Last Updated: April 11, 2023
Table of Contents
- Intellectual Property Rights
- Your Use of the Services
- Fees & Payment Terms
- Security of Customer Personal Information
- Confidential Information
- Representations, Warranties, and Disclaimer
- Limitations of Liability
- Term, Termination, and Survival
Effective upon ordering the Services through a Service Order, these Customer Terms, together with any Service Order, constitute the “Agreement” between you and Synco.
These are some defined terms that are used in this Agreement. There are other defined terms throughout the Agreement. You can tell if a term is defined if it has quotation marks around it. Except for when we refer to you/your/yours, us/we/ours, or party/parties, defined terms are capitalized when used again in the Agreement.
2.1 “Applicable Law” means any law that applies to you or us in a given circumstance, this includes laws, regulations, court orders, and arbitration determinations and agreements.
2.2 “Synco Content” means content or other information created, derived, owned, or licensed by Synco that we make available in connection with the Services or on the Platform.
2.3 “Synco Property” means the Services, the Platform, and the Synco Content.
2.4 “Customer Content” means content or other information you or your Users provide or make available to us in connection with your use of the Services and the Platform at any time, including data, text, audio, video, or images, excluding Feedback.
2.5 “Platform” means the electronic systems, applications, and internet sites of Synco, including https://teamsynco.com and others, and through which we offer and provide the Services.
2.6 “Service Limit” means any limitation on your use of or access to the Services or the Platform as set forth in a Service Order, your account, or reasonable policy set by Synco, such as limitations on number of Users.
2.7 “User” means each user that you allow to access and use the Services on your behalf, such as your employees or consultants.
3. Intellectual Property Rights
3.1 Our intellectual property rights. Between you and us, we own all right, title, and interest to the Synco Property, all components and derivative works of the Synco Property, any suggestion, enhancement request, recommendation, correction, change, or other feedback regarding the Synco Property (“Feedback”), and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the Synco Property. We reserve all rights in the Synco Property not expressly granted to you in this Agreement. You acquire no ownership interest, derivative work, or component of the Synco Property through your use of it. You are not granted right, title, or interest to use any trademark, service mark, logo, or trade name of Synco under this Agreement.
3.2 Your ownership of Customer Content; Our licensed and authorized use of Customer Content. Between you and us, you own the Customer Content and reserve all rights in the Customer Content not expressly granted to us in this Agreement. You grant us a non-exclusive, royalty-free, worldwide license and right to access, store, process, use, copy, modify, translate, display, publish, disclose, distribute, transfer, remove, and export Customer Content as reasonably necessary: (a) to provide, maintain, update, or enhance the Services or the Platform; (b) to prevent or address service, security, support, or technical issues; (c) as otherwise permitted by this Agreement; (d) in accordance with, or as required Applicable Law, legal process, or governmental request; (e) to enforce or defend our rights or carry out our obligations; or (f) as permitted in writing by Customer (collectively, the “Authorized Uses of Customer Content”).
3.3 Our ownership of Feedback. We encourage you to submit Feedback to us. We own all Feedback provided by you and your Users, as well as all improvements, modifications, and changes to the Synco Property based on such Feedback. If you or your Users provide us with Feedback via the Services or any other method, you assign us all right, title, and interest to the Feedback. To the extent that we require further rights, you grant us an exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide license to access, store, process, use, copy, modify, remove, translate, display, perform, publish, disclose, distribute, transfer, sublicense, and export Feedback provided by you and your Users, in any form or medium, without restriction. You and your Users may not repost, republish, or redistribute Feedback. We have the right, but do not assume any responsibility to review, screen, or approve Feedback. We have no obligation to keep Feedback confidential, to pay any compensation for Feedback, or to respond to any Feedback. You are solely responsible for the accuracy and legality of any Feedback you or your Users make. We take no responsibility and assume no liability for any Feedback posted or transmitted by you, your Users, or a third party.
4. Your Use of the Services
4.1 Your permitted access and use. You may use and access the Services as described in any Service Order up to the Service Limits for your internal business purposes.
