Synck USER & RESELLER AGREEMENT
IMPORTANT – READ CAREFULLY
THIS USER AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AND BINDING CONTRACT BETWEEN YOU (“CUSTOMER”) ON THE ONE HAND AND EPIC TECHNICAL SOLUTIONS INC. (“EPIC TECH”) ON THE OTHER. THE AGREEMENT GOVERNS CUSTOMER’S ACCESS TO AND USE OF THE SYNCK SOFTWARE AND SERVICES (AS FURTHER DEFINED BELOW, THE “SOFTWARE” AND “SERVICES”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING AND USING THE SOFTWARE AND SERVICES, BY CLICKING “I ACCEPT” WITHIN THE APPLICATION, AND BY SIGNING THIS AGREEMENT,CUSTOMER INDICATES ITS ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, CUSTOMER MUST PROMPTLY (A) DELETE THE SOFTWARE FROM ANY AND ALL OF CUSTOMER’S COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE SOFTWARE IN CUSTOMER’S POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (B) CEASE ALL OF CUSTOMER’S USE OF THE SOFTWARE AND SERVICES. IF YOU ARE USING THE SOFTWARE AND SERVICES ON BEHALF OF AN ORGANIZATION, YOU ARE AGREEING TO THESE TERMS FOR THAT ORGANIZATION AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS.
THIS AGREEMENT APPLIES TO THE VERSION OF THE SOFTWARE THAT CUSTOMER HAS LICENSED AND THE SERVICES RELATED THERETO, AS WELL AS ANY FUTURE UPGRADES THAT ARE APPLIED TO THE SOFTWARE AND SERVICES, WHETHER BY AUTOMATED OR MANUAL METHODS. THE SOFTWARE IS LICENSED, NOT SOLD. CUSTOMER MUST USE THE SOFTWARE STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ALL EMPLOYEES, CONTRACTORS, CLIENTS TO WHICH THE SOFTWARE IS RESOLD, AND OTHER AUHTORIZED USERS ABIDE BY THE TERMS OF THIS AGREEMENT.
EPIC TECH RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AT ANY TIME, EFFECTIVE UPON MAKING THE MODIFIED PROVISIONS AVAILABLE THROUGH SOFTWARE UPDATES OR OTHERWISE THROUGH CUSTOMER’S USE OF THE SOFTWARE.
1.1 “Backup Services” shall mean the backup services and software that Epic Tech is providing.
1.2 “Purchase Order” shall mean the document or other method (including, but not limited to, online form or email order form) by which Customer purchases the Software licenses from Epic Tech.
1.3 “Software” shall mean all the software named Synck provided by Epic Tech, and any updates, upgrades or enhancements to the Software, including, without limitation, any support software provided to Customer by Epic Tech via the Internet, email or by any other means.
2. LICENSE GRANT AND OWNERSHIP.
(B) LICENSE RESTRICTIONS. Notwithstanding anything to the contrary herein, the license grants of Section 2 are subject to the following restrictions:
(i) Representations. Customer shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, software, Internet service and long distance or local telephone service. Customer shall be responsible for ensuring that such equipment or ancillary services are compatible with the Software.
(ii) Derivative Works. Customer may not modify or make derivative works of the Software, the documentation thereof, or any other component that may be included in the Software or provided with the Software, nor rent, lease or otherwise distribute the Software or the documentation thereof, except as expressly permitted in Section 2 of this Agreement.
(iii) Transfer of Rights. Except as expressly set forth in Section 2, Customer shall not assign, sublicense, rent or otherwise transfer Customer’s access and use rights under this Agreement to the Software without the prior written approval of Epic Tech.
(iv) Reverse Engineering and Software Development. Customer may not reverse engineer, decompile, or disassemble the Software, directly or indirectly, in whole or in part. The Software shall only be used in accordance with the accompanying documentation and shall not be used for software development or any other purposes.
