Synamedia Cloud Services Agreement

BY ACCEPTING THIS AGREEMENT THROUGH A SALES ORDER (AS DEFINED HEREIN) THAT INCORPORATES THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE CLOUD SERVICES.

This Synamedia Cloud Services Agreement (this “Agreement”) is between Synamedia Limited on behalf of itself and its affiliates (“Synamedia”) and the entity that has executed the Sales Order(s) incorporating the terms of this Agreement (“You”, “Your”). This Agreement sets forth the terms and conditions that govern Sales Orders placed by You for Cloud Services under this Agreement.

1. AGREEMENT DEFINITIONS

1.1. “Acceptable Use Policy” means the latest version of Synamedia’s Acceptable Use Policy which is available on the Synamedia website as updated from time to time.

1.2 “Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, Controls, is controlled by or is under common control with You.

1.3. “Auto Renew” or “Auto Renewal” is the process by which Subscription Period of certain Cloud Services under a Sales Order is automatically extended for an additional Subscription Period unless such Cloud Services are otherwise terminated in accordance with the terms of the Sales Order or this Agreement.

1.4. “Cloud Services” means, collectively, the Synamedia cloud services (e.g., Synamedia software as a service offerings and related Synamedia Programs) listed in Your Sales Order and defined in the Service Specifications.

1.5. “Cloud Services Environment” means the infrastructure, including a combination of hardware and software components owned, licensed or managed by Synamedia to which Synamedia grants You and Your Users access via an API as part of the Cloud Services which You have ordered. As applicable and subject to the terms of this Agreement and Your Sales Order, Synamedia Programs and/or Your Data may be hosted in Cloud Services Environment.

1.6. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities or otherwise.

1.7. “Data Centre Region” means the geographic region in which Cloud Services Environment is physically located.  The Data Centre region will be chosen at Synamedia’s sole discretion.

1.8. Data Protection Laws means (a) the General Data Protection Regulation (EU 2016/679), and (b) the directive on privacy and electronic communications (2002/58/EC, as amended), as well as, for each of (a) and (b) above, all laws implementing such directives and/or regulation, as amended or updated from time to time, and any other applicable laws as relate in the relevant jurisdiction to the Processing of Personal Data.

1.9. “Free Trial” means use of the Cloud Services for an agreed duration, as a trial, for non-production purposes pursuant to a Sales Order that specifies that Customer’s use is for a Free Trial.

1.10. “Harmful Code” means any software, hardware, or other technology including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to harm or impede in any manner any software, firmware, hardware, system, or network provided to You during the provision of the Cloud Services.

1.11. “Personal Data” means any information deemed “personal data” or “personal information” (or analogous variations of such terms) under Data Protection Laws and regulations, including any information relating to an identified or identifiable natural person.

1.12. “Process” or “Processing” means any operation or set of operations which is performed on Your Data or on sets of Your Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

1.13. “Sales Order” means any mutually agreed written sales order(s), statement(s) of work or otherwise similar written agreement(s), including its exhibits and addenda, describing the Cloud Services, Support Program, Service Specifications, fees and any special terms for using the Cloud Services that You have ordered as governed by this Agreement.

1.14. “Service Documentation” means any English language manuals, instructions, or other documents or materials that Synamedia makes available to You in any medium and which describe the functionality, components, features, or requirements of the Cloud Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

1.15 “Service Specifications” means the descriptions of the Cloud Services further described in Your Sales Order, including any Service Documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions or Your Sales Order.

1.16 “Subscription Period” refers to the period of time for which You ordered Cloud Services as specified in a Sales Order, including any Auto Renewals.

1.17 “Support Program” means the support and maintenance services as specified in the applicable Sales Order.

1.18. “Synamedia Programs” means the software products owned or licensed by Synamedia to which Synamedia grants You access as part of the Cloud Services, including Service Documentation, and any program updates provided as part of the Cloud Services but excluding any Third Party Technology.

1.19. “Third Party Technology” refers to any software, hardware, data or service owned by a third party to which Customer receives a specific license and/or the right to access and/or use through the provision of the Cloud Services.

