Remember the T&C's you are agreeing to are with the office you are working with and not necessarily the one for the geography you are based in.
The following terms and conditions will apply to all services provided or to be provided and products sold or to be sold by Synergy Corporate Technologies, Ltd. (“Synergy”), to the person, corporation, partnership or other entity who requests the provision of such services or for whose benefit such services are to be provided (“Customer”), regardless of whether the order for such services or products was placed in written, electronic or verbal form. Synergy rejects all contrary or additional terms and conditions of Customer. Customer shall be deemed to have accepted the terms and conditions contained herein upon the earlier of (i) Customer's submission of an Order or (ii) Customer's permitting the performance of any Services or delivery of any Products. (For the purposes of these terms and conditions, “Order”, “Services” and “Products” shall have the meanings set forth below.) Any variation to these terms and conditions must be agreed in writing.
The nature and scope of the services to be provided by Synergy to Customer (“Services”) and/or the products to be sold or otherwise provided by Synergy to Customer (“Products”) shall be as defined in one or more of the following - the order, quote, task order or any other written or verbal agreement between Synergy and Customer (the “Order”). Synergy shall not be required to provide any other Services or Products to Customer unless Synergy expressly agrees to do so and such other Services or Products are made the subject of a written Order. Any changes to an Order will only be effective if agreed and made subject to a written Change Order. To the extent that the Services or Products include any installation, upgrade or configuration of Customer’s computer system or network or any part thereof, the system or network as installed, upgraded or configured by Synergy is referred to in these terms and conditions as the “Resulting System”.
1. Price: The prices for the Services or Products are the prices set forth in the Order.
2. Taxes: In addition to the purchase price, Customer shall pay Synergy the amount of all taxes, excises and other governmental charges (except taxes on or measured by net income of Synergy) that Synergy may be required to pay with respect to the provision of the Services or sale of Products to Customer, except as may otherwise be provided by law.
3. Warranty: Disclaimers: Customer represents and warrants to Synergy that Customer has the power and authority to enter into and perform its obligations under the Order and these Terms and Conditions; Customer shall comply with all terms and conditions of the Order and these Terms and Conditions, including, without limitation, the Acceptable Use Policy set forth in Section 7 hereof, and Customer has provided accurate and complete registration information, including, without limitation, Customer's legal name, address and telephone number.
(i) Synergy shall perform all Services in a good and workmanlike manner in accordance with industry standards.
(ii) Synergy hereby warrants that the provision of the Services shall meet the requirements and perform the operations and functions in accordance with and as set forth in the relevant Order or Change Order.
(iii) Synergy’s sole and complete liability in the event of any claim by Customer hereunder shall be to remedy, within a reasonable period after receipt of written notice of same from Customer, any defect or failure resulting from a breach by Synergy of its obligations and warranty under sub-clauses 3(a)(i) and (ii) above.
(iv) Synergy makes no representations or warranties, express or implied, with respect to the Products, including without limitation, any representations or warranties concerning the design, use or performance of any such Product or any implied warranty of merchantability or fitness for a particular purpose.
(v) Products are sold or otherwise provided “as is” and the Customer assumes the entire risk as to their quality, performance or suitability. In no event will Synergy be liable to Customer under any Order for direct, indirect, special, incidental or consequential damages (such as loss of profits) resulting from any defect in the Services or the Products, their documentation or their installation, even if advised of the possibility of such damage. In particular, Synergy does not warrant that the operation or use of the Products will be error free and uninterrupted.
(vi) Synergy hereby assigns to the Customer any and all warranties that the manufacturer may provide to the end user for Products, and Customer agrees that any claims under or related to such warranties will be brought solely against the manufacturer and not against Synergy.
Apart from Sub-Clause (a) of this clause, there are no representations, warranties, conditions or other terms express or implied (whether statutory or otherwise) given or deemed to be given by Synergy relating to the Services or Products or to the resulting system or their merchantability, fitness for a particular use or any other condition whatsoever.
