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Terms and Conditions

Last updated:  January 12, 2018

These Terms and Conditions (these “Terms and Conditions”) are by and between Synthio, Inc. (“Synthio”) and the customer identified in the applicable Order Form (“Customer” or “You”).   The applicable Order Form and these Terms and Conditions, including any Addendums, constitute the entire agreement between Synthio and Customer (the “Agreement”).  BY EXECUTING AN ORDER FORM OR USING THE SYNTHIO PORTAL OR ANY DELIVERABLES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS AND CONDITIONS.  IF CUSTOMER DOES NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, CUSTOMER SHALL NOT HAVE THE RIGHT TO, AND CUSTOMER SHALL NOT, ACCESS OR OTHERWISE USE THE SYNTHIO PORTAL OR ANY DELIVERABLES.  SYNTHIO MAY MAKE CHANGES TO THESE TERMS AND CONDITIONS AT ANY TIME.  SYNTHIO WILL POST NOTICE OF THE UPDATED TERMS AT WWW.SYNTHIO.COM AND POST A NOTICE OF MATERIAL CHANGES ON OR THROUGH THE SYNTHIO PORTAL. CUSTOMER’S CONTINUED USE OF THE SYNTHIO PORTAL OR THE DELIVERABLES AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.

  1. DEFINITIONS

“Aggregated Data” means any non-personally identifiable, technical, statistical or analytical data gathered or generated directly by the Synthio Portal or by use of the Synthio Portal, which Synthio collects, gathers and aggregates periodically as part of its services.

“Authorized End User” means, collectively, any individual employees, agents, or contractors of Customer accessing or using the Synthio Portal under the rights granted to Customer pursuant to this Agreement.  The number of Authorized End Users is as set forth and described in the applicable Order Form.

“Confidential Information” means all written or oral information, disclosed by either party to the other, related to either party or a third party, that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation, trade secrets, know-how, technology specifications, Authorized End User lists, customer lists, sales, pricing, cost or other unpublished financial information or marketing data.  Synthio’s Confidential Information includes without limitation, Synthio’s proprietary processes and information associated with the Synthio Portal, the Documentation, the Deliverables, and all Order Forms (including pricing), as well as Synthio’s business and marketing plans, technology and technical information, product plans and designs, and business processes.  Customer’s Confidential Information includes Authorized End User information and the Customer Data and any business and marketing plans and strategies of Customer.

“Customer Data” means all the data, content and/or information provided, uploaded, and/or posted by Authorized End Users in connection with their authorized use of the Synthio Portal or provided in connection with the Deliverables.

“Deliverables” means the deliverables, including contact data or marketing lists, purchased by Customer from time to time as set forth in an Order Form.

“Documentation” means technical, text and/or graphical documentation or manuals, whether in digital or printed format, that describe the features, functions and operation of the Synthio Portal, which materials are designed to facilitate use of the Synthio Portal and which are available at www.Synthio.com.

“Enhancements” has the meaning set forth in Section 3.4. below.

“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.  Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.

“Order Form” means the ordering documents for access to the Synthio Portal and/or purchase of Deliverables from Synthio that are executed hereunder by Synthio and Customer from time to time, including modifications, supplements and addend thereto.  Order Forms will be deemed incorporated herein.

“Renewal Term(s)” has the meaning set forth in Section 11.1 below.

“Synthio Portal” means Synthio’s proprietary technology and application software provided by Synthio on a data-as-a-service basis through which Synthio provides data Deliverables, data assurance, data cleansing, data appending, data origination, data aggregation and other data enhancement services, and the Documentation.

“Subscription” means Customer’s and its Authorized End Users’ access rights to the Synthio Portal as set forth in Section 3.

“Subscription Term” means the Initial Subscription Term as set forth in the Order Form and all Renewal Terms as provided below.

“Third Party Data” has the meaning set forth in Section 3.6.

