TERMS OF SERVICE
These Terms of Service along with any other terms and policies referenced herein and are incorporated by reference and form an integral part hereof, as amended from time to time (these “Terms”) constitute a legally binding agreement as of the Effective Date (as defined below), governing your access to, and the use of www.ppmcore.com and any related website owned or operated by Synami DOOEL (the “Sites”), and the use of, and registration with, Synami DOOEL Service (defined below) through the Sites, a mobile application or through any other means. These Terms are between Synami. (“Synami”, “us”, “we” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (“you” or “your”). In case you represent your employer or another entity, you hereby represent that (i) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (ii) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING INTO THE SERVICE; AND (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).
AS ELABORATED IN SECTION 3 BELOW, THERE ARE VARIOUS TYPES OF USERS FOR THE SERVICE, THUS, EXCEPT WHERE INDICATED OTHERWISE “YOU” SHALL REFER TO CUSTOMER AND ALL TYPES OF USERS. YOU ACKNOWLEDGE THAT THESE TERMS ARE BINDING AND SHALL BE OBLIGATED BY THE PROVISIONS AS SET FORTH HEREIN, AND YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THESE TERMS, BY EITHER: (I) CLICKING ON A BUTTON OR CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THESE TERMS; OR (II) REGISTERING TO, USING OR ACCESSING THE SERVICE, SITES OR SYNAMI DOOEL MOBILE APPLICATION, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”).
IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESE TERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR ANY OTHER ENTITY (AS APPLICABLE), PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICE OR THE SITES OR Synami MOBILE APPLICATION.
1. Our Service
The Synami PPM Core product (“Product”) is a cloud-based visual work management tool that transforms the way teams work together, with the aim to build a culture of transparency, ownership and accountability, inclusive of any and all functionalities, application programming interface and tools offered as part of the Synami product, offered online and/or via a mobile application (the “Service”). Specific Terms may apply to You or to some of the Service, such specific terms are incorporated herein and in other legally binding documents by reference and form an integral part hereof.
1.2 Modification or Discontinuation of the Service
We may add, modify or discontinue any feature, functionality or any other tool, within the Service and/or Sites, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement on the Sites and/or via the Service or by sending you an email.
1.3 No Contingency on Future Releases and Improvements
You hereby acknowledge that your purchase of the Service and/or Third Party Services (as defined below) hereunder are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of: (i) a certain Service beyond its current Subscription Term; or (ii) Third Party Services, or dependent on any public comments we make, orally or in writing, regarding any future functionality or feature.
1.4 Ability to Accept Terms – Legal Capacity
If you access and use the Sites and/or the Service, you represent and warrant that you are at least 18 years old, or have the legal capacity according to applicable law in the respective Customer country. The Sites and/or Service are only intended for persons with the legal capacity to enter into a binding agreement for use of the Services provided by Synami. We reserve the right to request proof of such capacity at any stage so that we can verify compliance with this paragraph.
1.5 Technical Support and Committed Uptime
To the extent you purchased an enterprise tier subscription, you will be entitled to premium technical support and an uptime commitment by Synami, in accordance with the CSCA, as may be updated by Synami from time to time.
1.6 Additional Services
Customer may choose to purchase additional services to be provided by Synami.
2. The Product
2.1 Universal Viewer
Universal viewer module is a schedule viewer web app that allows users to upload and view schedule data from different sources and file formats in one unified view, regardless of the software used to create the project plan. The UV is based on a Project based licensing model: One License per project, unlimited number of users, Flexible payment options – Yearly/annual subscription plan over the entire project lifecycle or one-time payments.
2.2 Portfolio Management
Portfolio Management module is a web app that gives users a centralized management and overview for all projects within a portfolio. PM license is on an enterprise level with an unlimited number of users and an agreed number of projects. All project and portfolio data is done by user input.
2.3 Additional and custom modules
We may offer additional modules, and custom modules created according to the needs of the Customer. Additional Agreements between us and the Customer may be concluded, which will further define the terms and conditions of the use of said modules, which shall also be regulated and enforced by and with these provisions. Synami reserves the right to accept or deny orders for custom modules, depending on the request, complexity, and conditions.