Any claims against Synergy under the warranties hereunder must be brought within six (6) months of the date the Service was provided or the Product delivered to Customer, or such claim shall be deemed waived.
Customer’s only rights and its exclusive remedy in connection with the performance of the Services or Products, are under this clause 3. The Customer may have other or different rights under applicable law.
Notwithstanding anything herein to the contrary, where damages are recoverable arising out of an Order, whether or not the claim is made pursuant to these Terms and Conditions, Synergy’s liability to Customer shall under no circumstances exceed (i) in the case of a claim made in connection with Products, the sums paid by Customer as the price of the Product Order in connection with which the claim is made or (ii) in the case of a claim made in connection with a Service Order, the sums paid by Customer as the price of the Service Order for the Order Term during which the cause of action for such claim arises.
In no case shall Synergy be liable to remedy any defect or failure to the extent that the same arises out of modifications, additions or other alterations made to the Products or the Customer’s system by the Customer or by any third party.
4. Limitation of Liability and Disclaimers
Security. Customer is solely responsible for the security, confidentiality and integrity of all messages and the content received, transmitted through or stored on any email/web hosting or server hosting service (the “Hosting Service”). Customer is solely responsible for any authorized or unauthorized access to Customer's accounts by any person. Customer agrees to bear all responsibility for the confidentiality of any passwords and all use or charges incurred from use of the Hosting Service with Customer's password.
Privacy. It is the policy of Synergy to respect Customer's privacy. Synergy will not monitor, edit, or disclose any personal information about Customer's accounts, including hosted content, without Customer's prior consent, unless Synergy has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any relevant authority; (ii) protect and defend the rights or property of Synergy; (iii) enforce the terms of an Order or these Terms and Conditions; or (iv) protect the interests of users of Synergy Hosting Services other than Customer or any other person. Customer acknowledges and agrees that Customer's IP address is transmitted and recorded with each message sent from the Hosting Service.
5. Indemnification: Customer agrees to defend, indemnify and hold harmless Synergy, its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims and expenses, including attorneys' fees, arising directly or indirectly out of the use of the Products and/or Services by Customer or third parties.
6. Invoicing and Payment: Synergy shall invoice the Customer on the basis set forth in the relevant Order or Change Order. Unless otherwise indicated on the invoice or in the Order or Change Order, invoices shall be payable upon receipt and a finance charge will be due on the unpaid balance at the rate of 1½% per month, which is an annual percentage rate of 18% (or if less, the maximum rate permitted by law). This charge will be computed by applying the daily rate of .0493% to the daily past due balance for the number of days past due from the invoice payment date. No finance charge will be incurred if payment is received prior to or on the due date. Synergy reserves the right to suspend Services to Customer and/or to decline the sale or delivery of Products to Customer if Customer is in default in payment of any invoice or if Synergy has a reasonable basis to believe the Customer is unable to make payment for Services or Products delivered.
In the event of a default with respect to the payment of an invoice or any part thereof, Customer shall be liable for all of Synergy's reasonable costs, disbursements and fees, including but not limited to attorneys’ fees, incurred in the collection of any amounts due.
7. Acceptable Use Policy for Hosting Service Customers: Customer is solely responsible for any and all acts and omissions that occur under Customer's accounts, and Customer agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Hosting Service to: (a) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person, may be considered abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Hosting Service or any other computer network; (g) disseminate or transmit viruses, Trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by Synergy to be in conflict with the spirit or intent of these Terms and Conditions or in violation or potential violation of applicable law.
8. Email and Hosting Services
Availability of Email and Hosting Services: Subject to the terms and conditions of this Agreement, Synergy shall use its best efforts to provide the Email and Hosting Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of the Order. Customer acknowledges and agrees that from time to time the Email and Hosting Services may be inaccessible or inoperable for various reasons, including but not limited to (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Synergy may undertake from time to time; or (iii) causes beyond the reasonable control of Synergy or that are not reasonably foreseeable by Synergy, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively, "Downtime"). Synergy shall provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. Synergy shall use its best efforts to minimize any disruption, inaccessibility or inoperability of the Services in connection with Downtime, whether scheduled or not.
