These Terms of Service (“Terms of Service”) govern the Customer’s access to and use of the Services pursuant to the Synumatic Service Agreement between Customer and Supplier (the “Agreement”).
By accessing and using the Services, Customer accepts and agrees to these Terms of Service in connection with the access. If Customer does not agree with any of the provisions of these Terms of Service, Customer shall not access or use the Services. These Terms of Service are hereby incorporated into the Agreement (where applicable, references to the Agreement within these Terms of Service shall be inclusive of these Terms of Service).
The following definitions apply to these Terms of Service and the Agreement (undefined capitalized terms herein shall have the meaning given to them in the Agreement):
“Authorized Users” means those employees, agents and independent contractors of Customer and its Affiliates who are authorized by Customer to use the Services and the Documentation, as further described in Section 2.2(d).
“Confidential Information” means any business, scientific or technical data, information, design, process, procedure, formula, technology or other proprietary intellectual property and materials or improvement thereto that is proprietary to the disclosing party and is not generally known in the industry as well as information and documents related to a party’s and/or its product manufacturer’s products, services, activities, suppliers, customers, operations, systems, inventions, product formulations, databases, forecasts, pricing, drawings, prototypes.
“Customer Data” means the data provided by Customer, Authorized Users, or Supplier on Customer’s behalf for the purpose of using the Services or facilitating Customer’s use of the Services.
“Documentation” means the document(s) made available to Customer by Supplier from time to time which sets forth a description of the Services and the user instructions for the Services.
“Services” means the subscription services provided by Supplier to Customer under the Agreement from time to time.
“Software” means the software application(s) provided by Supplier as part of the Services.
“Subscription Fees” means the subscription fees payable by Customer to Supplier for the Pilot Period, as set forth in the Agreement.
“Pilot Period” means the initial term of the Agreement as set forth therein.
“User Subscriptions” means the subscriptions purchased by Customer pursuant to the Agreement.
“Virus” means any device or thing (including any software, code, file or program) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, Trojan horses and other similar things or devices.
2.1 Supplier hereby grants to Customer the right for Authorized Users to use the Services and the Documentation during the Pilot Period solely for Customer’s internal business operations.
2.2 In relation to the Authorized Users, Customer undertakes the following:
(a) the maximum number of Authorized Users authorized by Customer to access and use the Services and the Documentation shall not exceed the number of User Subscriptions defined in the Agreement;
(b) Customer will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorized User shall keep a secure password for use of the Services and Documentation and shall keep such password confidential;
(d) Customer shall maintain a written, up to date list of current Authorized Users and provide such list to Supplier within five (5) business days of Supplier’s written request at any time or times;
(e) Customer shall permit Supplier to audit the Services in order to establish the name and password of each Authorized User upon Supplier’s written request at any time or times; provided, that any such audit may be conducted at Supplier’s expense and with reasonable prior notice to Customer;
(f) if any such audit reveals that any password for the Services has been provided to any individual who is not an Authorized User, then without prejudice to Supplier’s other rights, Customer shall promptly disable such password and Supplier shall not issue any new passwords to such individual; and
(g) if any audit reveals that Customer has underpaid Subscription Fees to Supplier, Customer shall pay to Supplier an amount equal to such underpayment as calculated in accordance with the prices set forth in the applicable Schedules within ten (10) business days of the date of such audit.
2.3 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, and Supplier reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this Section.
2.4 Customer shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Documentation in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the Software;
(c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
(d) use the Services and/or Documentation to provide services to third parties; or
(e) subject to Section 17, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Section 2.
2.5 Customer shall use commercially reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or the Documentation by Customer or its Authorized Users and, in the event of any such unauthorized access or use, promptly notify Supplier.
2.6 The rights provided under this Section 2 are granted to Customer and its Authorized Users only, and shall not be considered granted to any subsidiary or holding company of Customer unless such subsidiary or holding company is an Authorized User.
3.1 Supplier shall, during the Pilot Period, provide the Services and make available the Documentation to Customer on and subject to the terms of the Agreement.
