General Terms & Conditions

Synergy General Terms and Conditions

This Agreement consists of the General Terms, the applicable Product Specific Terms, and any additional terms Synergy presents when an Order is placed. The Agreement takes effect when Customer accepts the General Terms, and the individual who accepts these General Terms represents that they are authorized to enter into this Agreement on behalf of Customer.

Synergy General Terms

These General Terms apply to all of Customer’s Orders under this Agreement. Capitalized terms have the meanings given under Definitions.

1. License to use Synergy Products

1.1 License grant

Products are licensed and not sold. Subject to Customer’s compliance with this Agreement, Synergy grants to Customer a nonexclusive and limited license to install and use the Products ordered as provided in the applicable Product Specific Terms and this Agreement. The licenses are only for Customer’s internal business purposes and are non-transferable except as expressly permitted under this Agreement or applicable law.

1.2 Duration of licenses

Licenses expire at the end of the applicable Subscription Term unless renewed.

1.3 Accounts

Customer may assign each Subscription License to one individual End User for use or access on any number of devices. Customer may not reassign a Subscription License to another End User within 90 days of the last assignment, except where End User’s relationship with Customer ends or End User goes on leave. End User accounts may not be shared by individuals.

1.4 End Users

Customer controls access to and use of the Products by End Users. Customer is responsible for End Users’ use.

1.5 Product Specific Terms

Product Specific Terms apply to Products such as, but not limited to, Synergy Enterprise Cloud and Synergy Enterprise Server. If there is a conflict between the Product Specific Terms and the General Terms, the Product Specific Terms apply for that Product.

1.6 Previews

Previews (also referred to as Alpha and Beta features) are provided “AS-IS,” “WITH ALL FAULTS” and “AS AVAILABLE.” Synergy may change or discontinue Previews at any time without notice.

1.7 Product changes

Synergy has the right to make changes to the Products if such changes do not materially lessen the Product’s functionality. Synergy may provide additional terms that apply to Customer’s use of updates, new features, or related software.

1.8 Affiliates

Customer’s Affiliates may use the Products under this Agreement. Customer is responsible for its Affiliates’ use, and Customer has the sole right to enforce this Agreement.

1.9 Compliance with laws

Customer’s use of the Products must not violate any applicable laws, including copyright or trademark laws, export control laws, and regulations, including laws and regulations in its jurisdiction.

1.10 Reservation of rights

Products are protected by copyright and other intellectual property laws and international treaties. Synergy reserves all rights not expressly granted in this Agreement, and no rights are granted or implied by waiver or estoppel.

1.11 Feedback

Feedback by Customer is optional and voluntary. Feedback may be used by Synergy for any purpose without obligation of any kind as long as the Customer’s confidential information remains confidential.

1.12 Restrictions

Unless expressly permitted in this Agreement or by law, Customer may not:

• (a) reverse engineer, decompile, or disassemble any Product, or try to do so;
• (b) run, upgrade or downgrade, or transfer parts of a Product separately at different times or on different devices;
• (c) install, use, or distribute other software or technology in any way that makes Synergy’s intellectual property or technology subject to any other license terms;
• (d) work around technical limitations in a Product or restrictions in Product documentation; or
• (e) sell, rent, lease, sublicense, distribute, or lend any Products to others, in whole or in part, or host Products for use by others.

2. Support

2.1 Support

Synergy will Support a generally available release of a Product for one year from the original release date or 6 months from the last generally available update of such release, whichever is longer. Synergy is not responsible for Support if:

• (a) Customer fails to update their Product to the newest release,
• (b) someone other than a Synergy Representative modifies the Products, or
• (c) Customer uses the Products in a manner unauthorized by the Agreement or Product documentation.

3. Data Protection

3.1 Personal Data

Customer and Synergy will comply with applicable data protection laws.

4. Confidentiality

4.1 Existing NDA

If the parties have entered into a non-disclosure agreement, those terms apply instead of this confidentiality section.

4.2 Confidential Information

“Confidential Information” is non-public information in any form that is marked as “confidential” or that a reasonable person should understand is confidential. This includes, but is not limited to, Customer Content, the terms of this Agreement, and Customer’s account authentication credentials.

Confidential Information does not include information that:

• (a) becomes publicly available without a breach of a confidentiality obligation;
• (b) was received lawfully from another source without a confidentiality obligation;
• (c) is independently developed; or
• (d) is Feedback.

4.3 Protection of Confidential Information

Each party will take reasonable steps to protect the other’s Confidential Information. A party will only use the other party’s Confidential Information as part of the parties’ business relationship. Neither party will disclose Confidential Information to third parties. A party may only share Confidential Information with a party’s Representatives on a need-to-know basis, under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives. A party must promptly notify the other party if it discovers any unauthorized use or disclosure.

4.4 Disclosure required by law

A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) so that the other party can seek a protective order.

