Please read the following terms and conditions carefully. Syncplicity by Axway, LLC ("Syncplicity") provides the Syncplicity by Axway website located at www.syncplicity.com (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 ("Services"). These Syncplicity by Axway 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 Syncplicity by 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 a Syncplicity by Axway account ("Syncplicity by Axway User" or “User”).
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. 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.
ACCESSING YOUR COMPUTER, SYNCPLICITY FOLDERS AND THIRD PARTY ACCOUNTS
YOU ACKNOWLEDGE AND AGREE THAT BY UTILIZING THE SITE, SERVICES AND/OR SYNC FILES, TO PROVIDE YOU WITH THE SERVICES YOU CONSENT TO SYNCPLICITY ACCESSING AND/OR SCANNING (I) YOUR COMPUTER AND/OR ANY FILES, DATA OR INFORMATION THEREIN, AND (II) ANY FILES OR LINKED CONTENT AS A RESULT OF YOUR ADDITION OF THIRD PARTY ACCOUNTS OR APPLICATIONS TO YOUR ACCOUNT PROFILE (“THIRD PARTY APPLICATION”). IN THE EVENT THAT YOU CHOOSE CERTAIN SETTINGS (INCLUDING THE SELECTION OF “SYNCPLICITY FOLDERS”) IN YOUR ACCOUNT PREFERENCES YOU CONSENT TO PROVIDING OTHER SYNCPLICITY USERS ACCESS TO THE SYNC FILES YOU INDICATE.
As a Syncplicity by Axway 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.
MODIFICATION OF THE SITE OR TERMS OF SERVICE
Syncplicity by Axway reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Site or Services or to modify or terminate these Terms of Service in accordance with the terms herein. Modifications to these Terms of Service or any policies will be posted on the Site or made in compliance with any notice requirements set forth in these Terms of Service. If any modification is not acceptable to you, your only recourse is to cease using the Site and Services. By continuing to use the Site or Services after Syncplicity by Axway has posted any modifications to the Terms of Service on the Site or provided any required notices, you accept and agree to be bound by the modifications.
SYNC FILES; THIRD PARTY APPLICATIONS
While you retain all rights in any Sync Files, by using the Site or the Services, you hereby grant to Syncplicity by Axway a non-exclusive, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use such Sync Files as necessary to provide you with the Services. In addition, you hereby grant all other Syncplicity by Axway Users who you invite to access the Sync Files you indicate a non-exclusive, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use such Sync Files. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Syncplicity by Axway. You acknowledge and agree that your use of the Site and the Services will comply with our Copyright and IP Policy as set forth in the section below titled “Copyrighted Materials: No Infringing Use”
You acknowledge and agree that Syncplicity by Axway may, at its option, establish limits concerning Sync Files, including, without limitation, the maximum number of days that Sync Files will remain available via the Services or on the Site, the maximum size of any files that may be stored on or uploaded to the Site or the Services and the maximum disk space that may be allotted to you for the storage of Sync Files on Syncplicity by Axway’s servers. You agree to fully comply with all such limits established by Syncplicity by Axway from time to time. Further, in no event may your monthly bandwidth utilization exceed two times your allotted storage under your currently applicable Service plan. Syncplicity by Axway will have no responsibility or liability for
maintaining copies of Sync Files on our servers, and you are solely responsible for creating back-ups of your Sync Files outside of your use of the Site and the Services for such purposes.
To the extent you or Users under your account choose to link Third Party Applications to the Service account, you acknowledge and agree that Syncplicity by Axway has no control over (and you assume all risk arising from) the acts, omissions or policies or such Third Party Applications and that Syncplicity by Axway shall have no obligation or liability with respect thereto in any respect.
You acknowledge that Syncplicity by Axway does not have any obligation to monitor the Site, Syncplicity by Axway Content, Sync Files, User Files or User Posts (defined below) for any purpose, but has the right to do so for the purpose of operating the Site and the Services, to ensure Users’ compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
Notwithstanding the foregoing, Syncplicity by Axway is not responsible for the accuracy, completeness, appropriateness, legality or applicability of User Files or anything said, depicted or written by users in their User Posts, including without limitation, any information obtained by using the Site or the Services. Syncplicity by Axway does not endorse anything contained in User Files or User Posts or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Syncplicity by Axway with respect thereto.
