Syntes AI Terms of Use

SAAS SUBSCRIPTION AGREEMENT

This SaaS Subscription Agreement (“Agreement”) is between the individual or entity entering into this Agreement (“Customer” or “You”) and Syntes, Inc. (“Syntes”) (each of Syntes and Customer, is a “Party” and collectively are the “Parties”).

BY CLICKING ON ‘I ACCEPT’ OR A SIMILAR BUTTON OR DOWNLOADING, INSTALLING, ACCESSING, OR USING ANY OF THE PROPRIETARY ITEMS (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT (1) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE SUCH ENTITY AND TO BIND SUCH ENTITY TO THIS AGREEMENT.  IF YOU DO NOT SO AGREE, YOU HAVE NO RIGHTS TO DOWNLOAD, INSTALL, ACCESS, OR USE THE PROPRIETARY ITEMS.  THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF THE DATE YOU ACCEPT THIS AGREEMENT OR YOU DOWNLOAD, INSTALL, ACCESS, OR USE ANY OF THE PROPRIETARY ITEMS (THE “EFFECTIVE DATE”).

 

1. DEFINITION OF TERMS

The following terms have the following meanings:

1.1.           “Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, directly or indirectly, of at least 50% plus one share of the outstanding equity representing the right to vote for the election of directors or other managing authority of a corporation, partnership, person or other entity.

1.2.           “APIs” means the application programming interfaces provided by Syntes to Customer to enable Customer to create its own connectors to integrate the Services with Customer’s and its Affiliates’ systems.

1.3.           “App Store” means the marketplace distributing the Mobile Applications (e.g. Google Play or Apple Store).

1.4.           “Authorized User” means any employees, independent contractors, agents or representatives of Customer and its Affiliates, subject to any limitations or restrictions set forth on an Order.

1.5.           “Confidential Information” means all information disclosed by one Party to the other in connection with this Agreement or otherwise obtained by the Receiving Party, which the receiving Party knew or reasonably should have known was the confidential information of the disclosing Party. Confidential Information shall not include information that (i) is publicly available through no fault of the Receiving Party, (ii) is independently developed by the Receiving Party, or (iii) is rightfully obtained by the Receiving Party from independent sources free from any duty of confidentiality. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the specific services purchased by Customer.

1.6.           “Connectors” means the connectors made available in object code form by Syntes to Customer that facilitate direct integration between the Services and Customer’s and its Affiliates’ systems.

1.7.           “Customer Content” means any information, data, text, logos, pictures, or other materials or content provided by Customer in connection with Customer’s use of the Services, including Personal Data.

1.8.           “Documentation” means Syntes’s on-line documentation published on the Website, as updated and amended from time to time.

1.9.           “Marks” means name, logo, trademark, trade name, service mark, or other commercial or product designations.

1.10.         “Mobile Applications” means Syntes’ Android and iPhone mobile applications through which Authorized Users can access and use the Services.

1.11.         “Order“ means the documentation describing limitations of Customer’s use of and access to the Proprietary Items as mutually agreed upon by the Parties in writing, including limitations with respect to languages, territories, brands, number of managed stock-keeping units (SKUs), and such other limitations as may be set forth in the applicable Order.

1.12.         “Personal Data” means any data which by itself or combined with other information would identify a specific individual.

1.13.         “Proprietary Items” means, collectively, the Services, Mobile Applications, APIs, Connectors, and Documentation; the visual expressions, screen formats, report formats and other design features of the Services, Mobile Applications, APIs, Connectors, and Documentation; all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Mobile Applications, APIs, Connectors, and Documentation; all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Mobile Applications, APIs, Connectors, and Documentation; all derivative works based upon any of the foregoing; and all copies of all of the foregoing.

1.14.         “Services” means the features and functionality of Syntes’s proprietary master data management and product information management platform made available by Syntes to Customer as a service through Syntes’s website and Mobile Applications, solely to the extent set forth in an Order.

1.15.         “SOW” means a written statement of work executed by both Parties that references this Agreement.