1.20. “Users” means those employees, contractors, and third-party users (which includes subscribers to services You provide as detailed in the Sales Order), as applicable, authorized by You or on Your behalf to use the Cloud Services in accordance with this Agreement and Your Sales Order.

1.21.“You” and “Your” refers to the individual or entity that has executed this Agreement.

1.22. “Your Data” means all text, files, information, data (including Your Personal Data), and other content and material, in any format, provided by You or Your Users that reside in, or run on or through, Cloud Services Environment.

1.23 “Your Personal Data” means any Personal Data, in any format, provided by You or Your Users that reside in, or run on or through, Cloud Services Environment. For the avoidance of doubt, Your Personal Data shall not include health or similarly sensitive personal information that imposes specific data security obligations for the Processing of such data.

2. TERM OF AGREEMENT

This Agreement applies to the provision of all Cloud Services to You by Synamedia purchased under a Sales Order. This Agreement may also be referenced for any purchase that increases the quantity of the original Cloud Services ordered (e.g., additional Users), for any Cloud Services options offered by Synamedia for the original Cloud Services ordered, and for any renewal or Auto Renewal of the Subscription Period of the original Sales Order.

3. RIGHTS GRANTED

3.1 For the duration of Subscription Period and subject to Your payment obligations and Your compliance with the terms and conditions of this Agreement, and except as otherwise set forth in this Agreement or Your Sales Order, You have the non-exclusive, non-assignable, limited right to access and use Cloud Services and the Service Documentation under a Sales Order during the Subscription Period, including anything developed by Synamedia and delivered to You as part of Cloud Services, solely for Your internal business operations and subject to the terms of this Agreement and Your Sales Order, including the Service Specifications. Synamedia’s service levels with respect to the Cloud Services and Support Program shall be specified in the Sales Order. You may allow Your Users to use the Cloud Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the Sales Order. You are responsible for acts and omissions of your Users relating to this Agreement.

3.2 You do not acquire under this Agreement any right or license to use Cloud Services, including the Synamedia Programs, Support Program, Service Specifications and Cloud Services Environment, exceeding the scope and/or duration of Cloud Services stated in Your Sales Order. Upon the end of Subscription Period, Your right to access and use Cloud Services will terminate.

3.3 To enable Synamedia to provide You and Your Users with Cloud Services, You grant Synamedia the right to use, process and transmit, in accordance with this Agreement and Sales Order, Your Data for the duration of the Subscription Period.

3.4 Cloud Services may contain or require the use of Third Party Technology. All licensors of Third Party Technology retain all right, title and interest in and to such Third Party Technology and all copies thereof, including all copyright and other intellectual property rights. Notwithstanding anything in this Agreement to the contrary, Synamedia does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Technology.

4. YOUR OBLIGATIONS

4.1 You shall always during the Subscription Period:

(a) be solely responsible for the accuracy, quality and integrity of Your Data and always ensure Your Data is provided to Synamedia in accordance with the Service Specifications;

(b)  be solely responsible for obtaining, and represent and warrant that You have obtained or will obtain all necessary consents, licenses and approvals for the use and Processing of Your Data, or otherwise have a valid legal basis under Data Protection Laws for the Processing of, any of Your Personal Data provided by You as part of the Cloud Services;

(c) provide all cooperation and assistance as Synamedia may reasonably request to enable Synamedia to exercise its rights and perform its obligations under and in connection with this Agreement;

(d) comply with the Acceptable Use Policy;

(e) maintain regular data backups of Your Data. Synamedia has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of Your Data;

(f) remain solely responsible for Your regulatory compliance in connection with Your use of Cloud Services. You are responsible for making Synamedia aware of any technical requirements that result from Your regulatory obligations prior to entering a Sales Order governed by this Agreement. Synamedia will cooperate with Your efforts to determine whether use of the standard Cloud Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by Synamedia or changes to Cloud Services; and

(g) agree to provide Synamedia with all information, access and full good faith cooperation reasonably necessary to enable Synamedia to provide Cloud Services and You will perform the actions identified in Your Sales Order as Your responsibilities

4.2 Synamedia is not responsible or liable for any delay or failure of performance caused in whole or in part by Your delay in performing, or failing to perform, any of Your obligations under this Agreement.