You acknowledge and agree that you should not rely on the Site, Syncplicity by Axway Content, the Services or Sync Files for any reason. You further acknowledge and agree that you are solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Site, Syncplicity by Axway Content, or the Services. Without limiting the foregoing, you will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of your use of the Site, Syncplicity by Axway Content, the Services and/or Sync Files.
Syncplicity by Axway will have the right to investigate and prosecute violations of these Terms of Service, including intellectual property rights infringement and Site security issues, to the fullest extent of the law. Syncplicity by Axway may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms of Service.
SYNCPLICITY CONTENT AND FEEDBACK
Syncplicity by Axway and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, the Services, Syncplicity by Axway Content and any other content made available through the Site or the Services contained therein, other than your Sync Files. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, the Services, Syncplicity by Axway Content, any other content made available through the Site or the Services or related products and services, and except as explicitly described herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, the Services, Syncplicity by Axway Content or any other content made available through the Site or the Services (other than your Sync Files).
All feedback, comments, and suggestions for improvements (the "Feedback") that you provide to Syncplicity by Axway, in any form, and any contributions you make to the Site by posting Syncplicity by Axway Content and communicating with other Syncplicity by Axway Users via posts to forums on the site (“User Posts”) will be the sole and exclusive property of Syncplicity by Axway. You hereby irrevocably transfer and assign to Syncplicity by Axway and agree to irrevocably assign and transfer to Syncplicity by 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. At Syncplicity by Axway’s request and expense, you will execute documents and take such further acts as Syncplicity by Axway may reasonably request to assist Syncplicity by Axway in acquiring, perfecting and maintaining its intellectual property rights and other legal protections for your Feedback and User Posts. If any such rights in Feedback or User Posts are not assignable to Syncplicity by Axway for any reason, you hereby grant to Syncplicity by Axway and its successors a non-exclusive, worldwide, royalty-free, fully paid, sub-licensable, perpetual and irrevocable right and license to fully exercise all intellectual property rights related to such Feedback and User Posts in connection with its Business. You will not earn or acquire any rights or licenses in the Site, Syncplicity by Axway Content, or the Services or in any Syncplicity by Axway intellectual property rights on account of these Terms of Service or your performance under these Terms of Service.
The Site and the Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws and regulations in connection with your use of the Site and the Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site, the Services, Syncplicity by Axway Content or Sync Files:
1. 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; (vi) infringes, violates or misappropriates another’s rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
2. 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;
3. Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
4. 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.
5. Send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services;
6. 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;
7. 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;
8. 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;
9. Impersonate or misrepresent your affiliation with any person or entity;
10. Encourage or authorize any third party to engage in any of the forgoing prohibited activities.
COPYRIGHTED MATERIALS: NO INFRINGING USE
You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. Syncplicity by Axway has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
Syncplicity by Axway may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Site. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Site, as they may contain additional important information about Syncplicity by Axway’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Service, the terms and conditions of such Official Rules will control.
LINKS TO THIRD PARTY SITES
The Site may contain links to third-party websites or resources. You acknowledge and agree that Syncplicity by Axway is not responsible or liable for: (i) the availability or accuracy of such websites or resources, or (ii) the Syncplicity by Axway Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Syncplicity by Axway of such websites or resources or the Syncplicity by Axway Content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
USE OF THE SITE AT YOUR OWN RISK
Your access to and use of the Site, Syncplicity by Axway Content, Services, Sync Files and User Files is at your own risk. Syncplicity by Axway will have no responsibility for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Site, Syncplicity by Axway Content, Services, Sync Files or User Files.
SYNCPLICITY IS AVAILABLE “AS-IS”
THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SYNCPLICITY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
SYNCPLICITY MAKES NO WARRANTY THAT THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SYNCPLICITY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED THROUGH THE SITE, SYNCPLICITY CONTENT, OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SYNCPLICITY OR THROUGH THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold Syncplicity by Axway, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to or use of the Site, Services, Syncplicity by Axway Content, Sync Files and/or User Files; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including without limitation any intellectual property right, including but not limited to right of attribution, publicity, confidentiality, property or privacy right; or (iv) any claim that Sync Files caused damage to a third party, including without limitation claims that Sync Files are infringing.
