Please read the following terms and conditions carefully. Axway provides the Syncplicity service website located at www.syncplicity.com or such alternative URL from which Axway may provide the service (the "Site") and the related services through which users can use and access Sync Files (defined below), offline and online, through multiple devices and websites ("Service" or “Services”).
If you (“you” “your” or “Customer”) have a signed Business Services Agreement or other separately-executed services agreement identified in the applicable ordering documentation for your Syncplicity service subscription, such agreement shall apply. Otherwise, these terms of service ("Terms of Service") and all policies referenced in this document or elsewhere on the Site which are incorporated herein by reference are a legal agreement between you and Axway and apply to you whether you are a visitor to the Site or a business or individual user who has registered with us and created an account for use of the Syncplicity service ("Syncplicity User" or “User”). IN SUCH CASE, YOU UNDERSTAND THAT BY CLICKING THE “SIGN UP” BUTTON, BY USING THE SITE, SERVICES OR YOUR SYNCPLICITY ACCOUNT, OR BY ACCESSING ANY SYNC FILES OR USER FILES YOU OR THE BUSINESS YOU REPRESENT ARE UNCONDITIONALLY AGREEING TO BE BOUND BY THESE TERMS OF SERVICE; AND IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICES. IF YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY (THE “BUSINESS”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS AND ALL OF ITS USERS TO THESE TERMS OF SERVICE AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO THAT BUSINESS.
1. Access to Services. Subject to this Agreement, Axway grants Customer a limited, non-exclusive, non-transferable and revocable license to access and use solely for Customer’s own benefit the Syncplicity file synchronization, sharing and related services purchased by Customer from Axway or an authorized reseller as described in the initial ordering documentation and any subsequent orders accepted by Axway or an authorized reseller during the Term defined in Section 14 (“Services”). This Agreement shall also apply to any enhancements or new features added to the Services and any new releases of Software as defined in Section 2. For clarity, this Agreement contemplates that Customer will authorize individual members of Customer’s organization, such as employees and contractors, as well as designated third parties (“Authorized Users”) to access and use the Services, which permit such Authorized Users to synchronize, share, back up, upload, download, access or otherwise organize and manage computer files they select (“Sync Files”). Axway owns and reserves all rights, including intellectual property rights, in and to the Service, Software, Site, and all related items, except as otherwise specified in this Agreement.
2. Use of Software. Customer may install and use any software made available for Customer’s download by Axway to access and use the Services (“Software”) in executable form only on the number and type of devices that are specified in the then-current documentation for Customer’s account type as described on the Axway website for the Syncplicity service, or as specified in other transaction documentation provided by Axway. In the event any third party code, such as free and open source software, is provided with the Software, the license terms accompanying that code shall govern its use rather than this Agreement. Customer acknowledges that Axway or third parties own all right, title and interest in and to the Services and Software, including all intellectual property rights. Except for the rights granted in this Agreement, Axway and its licensors retain all rights in the Services and Software, and no implied licenses are granted to Customer. Except as otherwise provided in this Agreement, Customer agrees that it will not, nor will it permit another person to (a) sublicense, lease, rent, loan, transfer or distribute any portion of the Services and Software; (b) modify, adapt, translate or create derivative works from the Services and Software; (c) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software; or (d) remove, obscure, or alter any trademark, copyright or other proprietary rights notices displayed in the Software.
3. Administration. Customer will specify one or more administrative users who will have rights to manage Customer’s deployment and use of the Services and Software through an administrative console (“Administrators”). Among other functions, Administrators will control the provisioning of Authorized User accounts and devices, the security settings of the Services and Software and sharing and retention policies for Sync Files. Customer shall be solely responsible for (a) designating and authorizing individuals to act as Administrators; (b) maintaining the confidentiality of Administrators’ user names and passwords; and (c) ensuring Administrators comply with this Agreement. Customer agrees that Axway is not responsible for the internal management and administration of the Services for Customer and, accordingly, provides only orchestration services.