2.  ORDERING AND PURCHASES

Subject to the terms and conditions contained in the Agreement, Customer may purchase subscriptions to access and use the Synthio Portal and may purchase Deliverables pursuant to Order Forms.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Synthio regarding any future functionality or features.  All Order Forms will be deemed part of and subject to this Agreement. If there is any inconsistency between an Order Form and these Terms and Conditions, the Order Form will control.

3. ACCESS AND USE.

3.1.          Provision of Access to the Synthio Portal. Subject to the terms and conditions contained in this Agreement, Synthio hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the features and functions of the Synthio Portal and Documentation during the Subscription Term. Copies of the Documentation may not be distributed to third parties. Customer’s access and use of the Synthio Portal will comply with all other conditions set forth in the Documentation

3.2.          Authorized UsersCustomer’s use of the Synthio Portal will be limited to Customer’s Authorized Users and solely for Customer’s internal use and purposes. Customer will be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer. Customer will cause Authorized End Users to comply with the terms and conditions of this Agreement. The Synthio Portal is made available to Customer solely as hosted by or on behalf of Synthio, and nothing in this Agreement will be construed to grant Customer any right to receive any copy of the Synthio Portal or its underlying The scope of the Subscription is as further specified in the applicable Order Form. The number of Authorized End Users authorized to use the Synthio Portal will be set forth in the applicable Order and determined on an individual, named user basis rather than on a concurrent user or shared user basis.

3.3.          Aggregated Data Customer acknowledges and agrees that Synthio may compile anonymous Aggregated Data.  To the extent necessary, Customer hereby grants Synthio a royalty-free, nonexclusive, irrevocable, right and license (with the right to sublicense through multiple tiers) to develop anonymous Aggregated Data from Customer’s use of the Synthio Portal and the Deliverables. Synthio, its affiliates, licensors, partners and designated agents may use Aggregated Data (on a non-attributed basis) to monitor and improve its products, the Synthio Portal, any Deliverables, for benchmarking purposes or to provide customized services or technologies to its customers. Synthio shall collect and use this information in accordance with its privacy policy (available at www.Synthio.com/privacy) and in accordance with applicable data protection laws.

3.4.          Support.  Synthio will provide Customer standard support offerings that Synthio generally makes available to its customer base. During the Subscription Term, Synthio may develop enhancements, upgrades, updates, improvements and other modifications to the Synthio Portal (“Enhancements”).  Synthio will have the right to implement all such Enhancements and Customer hereby accepts such Enhancements, which upon implementation by Synthio will be deemed part of the Synthio Portal.

3.5.          Suspension Notwithstanding anything to the contrary in this Agreement, Synthio may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Synthio Portal if Synthio reasonably determines that (i) there is a threat or attack on any portion of the Synthio Portal; (ii) Customer’s or any Authorized End User’s use of the Synthio Portal disrupts or poses a security risk to the Synthio Portal or any other customer or vendor of Synthio; or (iii) Customer or any Authorized End User is/are using the Synthio Portal for fraudulent or illegal activities; ((each such suspension, a “Service Suspension”). Synthio will make commercially reasonable efforts to provide written notice of any Service Suspension to Customer (including notices sent to Customer’s email address as provided to Synthio) and to provide updates regarding resumption of access to the Synthio Portal following any Service Suspension. Synthio will use commercially reasonable efforts to resume providing access to the Synthio Portal as soon as reasonably possible after the event giving rise to the Service Suspension is resolved. Synthio will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized End User may incur as a result of a Service Suspension.

3.6.          Third Party Data. Customer acknowledges and agrees that third party data, if any, which is provided through the Synthio Portal or included in any Deliverables (“Third Party Data”) is additionally subject to the applicable flow through provisions for such Third Party Data as made available at www.Synthio.com.