Backups: Synergy shall maintain daily backups of Customer Content (as defined below), such backups to be stored for five (5) business days.
Storage and Security: Synergy shall operate and maintain its server(s) in good working order with access restricted to qualified employees or contractors of Synergy and persons specifically designated by Customer. Customer's data shall also be protected through the use of a firewall, as well as co-location service on a dedicated or shared server.
Description. The Email Service is proprietary to Synergy and is protected by intellectual property laws and international intellectual property treaties. Customer's access to and use of the Email Service is licensed and not sold. Synergy agrees to provide Customer with non-exclusive access to or use of the Email Service, consisting of storage space of up to ten (10) megabytes per mailbox for the sole purpose of maintaining email accounts, subject to the terms and limitations set forth in the Order and these Terms and Conditions.
9. Hosted Content: Except as provided in Section 3 hereof, Customer shall be solely responsible for providing, updating, uploading and maintaining Customer’s Website and any and all files, pages, data, works, information and materials on, within, displayed, linked or transmitted to, from or through such Website, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and text ("Customer Content) and any registered domain names provided by Customer or registered on behalf of Customer in connection with the Services.
License of Customer Content: For the term of the Order, Customer grants to Synergy, and Synergy accepts from Customer, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit Customer Content on and via the Internet, solely for the benefit of Customer and in accordance with Synergy's performance of the Order(s) and these Terms and Conditions.
Host Materials. In connection with performance of Hosting Services, Synergy shall make available for use to Customer, pursuant to the terms and conditions set forth herein, certain materials, including, without limitation, software (in object code or source code form) necessary to operate and maintain the Website, data, documentation or information developed or provided by Synergy or its suppliers under the Order ("Host Materials").
License of Host Materials: In consideration of Customer's performance of its obligations to Synergy expressly set forth in the Order and these Terms and Conditions, Synergy grants to Customer, and Customer accepts from Synergy, a limited, non-transferable, non-exclusive license, for the term of the Order, to copy and use the Host Materials solely in connection with Customer's operation and maintenance of Customer’s Website and for Customer's internal business purposes and to the extent that the Host Materials are being licensed from a party other than Synergy the terms of such license also govern the use of such materials.
10. Force Majeure: Synergy shall not be liable for its delay or failure in performing under the Order due to conditions or events beyond Synergy’s reasonable control, including, without limitation, natural disasters, accidents, power outages, equipment failure, labor disputes or shortages, governmental laws, ordinances, rules and regulations and inability to obtain material, equipment or transportation. If due to any such condition or event, Synergy is unable to supply the Services or Products ordered by the Customer and some or all of Synergy's other Customers, Synergy shall have the right to allocate Services and Products among its Customers in such manner as Synergy in its sole discretion deems fair and equitable.
11. Term and Termination: The terms of the Order and these Terms and Conditions are effective upon acceptance by Customer as set forth above and shall continue in full force until Services are terminated or Products are cancelled, pursuant to the terms hereof or any other written agreement between Synergy and Customer.
Termination of Services: Either party may terminate an Order for Services upon forty-five (45) days written notice. Synergy reserves the right to suspend service to Customer as set forth herein and in the Master Service Agreement. If the Customer terminates or discontinues, for any reason, the Services to be provided under the Order, Customer shall not be entitled to a refund of any fees or amounts paid, or any credit for amounts remaining on the Customer's account. A cancellation fee of 50% of the remaining unpaid balance of the Price will be assessed on any cancelled Order. Unless otherwise expressly set forth in an Order, the Term of each Order for Services shall be one (1) year. Each Order for Services for Server Support shall automatically renew at the end of its initial and any subsequent Term, unless either party provides written notice of termination at least sixty (60) days prior to the end of the relevant Term or renewal Term. Synergy reserves the right to change the pricing of an Order upon written notice made no fewer than sixty (60) days prior to the end of any Term or renewal Term.