4.2 Your account and related responsibilities. You are required to create an account with us to access certain features of the Services.
a. Authorized representative. You represent and warrant that the person creating the account is authorized by Customer to create the account on behalf of Customer.
c. Security of your account. You are responsible for the security of your account, including the access to and use of your account by each User. (i) You are responsible for establishing and maintaining the confidentiality of your account, your account access credentials (for example, username and password), and the information submitted via your account or otherwise in connection with your use or any User’s use of the Services. You agree to use reasonable and prudent efforts to prevent unauthorized access to or use of your account or the Services. (ii) Your account is only available to you and your authorized Users; you will not allow any other person to access or use your account. (iii) Each User must have unique access credentials. Users may not share access credentials. You will perform entitlement reviews of access controls for all of your Users and provide Synco with reports of such entitlement reviews upon its request. If you wish to terminate a User’s access to the Services, you may remove a User from your account; if you are unable to do so, you must notify us in writing and we will terminate such User’s access as soon as practicable. (iv) You will notify us immediately of any unauthorized access to or use of your account or the Services. We have no liability to you for any unauthorized access of your account or the Services caused by your acts, omissions, or breach of this Agreement.
d. Backups. You are solely responsible for backing up your Customer Content on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your Customer Content. We will not be responsible for any backup, recovery, or other steps to ensure Customer Content is recoverable in the event of a data loss. We expressly disclaim any obligations with respect to storage of Customer Content.
4.3 Your communications with Users. You are solely responsible and liable for all communications with Users through the Services. You represent and warrant that all of your communications with Users through the Services are in compliance with Applicable Law and you have obtained any necessary consents and authorizations for such communications.
4.4 Restrictions on your use of the Services.
a. Minimum age. You must be 18 years of age or older to create an account or use the Services.
b. Prohibited Use of the Services and other Synco Property. You and each User will not do any of the following, collectively “Prohibited Use”: (a) decompile, disassemble, or reverse engineer the Services or the Platform, or attempt to obtain or perceive the source code from which any component of the Services or the Platform is compiled or interpreted; (b) duplicate or create any derivative product from the Synco Property or any component of the Synco Property; (c) license, sublicense, lease, resell, or transfer any of the Synco Property to a third party or allow third parties (other than Users as permitted herein) to gain access to the Synco Property; (d) access the Synco Property if you are a direct competitor of us, provide any Synco Property to any competitor of ours, or access the Synco Property for a competitive purpose; (e) remove any copyright, trademark, or other proprietary notions from the Synco Property; (f) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs through the Services or the Platform; (g) interfere with or disrupt the integrity or performance of the Services or the Platform; (h) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services or the Platform; (i) conduct any denial of service (DoS) attack on the Services or the Platform or otherwise attempt to disrupt, disable, or overload the Services or the Platform; (j) attempt to gain access to the Services or the Platform by automated means, such as bots (other than as specifically permitted under this Agreement, such as if your Service Order permits API access); (k) attempt to gain unauthorized access to the Services, the Platform, or the computer systems or networks related to the Services; (l) create a false identity or attempt to mislead others as to your identity or the identity of the sender or the origin of any data or communications; (m) use the Services or the Platform to violate any Applicable Law or rights of others; or (n) interfere with another person’s use and enjoyment of the Services or the Platform.
c. Customer Content. You are solely responsible and liable for the development, content, use, and maintenance of Customer Content and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. You will ensure that Customer Content and your and your User’s use of Customer Content will not violate Applicable Law or the rights of other Users or third parties.
d. Export restrictions. This Agreement is expressly made subject to any Applicable Law regarding import, re-import, sanctions, anti-boycott, export, and re-export control, such as the US Export Administration Regulations, the US International Traffic in Arms Regulations, and economic sanctions programs implemented by the US Office of Foreign Assets Control (“Trade Restrictions”). You agree that you are solely responsible for compliance with Trade Restrictions related to the manner in which you use the Services, including your transfer and processing of Customer Content, the provision of Customer Content to Users, and the location in which any of the foregoing occur. This obligation survives the termination or expiration of this Agreement.
4.5 Suspension of your account; removal of Customer Content. We may suspend your account, suspend your or any User’s access to the Services, or remove any Customer Content, immediately if we, in good faith, believe: (a) that you or any User has materially breached any provision of this Agreement; (b) that you or any User is using the Services in a manner that threatens the security, integrity, or reliability of the Services; (c) that there has been unauthorized access or fraud related to your account or the Services; or (d) that the provision of the Services (or a portion thereof) will expose us or you to legal, regulatory, or compliance risk.