2.4 Cloud Service Customer Agreement
By using our Services, the User shall be legally bound and shall be liable in accordance to these Terms and The Cloud Service Customer Agreement (“CSCA”) or any other legally binding document which shall be referenced herein. The CSCA shall be considered an integral part of these Terms and shall furthermore define the terms and conditions of the engagement between Us and You. These Terms and the CSCA constitute the complete legally binding Agreement for use of the Services subject to the terms and provisions thereof.
3. Account Registration and Administration
3.1 Account Registration
To register to the Service for the first time, you shall create an account with the Service. By creating an account (“Account”) and registering to the Service you become, either individually or on behalf of your employer or any entity, on behalf of whom you created the Account, a Synami customer (the “Customer”). The first user is the Customer of the Account and is automatically assigned as the Account administrator, (the “Tenant Admin”).
3.2 Your Registration Information
When creating an Account or when you are added into an Account and creating your user profile (the “User Profile”), you: (i) agree to provide us with accurate, complete, and current registration information about yourself; (ii) acknowledge that it is your responsibility to ensure that your password remains confidential and secure; (iii) agree that you are fully responsible for all activities that occur under your User Profile and password, including any integration or any other use of third party products or services (and associated disclosure of data) in connection with the Service; and (iv) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of your Account or User Profile and/or any breach of these Terms and other related legally binding documents. We may assume that any communications we receive under your User Profile have been made by you. Customer will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the Account by either you or any other User or third party on your behalf.
3.3 User Verification
You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User Profile. In the event that you or the Tenant Admin lose access to an Account or otherwise request information about an Account, we reserve the right to request from you or such Admin (as the case may be) any verification we deem necessary before restoring access to or providing information about such Account.
3.4 Tenant Admins
The Admin(s) of an Account are, severally and jointly, deemed as the authorized representatives of the Customer, and any decision or action made by any Admin, is deemed as a decision or action of Customer. An Admin may assign or add other members of the Account as Admins, which possess important privileges and controls over the use of the Service and the Account, including, without limitation: (i) control your (and other Users) use of the Account; (ii) purchase, upgrade or downgrade the Service; (ii) create, monitor or modify Users’ actions and permissions; (iii) manage the access to, control, remove, share posts or otherwise change, all or part of the Customer Data (as defined below); and (iv) integrate or disable integration with Third Party Services. You also acknowledge that your Account can become managed by a representative of the entity that owns or controls the email address domain with which your Account was created or registered. Admin rights are further elaborated in our Help Center.
3.5 Other Users
There are several types of Account users, such as guests, viewers and team members, all of whom are defined within the Service and referred to herein as “Authorized Users”, and collectively with the Admin, the “Users”. The features and functionalities available to the Users are determined by the respective subscription plan governing such Account, and the privileges of each such Authorized User are assigned and determined by the Account Admin(s).
3.6 Responsibility for Authorized Users
Customer is solely liable and responsible for understanding the settings, privileges and controls for the Service and for controlling whom Customer permits to become a User and what are the settings and privileges for such User, including without limitation, the right for a User to invite other Users (either paid or unpaid), the right to incur charges on the Account, the right to access, modify or share boards, etc. Customer is responsible for the activities of all its Users, including Order Forms they may place and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain. Further, Customer acknowledges that any action taken by a User of Customer’s Account, is deemed by us as an authorized action by Customer, hence Customer shall have no claim in this regard.
4. Your Customer Data
4.1 Customer Data
Customer Data is any data, file attachments, text, images, reports, personal information, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Service by you or any User and is processed by us on Customer’s behalf (the “Customer Data”). For the avoidance of doubt, Anonymous Information (as defined below) is not regarded as Customer Data. Customer retains all right, title, interest and control, in and to the Customer Data, in the form submitted to the Service. Subject to these Terms, Customer grants us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display in the Service constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. The aforementioned license is hereby granted solely: (i) to maintain and provide you the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you. In the event that Customer requests data to be provided by Synami out of the standard procedure, such provision of data shall be separately billed by Synami as a service.
4.2 Responsibility for Customer Data Compliance
You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that you submit, post or display on or through the Service; (ii) the Customer Data is in compliance with, and does not infringe upon any right or permissible legal use; and (iii) the Customer Data you submit, your use of such Customer Data, and our use of such Customer Data, as set forth in these Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the “Laws”); (c) violate any of your or third party’s policies and terms governing the Customer Data. Other than our security and data protection obligations expressly set forth in Section 6, we assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby acknowledged that Synami shall not monitor and/or moderate the Customer Data and there shall be no claim against Synami of not acting so.