4. Sync Files. Axway acknowledges that, as between the parties, Sync Files are and will remain the property of Customer. Customer acknowledges that, in order to perform the Services, Axway must scan and access files, including Sync Files, on hardware devices of Authorized Users and on third party applications integrated with the Services. Only as necessary to provide the Services, Customer hereby grants to Axway a limited, non-exclusive, worldwide, royalty-free license to use Sync Files. Customer represents and warrants that it owns or has the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Axway. Customer acknowledges and agrees that Axway may, at its option, establish reasonable limits concerning Sync Files, including the maximum number of days that Sync Files will remain available through the Services, the maximum size of any files that may be stored on or uploaded to the Services and the maximum disk space that may be allotted for the storage of Sync Files on Axway’s servers. Axway will have no responsibility or liability for permanently maintaining copies of Sync Files on its servers, and Customer agrees to be solely responsible for regularly backing up Sync Files using methods not involving use of the Services.
5. Technical Support. Customer shall use commercially reasonable efforts to respond to questions from Authorized Users relating to their use of the Services. If Customer is unable to resolve the issue, then Administrators or Customer’s designated support representatives may escalate the issue to Axway for resolution in accordance with the Axway’s applicable technical support guidelines for the relevant Services. For clarity, technical support services for enterprise subscriptions include access to online resources, e-mail support and live telephone support. Technical support is not available for trial, personal edition, or other free subscriptions.
6. Service Availability. This section 6 does not apply to trial, personal edition, or other free subscriptions. Axway will use commercially reasonable efforts to ensure that any cloud-based or Axway-hosted Services, including, without limitation, the Orchestration layer and the administration portal (collectively, the “Platform”), is Available 99.5% of the time, as measured on a monthly basis (each a “Service Period”), but excluding unavailability as a result of Exceptions defined below. If Customer notifies Axway that the Platform is un-Available, and such unavailability is due to causes within Axway’s reasonable control, Axway will restore the Availability of the Platform (together with the 99.5% uptime requirement set forth above, the “Availability Requirements”). Any Services offered by Axway to Customer on a free, trial or beta basis are excluded from this or any other availability commitment. Axway will calculate Availability using systems logs and other records maintained by Axway or its contractors. For purposes of this provision, the following definitions shall apply:
6.1 “Service Level Failure” means a failure of the Platform to meet the Availability Requirements.
6.2 “Available” means the Axway website designated for the Syncplicity service (currently www.syncplicity.com) is responsive to standard ICMP or SNMP requests performed by Axway or its designees and the core functions of the Services are capable of access and use by Customer and its Authorized Users and operating in material accordance with the Specifications.
6.3 “Exceptions” means: (a) access to or use of the Platform by Customer or any Authorized User, or using Customer’s or an Authorized User’s access credentials, that does not materially comply with this Agreement and the Specifications; (b) Customer’s or its Authorized User’s lack of Internet connectivity; (c) Force Majeure Event; (d) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Axway pursuant to this Agreement or otherwise in Axway’s reasonable control; or (f) disabling, suspension or termination of the Services by Axway as authorized in this Agreement.
7. Acceptable Use & Intellectual Property Protection. Customer is solely responsible for the conduct of its Administrators and Authorized Users related to the Services and any Sync Files. Axway respects the intellectual property of others and requires that Customer and Authorized Users do the same. Authorized Users may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Additionally, Customer and Authorized Users shall not:
(a) violate any laws or regulations;
(b) Post, publish or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another’s privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred or harm against any individual or group; or (vi) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(c) Access, tamper with, or use non-public areas of the Site (including but not limited to user folders not designated as ‘public’), Syncplicity by Axway’s computer systems, or the technical delivery systems of Syncplicity by Axway’s providers;
(d) Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
(e) Attempt to access or search the Site, Syncplicity by Axway Content, Services or User Files with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by Syncplicity by Axway or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tools.
(f) Send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services;
(g) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Syncplicity by Axway Content, Services or User Files to send altered, deceptive or false source-identifying information;
(h) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Syncplicity by Axway Content, Services or User Files;
(i) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site, or plant malware on Syncplicity by Axway’s computer system, those systems of Syncplicity by Axway’s providers, or otherwise use the Site, Syncplicity by Axway Content, Services or User Files to attempt to distribute malware;
(j) Impersonate or misrepresent your affiliation with any person or entity; or
(k) Encourage or authorize any third party to engage in any of the forgoing prohibited activities.