4.6 Changes to the Services. You acknowledge that the features and functions of the Services may be updated or otherwise be subject to change. We will not materially decrease the overall functionality of the Services you order, except as otherwise permitted by this Agreement.
4.7 Beta versions. We may make beta versions or features of the Services available to you, which you may use in your sole discretion in compliance with the provisions of this Agreement, including any provisions for beta use in a Service Order. Beta versions may contain bugs, errors, and other problems that could cause system or other failures and data loss. We may discontinue beta versions and features at any time and decide not to make them generally available.
5. Fees and Payment Terms
5.1 Fees. You agree to pay the fees for the Services stated in the applicable Service Order and all additional fees and charges incurred during your use of the Services, such as professional services fees. Fees, taxes, and other charges will be invoiced in US dollars.
5.2 Taxes.The fees stated in a Service Order are exclusive of taxes. You agree to pay all sales, use, and other taxes and fees imposed by governmental authorities on our provision of the Services to you (other than taxes based on our net income).
5.3 Payments. Payments are due in advance on the date, or recurring interval dates stated in a Service Order. Payments are non-refundable. Late payments will bear interest at the lesser of (i) the interest rate stated in the Service Order, (ii) 1.5% per month calculated and compounded monthly, or (iii) the highest rate permissible under Applicable Law, except for payments that are properly disputed. If you make any payments via ACH, you agree to be bound by the Nacha Operating Rules available at https://www.nacha.org/rules/operating-rules.
5.4 Portfolio size verification. You agree to provide us with records reasonably requested by us to verify the size of your portfolio (e.g., units in your portfolio) for billing purposes, such as records from an accounting or property management software system acceptable to us in our sole discretion. We may request records to conduct a portfolio size verification upon entry into each Service Order and each calendar quarter thereafter (or more frequently if we find evidence of underreporting in any prior verification). We may request direct access to your records and may engage a third-party to conduct a verification under this subsection, provided that such third-party is subject to confidentiality obligations at least as restrictive as the confidentiality obligations in this Agreement. You agree to reasonably cooperate with our requests for verification pursuant to this subsection, including providing us with access to all records reasonably requested by us. If we find evidence that your portfolio size has been underreported, you agree that we may, in our sole discretion, adjust your pricing and invoices going forward and/or retroactively to reflect your accurate portfolio size at the time of each original invoice and you agree to pay all amounts due on such adjusted invoices.
6. Security of Customer Personal Information
6.1 Customer Personal Information definition. “Customer Personal Information” means information that identifies, relates to, or could reasonably be linked, directly or indirectly, with a particular individual, household, or device that is: (a) disclosed to us at any time by you or your Users; or (b) processed or accessed at any time by us in connection with or incidental to this Agreement. Customer Personal Information does not include anonymized, aggregated, or deidentified data; restrictions on our use of Customer Personal Information do not apply to anonymized, aggregated, or deidentified data even if such data was created or derived from Customer Personal Information.
6.2 Our protection and use of Customer Personal Information. We will maintain reasonable and appropriate technical and organizational safeguards for the protection of the security and confidentiality of Customer Personal Information. Those safeguards will include measures for preventing access, use, disclosure, or transfer of Customer Personal Information other than for the Authorized Uses of Customer Content listed in Section 3.2. We will not sell Customer Personal Information. We will not disclose or transfer Customer Personal Information to any of our third-party vendors or service providers unless they have an obligation to maintain reasonable and appropriate safeguards for the security and confidentiality of Customer Personal Information, or you consent to such disclosure or transfer.
6.3 Your responsibilities for Customer Personal Information. You are responsible for all compliance with Applicable Law relating to Customer Personal Information. You represent and warrant that you have complied with all Applicable Law and have provided the required notices or received the proper authority or consent to allow us to collect and process Customer Personal Information from you and your Users for the Authorized Uses of Customer Content. You are responsible for responding to User requests under Applicable Law relating to Customer Personal Information (“Requests”) and providing all required notifications. If we receive a Request, we will inform you of the Request and inform the User to make the Request directly to you. To the extent we assist you with your compliance obligations under Applicable Law relating to Customer Personal Information, you shall pay or reimburse us for any time spent by us for such assistance at our then-standard or other reasonable professional services rate and any out-of-pocket costs reasonably incurred.
