Definitions
“Order Confirmation” shall mean the order form, online or in digital format, which shall detail the various Services that will be provided as a part of the subscribed Services, various payment details for the Services and the support and maintenance to be provided by the Company.
“Authorized User” means Customer’s employees, consultants, contractors, agents, and any other entities or individuals (i) who are authorized by the Customer to access and to use the Services according to the Order Confirmation and (ii) for whom access to the Services has been purchased by the Customer according to an Order Confirmation.
“Documentation” means the reference, administrative, and user manuals that are published by the Company and provided by the Company to the Customer with the SaaS Product, which may be updated from time to time, but excluding any sales or marketing materials.
“Services” means work, products, or services provided under an Order Confirmation, including any SaaS provided on a recurring charge or subscription basis.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Effective Date” means the date on which these terms of use take effect.
“Subscription Term” means the period during which the subscriber has agreed to subscribe to a Service.
Terms of Use
TERMS OF USE AGREEMENT
These terms of service apply between Synergy International Systems Inc., a corporation registered under the laws of the Commonwealth of Virginia, with its registered office at 1640 Boro Pl, 4th Floor, McLean, Virginia 22102, (“Company”) and the Customers of Synergy in the form of a natural or legal person or a partnership with legal capacity (“Customer(s)” who wish to use Synergy Indicata Monitoring & Evaluation Software™ (“IndicataGo” or “Software”) software-as-a-service (SaaS). These terms also apply to all related services provided by Synergy for the duration of the Subscription Term.
These terms of use allow the Customer to acquire subscriptions to online software-as-a-service products and other services from the Company in accordance with any Company ordering documents, online registration, order descriptions, or order confirmations that refer to these terms of use (“Order Confirmation(s)”). These terms of use set forth the basic terms and conditions under which those products and services will be delivered and will govern Customer’s initial purchase on the date set forth in the applicable Order Confirmation (the “Effective Date”) as well as any future purchases made by Customer that reference this Agreement. Each Service is offered on a subscription basis for a specified duration as indicated in the Order Confirmation (each, a “Subscription Term”).
Modifications to this Agreement: The Company reserves the right to make changes to this Agreement by notifying the Customer (including by posting such updates on the Service website). Unless otherwise specified by the Company, changes will take effect when the Customer renews their current Subscription Term or enters into a new Order Confirmation. The Company will use reasonable efforts to inform the Customer of the changes through notifications via the Customer’s account, email, or other methods. If the Customer continues to use the services after the updated version of this Agreement becomes effective, it will be considered as the Customer’s acceptance of those changes. If the Customer disagrees with such changes, before the start of the next Subscription Term, the Customer may notify the Company of its desire to not renew the Agreement and receive as its sole remedy a refund of any fees the Customer has prepaid for use of the applicable Services for the not yet started portion of the upcoming Subscription Term.
1.1 The subscription has two packages – monthly and annually.
1.2 The Customer shall inform the Company about the subscription cancelation at least one month in advance.
1.3 In case the Customer does not inform the Company about the extension of the subscription at least one month before the end of the subscription term, the subscription to IndicataGo will be renewed automatically based on the current subscription package type.
1.4 During the Subscription Term, the Customer receives a nonexclusive right to access and use the SaaS Services solely for its internal business operations, subject to these terms of use and up to the number of Authorized Users indicated in the invoice.
1.5 The Services shall commence from the date of receiving the Order Confirmation from the Company about the subscription and shall continue to remain in force until the subscription end date. At the expiration of the specified period, the parties shall mutually decide upon the renewal of the Services on such terms as agreed between the parties at the time of renewal.
1.6 The Company grants the Customer the use of the most current version of IndicataGo in its area of availability (via a remote data connection from the data center interface to the Internet).
1.7 Indicata Go is provided to the Customer in software as a service model, meaning that it is provided as a service and is deployed in the cloud.
1.8 The Company may provide updated versions of the software. In doing so, the Company should inform the Customer in good time of any necessary updates.
1.9 The Company warrants the functionality and availability of the Software for the duration of the Agreement and shall maintain it in a condition suitable for use in accordance with the terms of use.
1.10 Additional services, such as the development of customized solutions or necessary adaptations, require a separate agreement.
1.11 The Company shall not adapt IndicataGo to the Customer’s individual needs or any functional and non-functional requirements unless the parties have expressly agreed otherwise in writing.
1.12 The Company shall provide the Customer with user manuals in electronic form.
1.13 The Company shall provide 2-session training on the use of the Software in a suitable manner and scope. Each session will have a duration of a maximum of 2 hours.
1.14 The Company shall provide an issue tracking system for the Customer to submit tickets. The Company will address the issues in the shortest possible time.