4. DELIVERABLES.

4.1.       Synthio will use commercially reasonable efforts to provide the Deliverables as set forth in the applicable Order Form, including as may be applicable, (i) a description of the Deliverable(s) and (ii) the schedule for the provision of the Deliverable(s), subject to payment of the fees as set forth on the Order Form. Deliverables will be provided in a professional and workmanlike manner and will be subject to the limitations, dependencies, and disclaimers set forth in this Agreement. Synthio and Customer will cooperate to enable Synthio to provide the Deliverables according to the delivery terms set forth in each Order Form. In addition, Customer will provide any Customer obligations specified in each Order Form. In the event the Deliverables are not provided in material accordance with the terms of the applicable Order Form, Customer will notify Synthio in writing no later than thirty (30) calendar days after provision of the Deliverables by Synthio. Customer’s notice will specify the basis for non-compliance with the Order Form and, if Synthio agrees with the basis for non-compliance, Synthio will, at Synthio’s sole option, either (a) provide a version of the Deliverables that is in compliance with the Order Form at no additional charge to Customer or (b) refund to Customer the applicable fees paid for the affected Deliverables. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SYNTHIO’S SOLE AND EXCLUSIVE LIABILITY IN THE EVENT THE DELIVERABLES ARE NOT PROVIDED IN COMPLIANCE WITH THE ORDER FORM.

4.2.     Customer understands and agrees that it is licensing and not purchasing rights to use the Deliverables, including all data therein, for the Term. Upon expiration or termination of this Agreement, Customer’s rights to use the Deliverables shall immediately cease and Customer shall have no further right to use the Deliverables, unless otherwise expressly agreed in an Order Form.   Upon expiration or termination of this Agreement, Customer shall delete or destroy all copies of the Deliverables including electronic copies.  Upon request, an authorized officer of Customer shall certify such destruction and deletion, and Synthio will have the right to audit Customer’s systems in confirm compliance with the provisions herein.   Customer understands that any use of the Deliverables beyond the scope permitted herein will constitute an infringement of Synthio’s rights in and to the Deliverables.

5. CUSTOMER RESPONSIBILITIES.

5.1.          Usage Restrictions.  Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any portion of the Synthio Portal or the Deliverables; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Synthio Portal is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Synthio Portal, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair the Synthio Portal or any of the Deliverables, or create any derivative work from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Synthio; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of the Synthio Portal; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Synthio Portal or any Deliverable; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this Agreement. Customer will ensure that its use of the Synthio Portal and any of the Deliverables complies with all applicable laws, statutes, regulations or rules, including all laws and regulations regarding privacy and the transmission of unsolicited emails or other communications, and will not use or compile any data from the Synthio Portal or the Deliverables for any unauthorized purpose, including for the purpose of any illegal activities.

5.2.          Access, Terms of Service and Privacy Policy.  Customer will provide reasonable cooperation, assistance, information and access to Synthio as may be necessary to initiate Customer’s use of the Synthio Portal. Customer will be responsible for the acts or omissions of any person who accesses the Synthio Portal using passwords or access procedures provided to or created by Customer.  Synthio reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement.  Customer acknowledges and agrees that, in addition to the terms herein, use of the Synthio Portal by the Authorized End Users will be subject to its current Terms of Use (available at https://synthio.com/terms) and Privacy Policy (available at https://synthio.com/privacy/).

5.3.          Customer Data As between the parties, Synthio will have the right to use and store all Customer Data (including personally identifiable information) provided by Authorized End Users (such as Authorized End Users’ names, addresses, account information) or collected by Synthio through the Synthio Portal or in connection with the Deliverables, subject to Synthio’s Privacy Policy. Each party will ensure that all Customer Data in its possession is maintained, accessed and transmitted in a secure environment, and that its use, collection, storage, processing, sharing, disclosure, or other handling of Customer Data is in accordance with industry standard privacy and security practices and measures adequate to preserve its confidentiality and security as required by applicable privacy laws and regulations.

6. PRICING AND PAYMENTS.

6.1.          Fees.  Customer will pay all fees for the right to use the Synthio Portal and for the purchase of Deliverables as set forth in the Order Form.