Axway reserves the right to terminate the accounts of any Authorized Users that commit violations of the foregoing.
All feedback, comments, and suggestions for improvements (the "Feedback") that you provide to Axway, in any form, and any contributions you make to the Site by posting Axway content and communicating with other Axway Users via posts to forums on the site (“User Posts”) will be the sole and exclusive property of Axway. You hereby irrevocably transfer and assign to Axway and agree to irrevocably assign and transfer to Axway all of your right, title, and interest in and to all of your Feedback and User Posts, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights therein.
8. Warranty. This section 8 does not apply to trial, personal edition, or other free subscriptions; no warranties of any kind are offered for such subscriptions. Axway warrants to Customer during the Term defined in Section 13 that the Services will conform in all material respects with the functionality described in the documentation for the applicable Services purchased by Customer. Axway does not warrant that the Services will be error-free. Customer’s sole and exclusive remedy for Axway’s breach of this warranty shall be for Axway to use commercially reasonable efforts to modify the Services to restore the nonconforming functionality, and, if Axway is unable to do so, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of any unearned fees attributable to the period following termination. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, AXWAY DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN PARTICULAR, AXWAY MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY CUSTOMER FROM THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.
9. Fees & Payment.
9.1 -- Fees - Subject to the terms and conditions of this Agreement, Customer will pay Axway, its designated agent or authorized reseller the Fees as specified in the Order Form for the rights granted under this Agreement. Unless otherwise agreed to in writing by Customer, all Fees will be at the rates listed in the Order Form.
9.2 – Payments - All payments are due within thirty (30) days from receipt of invoice by Customer. Axway may charge interest of one percent (1%) per month if undisputed Fees are not paid by the due date.
9.3 -- Taxes - Customer agrees to pay any applicable value added sales tax, sales tax, import and custom duties, applicable provincial and federal sales and goods and services taxes and any other applicable taxes (collectively, the “Taxes”) in addition to the Fees.
10. Confidentiality. For purposes of this Agreement, "Confidential Information" means any information disclosed by one party to the other that is marked as confidential or should reasonably be considered confidential under the circumstances. Each party shall protect the other party's Confidential Information with the same standard of care that it uses to protect its own similar confidential information and not disclose the Confidential Information except to its affiliates, employees and agents with a need to know and who have agreed in writing to keep it confidential. Each party may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement while using reasonable care to protect it. Confidential Information does not include information that (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party. Each party may disclose the other party's Confidential Information when required by law but only after it reasonably notifies the other party and gives the other party an opportunity to challenge the disclosure.
11. Privacy & Security. Axway’s collection, use and disclosure of any personal information, Sync Files or any other data shall be governed by applicable law and the Axway Privacy Statement for the Syncplicity service, which may be found at https://www.axway.com/en/privacy-statement. Axway may update its Privacy Statement or move it to a new URL from time to time, but any changes that would have the effect of reducing the obligations of Axway shall only be effective as to orders for Services placed after the effective date of the relevant change. Customer shall comply with all applicable laws, including privacy laws, related to its collection, use and disclosure of Sync Files. Axway has implemented systems and procedures that meet generally accepted industry standards to ensure the security, integrity and confidentiality of Sync Files.