1.15 During an active subscription, the Company may not suspend the provision of the service for any reason other than the existence of a serious risk to the security of the service. In this case, the Company may suspend the provision of the service only if it notifies the Customer of the interruption and makes all commercially reasonable efforts to restore the service as soon as possible.
1.16 The Company warrants that it has an operational business continuity plan to ensure the continued provision of the service.
2.1 During the Subscription Term, the Customer and its Authorized Users may access and use the Software as intended and within the scope of their business activities. The Customer is allowed to use the Software only for its intended purpose.
2.2 Unless otherwise specified in Annexes, and subject to the terms of this Agreement and payment of the applicable fees, the Company grants to Customer during the Subscription Term a non-exclusive, non-transferable right to use IndicataGo. The license shall be granted for all territories in which the Customer is active and for the entire duration of the subscription. In no way does this license confer any right upon the Customer to license, sublicense, sell, or otherwise authorize the use of the Software, whether in executable form, source code, or otherwise, by any third parties, except in connection with the use of the system as part of Customer’s operations.
2.3 The Customer shall not grant rights of use of the Software, the Documentation, and other accompanying materials provided to third parties. This restriction does not apply if the right to use the Software is transferred to a third party to whom no independent right of use is granted and who is subject to the Customer’s instructions about the use of the Software.
2.4 The Company is the only exclusive owner of all rights to the Software provided.
2.5 To the extent that the software contains third-party materials, the Company shall disclose in writing such third-party materials to the Customer and warrants that it has acquired from such third parties all necessary rights on the third-party materials for granting the license under these terms of use.
2.6 The Software is not physically handed over to the Customer; it remains on the Company’s systems.
2.7 The source code of the Software shall remain inaccessible to the Customer and the Customer agrees not to engage in any activities such as decompilation, reverse engineering, disassembly, translation, or unauthorized disclosures itself, or cause or permit any such decompilation, reverse engineering, disassembly, translation, or unauthorized disclosures to be made.
2.8 The Customer is prohibited from making copies of the Software except when it is agreed to in writing for purposes of reasonable backup or emergency recovery or as allowed by applicable mandatory legal provisions.
2.9 To the extent necessary for use in accordance with these Terms of Use, the Customer grants the Company the right to copy the data stored by the Company for the Customer and to store this data in a failover data center. Should it be necessary to eliminate malfunctions, the Company shall be authorized to modify the structure of the data and the data format.
3.1 IndicataGo is deployed in a cloud hosting environment by the Company to facilitate the provision of the IndicataGo services. The Company will take responsibility for hosting maintenance.
3.2 Service Availability is defined as the ability of users to access and use the complete system and receive high-integrity responses with no corruption of data. The system is not available if there is a critical incident in the system.
3.3 The Services shall be available 95% of the time, measured monthly, excluding holidays and weekends and scheduled maintenance. If the Customer asks for maintenance during these hours, any calculations of uptime or downtime will not include the time that is affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other circumstances outside of the Company’s control will also be excluded from any such calculation. The Customer’s sole and exclusive remedy, and the Company’s entire liability concerning Service availability shall be that for each period of downtime exceeding one hour, the Company will credit the Customer with the equivalent amount of hours. Planned maintenance will be communicated three (3) days in advance.
3.4 Downtime shall begin to accrue as soon as the Customer (with notice to the Company) recognizes that downtime is taking place and continues until the Services become available again. To receive downtime credit, the Customer must inform the Company in writing within 24 hours of the downtime time, and failure to provide such notice will forfeit the right to receive downtime credit. These credits may not be exchanged for cash. The credits will be granted in accordance with downtime hours as a subscription extension. The Company’s actions in blocking data communications (e.g. misconfigured firewall) or other Services in line with its policies will not be considered a failure on the Company’s part to provide adequate service levels outlined in these terms of use.
4.1 The Company shall use reasonable efforts in compliance with prevailing industry standards to keep the Services running smoothly with minimal errors and interruptions in the Services and shall perform the Implementation Services in a professional manner and in accordance with best industry standards. Services may be temporarily unavailable for planned maintenance or unscheduled emergency maintenance, either by the Company or by third-party providers, or due to other circumstances beyond the Company’s reasonable control, but the Company shall use reasonable efforts to notify in advance in writing or by e-mail of any planned service interruptions.
4.2 The Company shall diagnose errors or faults encountered by the Company or the Customer affecting the software and make any necessary corrections as soon as practically possible. The Company shall effect corrections only if the error can be reproduced or if the Customer provides the Company with sufficient information from which the error can be diagnosed.
4.3 The Company shall provide the Customer with successive software versions and releases and related documentation. However, the Company does not guarantee that the services will be uninterrupted or flawless; nor does it make any warranty as to the outcomes that may be obtained from the use of the services.