1.16.         “Website” means Syntes’s website located at https://platform.syntes.io.

2. SUBSCRIPTION RIGHTS AND OBLIGATIONS

2.1.           Subscription Rights. Subject to the terms and conditions of this Agreement including full payment of all fees, during the Term, solely for Customer and its Affiliates’ business purposes, Syntes hereby grants to Customer and its Authorized Users a non-exclusive, non-transferable (except in connection with a permitted assignment) license (i) to access and use the Services subject to the limitations set forth on the applicable Order, (ii) download, install, and use the Mobile Applications, (iii) use the APIs to connect Customer’s and its Affiliates’ systems to the Services, (iv) download, install, use, and customize the Connectors to connect Customer’s and its Affiliates’ systems to the Services, and (v) use the Documentation. The Services, Mobile Applications, APIs, and Connectors must be used solely in accordance with the Documentation. All Proprietary Items are restricted to download, installation, access, and use on devices which Customer or any of its Affiliates own or control.  Any action or omission by an Affiliate of Customer which would be deemed a breach of this Agreement if performed by Customer shall be deemed a breach by Customer.

2.2.           Mobile Applications Terms. With respect to any Mobile Application downloaded though an App Store, Customer agrees to comply with all applicable third party terms of the relevant App Store, such as the Apple App Store’s “Usage Rules”. Customer acknowledges and agrees that the availability of the Mobile Application is dependent on the App Store from which Customer received the Mobile Application.  Customer acknowledges that this Agreement is between Customer and Syntes and not with the App Store.  The App Store is not responsible for the Mobile Application, the content thereof, maintenance, support services, or warranty therefor, or addressing any claims relating thereto (e.g., product liability, legal or regulatory compliance, consumer protection, privacy, or intellectual property infringement).  Customer agrees to pay all fees charged by the App Store in connection with the Mobile Application (if any). Customer agrees to comply with any applicable third party terms of agreement when using the Mobile Application. Customer acknowledges that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.  Any questions, complaints, or claims with respect to the Mobile Application should be directed to Syntes, Inc. at support@syntes.io.

2.3.           Customer Content.  Customer hereby grants Syntes a fully paid, royalty-free, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license during the Term to use, reproduce, modify, adapt, publicly perform, and publicly display Customer Content for the purposes of operating, providing, enhancing, improving, supporting, and maintaining the Services for Customer and its Affiliates. Customer acknowledges that all Customer Content is the sole responsibility of the Customer.  Customer, and not Syntes, is entirely responsible for all Customer Content that Customer uploads, posts, transmits, stores, or otherwise makes available (collectively, “Make Available”) through the Services, including the back-up of such Customer Content.  Customer agrees not to Make Available through the Services any Personal Data, and Syntes shall have no liability with respect to any Personal Data, unless Customer has paid Syntes for Personal Data protection services pursuant to a SOW.  For the avoidance of doubt, all Customer obligations in this Agreement with respect to Personal Data, including obligations to obtain consent and compliance with all applicable laws, shall apply to any Personal Data that Customer, its Affiliates, or any Authorized Users may Make Available through the Services regardless of whether Customer has paid Syntes for Personal Data protection services pursuant to a SOW.

2.4.           Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Proprietary Items, and notify Syntes promptly of any such unauthorized access or use, (c) use the Proprietary Items only in accordance with this Agreement and in compliance with all applicable laws and regulations, including privacy laws, (d) reasonably cooperate with Syntes as necessary for Syntes to perform its obligations under this Agreement, and (e) be responsible for all Customer Content, including the accuracy, quality, integrity, legality, reliability, appropriateness, and completeness thereof and all rights necessary to use such Customer Content for the purposes contemplated under this Agreement. Customer represents and covenants that Customer will maintain a privacy policy and secure any necessary consents from third parties to enable Syntes to fulfill its obligations under this Agreement, including the collection and use by Syntes of such third parties’ Personal Data included in Customer Content to provide Services to Customer and its Affiliates.

