This Service Agreement ("Agreement") is between Synkron Systems, LLC, a Washington limited liability company and you, the user or entity ("User"). Synkron is willing to provide access to its SYNKWISE ̈ software and documentation to User only on the condition that you accept all of the terms of this License Agreement. DO NOT CLICK "I ACCEPT" UNTIL YOU HAVE READ AND AGREE TO THE LANGUAGE OF THIS SUBSCRIPTION AGREEMENT.
Intending to be legally bound, User and Synkron agree as follows:
- "Access" means to use or benefit from using the functionality of the Hosted Program.
- "Activation Date" is the date on which User is delivered an authorized user ID and password from Synkron to use the Hosted Programs.
- "Synkron Services" shall mean hosting services described herein and other services specifically identified in any Service Agreement that utilize the Hosted Program.
- "Documentation" is information provided by Synkron to help User make use of the Hosted Program. It may be distributed or provided to User on- line, in hardcopy, webinars, virtual or live presentations, or other forms.
- "Host Server" is the server provided by or on behalf of Synkron through which User accesses the Hosted Programs, identified by a URL and one or more user IDs and passwords.
- "Hosted Program(s)" is the SYNKWISE software and other computer software, if utilized, in object code form owned or provided by Synkron for which User has subscription rights granted pursuant to this Subscription Agreement, updates and upgrades to the Hosted Program, and Documentation.
- "Registration Data" means information that is required by Synkron Services and any third-party providers to complete the enrollment and registration process.
- "User Data" means information entered into the Hosted Programs by User in the course of its authorized use of the Hosted Programs and stored on the Host Server for access by the Hosted Programs and retrieval by the User.
2. GRANT OF LICENSE
- License. Subject to User’s compliance with these terms, Synkron grants to User a nonexclusive, nontransferable limited right to (1) Access the Hosted Programs on the Host Server solely for User's own internal business operations and (2) use the Documentation in support of User's authorized use of the Hosted Programs. No right to use the services is granted if User (and Reseller, if applicable) did not lawfully acquire Access from Synkron. Except as otherwise stated in this Agreement or your order, you have the nonexclusive, worldwide limited right to use the Services during the period defined in your order, unless earlier terminated in accordance with this Agreement or your order. You may allow Your Users to use the Hosted Program for these purposes, and Users are responsible for their compliance with this Agreement and Your order. Unless applicable law gives you more rights, the scope of your Access is only that expressly permitted in this Agreement.
- Consent. Accessing and using the Hosted Programs over the internet, which may include via a wireless network, may transmit standard device information, including without limitations technical information about your device, system, application software, and peripherals. You consent to the transmission of such information.
- Restrictions. Except as specifically authorized in any separate agreements, and subject to this Section 2.3, User will not allow any third parties to access the Hosted Programs, or use the Hosted Programs for third-party training, commercial time-sharing, rental or other use. Further, User shall not:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Hosted Programs or any Synkron Service;
- authorize the access and use of the Hosted Programs to any third party;
- use the Hosted Programs for any purpose not expressly permitted herein;
- decompile, disassemble, or otherwise reverse-engineer the Hosted Programs;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights;
- send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of the Hosted Programs or the data contained therein;
- attempt to gain unauthorized access to the Hosted Programs or its related systems or networks; or
- remove or destroy any proprietary markings or legends, including copyright and trademark notices, appearing on or contained within any Hosted Program.
- Reservation of Rights. As between the parties, Synkron retains all title, copyright, trademark, patent, and other proprietary rights in the Hosted Programs. User does not acquire any rights, express or implied, in the Hosted Programs or otherwise, other than those specified in the License Agreement. Synkron shall be entitled to use and exploit, without restriction or charge, any improvements, suggestions, or enhancements to the Hosted Programs made or provided by User.
- Third Party Software. All computer programs, application programs, databases and related information and documentation that are part of any third party services or products provided as part of the User’s Access to the Hosted Programs (collectively, the "Third Party Software") and all information and documentation that constitute the Third Party Software services are and will at all times remain the sole and exclusive property of the Third Party Software provider or the parties for whom the Third Party Software provider is acting as agent or licensee.
- Audit. Synkron shall have the right to monitor use of the Hosted Programs by User to verify compliance with the terms of this Subscription Agreement.