4.3 No Sensitive Data
You shall not submit to the Service any data that is protected under a special legislation and requires a unique treatment, including, without limitations, (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any similar legislation or regulation in other jurisdiction; or (ii) credit, debit or other payment card data subject to PCI DSS or any other credit card schemes.
5. Public User Submissions
5.1 Public User Submissions
The Services may have certain features that allow you to submit comments, information, and other materials publicly (collectively, “Public User Submissions”) and share such Public User Submissions with other Users, or the public. By submitting Public User Submissions through the Sites, you grant us a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Public User Submissions for any purpose, business, including without limitation, for publicizing and promoting Synami, the Service and/or the Sites and for any other lawful purpose, in any media format (e.g. in-print, websites. electronically, broadcast), and you hereby waive, or to the extent legally prohibited, assign to Synami, any moral rights in your Public User Submissions.
5.2 Responsibility for Public User Submissions
You acknowledge and agree that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Public User Submissions that you submit, post or display on or through the Service; (ii) we do not control, and are not responsible for, other content and/or submissions, posted on our Sites and/or Service by others; (iii) by using the Service and/or Sites, you may be exposed to content and/or submissions by other users or site visitors that is offensive, indecent, inaccurate, misleading, or otherwise unlawful; (iv) any Public User Submissions are submitted in accordance with, and subject to our Acceptable Use Policy.
6. Intellectual Property Rights; License
6.1 Our Intellectual Property
The Service and Sites, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “Synami Materials”), are the property of Synami and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and Synami, Synami retains all right, title and interest, including all intellectual property rights, in and to the Synami Materials.
6.2 Customer Reference
Customer acknowledges and accepts that Synami has the right to use Customer’s name and logo to identify Customer as a customer of Synami or User of the Service, on Synami website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting us through the official Synami contact published under the Company Contact section.
6.3 Your Access and Use Rights
Subject to the provisions of these Terms, and your compliance thereof, and specifically in strict compliance with, we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Service and Sites, during the applicable Subscription Term, solely for Customer’s internal purposes.
6.4 Use Restrictions
Except as expressly permitted in these Terms, you may not, and shall not allow an Authorized User or any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the Service or the Sites to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (iii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Service, or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service, or any part thereof; (v) take any action that imposes or may impose (at Synami’s sole discretion) an unreasonable or disproportionately large load on the Synami infrastructure or infrastructure which supports the Service; (vi) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (vii) remove, deface, obscure, or alter Synami’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos of the Service without Synami’s prior written approval; (viii) use the Service or Sites for competitive purposes, including to develop or enhance a competing service or product; or (ix) encourage or assist any third party (including other Authorized Users) to do any of the foregoing.
As a User of the Service, you may provide suggestions, comments, feature requests or other feedback to any of Synami Materials, the Synami Service, the API (in case you are the Admin) (“Feedback”). Such Feedback is deemed an integral part of Synami Materials, and as such, it is the sole property of Synami without restrictions or limitations on use of any kind. Synami may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to Synami any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.
6.6 API Use
We may offer an application programming interface that provides additional ways to access and use the Service (“API“). Such API is considered a part of the Service, and its use is subject to all these Terms and any relating legally binding documents. Without derogating from Sections 6.1 through 6.4 hereof, you may only access and use our API for Customer’s internal business purposes, in order to create interoperability and integration between the Service and other products, services or systems you and/or Customer use internally. When using the API you should follow our relevant developer guidelines. We reserve the right at any time to modify or discontinue, temporarily or permanently, your and/or Customer’s access to the API (or any part of it) with or without notice. The API is subject to changes and modifications, and you are solely responsible to ensure that your use of the API is compatible with the current version.
7. Privacy and Security
7.3 Data Processing
By using the Service, Customer accepts Synami to process the data disclosed and provided by Customer in relation to the provision of Services, whereas Synami shall act and process such data in accordance with the Data Protection regulations and shall use such data only in relation of provision of the services on Customer’s behalf, where such Personal Data is subject to the General Data Protection Regulation 2016/679 (the “GDPR”).
7.4 Anonymous Information
Notwithstanding any other provision of these Terms and the CSCA or other legally binding related document, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Service and/or Sites, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Sites and Service, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. Synami owns all Anonymous Information collected or obtained by Synami.