2.5.           Syntes Obligations. Syntes shall host, operate, maintain, and support the Services, including any Customer Content uploaded, posted, or otherwise transmitted to the Services by Customer or its Authorized Users. Unless Customer purchases a premium level of support pursuant to a SOW, Syntes will (i) use commercially reasonable efforts to make the Services available in accordance with the Service Level Agreement set forth on Schedule A and (ii) provide to Customer standard support for the Services at no additional charge in accordance with Syntes’s standard support policies as set forth on Schedule B. Syntes shall have no obligation to provide any additional services to Customer, including, training, implementation, development, customization, compliance services, any support or maintenance in excess of Syntes’s standard support policy, or any other services, unless Customer purchases such services as set forth in a SOW. From time to time in accordance with Syntes’s generally applicable procedures, Syntes may make available to Customer updates, upgrades, enhancements, and error corrections to the Services that Customer has purchased at no additional charge when such updates, upgrades, enhancements and error corrections are generally made available to its other Customers at no additional charge.

2.6.           Usernames and Passwords. Subject to any limitations set forth in the applicable Order, Customer may register Authorized Users on the Services with e-mail addresses and passwords to enable Authorized Users to access and use the Services pursuant to this Agreement. Each e-mail address and password may only be used to access the Services during one (1) concurrent login session.  Customer will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User.  Customer is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts.  Customer agrees: (a) not to allow a third party to use Customer’s accounts at any time; and (b) to notify Syntes promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement.  Syntes reserves the right to terminate any accounts that Syntes reasonably determines may have been used by an unauthorized third party.  Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Services.  Customer is solely responsible for all access to and use of the Services by its Authorized Users and all access to and use of the Services through any Authorized User’s account.

2.7.             Restrictions. Customer shall not (and shall not permit any Authorized User to) (a) make the Proprietary Items available to any third party other than Authorized Users, (b) modify, reproduce, adapt, alter, translate, or create derivative works from the Proprietary Items except to the extent expressly permitted in this Agreement, (c) sublicense, loan, resell, lease, distribute, transfer or otherwise make available the Proprietary Items on a time-sharing or service bureau basis, (d) provide Customer Content that is infringing, libelous, disparaging, or is otherwise unlawful or tortious material, or store or transmit material in violation of any third-party’s proprietary or privacy rights, (e) use the Proprietary Items to promote any unlicensed, unfair, or illegal activities or for deceptive or illegal purposes, (f) use the Proprietary Items to store or transmit malicious code, (g) use or access the Proprietary Items in any way that potentially harms, harms, or otherwise threatens the reputation, integrity, performance, or availability of Syntes, any Syntes client, the Proprietary Items or any data therein, (h) attempt to gain unauthorized access to the Proprietary Items, other customer’s content, or any data stored or processed therein, (i) decompile, disassemble, or reverse engineer the Proprietary Items, in whole or in part, except to the extent the foregoing restriction is prohibited by applicable law, (j) use or access any Proprietary Items to create (or have created) a competing or similar service, (k) perform or publish any performance or benchmark tests or analyses relating to the Proprietary Items unless approved in writing by Syntes, or (l) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Syntes or its licensors on the Proprietary Items. Syntes may restrict or prohibit use or access to the Proprietary Items if Syntes suspects such use or access is a breach of this Agreement, does not comply with the Documentation or the limitations set forth in an Order, or is otherwise objectionable or threatens the reputation of Syntes, any Syntes customer, or the Proprietary Items or any data therein.

2.8.           General Knowledge. Notwithstanding anything to the contrary in this Agreement, Syntes will not be prohibited or enjoined at any time by Customer or its Affiliates from utilizing any skills or knowledge of a general nature acquired during the course of providing the products or services under this Agreement.

3. PAYMENTS

3.1.           Fees and Expenses. At the beginning of the Initial Term and each Renewal Term, Customer shall pay to Syntes, without offset or deduction, the fees set forth in an Order in accordance with the payment terms set forth in the Order. Customer will pay Syntes the fees and expenses set forth in any SOWs in accordance with the payment terms set forth in such SOWs.  If no payment terms are set forth in a Order or SOW, fees and expenses will be due NET 30 from invoice date. Syntes reserves the right to increase fees prior to the start of any Renewal Term (as defined below), but must provide notification of such increases at least ten (10) days in advance of the Non-Renewal Notice Deadline (as defined below).