Cancellation of Products: All sales of Products are final, and at no time will Customer have the right to cancel the purchase or acceptance of any Product once the sale Order is made. A quote signed by Customer shall be deemed an agreed Order. Customer’s refusal to accept a Product ordered, or delay of delivery once ordered, will not revoke Customer’s liability to pay for such Product on the terms agreed in the Order.
12. No Hiring Without Prior Consent. Each party agrees not to recruit or hire any employee or contractor of the other party until one (1) year after the completion of the last Order in effect between the parties.
13. Confidentiality. Each party acknowledges that confidential information and material of a commercial value (“Confidential Information”), including but not limited to product/service specifications, prototypes, computer files and programs, models, drawings, marketing plans, financial data, source code, trade secrets, copyrighted material and other information, whether in tangible or intangible form, pertaining to the business of a party, its employees, contractors, clients and/or business associates, has or will come into the possession or knowledge of each party in connection with this Agreement or the performance hereof. Each party further acknowledges that the Confidential Information represents confidential and proprietary trade secrets, whose disclosure to or use by third parties will be damaging to the owner thereof. Each party agrees to hold the other’s Confidential Information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to those persons in their respective organizations requiring such information for the purposes of this Agreement, and not to release or disclose it to any third party without the non-disclosing party’s prior written consent. Neither party shall disclose the existence or terms of any Order to any third party without the other party’s prior consent. These restrictions shall not be construed to apply to information a) generally available to the public; b) released by a disclosing party generally without restriction; c) independently developed or acquired by a party or its personnel without reliance in any way on Confidential Information of the other party; d) approved in writing for use and disclosure by the disclosing party or its personnel without restriction; or e) required to be disclosed by law or order of a court or other authority of competent jurisdiction, PROVIDED THAT the disclosing party provides the non-disclosing party notice of such required disclosure sufficiently in advance of the intended disclosure to permit the non-disclosing party to take action to prevent such disclosure if the non-disclosing party so deems necessary.
14. Partial Invalidity. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by an applicable court decision, such unenforceability shall not render this Agreement unenforceable or invalid as a whole and, in such event such provisions will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decision.
15. No Assignment. The rights and obligations of the Customer are not assignable by Customer without Synergy's prior consent in writing.
16. Notices. Notices to Synergy shall be sent to: 55 Greens Farms Road, Westport, CT 06880, Attn. James Beck. Notices to Customer shall be sent to the address provided by Customer on the Customer Contact Information sheet. All notices shall be in writing and sent by personal delivery or nationally recognized overnight courier. Notices shall be deemed effective upon receipt. Each party may from time to time change its address for notice upon no less than thirty (30) days written notice provided pursuant to the terms hereof.
17. Governing Law: The validity, interpretation and performance of the rights and obligations of the Customer and Synergy are governed by the laws of the State of Connecticut without regard to its rules concerning conflicts of law. The parties hereto irrevocably consent to suit and submit to the jurisdiction of the courts, federal and state, located in the State of Connecticut.
18. Entire Agreement. The Order (as modified by any Change Order), these Terms and Conditions, and the Master Service Agreement, if any, entered into between the parties, together constitute the entire agreement between Customer and Synergy for the provision of Services or sale of Products described in the Order. No course of dealing between Customer and Synergy and no usage of trade shall vary any terms and conditions contained in the Order, these Terms and Conditions or the Master Service Agreement. No modifications or waiver of the Order, these Terms and Conditions or the Master Service Agreement shall be binding upon Synergy unless approved in writing by Synergy.
19. Synergy's Rights. All of Synergy's rights under the Order and these Terms and Conditions are separate and cumulative and in addition to any other rights Synergy may have at law or in equity and no exercise by Synergy of any right thereunder or hereunder shall preclude Synergy from exercising any other legal or equitable right or remedy available to it.
Synergy reserves the right to amend these Terms and Conditions from time to time with regard to any Orders made after the date of such amendment.
Remember the T&C's you are agreeing to are with the office you are working with and not necessarily the one for the geography you are based in.