SYMEND PLATFORM AGREEMENT
This Symend Platform Agreement (this “Agreement”) made effective the date signed below (“Effective
Date”) between the undersigned entity (“Client”) and Symend US Inc. (“Symend”)
1. Definitions
“Client Data”: Any data, information or material submitted by Client, or stored by Client in the
Symend Platform.
“Confidential Information”: Information that one party (the “Disclosing Party”) provides to the
other party (“Receiving Party”) that is identified in writing at the time of disclosure as confidential
or that reasonably would be understood to be confidential.
“Symend Platform”: Service through which Symend hosts and makes available software and such
additional product and service offerings as may be provided from time to time.
2. Platform Services
(a) Use of the Platform & Client Responsibilities. Subject to the terms and conditions of this Agreement,
Symend will make the Symend Platform available to Client through a web-based platform. Client
will: (i) be responsible for compliance with the terms and conditions of this Agreement; (ii) be solely
responsible for the accuracy, integrity, and legality of Client Data and the means by which it
acquires and uses such Client Data; (iii) use the Symend Platform only in accordance with the
applicable documentation and applicable law (including export, data protection and privacy laws,
and laws relating to electronic messages); (iv) use commercially reasonable efforts to prevent
unauthorized access to or use of the Symend Platform; and (v) modify or notify Symend in writing
immediately of: (A) any unauthorized use of, or access to, the Symend Platform, or (B) any notice
or charge of noncompliance with any applicable law, rule or regulation asserted or filed against
Client in connection with Client Data.
(b) Restrictions. Client, and any third-parties acting on behalf of or for Client, will not, directly or
indirectly: (i) resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or
usage to the Symend Platform or any modified version or derivative work of the Symend Platform
created by or for Client; (ii) attempt or knowingly permit or encourage others to attempt, to translate,
decompile, decipher, disassemble, reverse engineer or otherwise decrypt or discover the source
code or otherwise replicate the functionality of all or any portion of the Symend Platform; (iii) copy
any features, functions, user interfaces, look and feel or graphics of the Symend Platform; (iv) send,
store or spam unlawful, infringing, obscene or libelous material; (v) attempt to gain unauthorized
access to, or disrupt the performance of the Symend Platform; (vi) use any property of Symend for
the purpose of building a competitive product or service.
(c) Modifications. Symend reserves the right to make modifications to the Symend Platform at its sole
discretion, provided it does not materially decrease in functionality.
3. Other Services
(a) Symend will perform any professional services in accordance with a statement of work.
4. Proprietary Rights and Data Management
(a) Ownership. Except as expressly stated in this Agreement, Symend retains all right, title and interest
in and to the Symend Platform and materials associated with it, and no legal rights to the Symend
Platform and such materials are granted by Symend to Client under this Agreement.
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(b) Ownership of Client Data. As between Client and Symend, Client retains all right, title and interest in the Client Data, and no legal rights to the Client Data other than as stated in this Agreement are granted by Client to Symend under this Agreement.
(c) Data Processing. Client grants Symend the right to use the Client Data: (A) to provide the Symend Platform to Client and to perform its other obligations under this Agreement; (B) to create new functionality and features for the Symend Platform and new products and services in connection therewith; and (C) to comply with applicable laws. Symend may aggregate and render non-identifiable the Client Data as to the Client and any individual (“Aggregated Data”) and thereafter use or disclose such Aggregated Data for internal business purposes.
5. Fees
(a) Fees and Expenses. Client agrees to pay all fees and expenses according to terms specified in the applicable statement of work.
(b) Taxes. Client will pay all currently applicable federal, state and provincial sales, use, harmonized sales taxes, and goods and services taxes, imposed on the fees and charges paid by Client hereunder other than Symend’s taxes on income. Symend’s invoices will show any such taxes as a separate line item in each invoice.
6. Term and Termination
(a) Term & Termination. This Agreement will remain in force until terminated. Either party may terminate this Agreement: (i) upon written notice to the other party by providing not less than 60 days before the expiration of the then effective term; (ii) if a party materially breaches its obligations and such breach remains uncured for 30 days following receipt of written notice of such breach; or (iii) if a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(b) Effect of Termination. Upon termination of this Agreement, Symend may immediately deactivate Client’s accounts for the Symend Platform. Client acknowledges and agrees that Symend may keep copies of Client Data solely to the extent necessary for the performance of its obligations under this Agreement or as otherwise required by applicable law. In no event will any termination relieve Client of the obligation to pay any fees payable to Symend.
(c) Survival. Sections 1, 4, 5, 6(b), 6(c), 7, 9, 10, and 11 survive termination of this Agreement.
7. Confidentiality & Privacy
(a) Neither Receiving Party nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of Disclosing Party, except: (i) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information in order for Receiving Party to exercise its rights under this Agreement and who are bound by a written agreement, with confidentiality terms at least as restrictive as these terms; or (ii) as required by applicable law or governmental regulation.
8. Warranties, Exclusive Remedies and Disclaimers
(a) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND AS PERMITTED BY APPLICABLE LAW, THE SYMEND PLATFORM IS PROVIDED TO CLIENT STRICTLY ON AN “AS IS” BASIS, AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR
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NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Indemnity
(a) Client will, at its expense: (i) defend or settle any third-party claims, actions and demands brought against Symend and its affiliates, officers, directors, employees and agents; and (ii) pay all damages awarded therein or agreed upon in a settlement by Client (including other reasonable costs and legal fees incurred by Symend or its affiliates in connection with enforcing this Section 9(a)) arising from Client’s breach or violation of this Agreement.
10. Limitation of Liability
(a) IN NO EVENT WILL SYMEND’S LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE $100. IN NO EVENT WILL SYMEND BE LIABLE TO CLIENT FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT, WHETHER OR NOT SYMEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. General
(a) Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld or delayed).
(b) Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado and the federal laws of USA applicable therein, excluding conflicts of law provisions. Client and Symend agree to submit to the personal and non-exclusive jurisdiction of the courts located in Denver, Colorado. Both Client and Symend irrevocably waive their rights to a trial by jury of any claim or cause of action based upon or arising out of or related to this Agreement.