3. USE OF THE SERVICES
- Hosted Programs. Synkron will provide User with Access to the online Hosted Programs and will provide for the storage and retrieval of User Data in connection with use of the Hosted Programs. User is responsible for obtaining access to the Internet using appropriate software and hardware, including ensuring proper security of User's systems and access to the Hosted Programs.
- Authorized Access. User will be assigned a username and password by Synkron to obtain Access to the Hosted Programs and Synkron Services. Access without an assigned username and password, or by utilizing another’s password, shall be considered unauthorized and shall terminate this license.
- User Obligations and Responsibilities. User is responsible and liable for all activity occurring under its accounts, whether or not such activities have been authorized by User, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Hosted Programs, including those related to data privacy, international communications and the transmission of technical or personal data. User shall: (i) notify Synkron immediately of any unauthorized use of any password or user ID or any other known breach of security, including the loss of theft of any password or user ID; (ii) restrict access and use of the Hosted Programs by unauthorized users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Hosted Programs.
- Synkron User Support Services. At Synkron’s discretion, a third party may provide all user support services delivered to User. In the event that a User elects to receive support services related to the Hosted Programs from Synkron by requesting such services, then Synkron agrees to provide support to the User or User's representative in accordance with Synkron’s support polices then in effect, so long as User is currently entitled to use the Hosted Programs.
- Additional Data Services. In the event User requests, subject to Synkron’s availability, to perform other services with respect to User Data, including, but not limited to, reformatting or modifying the format of User Data, modify, develop or otherwise alter a User Data interface, or otherwise preparing and providing User with copies of User Data, User shall pay Synkron’s fees for such additional data services.
- User Account. In order to use the Hosted Programs and Synkron Services, and in order for the Synkron Services to operate properly, Users must supply Synkron with certain "Registration Data", all of which must be accurate and updated as appropriate. Failure to properly maintain the Registration Data shall be a breach of the Subscription Agreement. User should ensure that it can receive e-mail from Synkron, which may require User to add Synkron to a "trusted" sender list to avoid delays or having Synkron correspondences blocked from User's inbox.
- Cooperation. Synkron’s ability to provide Synkron Services is dependent upon User's cooperation and ability to perform its obligations. Should User fail to perform any obligation or approve any request from Synkron, Synkron shall be relieved from any liability resulting therefrom and any delivery dates shall be reset accordingly.
4. USER DATA
- User Data Warranty. User represents and warrants that it owns or has all necessary rights to use all User Data, including the right to upload User Data to the Host Server in connection with its authorized use of the Hosted Programs. User warrants that the User Data and its use in connection with the Hosted Programs does not infringe the rights of any third party or violate any applicable laws. User shall be responsible for complying with all applicable local, state, national and foreign laws, treaties and regulations related to the use and disclosure of data, data privacy, international communications and the transmission of technical or personal data. User will defend, indemnify and hold harmless at its expense any action brought against Synkron to the extent based on a claim that arising from or resulting from breach of this non-infringement warranty or compliance with laws, treaties or regulations. User will pay any costs and damages finally awarded against Synkron in such action that are attributable to such claim, provided that Synkron promptly notifies User in writing of the claim, allows User to control the defense, provides User with the information and assistance necessary for the defense and/or settlement of the claim, and do not agree to any settlement without User’s prior written consent.
Data Security Obligations.
- Unless otherwise agreed in writing, the parties agree that all software used to access the Hosted Programs will support the Secure Socket Layer (SSL) protocol. User agrees to access the Hosted Programs and to store and retrieve data using third party programs, including specifically Internet "browser" programs.
- Even though Synkron may provide usernames and passwords, and may restore access to a User who loses them, User is responsible for obtaining and for remembering usernames and passwords for all Users (the "Log-In Information"). User must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User. Each User is entirely responsible for maintaining the confidentiality of that User’s username and password. Each User will be entirely responsible for any and all activities that occur under the User’s account. Each User agrees to notify Synkron immediately of any unauthorized user of the User’s account or any other breach of security. Synkron will not be liable for any loss that User may incur as a result of someone else using that User’s password or account, either with or without the User’s knowledge.