(v) Copies. Customer may not copy the Software except as expressly permitted in Section 2 of this Agreement or the applicable Purchase Order.
(vi) Ownership. All worldwide ownership of and all rights, title and interest in and to the Software, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively with Epic Tech. The only rights Customer acquires under this Agreement are the use of licenses set forth in this Agreement.
(vii) Other Restrictions. Customer may not use the Software to:
(a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others or violate any applicable government laws or regulations;
(b) conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail or multi-level marketing campaigns;
(c) publish, post, distribute, disseminate or link to any: (i) defamatory, infringing, or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials;
(d) harvest user names or email addresses for any purpose; or
(e) restrict or inhibit any other user from using and enjoying its rights with respect to Epic Tech or its website, interfering with or disrupting the Website, the Epic Tech and Synck service servers or any network connected to Epic Tech and Synck servers. Epic Tech reserves all rights in the Software, it services, and the Data not explicitly granted to Customer. In the event that Customer provide comments, suggestions and recommendations to Epic Tech with respect to enhancements or changes in the Software or the services Epic Tech (collectively, “Feedback”), Customer hereby grants to Epic Tech a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in any manner.
(C) DATA OWNERSHIP. Customer or its licensors own all right, title and interest in and to all electronic files, materials, or other content stored by Customer or its authorized users (the “Data”). Customer hereby grants Epic Tech the right to transmit, use, modify, adapt, reproduce, display or disclose the Data solely to provide services to Customer or to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law. Customer represents and warrants that Customer has all rights in the Data necessary: (i) to grant these rights to Epic Tech; and (ii) to use the Synck service. Customer also warrants that the storage, use, or transmission of the Content does not violate any law or the terms of this Agreement. If the relationship between Customer and Epic Tech is terminated for any reason, Epic Tech will destroy all of Customer’s Data after giving Customer written notice of no less than 7 days.
Epic Tech reserves all rights in the Software, its services, and the Data not explicitly granted to Customer. In the event that Customer provide comments, suggestions and recommendations to Epic Tech with respect to enhancements or changes in the Software or the services, Epic Tech (collectively, “Feedback”), Customer hereby grants to Epic Tech a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in any manner.
Customer must pay the fees specified in the applicable Purchase Order. Such fees may include ongoing monthly or other periodic fees. Failure to pay such fees on time will result in shut down of Customer and its authorized users’ (if any) use of the Software as specified in the Termination section of this Agreement. Epic Tech reserves the right to increase the fees at any time in its discretion. Any increase shall take effect (for Customer) at the end of the Customer’s original guaranteed subscription period, as specified in the Purchase Order. At Epic Tech’s discretion, past due amounts may accrue a late fee equal to the lesser of: (i) 1.5% per month; or (ii) the maximum amount allowed by law.
4. USE OF THE SOFTWARE AND EPIC TECH WEBSITE AND SERVICES
Epic Tech has no special relationship with or fiduciary duty to Customer. Customer acknowledges that Epic Tech has no control over, and no duty to take any action regarding: what Customer accesses via Epic Tech or the Synck service; what effects the content Customer access may have on Customer; how Customer may interpret or use the content; or what actions Customer may take as a result of having been exposed to the content. Customer is solely responsible for Customer’s activities in using the Synck service, website or the Software including the activities of your employees, contractors, clients and all parties that Customer allows to have access to the Synck service, website or the Software. Customer is solely responsible for the contents, modification, management and/or deletion of any and all files and data used by Customer in conjunction with Synck or Epic Tech. Further, Customer is responsible to ensure that such files and data are not used in conjunction with Synck in violation of any copyright or any other proprietary right of any third party. Epic Tech may access Customer’s account, including its data, to respond to service or technical problems when requested by the Customer or as stated in this Agreement. Customer, not Epic Tech, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data stored in Customer’s accounts. Furthermore, Epic Tech shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data.