8. Third Party Services; Links.
8.1 Third Party Services
The Service enables you to engage and procure certain third party services, products, apps and tools in connection with the Service, including, without limitation, third party applications and widgets offered via our integrations offering or which you decide to connect through our API, as part of the Service (collectively, “Third Party Services”).
8.2 Independent Relationship
You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of a Third Party Service (the “Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third Party Service with the Third Party Agreement.
8.3 Integration with a Third-Party Service and your Customer Data
8.4 Use Conditions and Limitations
Both Synami and a Third-Party Service may impose, each at its sole discretion, additional conditions or limitations on your access and use of certain Third-Party Services, including without limitation, imposing a limited quota on the number of actions or other uses (as the case may be). Such additional conditions or limitations shall be indicated wherever relevant within the Service or the Third-Party Service or otherwise notified to you or to any other relevant User of the Account.
8.5 Synami Marketplace
Synami may make available Third-Party Services through a Synami Marketplace. Your use of the Synami Marketplace when available, will be subject to the Synami Marketplace Terms of Service.
8.6 Payment for Third Party Services
Third Party Services may be offered free of charge or for a certain fee, either charged directly by the Third-Party Service or by Synami. Wherever the Third-Party Service requires a payment, it shall be indicated next to the offering of the Third-Party Service, unless such price is included within the Subscription Plan (as defined below) for the Service. Whenever Synami charges Customer on behalf of itself and not as an agent on behalf of the Third-Party Service, the payment terms, including the payment of fees, renewal and refund policy, are governed by Sections 8 and 9 herein. Whenever Synami charges Customer on behalf of the Third-Party Services, then Customer acknowledges that Synami serves only as an intermediary role in facilitating or collecting the applicable fees and taxes from Customer, for the Third-Party Service, thus all payment related issues, including the payment of fees, renewal and refund policy, are governed by the Third-Party Agreement.
8.7 Change of Fees
Customer acknowledges that Synami and any Third-Party Service, may change the fees for the Third-Party Service from time to time, including imposing a new charge on a Third-Party Service that was provided for free.
8.8 Discontinuation of a Third-Party Service
Each of Synami and the Third-Party Service reserve the right to discontinue the use or suspend the availability of any Third-Party Service, for any reason and with no obligation to provide any explanation or notice. Such discontinuation may result in the inability to utilize certain features and actions of the Third-Party Service along with our Service.
8.10 Limitations of Liability
Synami BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICE’S OPERABILITY OR INTEROPERABILITY WITH OUR SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, YOU ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICE’S OPERATION AND PRACTICES AND ITS RESPECTIVE THIRD-PARTY AGREEMENT, MEET YOUR NEEDS.
9. Trial Service
9.1 Trial Service
We may offer, from time to time, part or all of our Services on a free, no-obligation trial version (“Trial Service”). The term of the Trial Service shall be as communicated to you, within the Service, in an Order Form, unless terminated earlier by either Customer or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without liability or explanation to you. In respect of a Trial Service that is a trial version of the Subscription Plan (the “Trial Subscription”), upon termination of the Trial Subscription, we may change the Account web address at any time without any prior written notice.
9.2 Governing Terms of Trial Service
The Trial Service and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Service and Pre-Released Services (i) such services are licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or implied, of any kind; (ii) the indemnity undertaking by us set forth in Section 15.2 herein shall not apply; and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF Synami, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES), EXCEED EUR$100. We make no promises that any Trial Service and/or Pre-Released Services will be made available to you and/or generally available.
10. Term and Termination; Suspension
These Terms are in full force and effect, commencing upon the Effective Date, until the end of the Service underlying the Account, either paid or unpaid, unless terminated otherwise in accordance with these Terms and the Cloud Service Agreement (“CSCA).
10.2 Termination for Cause
Either Customer or us may terminate the Service and these Terms, upon written notice, in case that (a) the other party is in material breach of these Terms and the CSCA and to the extent, curable, fails to cure such breach, within a reasonable cure period, which shall not be less than 10 days following a written notice from by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days.
10.3 Termination by Customer
Customer may terminate its Subscription to the Service by cancelling the Service and/or deleting the Account, whereby such termination shall not derogate from Customer’s obligation to pay applicable Subscription Fees. In accordance with Section 10 above, unless mutually agreed otherwise by Customer and us in a written instrument, the effective date of such termination will take effect at the end of the then-current Subscription Term, and Customer’s obligation to pay the Subscription Fees throughout the end of such Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any Subscription Fees for the then-current Subscription Term.