- Synkron does not guarantee the security of any information transmitted to or from any User over the Internet including through the use of email. Access to the internet, if employed, is User’s and is User’s sole responsibility and the responsibility of any internet provider they select. Synkron does not accept any responsibility for failure of service due to internet facilities, including related telecommunications or equipment.
- Synkron agrees to maintain the security of User Data using industry- standard data security protocols, and other methods reasonably deemed to be adequate for secure business data and to notify User in the event of a breach of security involving User Data. Synkron agrees to retain User data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted industry practices.
- Ownership of User Data. User retains all ownership and intellectual property rights in and to User Data. User Data remains User’s and User, not Synkron, is responsible for it. User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all User Data. Synkron is not responsible for inability to perform services due to improperly formatted or corrupt files, viruses on media provided by User, or incompatible backup media or software used by User. User warrants that storage or caching of User Data is not an infringement of any intellectual property rights or otherwise in violation of any applicable laws. User agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. User may download its data at any time and for any reason during the subscription. For 90 days after expiration or termination of this Agreement, Synkron will allow you the ability to export your data.
- Data Aggregation; License. To support the SYNKWISE software tools, calculators, benchmarking and other functionalities that require aggregated User Data, and to the extent needed to provide the Services to you and others, to protect you and the Services, and to improve the Services, User hereby grants to Synkron an irrevocable, perpetual, non- exclusive, worldwide, royalty free license to collect, store, use and retain User Data.
- Privacy. Synkron will comply with the relevant privacy policies applicable to the Synkron Services ordered in the Service Agreements. Privacy policies for the Hosted Programs are available at: https://www.synkwise.com/ privacy-policy/. These policies may change from time to time, so you should regularly check the policies in place.
- Defined. By virtue of the Subscription Agreement, the parties understand and agree that in the performance of this Agreement each party may have access to private or confidential information of the other party ("Confidential Information"). Confidential Information shall include the Hosted Programs, the terms and pricing under this Agreement, and all information clearly identified as confidential at the time of disclosure. Notwithstanding the foregoing, Synkron's Confidential Information includes all information a User obtains by accessing the Hosted Programs or by using the Synkron Services. User Data is considered Confidential Information unless and until it is stripped of any and all identification markers that would allow the data to be associated with a specific facility or User. Data that has been stripped of information that would identify it as a particular User’s shall remain available for use by Synkron in furthering development and refinement of its intellectual property, data aggregation and for marketing purposes as provided in this Agreement.
- Exceptions. Aparty'sConfidentialInformationshallnotinclude information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by contemporaneous written documentation.
- Handling. Except as may otherwise be required by law, during the term of, and for a period of 5 years after the expiration or termination of this License Agreement, neither party shall disclose the other party's Confidential Information to any person other than those authorized with a need-to-know or use the Confidential Information for any purpose other than for the purpose for which it is intended. Each party will use at least the same effort used to protect its own Confidential Information (but not less than reasonable care) to prevent the unauthorized disclosure of the other party's Confidential Information.
- Required Disclosure. Nothing shall prevent either party from disclosing the other’s Confidential Information as required by law, including without limitation a valid subpoena from a federal or state governmental entity. In the event that either party is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request will provide the other party with prompt written notice of any such request or requirement, unless prohibited by law, so that such party may seek an appropriate protective order or other relief.
6. INTELLECTUAL PROPERTY
- General. The Hosted Programs are the copyrighted works of Synkron and/ or its licensors. In addition, except as expressly provided under this Agreement, Synkron does not grant User a license or any other rights of any type under patents, know-how, copyrights, trade secrets, trademarks, or other intellectual property owned or controlled by Synkron or any related entity, including but not limited to any name, trade dress, logo, or such. The Hosted Programs, graphics, images, content, compilation, digital conversion, databases, and all information provided in connection with the Hosted Programs and Synkron Services and other matters related to Synkron (other than User Data) and any modifications, updates, copies, customizations, derivative works, augmentations, or translations thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to the Hosted Programs or Synkron Service are subject to all applicable patent, copyright, trademark, trade secret and other laws protecting the proprietary rights of Synkron and its licensors. Your rights to access the Synkron Services and to make use of the Hosted Programs are licensed only, not sold, and all content on Synkron and copies of such content – except for User Data and as otherwise provided in this Agreement – remain in the sole possession and ownership of Synkron and its licensors.