12. Axway Indemnity. This section 12 does not apply to trial, personal edition, or other free subscriptions; no warranties or indemnification are offered for such subscriptions. Axway shall defend Customer against any third party (unaffiliated with Customer) claim that the Services or Software, as provided to Customer, infringe a patent, trademark or copyright enforceable in a country that is a signatory to the Berne Convention and pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement negotiated by Axway. These obligations will apply only if Customer (a) notifies Axway promptly in writing of such claim; (b) grants Axway sole control over its defense and settlement; (c) reasonably cooperates in the defense as requested by Axway; and (d) is not in material breach of related provisions of this Agreement regarding intellectual property and proper use of the Services. Should the Services or Software become, or in Axway’s opinion be likely to become, the subject of such an infringement claim, Axway may, at its option and expense, (a) procure for Customer the right to make continued use of the affected Services and Software; (b) modify the affected Services and Software to make them non-infringing; or (c) terminate the affected Services and refund any unearned fees actually paid by Customer attributable to the period following such termination. Notwithstanding the foregoing, Axway shall have no liability to the extent that the alleged infringement relates to (a) combination of the Services and Software with third party products or services; (b) use of the Services and Software for a purpose or in a manner not contemplated by their design; (c) any modification to the Services and Software made by any person other than Axway or its authorized representatives; (d) any modifications to the Services and Software made by Axway pursuant to Customer’s specific instructions; (e) any technology owned or licensed by Customer from third parties; or (f) use of any older version of the Software when use of a newer release made available to Customer would have avoided the infringement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND AXWAY’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
13. Customer Indemnity. Customer shall defend and indemnify Axway against all liabilities, damages, and costs in connection with any third party claim regarding Sync Files or Customer's use of the Services in violation of Section 7 above (Acceptable Use and Intellectual Property Protection). These obligations will apply only if Axway (a) notifies Customer promptly in writing of such claim (b) grants Customer sole control over its defense and settlement; (c) reasonably cooperates in response to a Customer request for assistance; and (d) is not in material breach of related intellectual property provisions of this Agreement causing such infringement liability.
14. Term & Termination. This Agreement takes effect on the Effective Date and continues until terminated as provided below. Each subscription term continues for its full length as stated in the ordering documentation, unless otherwise terminated as set forth in this section 14. Either party may suspend performance or terminate this Agreement if (a) the other party is in material breach and fails to cure the relevant breach within thirty (30) days of receiving written notice or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within thirty (30) days. On termination of this Agreement or expiration of a subscription under the applicable order form, (a) Customer will no longer have the right to continue to use the Services and Software; (b) Axway will delete Sync Files by removing pointers to them on Axway’s servers and overwriting them over time; and (c) upon request, each party will promptly use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
15. Emergency Suspension. If Axway becomes aware of an Authorized User’s violation of the Agreement or excessive use that could disrupt its delivery of the Services to customers generally, or in the event Axway detects unauthorized third party access to the Services, Axway may immediately suspend the offending use. Any such suspension shall be to the minimum extent and duration needed to address the emergency.
16. Limitation of Liability. NEITHER CUSTOMER NOR AXWAY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR IN ANY WAY RELATING TO THIS AGREEMENT. THE AGGREGATE LIABILITY OF EACH PARTY FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. CUSTOMER AND AXWAY AGREE THAT THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to Section 10 (Confidentiality), Section 12 (Axway Indemnity) and Section 13 (Customer Indemnity).
17. Export. Customer acknowledges that use of the Services and Software may be subject to the export and import laws of the United States and other countries. Customer agrees to comply with all export and import laws and regulations. In particular, Customer acknowledges that the Services and Software may not be exported or re-exported to any U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. Customer also agrees that that it will not use the Services for any purposes prohibited by U.S. law, including the development, design, manufacture or production of missiles or nuclear, chemical and biological weapons.
18. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Axway and completely replaces any prior agreements between Customer and Axway in relation to the Services and Software. If any part of this Agreement is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Axway to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Except as otherwise expressly provided in this Agreement, there will be no third-party beneficiaries to this Agreement.
19. Force Majeure. Axway will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers, (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Axway will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues
20. General. This Agreement and the relationship between Customer and Axway will be governed by the laws of the state of Delaware, excluding its conflicts of law provisions. Customer agrees to submit to the personal and exclusive jurisdiction of the state and federal courts located in Delaware to resolve any dispute or claim arising from this Agreement. As to intellectual property rights, Customer specifically agrees that Axway may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer may not assign or transfer any of its rights or obligations under this Agreement to a third party without the prior written consent of Axway. As a Syncplicity User you consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service, and (b) electronic records to store information related to these Terms of Service, your use of the Site and Services or your submission of Sync Files.
21. Survival. All provisions which by their nature survive, including but not limited to Sections 7, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19, shall survive termination of this Agreement.
Updated April 1, 2018.
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