6.4 Security Incident definition. “Security Incident” means any suspected or actual unauthorized access, acquisition, disclosure, use, theft, loss, destruction, alteration, or other compromise of: (a) Customer Personal Information in our possession or control; (b) your account, or any other portion of our Platform or other systems that contain Customer Personal Information; or (c) any of your access credentials to our Platform or the Services.
6.5 Security Incident obligations. The party discovering any Security Incident shall give the other party notice of the Security Incident as soon as practical, and no more than 7 business days after discovering the Security Incident. To the extent that Applicable Law requires a notification of the Security Incident to be provided to the subjects of the Customer Personal Information, governmental authorities, or other third parties, you are responsible for such notification, but you must obtain our written consent to name or otherwise identify Synco in any such notification. We are also permitted (but not required) to send any notification of the Security Incident required by Applicable Law.
7. Confidential Information
7.1 Confidential Information definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Synco Confidential Information includes: (i) the terms and conditions of any Service Order (including pricing) but not the existence of a Service Order; and (ii) any nonpublic feature or function of the Synco Property. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was 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.
7.2 Confidential Information obligations. The Receiving Party will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care)(a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and third parties who need access for purposes consistent with this Agreement. On the expiration or termination of the Agreement, at the request and option of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the preceding sentence, the Receiving Party may retain a copy of such Confidential Information as is reasonably necessary for record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend the Receiving Party’s rights or carry out the Receiving Party’s obligations, provided that the Receiving Party continues to treat the Confidential Information as Confidential Information under this Section 7 for as long as it retains it.
7.3 Confidential Information use exceptions. The Receiving Party may disclose Confidential Information as authorized by the Disclosing Party. The Receiving Party may disclose Confidential Information to the limited extent required by Applicable Law, legal process, or governmental request; provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. To the extent that Confidential Information includes Customer Personal Information, the provisions of Section 6 on Customer Personal Information shall control in the event of a conflict with this Section 7.
8. Representations, Warranties, and Disclaimer
8.1 Your additional representations and warranties. By entering into this Agreement, you make representations and warranties to us. Some of your representations and warranties are contained in this Section and some are contained in other Sections of this Agreement (including Sections 4 and 6).
a. Valid agreement. You represent and warrant that you have validly accepted or entered into this Agreement and have the legal power to do so.
b. Portfolio size. You represent and warrant that, at all times, you have provided us with true and correct information about the size of your portfolio, including the number of units in your portfolio, in connection with your entry into each Service Order and our requests for verification of your portfolio size for billing purposes
c. Customer Content. You represent and warrant that you have all rights necessary to grant all rights and licenses to the Customer Content granted to us in this Agreement. You further represent and warrant: (i) you have obtained the Customer Content lawfully and the Customer Content does not and will not violate any Applicable Law or any third party’s rights; (ii) you have complied with all Applicable Law, provided all applicable notices, and received the proper authority or consent to allow us to collect and use Customer Content as provided in this Agreement; (iii) we may exercise our rights in Customer Content granted in this Agreement without liability or cost to any third party; and (iv) the Customer Content complies with the terms of this Agreement.
d. No Sanctions Lists. You represent and warrant that you and your Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). If you or any User becomes placed on any Sanctions List, you will notify us immediately and discontinue the use of the Services by you or your User as applicable.
8.2 Synco’s representations and warranties. We represent and warrant that we have validly accepted or entered into this Agreement and have the legal power to do so.
8.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY OTHER MATERIALS, DATA, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED UNDER THIS AGREEMENT OR ON THE PLATFORM ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY. We expressly disclaim any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We expressly disclaim any warranties of system integration, non-interference, absence of any defects (whether latent or patent), or security of data. We do not warrant or make any representations concerning the accuracy, completeness, or usability of information or materials provided in connection with our Services, found on our Platform, or linked to our Platform. We expressly disclaim any warranty related to third-party websites or other third-party content that may be accessed through our Services or our Platform. We make no warranty or representation on the basis of trade usage, course of dealing, or course of performance. We do not warrant or represent that the Services or any other materials, data, software, products, or services provided under this Agreement or on the Platform will meet your requirements, comply with Applicable Law, generate enforceable obligations, or that the operation of them will be uninterrupted or error-free, or that all errors will be corrected. You acknowledge that our obligations under this Agreement are for the benefit of Customer only. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems.