- Trademarks. Synkron Services, SYNKWISE, and the symbols used to identify Synkron are trademarks of Synkron. All third party trademarks, service marks, trade names or other identifying information used by Synkron remain the sole and exclusive property of the applicable third parties. Except for linking to Synkron web sites, User may not use any Synkron logo or trademark, whether or not such mark(s) are registered, without prior written approval from Synkron. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Synkron name (or any derivative thereof) in User's URL, business name, or the names of any add- on products or services User may be offering independent of Synkron is prohibited. Additionally, using the Synkron name in paid targeted keyword advertising campaigns on search engines is also prohibited.
- Copyright. The SYNKWISE Website and all content provided by Synkron, unless otherwise stated, are the property of Synkron. All rights are reserved. Any copying, transmission or other publication or other unauthorized use of the contents of this Website is strictly prohibited.
7. TERM AND TERMINATION
- Term. The term of this License Agreement shall commence on the date specified at the time of purchase and continue until terminated by either party.
- Termination. Failure by either party to comply with any material term or condition under this Agreement shall terminate the Agreement. Additionally , Synkron may suspend or terminate this License Agreement at any time upon User’s intentional, willful, or grossly negligent actions or inaction which would reasonably be construed to constitute a breach of this License Agreement. Upon termination, User shall pay Synkron for all work performed under the Agreement up to the effective date of termination.
8. WARRANTY AND EXCLUSIVE REMEDIES
- No Infringement. Synkron warrants that the Hosted Program(s), when used within the scope of this License Agreement, does not infringe any United States patent, copyright or trade secret. Synkron will defend at its expense any action brought against User to the extent based on a claim that the Hosted Program, when used within the scope of this License Agreement, infringes a U.S. patent, copyright or trade secret. Synkron will pay any costs and damages finally awarded against you in such action that are attributable to such claim, provided that you promptly notify Synkron in writing of the claim, allow Synkron to control the defense, provide Synkron with the information and assistance necessary for the defense and/or settlement of the claim, and do not agree to any settlement without Synkron’s prior written consent. Should the Hosted Program become, or in Synkron’s opinion be likely to become, the subject of any claim of infringement, Synkron may at its option (i) procure for User the right to continue using the Hosted Program, (ii) replace or modify the Hosted Program so as to make it non-infringing, or, if (i) and (ii) are not commercially reasonable, (iii) terminate the license granted hereunder and refund the amounts paid for such license. Synkron will have no liability for any claim of infringement based upon (i) use of other than the latest unmodified release of the Hosted Program available to you if such infringement would have been avoided by the use of such release and you were notified that use of the release would avoid such infringement, (ii) use or combination of the Hosted Programs with other programs or data if such infringement would not have occurred without such use or combination, or (iii) use of the Hosted Programs after receiving notice from a third party or Synkron that the Hosted Programs infringe a patent, copyright or trade secret right of a third party unless prompt written notice thereof is given to Synkron. The forgoing states the exclusive remedy of User and Synkron’s entire liability with respect to infringement of patents, copyrights, trade secrets or other proprietary rights.
- Hosted Program Warranty. Synkron warrants that the Hosted Programs will materially perform in accordance with the documentation so long as (1) the User has a current, paid-up right to use the Hosted Programs; and (2) User's access to the Host Server will meet the minimum criteria set forth in Synkron's documentation.
- Synkron Services Warranty. Synkron warrants that the Synkron Services will be performed consistent with generally accepted industry standards.
- Data Warranty. Synkron represents and warrants that all data acquired from User, regardless of whether such data is maintained, stored and / or transmitted directly or indirectly, such as through a third party database, will be protected using industry standards and security safeguards at the same or better level than Synkron protects its own confidential data. In the event of any actual or potential breach of any medium pursuant to which User’s data is stored for the provision of Synkron's services hereunder, Synkron shall notify User via email to the address given in the Registration Data within 24 hours from Synkron's actual knowledge of such actual or potential breach.
- User acknowledges and agrees that it has sole responsibility to determine the accuracy of the data and reports prior to use.