5. FEEDBACK MECHANISM; SHUTDOWN MECHANISM
The Software is equipped with a feedback mechanism that allows Epic Tech to review Customer’s use of the Software and communicates activity using the Software back to Epic Tech. Epic Tech reserves the right to use such data to evaluate the Software use and for any purposes which Epic Tech deems useful or appropriate. The Software is also equipped with a shut-down mechanism by which Epic Tech may shut down Customer’s and its authorized users’ use of the Software and services. Epic Tech reserves the right to use this shut down mechanism if Customer or its authorized users breach this Agreement, Customer or its authorized users use the Software in ways not permitted by this Agreement, and/or if Customer fails to pay the applicable periodic Software fees as specified in the applicable Purchase Order.
6. SECURITY AND ACCESS RESTRICTION
(A) SECURITY. Epic Tech will implement commercially reasonable measures designed to secure customer content against access or disclosure. Epic Tech’s data centers will maintain at a minimum SSAE 16 audit certification or its equivalent during the Term of Agreement. Data that is transmitted and received by the Software will be encrypted using a minimum of 448 bit encryption technology while in transit. All data and interfaces accessed through the Website (my.synck.ca) will be encrypted using a minimum of 128 bit SSL encryption with a certificate issued by a known authoritative service provider.
(B) ACCESS RESTRICTION. Epic Tech reserves the right to deny to any user, in its sole discretion, access to the Software or any portion thereof without notice. Customer is responsible for safeguarding the confidentiality of password(s) and user name(s) created by Customer for use with the Software, and for any use or misuse of the Synck account resulting from any third party using a password or user name created by Customer. Epic Tech shall in no event be liable for any unauthorized access to any data stored using the Software.
7. WARRANTY DISCLAIMER
The software, the Epic Tech and Synck Website and all of the contents thereof are provided “as is” without warranty of any kind, whether expressed, implied or statutory, and Epic Tech hereby expressly disclaims any and all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose and non-infringement of third party rights, with respect the Software, the Website and all contents thereof, the accompanying documentation, and any accompanying supporting materials or other materials received from Epic Tech and/or any affiliate, agent, reseller, dealer, distributor, employee, contractor or representative of Epic Tech. Customer expressly acknowledge that the Website and/or the Software may contain technical inaccuracies or typographical errors. No affiliate, contractor, employee, agent, reseller, dealer or distributor or representative of Epic Tech is authorized to modify this limited warranty or to make any additional warranties. Some states and provinces do not allow the exclusion of implied warranties, so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may have other rights that vary from state to state or jurisdiction to jurisdiction.
8. LIABILITY DISCLAIMER; NO LIABILITY FOR CONSEQUENTIAL DAMAGES
Customer is solely responsible for Customer’s and its authorized users’ use of the Software, inputs into the Software, verifying the results of the use of the Software and how the output from the Software is used. In no event shall Epic Tech be responsible or liable to Customer, its authorized users, or any third party for any liability arising out of installation or use of the Software or services, whether by Customer, authorized users, users within Customer or authorized users’ organizations, or any other authorized or unauthorized users.
To the maximum extent permitted by applicable law, in no event shall Epic Tech be liable or obligated to any party or user in any manner for any special, non-compensatory, consequential, indirect, incidental, statutory or punitive damages of any kind, including, without limitation, damages relating to lost data or programs, privacy of data or programs, unauthorized access to data or programs, business interruptions, lost profits and lost revenue, regardless of the form of action, whether in contract, tort, negligence, strict product liability, or otherwise, even if Epic Tech is aware of the possibility of any such damages in advance. Because some states and provinces do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply.