3.2.           Taxes. The fees and other amounts payable by Customer to Syntes do not include any taxes of any jurisdiction that may be assessed or imposed upon the Proprietary Items, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Syntes’s net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse Syntes for any taxes payable or collectable by Syntes (other than taxes based upon Syntes’s net income). If Customer has provided Syntes with proof of its tax exempt status, then, in the event that Customer’s tax exempt status should become altered, Customer shall be obligated to notify Syntes immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify Syntes of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against Syntes or Customer as a result of such Customer failure.

3.3.           Payment Terms. Syntes may accept and process payment (including renewals) from Customer by either credit card (e.g., Visa, MasterCard, or any other issuer accepted by Syntes), wire transfer, or check, as mutually agreed. If payment will be made by credit card, Syntes will process payment (including renewals) from Customer based on any credit card information Syntes is provided by Customer. Customer’s credit card agreement governs its use of the designated credit card or account. By providing Syntes with credit card information, Customer agrees that Syntes is authorized to invoice and charge Customer’s account for all fees and charges due and payable to Syntes and that no additional notice or consent is required. If payment will be made by check or wire transfer or if Customer’s credit card issuer rejects any amount charged on Customer’s credit card, amounts owed to Syntes will be invoiced to Customer’s address for invoices as designated by Customer. If any Customer payment is more than thirty (30) days past due, interest at the rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States dollars.

3.4.           Suspension. In the event that Customer’s account is more than thirty (30) days overdue on any payment for any reason, Syntes shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Proprietary Items, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.

4. WARRANTIES.  

4.1.           Mutual Warranties. Each Party represents and warrants that (i) it has full power and authority to enter into and perform this Agreement and (ii) the execution of this Agreement by a Party will not violate, or conflict in any way with, the terms and conditions of any other agreement previously entered into by such Party. Each Party will comply with all applicable laws and regulations, including all laws related to privacy of Personal Data.

4.2.           Syntes Warranties. During the Term, Syntes represents and warrants (i) the Services will perform in all material respects in accordance with the Documentation, (ii) professional services will be provided in a professional and workmanlike manner consistent with industry standards, and (iii) Syntes will use reasonable industry standard mechanisms and procedures to protect the Customer Content. At the time of initial delivery of the applicable Proprietary Items, Syntes represents and warrants that to the best of its knowledge, the Proprietary Items do not contain any undocumented disabling mechanism or other feature which will allow surreptitious access to Customer’s data or systems, including any virus, worm, Trojan horse, back door, or similar function. Customer’s sole and exclusive remedy, and Syntes’s sole and exclusive liability, for a breach of the foregoing warranties other than 4.2(ii), is the Service Level Agreement and Support services provided in Schedules A and B. Customer’s sole and exclusive remedy, and Syntes’s sole and exclusive liability, for a breach of Section 4.2(ii) is Syntes’s reperformance of the non-conforming professional services at no additional cost to Customer.

4.3.           Warranty Disclaimers. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 4.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL PROFESSIONAL SERVICES AND PROPRIETARY ITEMS are provided “as is” and Syntes makes no representations or warranties, WHETHER oral or written, express, implied, STATUTORY, OR arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title OR non-interference. Without limiting the generality of the foregoing, Syntes does not represent or warrant that: (a) the Proprietary Items will meet any expectations, REQUIREMENTS, or specifications of Customer; OR (b) the operation of the SERVICES will be uninterrupted or error-free, OR THAT ANY ERRORS IN THE PROPRIETARY ITEMS WILL BE CORRECTED. CUSTOMER IS SOLELY RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL CUSTOMER CONTENT OR DATA UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET SERVICES. SYNTES IS NOT RESPONSIBLE FOR ANY DELAYS OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