- EXCEPT AS SET FORTH IN SECTIONS 8.1 (NO INFRINGEMENT), 8.2 (HOSTED PROGRAM WARRANTY), 8.3 (SYNKRON SERVICES WARRANTY), AND 8.4 (DATA WARRANTY), SYNKRON DOES NOT WARRANT OR REPRESENT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE HOSTED PROGRAMS OR THAT THE USE OF THE SYNKRON SERVICES SHALL MEET USER'S REQUIREMENTS OR THAT USER'S USE OF THE HOSTED PROGRAMS OR SYNKRON SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE OR IMMUNE FROM FRAUDULENT INTRUSION AND/OR UNAUTHORIZED USE OR DISCLOSURE. SYNKRON ASSUMES NO RESPONSIBILITY FOR ASSURING THE PROPER AND LAWFUL USE THEREOF BY USER. SYNKRON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT IN CONNECTION WITH THE HOSTED PROGRAMS OR SYNKRON SERVICES, AND ANY SUCH WARRANTIES ARE DISCLAIMED TO THE EXTENT NOT PROHIBITED BY LAW.
- HOSTED PROGRAMS OR SYNKRON SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SYNKRON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA.
- SYNKRON DOES NOT GUARANTEE THAT THE HOSTED PROGRAMS OR SYNKRON SERVICES SHALL IN ALL CASES MEET USER'S REQUIREMENTS, AND SYNKRON LIKEWISE DISCLAIMS ANY WARRANTY THAT THE HOSTED PROGRAMS OR SYNKRON SERVICES SHALL SUCCESSFULLY ACCOMPLISH THE SPECIFIC OBJECTIVES DESIRED BY USER.
- Exclusive Remedies. FOR ANY BREACH OF THE WARRANTIES CONTAINED IN SECTIONS 8.2 (HOSTED PROGRAM WARRANTY), 8.3 (SYNKRON SERVICES WARRANTY), AND 8.4 (DATA WARRANTY) USER'S EXCLUSIVE REMEDY, AND SYNKRON'S ENTIRE LIABILITY, SHALL BE THE CORRECTION OF THE HOSTED PROGRAM ERRORS OR RE- PERFORMANCE OF THE SYNKRON SERVICES. USER SHALL NOTIFY SYNKRON WITHIN 30 DAYS OF DISCOVERY OF ANY ERROR OR FROM PERFORMANCE OF THE APPLICABLE SYNKRON SERVICE OR SUCH CLAIM SHALL BE DEEMED WAIVED BY USER.
- By using the Hosted Programs or Synkron Services, User expressly authorizes and directs Synkron to carry out such transaction or performance on User's behalf. Additionally, User represents and agrees that it has obtained all authorizations required by applicable law or otherwise to allow Synkron to carry out such transaction or performance.
- USER SHALL INDEMNIFY, DEFEND AND HOLD SYNKRON HARMLESS FROM AND AGAINST ANY LIABILITY AND FOR ALL DAMAGES, COSTS AND EXPENSES, INCLUDING ALL REASONABLE ATTORNEY FEES AND EXPENSES, INCURRED BY SYNKRON IN TAKING SUCH ACTIONS IN SECTION 9.1 AT USER'S DIRECTION OR REQUEST.
- ADDITIONALLY, USER SHALL INDEMNIFY, DEFEND AND HOLD SYNKRON HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIM AND ANY RELATED COST OR EXPENSE, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, ARISING OUT OF OR RELATED TO ANY BREACH OF THIS LICENSE AGREEMENT.
10. LIMITATION OF LIABILITY
- IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, REJECTED OR DENIED CLAIMS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY RELATED TO THE HOSTED PROGRAMS OR SYNKRON SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED PROGRAMS OR SYNKRON SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE HOSTED PROGRAMS OR SYNKRON SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSOR'S HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- WITH THE EXCEPTION OF SECTION 8.1 (NO INFRINGEMENT) ABOVE, IN NO EVENT SHALL SYNKRON'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Force Majeure. Synkron shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Hosted Programs or Synkron Services for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of God, labor dispute or disturbance, material shortage or rationing, fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage earthquake, flood, civil disturbance, sabotage, cyber- attack including denial of service attack, act of war, act of terrorism, governmental action or regulation (collectively "Force Majeure Items").
- Independent Contractors. The relationship between Synkron, User and any third party is that of independent contractors. Nothing in this License Agreement shall be construed or deemed to create any other relationship, including that of joint venture, partnership, or in an employment or agency relationship.