10.4 Effect of Termination of Service
Upon termination or expiration of this Agreement and the Service, Customer’s Subscription and all rights granted to the Customer hereunder shall terminate, and we may change the Account’s web address and restrict any access. It is Customer’s sole liability to export the Customer Data prior to such termination or expiration. In the event that Customer has not deleted the Customer Data from the Account, we may continue to store and host it until either we, at our sole discretion, delete such Customer Data, and Customer shall not be able to use the Service (the “Restricted Access”), Customer acknowledges the foregoing and its sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to Customer, nor to any User or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of this Agreement shall not relieve Customer from its obligation to pay due Subscription Fees. Synami reserves the right to initiate Restricted Access and therefore delete Customer’s account and discontinue the Service hence terminating the Agreement when Customer doesn’t pay due Subscription fees over 3 (three) months (see CSCA). Synami reserves the right to delete data at any point during the 2 month period after the termination of the Services and the Agreement by any reason whatsoever.
Section 2.6 (Responsibility for Authorized Users), 3 (Customer Data), 6 (Privacy and Security), 7 (Third Party Services), 9.2 (Governing Terms of Trial Services and Pre-Released Services), 10 (Term and Termination; Suspension), 11 (Confidentiality), 12 (Warranty Disclaimer), 13 (Limitations of Liability), 15 (Indemnification), 21 (Governing Law and Jurisdiction; Class Action Waiver) and 22 (General Provisions), shall survive the termination or expiration of these Terms, and continue to be in force and effect in accordance with their applicable terms.
Without derogating from our termination rights, we may decide to temporarily suspend the Account and/or a User Profile (including any access thereto) and/or our Service, in the following events: (i) we believe, at our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are using the Service in breach of these Terms or applicable Law; (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become, overdue; or (iv) Customer’s or any of its Users’ breach of the Acceptable Use Policy. The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms, the CSCA and/or applicable Law.
11.1 Confidential Information
In connection with these Terms and the Service (including the evaluation thereof), each party (“Disclosing Party”) may disclose to the other party (“Receiving Party”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as Customer’s Confidential Information, and (ii) our Site, Service, Trial Service and/or Pre-Released Services, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) 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) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
11.2 Confidentiality Undertakings by the Receiving Party
The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
11.3 Compelled Disclosure
Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other authorized governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
12. Warranty Disclaimer
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
12.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITES AND THE SERVICE ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD-PARTY SERVICE PROVIDERS) HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES AND/OR REPRESENTATIONS OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.
12.2. WE AND OUR VENDORS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE SERVICE AND SITES, INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY, SECURED, ERROR FREE, THAT DATA WON’T BE LOST, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES AND/OR SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CUSTOMER DATA) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
12.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (I) THAT OUR SERVICE (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE AND/OR THE SITES.
13. Limitation of Liability
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
13.1. IN NO EVENT SHALL SYNAMI AND ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD PARTY SERVICE PROVIDERS), BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THESE TERMS FOR (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III) ANY LOSS OF, OR DAMAGE TO DATA, USE, BUSINESS, REPUTATION, REVENUE OR GOODWILL; AND/OR (IV) THE FAILURE OF SECURITY MEASURES AND PROTECTIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Specific Laws; Reasonable Allocation of Risks
14.1 Specific Laws
Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.
14.2 Reasonable Allocation of Risks
You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.
15.1 By Customer
Customer hereby agrees to indemnify, defend and hold harmless Synami and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, liabilities, losses, reasonable expenses or costs (collectively, “Losses”) incurred as a result of any third party claim arising from (i) Customer’s and/or any of its Users’, violation of these Terms or applicable Law; and/or (ii) Customer Data, including the use of Customer Data by Synami and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights.