5. LIMITATION OF LIABILITY.  EXCEPT FOR FEES OWED BY CUSTOMER TO SYNTES, A BREACH OF SECTION 6 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR A VIOLATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST DATA, LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOST REVENUE, COST OF SUBSTITUTION, OR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT AND (B) REGARDLESS OF WHETHER THE CLAIM IS BROUGHT UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SYNTES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY,  EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT SYNTES HAS NO LIABILITY WITH RESPECT TO ANY CLAIMS ARISING IN CONNECTION WITH THE CONNECTORS AS THE CONNECTORS ARE HIGHLY CUSTOMIZABLE. BOTH PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
6. CONFIDENTIALITY. All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to implement or perform this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access and who are bound by obligations of confidentiality at least as protective as those herein. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section.
7. Ownership.

7.1.           Customer Properties. As between the Parties, all right, title, and interest in and to the Customer Content are and will remain the sole and exclusive property of Customer, including all intellectual property rights therein.

7.2.           Syntes Properties. All right, title, and interest in and to the Proprietary Items (including any updates or upgrades made available by or provided by Syntes to Customer) and Syntes’s Marks, are and will remain the sole and exclusive property of Syntes, including all intellectual property rights therein. Unless otherwise expressly set forth on a SOW, Syntes will retain sole and exclusive ownership of any deliverables created as a result of any professional services performed by Syntes, including all intellectual property rights therein. Syntes and its licensors reserve all rights not expressly granted by this Agreement.

7.3.           Feedback. Customer hereby grants Syntes a royalty-free, worldwide, transferable, sublicenseable, irrevocable, fully-paid, perpetual license to use or incorporate into the Proprietary Items, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, its Affiliates, or its Authorized Users.

8. Indemnification

8.1.           By Syntes. Syntes shall indemnify, defend, and hold harmless Customer from and against all damages, losses, and liabilities awarded to a third party (or agreed to in a settlement with a third party) for any actions brought by that third party based upon a claim that the Services infringe any patent or copyright, or misappropriate any trade secret, of such third party.  Notwithstanding the foregoing, Syntes shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) Customer Content or the combination, operation, or use of the Services with products, services, deliverables, materials, or technologies not furnished by Syntes; (2) modifications or customizations which were not made by Syntes; or (3) Customer’s breach of this Agreement or use of the Services other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section 8.1, or in the event that Syntes believes that such a claim is likely, Syntes may, at its option (i) modify or replace the Services so that they become non-infringing; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders and SOWs) on written notice to Customer and refund to Customer any pre-paid fees for Services not provided based on the remainder of the then current Term. The obligations set forth in this Section 8.1 shall constitute Syntes’s entire liability and Customer’s sole remedy for any infringement or misappropriation.

8.2.           By Customer. Customer shall indemnify, defend, and hold harmless Syntes from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, losses, and liabilities for any actions brought by a third party arising out of any (a) IP Exclusions, (b) Customer Content, or (c) breach of Section 2.4 by Customer, its Affiliates, or Authorized Users.

8.3.           Indemnity Procedure. The foregoing indemnity obligations are conditioned on the indemnified Party giving the indemnifying Party (a) prompt written notice of such claim (except that delayed notification will not negate the indemnifying Party’s obligations if such delay did not materially prejudice the indemnifying Party’s ability to defend the claim); (b) authority to control and direct the defense and/or settlement of such claim, provided that any settlement provides the indemnified Party with a full release; and (c) such information and assistance as the indemnifying Party may reasonably request, at the indemnifying Party’s expense, in connection with such defense and/or settlement.

9. TERM AND TERMINATION

9.1.           Unless otherwise set forth in an Order, this Agreement shall commence on the Effective Date and shall continue for one (1) year thereafter (“Initial Term”) and upon expiration of the Initial Term, this Agreement shall automatically renew for subsequent one (1) year terms (each a “Renewal Term”, together with the Initial Term, the “Term”), unless one Party provides the other Party at least thirty (30) days written notice prior to the end of the then current Term of its intent to not renew the then current term (“Non-Renewal Notice Deadline”).