4.5 Residual information

Neither party is required to restrict its Representatives in other work assignments if they have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law.

4.6 Duration of confidentiality obligation

These confidentiality obligations apply:

• (1) for Customer Content, until it is deleted from the Online Services; and
• (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

5. Warranties

5.1 Limited warranties and remedies

• (a) Online Services: Synergy warrants that the Online Services will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are described in the SLA.
• (b) Software: Synergy warrants that the Software will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not and Customer notifies Synergy within the warranty term, Synergy will, at its option:
  1. return the price Customer paid for the Software license; or
  2. repair or replace the Software.
• (c) Support: Synergy warrants that it will perform Support in accordance with the applicable Support program. Customer’s remedies for breach of this warranty are described in the Support programs.

The remedies above are Customer’s sole remedies for breach of the warranties. Customer waives any warranty claims not made during the warranty period.

5.2 Exclusions

The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to Previews.

5.3 Disclaimer

Except for the limited warranties above and subject to applicable law, Synergy provides no other warranties. It disclaims any other express, implied, or statutory warranties, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

6. Third party claims

6.1 Defense and payment

The parties will defend each other against third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it.

6.2 Assistance

The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will then reimburse the other party for reasonable out-of-pocket expenses it incurs in providing such assistance.

6.3 Remedies and liability

This section describes the parties’ sole remedies and entire liability for such claims, subject to the limitations set out in Section 7 (“Limitation of liability”).

• (a) By Synergy: Synergy will defend Customer against any third-party claim that a Product made available by Synergy for a fee and used within the scope of this Agreement (unmodified as provided by Synergy and not combined with anything else) misappropriated a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Synergy is unable to resolve a claim of misappropriation or infringement, it may, at its option, either:

  1. modify or replace the Product with a functional equivalent; or
  2. terminate Customer’s license and refund any license fees, including amounts paid in advance for any usage period after the termination date.

  Synergy will not be liable for any claims or damages due to Customer’s continued use of a Product after being notified to stop due to a third-party claim.

• (b) By Customer: To the extent permitted by applicable law, Customer will defend Synergy and its Affiliates against any third-party claim that:

  1. any Customer Content misappropriated a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or
  2. Customer’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.

7. Limitation of liability

7.1 Maximum liability

Each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the following:

• (a) Products: For Products ordered on a subscription basis, Synergy’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.
• (b) Previews: For Previews, Synergy’s maximum liability is limited to US $500.00.

7.2 Exclusions

In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

7.3 Exceptions

No limitation or exclusions will apply to liability arising out of either party’s:

1. confidentiality obligations unrelated to Customer Content;
2. defense obligations above; or
3. violation of the other party’s intellectual property rights.

8. Pricing and payment

8.1 Fees

Customer agrees to pay fees in full, upfront, and, if invoiced, within thirty (30) days of the invoice date. Amounts payable are non-refundable, except as stated in this Agreement regarding Product warranty and third-party claims. If billed based on usage, Synergy will invoice according to the billing model described in the Product documentation.

8.2 Late payment

If Customer fails to pay fees on time, Synergy has the right to charge 2% monthly interest on past due amounts as allowed by law. Synergy also has the right to:

• charge Customer for all expenses of recovery,
• terminate the applicable order,
• turn off access, and
• take any other action at law.

8.3 Taxes

Customer is solely responsible for all taxes, fees, duties, and governmental assessments (except for taxes based on Synergy’s net income) that are imposed or become due in connection with this Agreement. If any taxes are required to be withheld on payments invoiced by Synergy, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Synergy an official receipt for those withholdings and other documents reasonably requested to allow Synergy to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.

9. Term and termination

9.1 Term

This Agreement is effective until terminated by a party, as described below.

9.2 Termination without cause

Either party may terminate this Agreement without cause on 30 days’ notice. Licenses granted on a subscription basis will continue for the duration of the Subscription Term, subject to the terms of this Agreement.

9.3 Termination for cause

Without limiting other remedies, either party may terminate this Agreement for material breach immediately if the other party fails to cure a curable breach within a 30-day notice period. Upon such termination:

• (a) All licenses granted under this Agreement will terminate immediately.
• (b) All amounts due under any unpaid invoices will become due and payable immediately.
• (c) If Synergy is in breach, Customer will be reimbursed for any prepaid unused fees.

9.4 Termination for regulatory reasons

Synergy may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement that:

1. is not generally applicable to businesses operating there;
2. presents a hardship for Synergy to continue offering the Product without modification; or
3. causes Synergy to believe these terms or the Product may conflict with any such regulation, obligation, or requirement.

If Synergy terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a reimbursement for any prepaid, unused subscription fees.

9.5 Migration

Customer may migrate or request migration of the data in its repositories for up to ninety (90) days after termination of this Agreement. Customer may not use the Products on a production basis during that time.

10. Miscellaneous

10.1 Independent contractors

The parties are independent contractors. Customer and Synergy may develop products independently without using the other’s Confidential Information.