5. OWNERSHIP AND RESTRICTIONS

5.1 You retain all ownership and intellectual property rights in and to Your Data.

5.2 Synamedia and its licensors retain and own all right, title and interest and all intellectual property rights in and to the Cloud Services, Synamedia Programs, Synamedia’s Confidential Information, the Service Specification, and all enhancements or improvements to, or derivative works of any of the foregoing created or developed by or on behalf of Synamedia (collectively referred to as “Synamedia Intellectual Property”). Nothing in this Agreement transfers or conveys to You any ownership interest in or to the Synamedia Intellectual Property.

5.3 You may not, and may not cause or permit others to:

(a) remove or modify any program markings or any notice of Synamedia’s or its licensors’ proprietary rights;

(b) make the programs or materials resulting from Cloud Services (excluding Your Data) available in any manner to any third party for use in the third party’s business operations;

(c) copy, modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish, download or otherwise attempt to derive source code for any part of Cloud Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs) , or access or use Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or Cloud Services competitive to Synamedia;

(d) access or use Cloud Services, including the Synamedia Programs, for purposes of competitive analysis, development, provision, or use of a competing software service or product or any other purpose that is to the Synamedia’s detriment or commercial disadvantage;

(e) input, upload, transmit or otherwise provide to or through the Cloud Services or Cloud Services Environment, any information or materials that are not compliant with the Service Specification, unlawful or injurious, or contain, transmit, or activate any Harmful Code; and

(f) otherwise access or use Cloud Services beyond the agreed purpose and scope under this Agreement, the Sales Order and the Service Specifications.

6. SERVICE SPECIFICATIONS

6.1 Cloud Services are subject to and governed by Service Specifications applicable to Your Sales Order. You acknowledge that use of Cloud Services in a manner not consistent with the Service Specifications may adversely affect Cloud Services performance and/or may result in additional fees. If Your consumption of the Cloud Services exceeds the ordered quantity (e.g., soft limits on counts for Users, sessions, storage, etc.), then You are responsible for promptly purchasing additional quantity to account for Your excess usage. For any month that You do not promptly purchase such additional quantity, Synamedia may require You to pay, in addition to the fees for the additional quantity, an excess usage fee for those Cloud Services equivalent to 10% of the fees for the additional quantity in the month in which such excess usage occurred.

6.2 Synamedia may make changes or updates to Cloud Services (including without limitation, changes to infrastructure, security, technical configurations, application features, etc.) during Subscription Period, including, without limitation, to reflect changes in technology, industry practices, patterns of system use or otherwise. The Service Specifications are subject to change at Synamedia’s discretion; however, Synamedia changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the Cloud Services provided to You for the duration of Subscription Period.

6.3 Your Sales Order may specify the Data Centre Region in which Your Cloud Services Environment will reside. The Data Centre Region will be determined by Synamedia and will comply with Data Protection Laws, including any local data sovereignty laws that may be applicable. Synamedia and its affiliates may perform certain aspects of Cloud Services, such as service administration and support from locations and/or through use of subcontractors, worldwide.

7. USE OF CLOUD SERVICES

You are responsible for identifying and authenticating all Users, for approving access by such Users to Cloud Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with Synamedia, You accept responsibility for the confidentiality and timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. Synamedia is not responsible for any harm caused by Your Users, including individuals who were not authorized to have access to Cloud Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or resulting from Your or Your Users’ access to Cloud Services and agree to notify Synamedia immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third parties from accessing Cloud Services.

8. FREE TRIAL

Synamedia may, at its sole discretion, make available certain Cloud Services to You for a Free Trial. Cloud Services for trial purposes are provided by Synamedia on an “as is” and “as available” basis, and Synamedia does not provide technical or other support or offer any warranties for such trial Cloud Services. You may not include any production data in Your pilot Cloud Services Environment that has not been masked, anonymized or otherwise rendered unreadable.