9.1 Your indemnification of Synco. You agree to defend, indemnify, and hold us, our affiliates, and our third-party providers, licensors, and suppliers, along with our and their respective directors, officers, employees, and agents, harmless from any claims, damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of (a) the use of the Services, breach of this Agreement, or violation of any Applicable Law by you, any User, or any person to whom you provide access to the Services; or (b) any Security Incident to the extent caused by an act or omission of you, any User, or any person to whom you provide access to the Services.
10. Limitations of Liability
10.1 WE HAVE NO LIABILITY FOR CERTAIN TYPES OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST US TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THIS MEANS THAT YOU WILL NOT SEEK ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM US. WE HAVE NO LIABILITY FOR DAMAGES FOR: (a) lost profits, costs of delay, failure of delivery, or business interruption; (b) costs of procurement of substitute goods, services, or technology; or (c) personal injury or death. We have no liabilities to third parties arising from any source. These limitations apply regardless of the cause of the damages, including negligence by us or our third-party providers, licensors, or suppliers. These limitations apply even if we have been advised of the possibility of such damages. These limitations apply without regard to whether other provisions of this Agreement have been breached or proven ineffective. These limitations also apply to any claims you may bring against any third party to the extent that we would be required to indemnify that third party for such claim.
10.2 WE ARE NOT LIABLE FOR DAMAGES OUT OF OUR CONTROL. You agree that we are not liable for delays, problems, or damages caused by you or a third party, by any act of nature, by any act beyond our reasonable control (for example, war, terrorist acts, labor disputes, government actions, pandemics), or by any criminal activity by someone unrelated to us.
10.3 YOU AGREE TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY US. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF SYNCO, OUR AFFILIATES, AND OUR THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS ARISING OR RELATING TO THIS AGREEMENT IS LIMITED TO THE FEES THAT YOU PAID TO USE THE RELEVANT SERVICES IN THE 12 MONTHS BEFORE OUR BREACH OR THE FIRST INCIDENT GIVING RISE TO OUR LIABILITY; OR, IF NO FEES WERE PAID IN SUCH PERIOD, $1,000.
10.4 YOU AND WE AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS. To the fullest extent permitted by Applicable Law, you and we each agree that all claims related to this Agreement must be brought within 2 years of the date the claim arises (even if Applicable Law provides for a longer statute of limitations).
10.5 YOU AND WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. The limitations of liability in this Section 10 constitute an important part of this Agreement and are among the reasons you and we are willing to enter into this Agreement. Without these limitations of liability, the provisions of this Agreement, including but not limited to any economic terms, would be substantially different.
11.1 Summary of dispute resolution procedures. By entering into this Agreement, you are agreeing to resolve any dispute with us informally, and, if it cannot be resolved informally, you agree to bring any claim against us in binding arbitration (unless you opt out) and to waive your rights to participate in any class action suit (unless you opt out) or to a jury trial. We may bring claims to collect amounts due in connection with this Agreement in court or arbitration, at our sole option.
11.2 Good faith negotiation of disputes. For any and all disputes or claims you have against us, you must first give us an opportunity to resolve your claim by sending a written description of your claim to firstname.lastname@example.org. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
11.3 Binding arbitration. YOU AND WE EACH AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 11, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT OR OUR SERVICES WILL BE RESOLVED BY BINDING ARBITRATION. This includes any claims against other parties relating to the Services provided or billed to you (such as our third-party providers, licensors, and suppliers) whenever you also assert claims against us in the same proceeding. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
11.4 Your choice to opt-out of arbitration. Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU ENTERED INTO YOUR SERVICE ORDER (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for each Service Order. You may opt out of these arbitration procedures by sending an email to email@example.com and clearly stating that you wish to opt out of the arbitration procedures in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue your claim in arbitration.
11.5 Arbitration procedures. If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or court proceedings as applicable. To begin arbitration, you must send a written letter requesting arbitration and describing your claim to our registered agent at CakeTech, Inc. d/b/a Synco c/o Registered Agent Solutions, Inc., 838 Walker Road, Suite 21-2, Dover, DE 19904 and to the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes will be administered by the AAA under its Commercial Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with this Agreement, in which case this Agreement will govern. If we are the prevailing party, we may seek reimbursement of reasonable attorneys’ fees and costs in arbitration unless prohibited under Applicable Law.
