client shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly Fees (as described in the Order Form) multiplied by the number of months remaining prior to the end of such current Term.
13.4 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software or the Website; (c) change, suspend, or discontinue any aspect of the Software or the Website; and (d) impose limits on the Software or the Website.
13.5 Effect of Termination. If this Agreement is terminated in accordance with Section 13.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by the Client within thirty (30) days of termination, the Provider will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third party software and or the Software and;
(c) upon a request by the Client within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.
13.6 Return of Hardware Upon Termination. Upon termination of this Agreement in accordance with Section 13.2 and 13.3, the Client shall return all rented Hardware to the Provider. If the Client fails to return all rented Hardware to the Provider within thirty (30) days of the termination of this Agreement, the Provider shall reserve the right to charge the Client for the withheld Hardware at the fair market value, as determined in the sole discretion of the Provider.
14 CONFIDENTIALITY
14.1 Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, software, designs, drawings, pictures or other images (whether still or moving), sounds and content disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
14.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
14.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
14.4 Destruction. The Receiving Party, upon the request of the Disclosing Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the Disclosing Party or destroy such copies as directed by the Disclosing Party and certify their destruction.
14.5 Indemnity. The Receiving Party agrees to indemnify and hold the Disclosing Party harmless from and against all loss or damage or any kind and nature suffered by the Disclosing Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 14.
14.6 Publicity. Unless specifically requested otherwise, each of the Client and the Provider shall be permitted to use the other party’s trademarks (registered and unregistered), trade names, designs, logos and/or other indicia of origin (“Marks”) that are approved by such party for use on the other party’s website(s), social media accounts or in their retail location(s) (as applicable) solely for the purpose of indicating that the Client is a customer of the Provider. Further, the Provider’s Marks may appear on receipts or other documents printed or otherwise generated from the Software.
15 GENERAL
15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
15.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 10 (Intellectual Property, Client Data and Privacy) (but not section 10.3 (License from Client to Provider)), Section 11 (Disclaimer and Limitation of Liability), Section 12 (Indemnification), Section 13.5 (Effect of Termination), Section 14 (Confidentiality) and applicable provisions of Section 15 (General).
15.3 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
15.4 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, pandemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
15.5 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
15.6 Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to Canada (CDN) currency for Clients based in Canada, and to United States (US) currency for Clients based in the United States.
15.7 Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any Registration Data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Website for notices. The Client may provide notice to the Provider by emailing the Provider at legal@synerion.com.
15.8 Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, the Order Form or any Schedule or any obligation hereunder, in its sole discretion. The Client may not assign this Agreement, the Order Form or any Schedule without the prior written consent of the Provider.
15.9 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
15.10 Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
15.11 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
15.12 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
15.13 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
15.14 Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Website or on the Software; or (b) by e-mailing the Client. The Provider will also update the “Last Updated” date at the top of these Terms. You are responsible for checking these Terms whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
15.15 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
SYNERION NORTH AMERICA INC.
legal@synerion.com
ADDENDUM “A”
SYNERION NORTH AMERICA INC.
SERVICE LEVEL AGREEMENT
ADDENDUM “B”
SYNERION NORTH AMERICA INC.
HOSTING POLICY