- Construction. In the event of a dispute hereunder, this License Agreement shall be interpreted in accordance with its fair meaning and shall not be interpreted for or against any party hereto on the ground that such party drafted or caused to be drafted this License Agreement or any part hereof, nor shall any presumption or burden of proof or persuasion be implied by virtue of the fact that this License Agreement may have been prepared by or at the request of a particular party or its counsel. Article and Section headings are for convenience only and shall not affect the interpretation of this License Agreement.
- Notice. Any notice or other document to be given or to be served upon Synkron in connection with this Agreement shall be in writing to Synkron at the address first listed above. All such Notices will be deemed effective upon delivery or three days after mailing by certified mail. Any notice or other document to be given or to be served upon User shall be sent to User’s last known address. Any party may, at any time by giving 5 days prior written notice to the other party, designate any other address in substitution of the address stated above to which such notice will be given.
- Choice of Law; Jurisdiction; Service of Process. The parties acknowledge that this License Agreement shall be construed in accordance with the laws of the State of Washington, without regard to the conflicts of law provisions thereof. The parties consent to the jurisdiction of the state and federal courts located in Clark County, Washington, in any action arising out of or relating to this License Agreement and waive any other venue to which either party might be entitled.
- Dispute Resolution. Any controversy, transaction or dispute arising out of or relating to this License Agreement shall be settled in the following order of preference: (1) By good faith negotiation between representatives of the parties who have authority to fully and finally resolve the dispute; (2) If necessary, by non-binding mediation at a location acceptable to both parties in Clark County, Washington, using a neutral mediator acceptable to both parties. In any mediation, the Parties shall equally share the cost of the mediator and otherwise bear their own respective costs; or (3) As a last resort only, by binding arbitration in Clark County, Washington. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this License Agreement. All such controversies, transactions or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding a party from bringing an action for preliminary injunctive relief or other provisional remedy in the state or federal courts for Clark County, Washington Oregon. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Export Controls and Restricted Rights. This agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Synkron Services, Hosted Programs, content, Synkron intellectual property or information about such Synkron Services, Hosted Programs, which may be imposed from time to time by the government of the United States of America. User shall not export the service including, without limitation, content, Synkron intellectual property or confidential information, and information about the Synkron Services and Hosted Programs without the written consent of Synkron and compliance with such laws, regulations, orders or other restrictions. The Hosted Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to Synkron. If the Hosted Programs and accompanying documentation are used under the terms of a DoD or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Subscription Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
- Nonsolicitation. User agrees during the term of this Agreement, and for 12 months thereafter, not to solicit for hire or hire as a consultant, employee, or otherwise any current or former employee of Synkron who had involvement with the performance of the Agreement.
- Assignment. User may not assign this Agreement or any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, without Synkron’s prior written consent, and any attempt to do so will be void and of no force or effect. If the Assignment is caused by a sale, merger, or other transfer of substantially all User’s assets, then Synkron’s consent is deemed. This License Agreement is freely assignable and/or transferable by Synkron without the consent of User. This License Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
- Severability. Each provision of this License Agreement is intended to be severable from each other provision, and the validity or illegality of any portion hereof shall not affect the validity or legality of the remainder hereof.
- Survival. The provisions of 4 (User Data), 5 (Confidentiality), 6 (Intellectual Property), 10 (Limitation of Liability) and 11 (Miscellaneous), and any payment obligations of either party shall survive the expiration or termination of this License Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this License Agreement. Except for actions for nonpayment, or User's breach of Sections 5 (Confidentiality) or 6 (Intellectual Property), no action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has accrued.
- Entire Agreement. The License Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the License Agreement. Synkron may modify the terms of this Agreement at any time by posting new terms to its web site. User may notify Synkron in writing within thirty (30) days of such change that User does not wish to accept the new terms. In the absence of such written non-acceptance notification with the thirty (30) day period, User confirms acceptance of the new terms by continuing to use the Hosted Programs and/or Synkron Services. If User does not accept the new terms by notifying Synkron within the thirty (30) day period, then User may continue to use the Hosted Programs and Synkron Services under User's existing terms until the end of User's then current term, at which time User's Subscription Agreement will not automatically renew, but will instead terminate.