Notwithstanding anything to the contrary set forth in this agreement, Epic Tech shall not be liable to Customer, any of Customer’s authorized users, or any other users in an amount in the aggregate greater than $100 or the amount that was received by Epic Tech in the past 3 months from Customer for the software licensed under this agreement. The limitations set forth above shall be deemed to apply to the maximum extent permitted by applicable law and notwithstanding the failure of the essential purpose of any limited remedies set forth in this agreement. The parties acknowledge and agree that they have fully considered the foregoing allocation of risk and find it reasonable, and that the foregoing limitations are an essential basis of the bargain between the parties.
Customer agrees to defend, indemnify and hold harmless Epic Tech, and its employees, officers, contractors, investors, directors, agents, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from (a) Customer’s and/or any of Customer’s authorized users or any users authorized by of either of the foregoing’s installation or use of the Software, including without limitation claims relating to loss or confidentiality of data or programs (b) any violation by authorized users or organizations of any warranty, representation or covenant under this Agreement, (c) authorized users or organizations infringement of any third-party’s rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of your Synck accounts by you or any third party using your password(s) and/or user name(s). These obligations will survive any termination of Customer’s relationship with Epic Tech.
The license granted herein is effective until this Agreement is terminated. This Agreement shall terminate immediately, without notice, in the event Customer (i) fails to comply with any of the terms and conditions set forth in this Agreement, (ii) ceases doing business, (iii) Epic Tech does not receive in a timely manner any payment owing, or (iv) ceases using Synck service and notifies Epic Tech thereof. Epic Tech reserves the right to refuse service to anyone at its sole discretion and to terminate this Agreement immediately. Epic Tech does not refund any part of the payment made by Customer. Upon termination Customer must immediately (i) destroy all copies of the Software and Software documentation in your possession, or (ii) return the Software and documentation according to the instructions of Epic Tech. Upon termination by Epic Tech will close Customer’s account and delete all of Customer’s and its authorized users’ data within seven (7) days of termination. Epic Tech shall have no obligation to maintain any data stored in Customer’s account or to forward any data to Customer or any third party.
17. COPYRIGHT MATTERS
Epic Tech respects the intellectual property of others, and we ask Customer to do the same. We reserve the right to disable the accounts of users who we believe to be infringing the intellectual property rights of others and to remove any such infringing materials. If you believe that your copyrighted work has been copied and is accessible on the Website or Service in a way that constitutes copyright infringement, please notify Epic Tech’s agents by email at [email protected], by regular mail 766 St. Clair Avenue West, Toronto, Ontario, M6C 1B5, and provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (c) identification of the URL or other specific location on the Site where the material that you claim is infringing is located; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
You hereby agree that you shall not assert any claim against Epic Tech or its officers or directors with respect to such content unless and until: (1) you have fully completed the process set forth above; and (2) Epic Tech has failed to remove the offending content within thirty (30) days after such notification without a reasonable explanation for its failure to do so. It is Epic Tech’s policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue Services to repeat offenders.
This Agreement embraces the full, complete understanding of the parties as to the subject matter hereof, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by Epic Tech and your duly authorized representative. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect. In the event of conflicting provisions between this Agreement and a duly executed collateral agreement, the duly executed collateral agreement shall control.
This Agreement shall be construed and governed in accordance with the laws of the province of Ontario, excluding the application of its conflicts of law rules. Any action related to this Agreement or the Software shall be brought exclusively in the provincial or federal courts located in the province of Ontario, Canada. Each party hereby agrees to submit to the jurisdiction of such courts.Customer acknowledges that a breach of this Agreement will cause irreparable and continuing damage to Epic Tech for which monetary damages are insufficient, and Epic Tech shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In the event of litigation between Customer and Epic Tech concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the Export and Import Permits Act of Canada or any other export law, restrictions or regulations. No waiver by Epic Tech of any breach or default by you of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
BY ACCESSING AND USING THE WEBSITE AND BY INSTALLING, ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE UNCONDITIONALLY THAT CUSTOMER SHALL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER REPRESENT, WARRANT AND INDEMNIFY EPIC TECH THAT YOU HAVE FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND THE CUSTOMER.