11.6 Class action waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this class action waiver is unenforceable with respect to any claim, this class action waiver will not apply to that claim, but will still apply to any and all other claims that you or we may assert in that or any other action.
11.7 Your choice to opt-out of the class action waiver. Notwithstanding the above, YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER BEFORE THE OPT OUT DEADLINE STATED IN SECTION 11.4 ABOVE. You must opt out by the Opt Out Deadline for each Service Order. You may opt out of the class action waiver by sending an email to firstname.lastname@example.org and clearly stating that you wish to opt out of the class action waiver in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be prohibited from pursuing your claim via a class action. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with these opt out requirements.
11.8 Injunctive relief. You and we acknowledge and agree that a breach by either party of its confidentiality obligations under Section 7, or a breach by you of your responsibilities under Sections 4.2, 4.3, or 4.4, could cause the other party irreparable harm for which monetary damages would not be an adequate remedy. You and we agree that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The binding arbitration provision of Section 11.3 shall not apply to requests for injunctive relief under this Section 11.8, which may be brought in arbitration or court proceedings. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.9 Our collection actions. You and we agree that we may pursue claims to collect amounts due in connection with this Agreement in court proceedings or arbitration, at our sole option. The binding arbitration provision of Section 11.3 shall not apply to actions brought by us to collect amounts due in connection with this Agreement.
11.10 Jury trial waiver. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
12. Term, Termination, and Survival
12.1 Term. This Agreement will commence on the date you first enter into a Service Order and continue until terminated in accordance with Section 12.2. Any term stated in a Service Order is the term for such Service Order; each Service Order may have a different term.
a. Termination at end of Service Order. This Agreement will terminate upon the expiration, cancellation, or termination of all outstanding Service Orders.
b. Termination for material breach. You or we may terminate this Agreement (and all Service Orders that are in effect) in the event the other party commits any material breach (including non-payment) of this Agreement and fails to remedy such breach within 30 days after receiving written notice of such breach.
c. Termination for insolvency. Subject to Applicable Law, you or we may terminate this Agreement (and all Service Orders that are in effect) immediately by providing written notice to the other party in the event of the other party’s insolvency, dissolution, liquidation, assignment for the benefit of creditors, or commencement of proceedings (voluntary or involuntary) for receivership or bankruptcy.
d. Suspension of access. We may suspend your access or a User’s access to the Services if permitted by another provision of this Agreement. We may not be required to give any notice to you to suspend access under such other provisions.
12.3 Effect of Termination. Upon termination of this Agreement, you and each User will immediately discontinue access to and use of the Services and you will promptly pay all outstanding amounts due. Upon termination of this Agreement at the end of a Service Order, if you make a request for a data export of your Customer Content within 90 days of termination, we will provide you with such data export in our standard machine-readable format, provided that all of your invoices are paid in full and you are not in breach of any of your obligations to us; we reserve the right to charge a processing fee for such data export that will not exceed the fees you paid for your last month of the Services. If you request a copy of your Customer Content other than as provided in the previous sentence, we may honor or refuse your request in our sole discretion and may charge any processing fee in our discretion to provide you with a copy of your Customer Content. Other than as expressly provided in this Agreement, we have no obligation to maintain or provide access to any Customer Content after termination and we have the right to delete all information and data related to your account and use of the Services, including the Customer Content, immediately upon termination and will incur no liability for such deletion. Additionally, you may request that we delete all Customer Content upon the termination of this Agreement and certify in writing that such Customer Content has been deleted. Notwithstanding anything herein to the contrary, we may retain a copy of the Customer Content and the other information and data related to your account, as is reasonably necessary for our record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend our rights or carry out our obligations, subject to any restrictions on use of such Customer Content in this Agreement.
12.4 Survival. All provisions of this Agreement that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 6, 7, 8, 9, 10, 11, 12, and 13) will survive the termination or expiration of this Agreement.
13.1 Choice of law. This Agreement is governed by the laws of the state of New York, without regard to any conflicts of laws rules. Arbitration or court proceedings in state or federal court, as applicable, must be brought in New York City, New York. Each party consents to and waives all defenses of lack of personal jurisdiction or inconvenient forum to any arbitration or court proceeding brought in New York City, New York consistent with the terms of this Agreement.