9.2.           Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party:

1. a)commits a material breach (including any non-payment of fees due) and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or
2. b)(i) files for bankruptcy; (ii) is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating Party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.

9.3.           If an Order is terminated, Customer shall immediately discontinue use of the Services for the applicable Order. Upon any termination or expiration of this Agreement, all Orders and SOWs shall immediately terminate, all amounts outstanding shall become immediately due and payable (including payment for any work performed pursuant to a SOW prior to the date of termination), Customer shall discontinue all access and use of all Proprietary Items, and each Party shall promptly return or destroy (at the election of the other Party) any Confidential Information of the other Party then in such Party’s possession or control.  The Parties will cooperate to transition Customer Content from the Services to Customer within thirty (30) days after the date of termination or expiration. Syntes will have no obligation to retain any Customer Content after the 30 day period.

9.4.           Customer shall remain liable for all unpaid payments due to Syntes. In the event this Agreement is terminated by Customer in accordance with Section 9.2(a) for Syntes’s material breach, Syntes shall refund to Customer any pre-paid fees for Services not provided for any applicable Orders based on the remainder of the then current Term. The provisions of Sections 1, 2.7, 2.8, 3.2, 3.3, 4, 5, 6, 7, 8, 9.3, 9.4, and 10 shall survive any termination or expiration of this Agreement.

10. OTHER PROVISIONS

10.1.         Publicity. Customer authorizes Syntes to use Customer’s name in any routine list of Syntes Customers and as a reference.  Each Party, with prior written consent of the other Party, may publicize the Services to be offered under this Agreement in its marketing and advertising material, and may reproduce the Marks of the other Party in connection therewith; provided, however, that such prior written consent shall not be required for either Party to give the other’s name and disclose this Agreement in connection with any filings or press releases which it deems in its good faith discretion to be necessary under federal or state securities laws.

10.2.         Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.

10.3.         Delegation. Syntes may delegate its obligations under this Agreement to its Affiliates; provided that any acts or omissions of Syntes’s Affiliates which would be deemed a breach of this Agreement if performed by Syntes shall be deemed a breach by Syntes.

10.4.         Assignment. Customer may not, without Syntes’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, any Order or SOW, or any of its rights or obligations under this Agreement or any Order or SOW to any third party, whether voluntarily or by operation of law. A sale of assets, merger, or consolidation will be deemed an assignment for the purposes of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.

10.5.         Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Delaware excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply and the United Nations Convention on Contracts for the International Sale of Goods is also excluded and does not apply to this Agreement. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in a Delaware court. Notwithstanding the foregoing, in the event of any breach or apparent breach by either party of the provisions of this Agreement, the other party shall be entitled, in addition to all other remedies, to seek an injunction, whether interlocutory or preliminary, and to seek any other equitable relief, before any court of competent jurisdiction.

10.6.         Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, pandemic, civil unrest, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.

10.7.         Export Laws and Use Outside of the United States. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer shall comply with all applicable export related laws and regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Customer will defend, indemnify and hold harmless Syntes from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

10.8.         Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.

10.9.         Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement. Any pre-printed terms in a quote, purchase order, or other similar document that add to, or conflict with or contradict, any provisions in the Agreement will have no legal effect.

10.10.       Order of Precedence. In the event of a conflict between the provisions of the Agreement and the terms of any Schedule, Order, or SOW, unless a document executed by both Parties expressly references a specific section in a controlling document, the Parties agree to the following order of precedence: (1) the terms of this Agreement, (2) any Orders, (3) any Schedules, then (4) any SOWs.

10.11.       Interpretation. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

10.12.       Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.

10.13.       Entire Understanding. This Agreement, which includes and incorporates related Schedules, Orders, and SOWs, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement.

10.14.       English Language.  English shall be the language of the Agreement and all notices, communications and other correspondence between the Parties and shall govern and control the interpretation of this Agreement.  In the event that this Agreement or any documentation is translated, in all cases the English version shall govern.