15.2 By Synami
Synami hereby agrees to defend Customer, its affiliates, officers, directors, and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use of the Service infringes or constitutes misappropriation of any third party’s copyright, trademark or registered patent (the “IP Claim”), and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim by a court of competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees. Synami’s indemnity obligations under this Section 15 shall not apply if: (i) the Service (or any portion thereof) was modified by Customer or any of its Users or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Service is used in combination with any other service, device, software or products, including, without limitation, Third Party Services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or (iii) any IP Claim arising or related to, the Customer Data or to any events giving rise to Customer’s indemnity obligations under Section 15.1 above. Without derogating from the foregoing defense and indemnification obligation, if Synami believes that the Service, or any part thereof, may so infringe, then Synami may in its sole discretion: (a) obtain (at no additional cost to you) the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (c) if Synami determines that the foregoing remedies are not reasonably available, then Synami may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the Subscription Term. THIS SECTION 15.2 STATES SYNAMI’S SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY SYNAMI AND/OR ITS SERVICE AND UNDERLYING TECHNOLOGY.
15.3 Indemnity Conditions
The defense and indemnification obligations of the indemnifying party under this Section 15 are subject to: (i) the indemnified party shall promptly provide a written notice of the claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will not relieve the indemnifying party of its obligations under this Section 16, except to the extent the indemnifying party’s defense is materially prejudiced thereby; (ii) the indemnifying party being given immediate and exclusive control over the defense and/or settlement of the claim, provided, however that the indemnifying party shall not enter into any compromise or settlement of any such claim that that requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by an indemnitee without the prior written consent of the affected indemnitee, which shall not be unreasonably withheld or delayed; and (iii) the indemnified party providing reasonable cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of, or response to, such claim.
16. Third Party Components within Our Service
Our Service may include third party codes and libraries that are subject to third party opensource license terms (the “Open-Source Code” and the “Open-Source Terms”, respectively). Some of such Open-Source Terms determine that to the extent applicable to the respective Open-Source Code licensed thereunder, such terms prevail over any conflicting license terms, including these Terms. We use our best endeavors to identify such Open-Source Code, within our Service, hence we encourage Customer to familiarize itself with such Open-Source Terms. Note that we use best efforts to use only Open-Source Codes that does not impose any obligation or affect the Customer Data or related intellectual property (beyond what is stated in the Open-Source Terms and herein), on an ordinary use of our Service that does not involve any modification, distribution or independent use of such Open-Source Code. Notwithstanding anything to the contrary, we make no warranty or indemnity hereunder with respect to any Open-Source Codes.
Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide Customer with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending Customer an email. Your continued use of the Service after the changes have been implemented will constitute your acceptance of the changes.
You shall be responsible for reviewing and becoming familiar with the then-current Terms and Conditions and the Privacy and Cookies Policy or any other policy we may place from time to time to ensure that you agree with them.
No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
Any rights not expressly granted herein are reserved.
Synami may transfer, sub-contract or otherwise deal these terms and conditions without individually notifying you or obtaining your consent. Synami will in such case uphold to all regulatory requirements in obtaining compliance by any sub-contractor. You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions without prior written approval from us.
You are responsible for understanding the contents and operation of Synami Services and Sites. We reserve the right to change the format of any and all Synami Services and Sites in order to enhance it for your better user experience and/or for other business purposes at our sole discretion.
18. Governing Law and Jurisdiction; Class Action Waiver and Mandatory Arbitration
18.1 Governing Law; Jurisdiction
These Terms and any action related thereto will be governed and interpreted by and under the laws of Republic of North Macedonia without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in Skopje, Republic of North Macedonia, shall have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms. You and us mutually agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Notwithstanding the foregoing, Synami reserves the right to seek injunctive relief in any court in any jurisdiction.
18.2 Class Action Waiver
WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND SYNAMI AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Synami mutually agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
19. General Provisions
19.1 Translated Versions
These Terms were written in English and may be translated into other languages for your convenience. If a translated (non-English) version of these Terms conflicts in any way with their English version, the provisions of the English version shall prevail.
19.2 Force Majeure
Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
19.3 Relationship of the Parties; No Third-Party Beneficiaries
The parties are independent contractors. These Terms and the Service provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section 21.4. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Sites or posting in your account, text, in-app notification, e-mail, phone or first class, airmail, or overnight courier. You further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided to Synami.
These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our written approval, provided that you may assign these Terms to your successor entity or person, resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting rights, except for an assignment to a competitor of Synami, and provided that you provide us with prompt written notice of such assignment and the respective assignee agrees, in writing, to assume all of your obligations under these Terms. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Service to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section 21.5 shall be null and void.
These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
19.7 No Waiver
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.