9. FEES AND TAXES

9.1 All fees payable to Synamedia are due in the currency stipulated within thirty (30) days from the invoice date. Once placed, Your Sales Order is non-cancellable and the sums paid are irrevocable and non-refundable, except as provided in this Agreement or Your Sales Order. You will pay any sales, value-added or other similar taxes imposed by applicable law that Synamedia must pay based on Cloud Services You ordered, except for taxes based on Synamedia’s income.  Fees for Cloud Services listed in a Sales Order are exclusive of taxes and expenses. You shall make payments to the address or account specified by Synamedia on the invoice or as Synamedia specifies in writing from time to time. All amounts payable to Synamedia under this Agreement shall be paid by You in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason. Where payments are subject to any withholding you must gross up the sum payable to ensure the net sum received by Synamedia is the fee as stated in the Sales Order.  Synamedia will provide all reasonable cooperation at Your sole cost to support any claim that you need to make for tax credits consequential to payments made further to this Agreement.

9.2 You agree and acknowledge that You have not relied on the future availability of any Cloud Services, programs or updates in entering the payment obligations in Your Sales Order; however, the preceding does not relieve Synamedia of its obligation during Subscription Period to deliver Cloud Services that You have ordered per the terms of this Agreement.

9.3 If You fail to make any payment when due then, in addition to all other remedies that may be available, Synamedia may charge interest on the past due amount as of the date such payment was due and payable and shall continue to accrue such interest until such payment is made at a rate equal to 5% above the then current Bank of England Base Rate.

9.4 Synamedia may increase fees for any Subscription Period by providing written notice to You at least sixty (60) calendar days prior to the commencement of that Subscription Period.

9.5 The purchase of Cloud Services, or other service offerings, programs or products are all separate offers and separate from any other order. You understand that You may purchase Cloud Services or other service offerings, programs or products independently of any other order. Your obligation to pay under any Sales Order is not contingent on performance of any other service offerings or delivery of programs or products.

10. SUBSCRIPTION PERIOD; END OF SERVICES

10.1 Cloud Services provided under this Agreement shall be paid for and provided for the Subscription Period defined in Your Sales Order, unless earlier suspended or terminated in accordance with this Agreement or the Sales Order. If stated in the Service Specifications, certain Cloud Services that are ordered will Auto Renew for additional Subscription Periods unless (i) You provide Synamedia with written notice no later than forty-five (45) days prior to the end of the applicable Subscription Period of Your intention not to renew such Cloud Services, or (ii) Synamedia provides You with written notice no later than ninety (90) days prior to the end of the applicable Subscription Period of its intention not to renew such Cloud Services. For the avoidance of doubt and subject to Section 10.4, You may not terminate the Sales Order for convenience during the initial term defined within the Sales Order.

10.2 Upon the end of Cloud Services, You shall no longer have rights to access or use Cloud Services, including the associated Synamedia Programs and Cloud Services Environments. Synamedia will delete or otherwise render inaccessible any of Your Data that remain in Cloud Services Environment.

10.3 Synamedia may temporarily suspend Your password, account, and access to or use of Cloud Services if You or Your Users violate any provision within this Agreement, or if in Synamedia’s reasonable judgment, Cloud Services or any component thereof are about to suffer a significant threat to security or functionality. Synamedia will where possible provide advance notice to You of any such suspension in Synamedia’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Synamedia will use reasonable efforts to re-establish the affected Cloud Services promptly after Synamedia determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Synamedia will make available to You, Your Data as existing in Cloud Services Environment on the date of suspension. Synamedia may terminate Cloud Services under a Sales Order if any of the foregoing causes of suspension is not cured within thirty (30) days after Synamedia’s initial notice thereof. Any suspension or termination by Synamedia under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.

10.4 If either of us breaches a material term of this Agreement and fails to correct the breach within thirty (30) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Sales Order under which the breach occurred. If Synamedia terminates the Sales Order as specified in the preceding sentence, You must pay within thirty (30) days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for Cloud Services under such Sales Order plus related taxes and expenses. Except for non-payment of fees, the nonbreaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Cloud Services ordered until such default is rectified.