10.2 Amendments

Synergy may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions presented by Customer are expressly rejected and will not apply.

10.3 Order of precedence

Conflicting terms in the Product Specific Terms take precedence over these General Terms as to the applicable Products. The parties may agree on changes to Section 8 (Pricing and payment) and Section 10.11 (Law and venue) by a signed order form. Other than that, these General Terms will take precedence over any conflicting terms in other documents.

10.4 Assignment

Either party may assign this Agreement to an Affiliate but must notify the other party in writing of the assignment. Synergy may also assign its rights to receive payment and enforce Customer’s payment obligations. Any other assignment of this Agreement must be approved by the other party in writing. Such notification to Synergy shall be made to the account manager at Synergy. Any attempted assignment without required approval will be void.

10.5 Compliance with trade laws

The parties acknowledge that the Products may be subject to U.S. and other countries’ export jurisdictions. Each party will comply with all laws and regulations applicable to the import or export of the Products, including, but not limited to, the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanctions regulations administered by the U.S. Office of Foreign Assets Control (“trade laws”).

Customer will not take any action that causes Synergy to violate U.S. or other applicable trade laws. If Customer learns of a potential violation of trade laws relating to the performance of this Agreement, or a potential violation of the terms in this subsection, it will alert Synergy as soon as possible, but in no event more than 14 days after acquiring this knowledge. Synergy may suspend or terminate this Agreement to the extent that it reasonably concludes that performance would cause it to violate U.S. or other applicable trade laws, including those described above, or put it at risk of becoming the subject of economic sanctions under such trade laws.

10.6 Severability

If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

10.7 Waiver

Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

10.8 No third-party beneficiaries

This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

10.9 Survival

All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

10.10 Notices

All notices to Synergy may be submitted via email to legal@synergyos.com. Notices must be in writing and will be treated as delivered on the email transmission date. Notices to Customer will be sent to the individual at the email address Customer identifies on its account as its contact for notices. Customer shall ensure its contact for notices is up to date during each renewal. Synergy may send notices and other information to Customer by email.

10.11 Applicable law and venue

This Agreement will be governed by and construed in accordance with the laws of the State of New York and federal laws of the United States. Any legal action or proceeding will be brought exclusively in the federal or state courts located in the City and County of New York. The parties consent to personal jurisdiction and venue there.

If Customer’s principal office is within the European Union, European Economic Area, or Switzerland, however, this Agreement will be governed by the laws of Ireland. Any legal action or proceeding will be brought exclusively in the courts located in Dublin. The parties consent to personal jurisdiction and venue there.

The above choices of venue do not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

10.12 Synergy Affiliates and contractors

Synergy may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Synergy remains responsible for their performance.

10.13 U.S. Public Sector Amendment

The U.S. Public Sector Amendment applies if you are a Government Entity, as defined in that amendment.

10.14 Government procurement rules

By accepting this Agreement, Customer represents and warrants that:

1. it has complied and will comply with all applicable government procurement laws and regulations;
2. it is authorized to enter into this Agreement; and
3. this Agreement satisfies all applicable procurement requirements.

11. Definitions

• Affiliate: Any legal entity that controls, is controlled by, or is under common control with a party. In this context, control means ownership of more than a 50% interest in an entity.
• Content: Text, data, software, images, and any other materials displayed or otherwise made available through the Online Service.
• Customer: The entity that has entered into this Agreement.
• Customer Content: Content that Customer creates, owns, or to which Customer holds the rights.
• End User: Any person or machine account that Customer permits to use a Product or access Customer Content.
• Feedback: A comment or suggestion volunteered by a party about the other party’s business, products, or services.
• Synergy: Synergy, Inc.
• Online Service: The Synergy-hosted service to which Customer may subscribe under this Agreement.
• Order: The method by which a Customer obtains its license to use a Product.
• Previews: Products provided for preview, evaluation, demonstration, or trial purposes, or pre-release versions of the Products.
• Product: All Software, Online Services, and Additional Products and Features that Synergy offers, including Previews, updates, patches, bug fixes, and support provided by Synergy.
• Product Specific Terms: Additional product terms that apply to Products available under this Agreement. The Product Specific Terms are provided at docs.synergyos.com/category/product-specific-terms.
• Representatives: A party’s employees, Affiliates, contractors, advisors, and consultants.
• SLA: Synergy Online Services SLA, available at docs.synergyos.com/legal/additional-terms/online-services-sla, which specifies the minimum service level for the Online Services.
• Software: Licensed copies of the on-premises software Synergy Enterprise Server identified in the Product Specific Terms, including any generally available updates of the Software.
• Subscription License: The license assigned to an End User.
• Subscription Term: The license period agreed between the parties when the Products are ordered.
• Support: Synergy’s support programs described on docs.synergyos.com/legal/additional-terms/premium-support-terms.