3.2 Supplier shall use commercially reasonable efforts to make the Services available twenty-four hours a day, seven days a week, except for:
(a) planned maintenance carried out during a planned maintenance period, prior notice of which shall be provided to Customer; and
(b) unscheduled maintenance performed outside normal business hours, provided that Supplier has used commercially reasonable efforts to give Customer at least six (6) hours’ advance notice.
3.3 Supplier will, as part of the Services and at no additional cost to Customer, provide Customer with Supplier’s standard customer support services during normal business hours, all as further set forth on the applicable Schedules.
4. Customer Data
4.1 Customer shall own all rights, title and interest in and to all Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
4.2 Supplier may archive Customer Data in its sole discretion from time to time to the extent required to enable Supplier to perform the Services. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Supplier to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
5. Supplier’s Obligations
5.1 Supplier represents and warrants that the Services will be performed substantially in accordance with the Documentation, with reasonable skill and care, and in compliance with all applicable laws, rules, regulations and industry standards.
5.2 The representations and warranties set forth in Section 5.1 shall not apply to the extent of any non-conformance caused by use of the Services contrary to Supplier’s instructions, or modification or alteration of the Services by any party other than Supplier or Supplier’s duly authorized contractors or agents. If the Services do not conform to the foregoing undertaking, Supplier will, at its expense, use all commercially reasonable efforts to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set forth in Section 5.1.
5.3 Notwithstanding the foregoing, Supplier does not warrant that Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements. Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4 Supplier represents and warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the Agreement.
6. Customer’s Obligations
(a) provide Supplier with all necessary cooperation in relation to the Agreement and all necessary access to such information as may be required by Supplier to render the Services;
(b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(c) carry out all other Customer responsibilities set forth in the Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services and the Documentation in accordance with these Terms of Service and the Agreement and shall be responsible for any Authorized User’s breach of these Terms of Service and/or the Agreement;
(e) obtain and maintain all necessary licenses, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Supplier’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links.
7. Charges and Payment
7.1 Customer shall pay the Subscription Fees to Supplier for the Pilot Period in accordance with this Section 7 and the Agreement.
7.2 Customer shall provide to Supplier valid, up-to-date and complete approved purchase order information acceptable to Supplier and any other relevant valid, up-to-date and complete contact and billing details.
7.3 If Supplier has not received payment within the period set forth in the applicable Schedule, and without prejudice to any other rights and remedies of Supplier:
(a) Supplier may, without liability to Customer, disable Customer’s password, account and access to all or part of the Services and Supplier shall be under no obligation to provide any or all of the Services while any amounts remain outstanding; and
(b) interest shall accrue on such due amounts at the monthly rate set forth in the applicable Schedule commencing on the due date and continuing until fully paid, whether before or after judgment.
8. Proprietary Rights
8.1 Customer acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
8.2 Supplier confirms that it has all rights in relation to the Services and the Documentation necessary to grant the rights it purports to grant hereunder.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the receiving party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available to any third party (other than to the receiving party’s employees, agents, consultants and advisors who need to know the Confidential Information to enable the receiving party to perform its obligations under these Terms and Conditions and the Agreement), or use the other party’s Confidential Information for any purpose other than the implementation of the Agreement. Any permitted disclosure shall be made with the understanding that it is subject to the terms and conditions of this Agreement, and that the parties to whom each such disclosure is made shall be bound by this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 Customer acknowledges that details of the Services and the results of any performance tests of the Services, the Pilot Period and the Subscription Fees constitute Supplier’s Confidential Information.
9.6 Supplier acknowledges that Customer Data is the Confidential Information of Customer.
9.7 The obligations set forth in this Section 9 shall survive termination of the Agreement and continue for a period of five (5) years thereafter.
10. Indemnification Procedures
10.1 In the defense or settlement of any infringement claim, Supplier may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two (2) business days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer .
10.2 In no event shall Supplier, its employees, agents or subcontractors be liable to Customer to the extent that the alleged infringement is due to:
(a) a modification of the Services or Documentation by anyone other than Supplier or its employees or agents; or
(b) Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by Supplier; or
(c) Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Supplier or any appropriate authority.