LIMITATION OF LIABILITY
IN NO EVENT WILL SYNCPLICITY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR NATURE (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, OR FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES, OR FOR ANY ERROR OR DEFECT IN THE SITE, SYNCPLICITY CONTENT, SERVICES, SYNC FILES OR USER FILES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT SYNCPLICITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY
ACKNOWLEDGE THAT SYNCPLICITY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER SYNCPLICITY USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, SYNCPLICITY WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD PARTY SYNCPLICITY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICES SYNC FILES AND/OR USER FILES, OR IF YOUR DATA IS LOST, CORRUPTED OR EXPOSED TO UNINTENDED THIRD PARTIES. IN ANY CASE, SYNCPLICITY’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU TO SYNCPLICITY IN THE SIX MONTHS PRIOR TO THE DATE THE CLAIM AROSE, OR, IF GREATER, $1,000. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you to the extent so restricted.
You will not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Syncplicity by Axway. Any purported assignment or delegation by you without the appropriate prior written consent of Syncplicity by Axway will be null and void. Syncplicity by Axway may assign these Terms of Service or any rights hereunder without your consent.
Syncplicity by 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, Syncplicity by Axway will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
Relationship of the Parties
For purposes of these Terms of Service, including if you create a Syncplicity by Axway account, you are not an employee or agent of Syncplicity by Axway and you will not represent that you are any of the foregoing. Each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind or attempt to bind the other to any contract. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including without limitation any expenses associated with the implementation of these Terms of Service. Syncplicity by Axway shall have the right to identify your business as a user of the Services in its marketing materials.
Severability and Waiver
In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Syncplicity by Axway to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.
Controlling Law and Jurisdiction
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law provisions. Unless waived by Syncplicity by Axway in a particular instance, the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in San Francisco County, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Any notice or other communication to be given hereunder will be in writing and given: (a) by Syncplicity by Axway via email (in each case to the address that you provide); (b) a posting on the Site; or (c) by you via email to email@example.com or to such other addresses as Syncplicity by Axway may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
These Terms of Service are the entire and exclusive agreement between Syncplicity by Axway and you regarding the Site, Syncplicity by Axway Content, Services, Sync Files and User Files, and these Terms of Service supersede and replace any prior agreements between Syncplicity by Axway and you regarding the Site, Syncplicity by Axway Content, Services, Sync Files and User Files.
If you have any questions about these Terms of Service, please contact Syncplicity by Axway at firstname.lastname@example.org.
Please see http://www.syncplicity.com/pricing.html for the rates at which the Services can be purchased and such terms are incorporated herein by reference. Syncplicity by Axway Users can purchase the Services in a variety of ways: (i) Syncplicity by Axway Users can pay a monthly service fee for the Services ("Service Fee") and (ii) Syncplicity by Axway Users can pay a one-time fee for a one-year service plan ("One-Year Service Plan Fee").
Syncplicity by Axway Users that wish to upgrade or downgrade their service plans can do so by emailing our billing department at email@example.com. You may request an upgrade or downgrade at any time subject to the following terms and conditions:
Syncplicity by Axway is a prepaid service. With respect to downgrades for any type of Service plan, although the adjustment in Service may happen immediately, please note that any adjustments in fees do not take effect until the next billing cycle (monthly or annual) after the downgrade is initiated. There are no refunds or credits on any amounts prepaid. Downgrading your service plan may cause loss of features or functionality. Syncplicity by Axway will not be liable to you or any third party for any downgrading and Syncplicity by Axway will have no obligation to maintain any information stored in our data centers related to your account which may become inaccessible thereafter or to forward any information to you or any third party.
TERMINATION OR CANCELLATION OF THE SERVICES
Syncplicity by Axway accounts which are unused for more than 60 consecutive days are subject to termination. In addition, Syncplicity by Axway may notify authorities or take any actions it deems appropriate, without notice to you, including immediate termination of your account, if Syncplicity by Axway suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Service or any policies or rules established by Syncplicity by Axway; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Syncplicity by Axway Users, Syncplicity by Axway, any other third parties or the Site or Services.
Subject to the section titled “Fees and Billing”, you may terminate your Syncplicity by Axway account at any time and for any reason. Upon any termination by a Syncplicity by Axway User, the related account will no longer be accessible.
Any suspension, termination or cancellation will not affect your obligations to Syncplicity by Axway under these Terms of Service (including, without limitation, the rights granted by you to Syncplicity by Axway, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation. After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Service will immediately cease. Syncplicity by Axway will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING SYNC FILES OR SYNCPLICITY CONTENT) WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Syncplicity by Axway will have no obligation to maintain any information stored in our data centers related to your account or to forward any information to you or any third party.
Last update: 7.23.15