4.4 The Company is obliged to keep the Customer’s sensitive and personal data secure via encryption, backups, firewalls, and other security measures.
5.1 The Company acknowledges that all data provided by the Customer to the Company or generated through the use by the Customer of the Software shall remain the ownership of the Customer. The Company shall acquire no right in such data other than the right to use such data for the purpose of and in compliance with these terms of use – with the understanding that personal data is excluded.
5.2 The Company will promptly retrieve and deliver to the Customer a copy of all data uploaded by the Customer in the Software or generated through the use by the Customer of the Software (or only those portions specified by the Customer) in electronic format upon the Customer’s reasonable request and, in any case, at the expiration of this Agreement.
5.3 If requested by the Customer, the Company shall securely erase such data from its systems within seven (7) days and provide the Customer with a written confirmation thereof. The Company will not be liable for permanent loss of data after such a request is processed.
5.4 The Company reserves the right to refuse to recover data that the Customer accidentally deleted through the platform.
6.1 The Customer shall pay the Company the applicable fees for Services in advance. Service will begin immediately upon receipt of payment.
6.2 All amounts are payable in U.S. dollars unless otherwise specified in the Order Confirmation.
6.3 All fees and other amounts payable by the Customer to the Company are exclusive of taxes and similar assessments. The Customer is responsible for and shall pay any local taxes imposed on the fees and other amounts payable to the Company, including all sales, use, excise, and any withholding taxes, value-added, personal property, goods and services, and any other similar taxes, duties, and fees of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable to Company by Customer. If the Customer is a tax-exempt organization and is not obligated to pay taxes arising out of these terms of use, the Customer will provide the Company with all necessary documentation to verify its tax-exempt status with the relevant taxing authorities.
7.1 The Customer shall not use the SaaS for any purpose other than the access and use granted by the Order Confirmation. The Customer shall not, and shall not permit any Authorized Users to (directly or indirectly, in whole or in part): (a) copy, modify, or create derivative works of any IndicataGo IP; (b) lend, rent, lease, sell, license, sublicense, distribute, transfer, assign, publish, or otherwise make available IndicataGo IP; (c), disassemble, reverse engineer, decompile, adapt, decode, or otherwise attempt to derive or gain access to any IndicataGo IP; (d) remove any proprietary notices from IndicataGo IP; (e) use the IndicataGo IP or data derived from the IndicataGo IP to create, train, or enhance a similar or competing product or service; (f) use the SaaS in any manner or for any purpose that is fraudulent or which misappropriates, infringes, or otherwise violates any intellectual property right or other right of an individual, or that violates any applicable law including governmental order, privacy laws, or decree; (g) use the SaaS to try to gain unauthorized access to or to disrupt any service, data, device, account or network, to spam or distribute malware or in a way that could harm SaaS or others’ use of the SaaS; or (h) permit multiple users to utilize any SaaS feature that is intended for single-user access.
7.2 The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with these terms of use and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action arising from an alleged violation of the foregoing or otherwise from the Customer’s use of Services (including but not limited to content the Customer uses in conjunction with the Services). Although the Company has no obligation to monitor the Customer’s use of the Services, the Company may do so and may restrict any such usage it believes may be in violation of the foregoing.
7.3 The Customer shall be responsible for obtaining and keeping any equipment and additional services for connecting to, accessing, or otherwise using the Services, including, without limitation, hardware, servers, web servers, software, modems, operating systems, networking, and the like (collectively, “Equipment”). The Customer shall also be responsible for ensuring the security of the Equipment, Customer account, passwords, and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.
7.4 Each party acknowledges it is responsible for complying with all applicable requirements of the General Data Protection Regulation (GDPR) and any national implementing laws, regulations, and secondary legislation, as amended or updated from time to time. The parties acknowledge that:
7.4.1 if the Company processes any personal data on the Customer’s behalf when performing its obligations under these terms of use, the Customer is the data controller, and the Company is the data processor for the purposes of the GDPR;
7.4.2 Personal data may be transferred or stored outside the country where the Customer and the authorized users are located in order to carry out the Service and the Company’s other obligations under these terms of use.
7.5 The Company may at any time suspend any use of the Service and/or remove or disable any content as to which the Company reasonably and in good faith believes is in violation of this Agreement. The Company agrees to notify the Customer of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to adhere to legal process, regulation, order or to prevent imminent harm to the Service or any third party, in which case the Company will notify of such suspension or disablement as soon as reasonably possible in accordance with applicable law.
8.1 The Parties must treat with confidentiality any information or documents, in any format, disclosed in writing or verbally relating to this Agreement, which is either identified in writing as confidential or which can reasonably be presumed to be confidential. Each Party must:
8.2 The confidentiality obligations are binding upon the Parties during the implementation of the Agreement and for as long as the information or documents remain confidential unless:
8.3 The Company must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from subcontractors or third parties involved in the implementation, a commitment that they will comply with this Article or have confidentiality obligations in place that are similar or higher than those in this article. At the request of the Customer, the Company must provide a document with evidence of this commitment.