10.3 The foregoing states Customer’s sole and exclusive rights and remedies, and Supplier’s (including Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
10.4 Upon termination of the Agreement for any reason:
(a) all rights granted under the Agreement, including but not limited to the right to use the Services, shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Confidential Information, Documentation and other items (and all copies of them) belonging to the other party;
(c) Supplier shall submit to Customer an itemized final invoice for any fees or expenses theretofore accrued and not previously invoiced under the Agreement;
(d) within thirty (30) calendar days after receipt of Supplier’s final invoice, Customer shall pay all amounts due Supplier pursuant to such invoice and all other outstanding invoices;
(e) Supplier may destroy or otherwise dispose of any Customer Data in its possession unless Supplier receives, no later than ten (10) days after the effective date of the termination of the Agreement, a written request for the delivery to Customer of the most recent back-up of Customer Data. Supplier shall use reasonable commercial efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request, provided that Customer has, at that time, paid all outstanding fees and charges. Customer shall pay all reasonable expenses incurred by Supplier in returning Customer Data; and
(f) the accrued rights of the parties upon termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11. Force Majeure
Neither party shall have liability to the other party under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or Customer or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
12.1 A waiver of any right under the Agreement shall be effective only if it is in writing and signed by the party to be bound.
12.2 A waiver of any default or of any of the terms and conditions of the Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
In the event any provision of the Agreement or these Terms of Service is held to be invalid or unenforceable, such provision shall severed from the remainder of the Agreement, and such remainder will remain in force and effect. If any invalid, unenforceable or illegal provision would be valid and enforceable with modification, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14. Entire Agreement
The Agreement, inclusive of these Terms of Service, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements, whether written or oral. Except as expressly set forth hereunder, amendments or revisions to the Agreement must be in writing, signed by both parties’ duly authorized representatives.
Neither Party may assign, transfer or otherwise convey or delegate any of its rights or duties under the Agreement to any other Person without the prior written consent of the other Party, and any attempt to do so will be void. Notwithstanding the foregoing, either Party may, upon written notice to the other Party, assign its rights and obligations under the Agreement, without the approval of the other Party, to an entity which acquires all or substantially all of the assets of such Party, or to any subsidiary or affiliate or successor in a merger or acquisition of such Party. The Agreement shall be binding upon the respective successors and permitted assigns of the Parties.
16. Relationship of the Parties
16.1 Supplier is providing the Services as an independent contractor of Customer. Supplier has the sole right and obligation to supervise, manage, direct, and perform all work to be performed by its personnel under the Agreement. Persons who perform such work are employees or subcontractors of Supplier and Supplier will be solely responsible for payment of compensation to such persons and for any injury to them in the course of their employment. Supplier will assume full responsibility for payment of all federal, state and local taxes, withholding or contributions imposed or required under unemployment insurance, social security and income tax laws with respect to such persons.
16.2 Nothing in the Agreement is intended to or shall operate to create a partnership, joint venture, master/servant or other relationship between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
All notices, requests, demands and other communications which are required or may be given under the Agreement, including, without limitation, all documents delivered pursuant to the Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when received if transmitted by facsimile, electronic or digital transmission method; the business day after it is sent, if sent for next business day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express or UPS); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice shall be sent to such address and with such other copies as a party may designate by written notice to the other party.
Governing Law and Jurisdiction
17.1 The Agreement and any disputes or claims arising out of or in connection herewith shall be governed by, and construed in accordance with the laws of the State of Illinois[M1] , excluding its conflict of laws provisions.
17.2 The parties irrevocably agree that the federal and state courts located in Lake or Cook County, Illinois have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
18. Confidentiality of Agreement
Except as otherwise provided for herein, the existence and terms of the Agreement shall be maintained in confidence by the parties hereto. All public announcements, notices or other communications regarding such matters to third parties shall require the prior approval of both parties.
By proceeding with the Pilot Period and accessing the Services, Customer agrees to these Terms of Service.