10.5 Synamedia may terminate this Agreement upon notice with immediate effect or, if practical, upon prior written notice, where Synamedia is required to do so to ensure compliance with applicable laws.

10.6 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.

11. NON-DISCLOSURE

11.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Data residing in Cloud Services Environment, and all information clearly identified as confidential at the time of disclosure.

11.2 A party’s Confidential Information shall not include 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 the disclosure; or (d) is independently developed by the other party.

11.3 We each agree not to disclose each other’s Confidential Information to any third party other than as set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, Synamedia will hold Your Confidential Information that resides within Cloud Services Environment in confidence for as long as such information resides in Cloud Services Environment. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. In addition, Your Personal Data will be treated in accordance with the terms of Section 12 below. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or Sales Orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

12. DATA PROTECTION

12.1 In performing Cloud Services, Synamedia will comply with the Synamedia Privacy Policy, which is available at https://www.synamedia.com/privacy-policy/ and incorporated herein by reference. The Synamedia Privacy Policy is subject to change at Synamedia’s discretion; however, Synamedia policy changes will not result in a material reduction in the level of protection provided for Your Personal Data provided as part of Your Content during Subscription Period of Your Sales Order.

12.2. You may select the Personal Data You elect to input into and have Processed using the Cloud Services in Your sole discretion; Synamedia has no control over the nature, scope, or origin of, or how You acquire, Personal Data that is Processed by the Cloud Services. Subject to the Customer Legal Basis Assurance (defined in Section 12.3 below), Synamedia will comply, and will ensure that its personnel comply, with the requirements of Data Protection Laws governing Your Personal Data  in Synamedia’s possession and applicable to Synamedia’s provision of the Cloud Services. You are solely responsible for ensuring that You comply with any Data Protection Laws applicable to the types of data You elect to have Processed with the Cloud Services.

12.3 Data Consents. You are solely responsible for obtaining, and You further represent and covenant that You have obtained or will obtain prior to Processing by Synamedia, all necessary consents, licenses and approvals for the Processing, or otherwise has a valid legal basis under the applicable data protection laws for the Processing of, any of Your Personal Data  as part of the Cloud Services (the “Customer Legal Basis Assurance”).

12.4 Regulator Inquiries and Court Orders. If any regulator, or any subpoena, warrant or other court or administrative order, requires Synamedia to disclose or provide Your Personal Data to a regulator or to any third party, or to respond to inquiries concerning the Processing of Your Personal Data, Synamedia will promptly notify You, unless prohibited by applicable law. Following such notification, Synamedia will reasonably cooperate with You in its response, except to the extent otherwise required by applicable law.

12.5. Instructions. Synamedia will Process Your Personal Data only as necessary to provide the Cloud Services, and in accordance with Your written instructions. This Agreement, and Your use of the features and functionality of the Cloud Services, are Your instructions to Synamedia in relation to the Processing of Your Personal Data. Synamedia will immediately inform You if, in Synamedia’s opinion, an instruction violates Data Protection Laws. Synamedia will not disclose Your Personal Data to third parties except (a) to its sub-processors, as required to perform the Cloud Services and in accordance with Section 12.8 below, and (b) as otherwise expressly agreed in writing between You and Synamedia.

12.6. Information Security. Synamedia will implement and maintain commercially reasonable technical and organizational security measures designed to meet the following objectives: (i) ensure the security and confidentiality of Your Personal Data in the custody and under the control of Synamedia; (ii) protect against any anticipated threats or hazards to the security or integrity of Your Personal Data; (iii) protect against unauthorized access to or use of Your Personal Data; and (iv) ensure that Synamedia’s return or disposal of Your Personal Data is performed in a manner consistent with Synamedia’s obligations under items (i)-(iii) above.

12.7. Data Export, Retention, Deletion and Return. You are solely responsible for Your data retention obligations with respect to Your Personal Data. Synamedia may delete Your Personal Data on its Cloud Service Environment at any time. Synamedia is not obligated to delete copies of Your Personal Data retained in automated backup copies generated by Synamedia, which Synamedia will retain for up to twelve months from their creation. Such backup copies will remain subject to this Agreement until the copy, or Your Personal Data contained in the copy, is destroyed.