8.4 Any press releases or public statements relating to the present Agreement shall be presented to the Customer for review before such release.
9.1 Termination for Cause, Expiration. Either party may immediately terminate this Agreement and any applicable Order Confirmations issued hereunder in the event the other party commits a material breach of any provision of this Agreement that is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed material breach in sufficient detail to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided under this Agreement) (“Notice”).
9.2 Procedures upon Termination. Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continue use of the IndicataGo. If this Agreement is terminated as a result of Customer’s material breach of the Agreement, then the Company shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Company’s material breach of this Agreement, then Customer will have the right to receive a refund of the pro rata portion of any prepaid subscription fees paid by Customer to Company under this Agreement for the remaining terminated portion of the Term.
9.3 Suspension of the IndicataGo for Delinquent Account. The Company reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of IndicataGo for any accounts for which any payment or renewal fee is due but unpaid. Customer agrees that the Company shall not be liable to Customer or any Customer Affiliate or other third party for any suspension of the IndicataGo under this Section.
The Company shall hold the Customer harmless from liability to third parties that may arise from infringement by the Service of any patent or any copyright or misappropriation of any trade secret or other intellectual property right, provided the Company is promptly informed of any threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to take sole control over defense and settlement. The Company will not assume responsibility for any settlement it does not approve in writing.
The foregoing obligations do not pertain to parts or components of the Service (i) not provided by the Company, (ii) made, either wholly or partially, in accordance with the Customer’s specific requirements, (iii) that are modified after delivery by the Company, (iv) combined with other processes, products or materials where the alleged infringement relates to such combination, (v) where the Customer continues allegedly infringing activity after being provided at no cost modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by the Company to be infringing, the Company may, at its option and expense (a) modify or replace the Service to be non-infringing provided that such replacement or modification contains essentially the same features and functionality, (b) Secure a license for the Customer that permits them to keep using the Service, or (c) if neither of the above options is commercially practicable, terminate this Agreement and the Customer’s rights hereunder and provide the Customer a refund of any fees paid for the Service by the Customer.
Notwithstanding anything to the contrary, except for bodily injury of a person, customer and the provider and their respective providers (including but not limited to all equipment and technology providers), affiliates, officers, representatives, contractors and employees shall not bear responsibility or liability regarding any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute services, goods or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond their reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the customer to the provider for the services under this agreement, in each case, whether or not they have been advised of the possibility of such damages; provided that this limitation of liability shall not apply to any breach of their confidentiality obligations or the provider’s indemnification obligations hereunder.
12.1 If any provision of this Agreement is deemed invalid or unenforceable, that provision will be limited or eliminated to the minimum extent required to ensure this Agreement remains in full force and effect and enforceable.
12.2 This Agreement is not assignable, transferable, or sublicensable by the Customer except with the Company’s prior written consent and except by the Customer to any subsidiary or affiliate. The Company may transfer and assign any of its rights and obligations under this Agreement without consent but with at least sixty days written notice of any such assignment.
12.3 This Agreement represents the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all prior written and verbal agreements, communications, and other understandings relating to the subject matter of this Agreement, and that any waivers and changes must be documented in writing and signed by both parties, except as otherwise provided herein.
12.4 No joint venture, agency, partnership, or employment is established as a result of this Agreement and the Customer has no authority to bind the Company in any respect whatsoever.
12.5 All notices under this Agreement will be in written form and will be considered to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
General Provisions
Force Majeure. Neither party will be liable to the other for delay or failure in its performance of any of its obligations under these terms of use (except for the payment of amounts due hereunder) to the extent that such delay or failure is caused by circumstances beyond its reasonable control or by events such as flood, riot, fire, natural disaster, regulatory action, labor disputes, internet or telecommunications failures, terrorist acts, or other causes beyond such party’s reasonable control, provided that the non-performing party notifies of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
Governing Law. This Agreement will be governed by the laws of the Commonwealth of Virginia, excluding its rules regarding conflicts of law. The venue for any dispute hereunder will be a court of competent jurisdiction located in the Commonwealth of Virginia, and the parties irrevocably submit to the exclusive jurisdiction of such courts. All proceedings will be conducted, including all documents submitted in such proceedings, in English. The English language version of this Agreement prevails over any other language version.
Dispute Resolution. Both parties acknowledge that before they or any employee, representative, or agent of the party files a claim or suit with a state or federal agency, court, or other public forum, they shall notify the other party in writing at least thirty (30) days in advance and that during such thirty (30) day period (or longer, if extended by mutual consent of the parties), designated representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.