13.2 Notices. You may deliver notices to us by email to email@example.com. If you are commencing an arbitration or legal proceeding against us, you must send notice of the arbitration or legal proceeding to our registered agent at CakeTech, Inc. d/b/a Synco c/o Registered Agent Solutions, Inc., 838 Walker Road, Suite 21-2, Dover, DE 19904. We may deliver notices to you via email, mail, or electronic means using the contact information on your Service Order or in your account or by posting the notice on the Platform. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.
13.3 E-Sign Consent. We may need to provide you with certain communications, notices, agreements, billing statements, or disclosures (“Communications”) in writing regarding the Services. You agree and consent to receive Communications electronically from Synco, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“E-Sign Consent”). You also acknowledge and agree that you have the ability to receive Communications electronically. You may withdraw your consent to receive Communications electronically at any time by sending us notice at the email address in the Notice Section 13.2 above. If you choose to withdraw your consent, we may terminate your access to the Services.
13.4 Marks and Publicity. Each party retains the exclusive ownership right to any distinctive trade names, logos, trademarks, service marks, product identifications, artwork, and other symbols and devices associated with such party or its products or services (“Marks”). We may use your name or Marks to identify you as a customer of us on our website or in other promotional materials.
13.5 Third-Party connections. The Services may include integrations, links, or connections to third-party websites, applications, or services. This inclusion does not imply review or endorsement by us; you proceed at your own risk to a third-party website, application, or service. We do not warrant, and are not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third-party. You must review and comply with any third-party terms of service or other provisions.
13.6 Third-Party beneficiaries. Our third-party providers, licensors, and suppliers and our affiliates are considered to be third-party beneficiaries of this Agreement solely to the extent necessary for them to enforce any protections afforded them by this Agreement, except as otherwise provided in this Agreement. There are no other third-party beneficiaries to this Agreement. All rights and benefits of this Agreement from us are intended solely for Customer as the original purchaser of the Services.
13.7 Independent Contractors. You and we agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between the parties. You and we are acting as independent contractors in making and forming this Agreement.
13.8 Affiliates. You may permit any of your Affiliates (defined below) to access and use the Services, provided that (i) each Affiliate is subject to the terms of this Agreement; and (ii) you and each Affiliate are responsible and liable for such Affiliate’s access to and use of your account and the Services (including subscription fees and other fees) and for any breach of this Agreement by the Affiliate. “Affiliate” shall mean any person directly or indirectly controlling or controlled by or under direct or indirect common control with Customer; provided that solely for purposes of this definition, “control” of a person shall mean the power to, directly or indirectly, elect or appoint a majority of the board of directors or other governing body of such person or the power to vote 50% or more of the voting securities, shares, or interests of such person.
13.9 Assignment. You and we are prohibited from assigning this Agreement to a third party without the prior written consent of the other party to this Agreement except as provided in the next sentence. We may assign this Agreement (including any and all Service Orders) and/or our rights and obligations under this Agreement, in whole or in part, without notice to you or your consent: (i) in connection with a merger, acquisition, corporate reorganization or sale of substantially of all our assets, or (ii) to an affiliate of ours. Subject to the foregoing restrictions on assignment, this Agreement will bind and inure to the benefit of your and our respective successors and permitted assigns.
13.10 Amendment. We have the sole discretion to amend these Customer Terms. If this occurs, we will provide you with notice via any means we consider reasonable, including, without limitation, email, posting on our Platform, or updates to the Services. After we provide notice, your continued use of the Services constitutes your acceptance of the changes and the Agreement as amended.
13.11 Waiver. You and we cannot waive any provision of this Agreement except in a writing signed by you and us. Our failure to insist on or enforce strict performance of any provision of this Agreement or any of our rights is not a waiver of any provision or right.
13.12 Severability. If any part of this Agreement is held invalid or unenforceable, that part may be severed from the Agreement to the minimum extent necessary to cure such invalidity or unenforceability. The remainder of the Agreement will remain valid and enforceable.
13.13 Entire Agreement. This Agreement is the entire agreement between you and us regarding the rights you have with respect to the Services, except as provided by Applicable Law, and you cannot rely on any other documents, statements on our Platform, or statements by any of our representatives or agents.