12.8. Sub-Processors. You consent to Synamedia’s use of sub-processors to provide aspects of the Cloud Services, and to Synamedia’s disclosure and provision of Your Personal Data to those sub-processors. Synamedia will require its sub-processors to comply with terms that are substantially no less protective of Your Personal Data than those imposed on Synamedia in this Agreement (to the extent applicable to the services provided by the sub-processor).

12.9. Breach Notification. Synamedia will notify You of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Your Personal Data in Synamedia’s possession or under its control (a “Security Breach”) within 48 hours of Synamedia’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach.

13. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

13.1 Beginning on the date that the term of the initial Sales Order for Cloud Services commences, Synamedia warrants to You that the Cloud Services will materially conform to the then current description of the Cloud Services in the Service Specification. Your sole and exclusive remedy for breach of this warranty will be the correction and/or modification of the Cloud Services to conform to the Service Specification. If this is not commercially reasonable, Synamedia may terminate the Agreement and refund any pre-paid, unused fees.

13.2 Synamedia shall have no warranty obligations to the extent a claim arose from: (i) use of Synamedia Intellectual Property with any non-Synamedia equipment, software, services, processes, data or materials; (ii) Your non-compliance with this Agreement, Service Specifications or Service Documentation; (iii) Your use of Synamedia Intellectual Property after receipt of notice from Synamedia to discontinue such use, including Your failure to use modifications provided by Synamedia; (iv) the development or use of any alteration, derivation, modification or customisation of Synamedia Intellectual Property; (v) Synamedia’s compliance with Your requests or instructions or the use of any materials or data provided by You; (vi) Your business method(s) or process(es); or (vii) Your Data.

13.3 Synamedia will provide the Support Program in a professional and workmanlike manner, consistent with applicable industry standards.

13.4 Synamedia’s provision of Cloud Services does not infringe any third-party patent, copyright, trademark or service mark, or result from misappropriation by Synamedia of any third party’s trade secrets.

13.5 The Cloud Services, in the form provided or made available by Synamedia, will comply with all laws applicable to Synamedia and its provision of Cloud Services.

13.6 To the extent not prohibited by law and except as provided under this Section 13, the Cloud Services are provided “as is” and these warranties are exclusive and all other warranties or conditions, whether express or implied, are expressly excluded, including for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.

14. LIMITATION OF LIABILITY

Nothing in this Agreement shall limit Synamedia’s or Your liability for personal injury or death caused by the negligence of such party, liability in the tort of deceit, or liability arising from either party’s breach of Section 11 (Non-Disclosure) and Section 12 (Data Protection). Furthermore, nothing in this agreement shall limit Your liability arising from Your breach of Section 4 (Your Obligations) and Section 5 (Ownership and Restrictions). Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue or profits (excluding fees under this agreement), data, or data use. Subject to this Section 14, each party’s aggregate liability for all damages arising out of or related to this agreement or your Sales Order, whether in contract or tort, or otherwise, shall be limited to the total amounts actually paid to Synamedia for Cloud Services under the Sales Order giving rise to the liability in the twelve (12) month period immediately preceding the event giving rise to such liability less any refunds or credits received by you from Synamedia under such Sales Order.

15. INDEMNIFICATION

15.1 Subject to the terms of this Section 15 (Indemnification) and Section 14 (Limitation on Liability), if a third party makes a claim against either You or Synamedia (“Recipient” which may refer to You or Synamedia depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either You or Synamedia (“Provider” which may refer to You or Synamedia depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: a. notifies the Provider promptly in writing, not later than thirty (30) days after the Recipient receives notice of the claim (or sooner if required by applicable law); b. gives the Provider sole control of the defence and any settlement negotiations; and c. gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.

15.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Synamedia’s ability to meet its obligations under the relevant Sales Order, then Synamedia may, at its option and upon thirty (30) days prior written notice, terminate the Sales Order.

15.3 The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or Service Documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, (c) continues to use the applicable Material after the end of the license to use that Material. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. Synamedia will not indemnify You for any portion of an infringement claim that is based upon the combination of any Material with any products or cloud services not provided by Synamedia, including any third party technology. Synamedia will not indemnify You to the extent that an infringement claim is (a) based on Your breach of the provisions of this Agreement, Your Data or any Material from a third-party portal or other external source that is accessible to You within or from Cloud Services;  (b) caused by Your actions against any third party if Cloud Services as delivered to You and used in accordance with the terms of this Agreement would not otherwise infringe any third-party intellectual property rights; (c) known to You at the time Cloud Services rights are obtained; (d)  a patent infringement claim whenever arising from use by You of any third party technology or products or of any industry standards technology or specifications (“Infringing Technology”) in order for You to provide to Your customers products or services (whether similar to or the same as those enabled by the Cloud Services).

15.4 This Section 15 provides the parties’ exclusive remedy for any infringement claims or damages.

16. SERVICE ANALYSES

Synamedia may (i) compile statistical and other information related to the performance, operation and use of Cloud Services, and (ii) use data from Cloud Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes.

17. EXPORT

17.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to Cloud Services. You agree that such export laws govern Your use of Cloud Services (including technical data) and any Cloud Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Cloud Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

17.2 You acknowledge that the Cloud Services are designed with capabilities for You and Your Users to access Cloud Services Environment without regard to geographic location and to transfer or otherwise move Your Data between Cloud Services Environment and other locations such as User workstations.

18. FORCE MAJEURE

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either of us may cancel unperformed Cloud Services and affected Sales Orders upon written notice. This Section 18 does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for Cloud Services.

19. GOVERNING LAW AND JURISDICTION

This Agreement is governed by the laws of England and Wales. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Section 19. The number of arbitrators shall be one and the seat of any hearing will be determined by the arbitrator. The language of any arbitration will be English.

20. NOTICE

20.1 Any notice required under this Agreement shall be provided to the other party in writing. If You have a dispute with Synamedia or if You wish to provide a notice under the Section 15 (Indemnification) of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly and no later than five (5) working days send written notice to: FAO: Legal, Synamedia Limited, One London Road, Staines-upon-Thames, Middlesex, TW18 4EX, United Kingdom with a soft copy sent via e-mail to Ismat Levin, EVP & General Counsel ([email protected]).

20.2 Synamedia may give notices applicable to You and Synamedia’s Cloud Services customer base by means of a general notice on the Synamedia portal for the Cloud Services, and notices specific to You by electronic mail to Your e-mail address on record in Synamedia’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Synamedia’s account information.

21. ASSIGNMENT

You may not assign this Agreement or give or transfer Cloud Services (including the Synamedia Programs) or an interest in them to another individual or entity. If You grant a security interest in any portion of Cloud Services, the secured party has no right to use or transfer Cloud Services or any deliverables.

22. AUDIT

22.1 Synamedia may audit Your use of Cloud Services (e.g., through use of software tools) to assess whether Your use of Cloud Services is in accordance with Your Sales Order and the terms of this Agreement. You agree to cooperate with Synamedia’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within thirty (30) days of written notification any fees applicable to Your use of Cloud Services exceeding Your rights. If You do not pay, Synamedia can end Your Cloud Services and/or Your Sales Order. You agree that Synamedia shall not be responsible for any of Your costs incurred in cooperating with the audit.

23. OTHER

23.1 Synamedia is an independent contractor, and we agree that no partnership, joint venture, or agency relationship exists between us.

23.2 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.

23.3 Except for actions for non-payment or breach of Synamedia’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.

24. ENTIRE AGREEMENT

24.1 You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable Sales Order, is the complete agreement for Cloud Services ordered by You. Nothing in this Agreement excludes or limits either party’s liability for deceit or fraudulent misrepresentation.

24.2 In the event of any inconsistencies between the terms of the Sales Order and the Agreement, the Sales Order shall take precedence. This Agreement and Sales Orders hereunder may not be modified, and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of You and of Synamedia. No third-party beneficiary relationships are created by this Agreement.