6.2.          Invoicing and PaymentUnless otherwise indicated on the Order Form, Customer must provide valid and updated credit card information for payment of the Fees. If the Order Form indicates that Customer will pay by credit card, Customer hereby authorizes Synthio to charge such credit card for all Fees listed in the Order Form for the Subscription Term in accordance with the payment terms set forth in the Order Form. Credit card payments may be subject to a limit at Synthio’s discretion. If the Order Form specifies that payment will be by a method other than a credit card, Customer shall be responsible for making all payments when due in accordance with the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due on receipt of the invoice date. Customer is responsible for providing complete, accurate billing and contact information and notifying Synthio of any changes to such information. All fees are non-cancellable and non-refundable.

6.3.          Increases in FeesCustomer understands and agrees that unless otherwise agreed in an Order Form, Synthio may increase the subscription and Deliverables fees for any Renewal Term by up to seven percent (7%) upon written or electronic notice, including through the Synthio Portal, at least sixty (60) days prior to the applicable Renewal Term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Synthio’s applicable list price in effect at the time of the applicable renewal. If Customer chooses not to renew the current Subscription, Customer must provide written notice thirty (30) days prior to the end of the then-current Subscription Term.

6.4.          Taxes.  Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Synthio’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services.  Customer will make all required payments to Synthio free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments to Synthio will be Customer’s sole responsibility, and Customer will, upon Synthio’s request, provide Synthio with official receipts issued by the appropriate taxing authorities, or such other evidence as Synthio may reasonably request, to establish that such taxes have been paid.

6.5.          Late Payments; InterestAny portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

7. CONFIDENTIALITY.

7.1.          Ownership of Confidential InformationThe parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.

7.2.          Mutual Confidentiality Obligations Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, other than as necessary for provision or use of the Synthio Portal or Deliverables as provided herein, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access for the purposes of this Agreement and who are contractually or otherwise legally bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 11, all Confidential Information disclosed by the other party that is in its possession or control upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Customer agrees that Synthio may collect aggregated statistical data regarding Customer’s use of the Synthio Portal and provide such aggregated statistical data to third parties.  In no event will Synthio provide to third parties personally identifiable data regarding Customer or Customer’s Authorized End Users.

7.3.          Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction.  Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

8. PROPRIETARY RIGHTS.

8.1.          Synthio Ownership.  Except for the licenses expressly granted by Synthio to Customer under this Agreement, as between the parties, Synthio owns and retains all right, title and interest in and to the Synthio Portal, the Documentation, the Deliverables, the Aggregated Data and all of Synthio’s content, including without limitation, the underlying software, lists, information, text, graphics, links, documents, data, materials, tools, icons, audio, visual,  symbols, and characters incorporated into and available through the Synthio Portal and the Deliverables, and all Intellectual Property Rights therein (collectively, the “Synthio IP”).  Except for the rights and licenses expressly granted herein, Customer shall not obtain, or be deemed to have obtained, by implication, operation of law or otherwise, any other license or other right in or to the Synthio IP.  Customer will not take any action inconsistent with Synthio’s ownership of the Synthio IP.

8.2.          Customer Ownership.  As between the parties, Customer owns and retains all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein (collectively, the “Customer IP”). Except as otherwise set forth in this Agreement, nothing will be construed as conferring upon Synthio, by implication, operation of law or otherwise, any other license or other right in or to the Customer IP.  Synthio will not take any action inconsistent with Customer’s ownership of the Customer IP.

8.3.          Feedback.  If Customer sends or transmits any communications, comments, questions, suggestions, or related materials to Synthio, whether by letter, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Synthio Portal or the Deliverables or other products or services, including, without limitation, new features or functionality, all such Feedback is, and will be exclusively owned by Synthio.  Customer hereby assigns all right, title, and interest in, and Synthio is free, but will have no obligation, to use, without any attribution or compensation to Customer, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights in or relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.

9. WARRANTIES, DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

9.1.          Mutual Warranties. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (ii) that the Agreement constitutes a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and (iii) that it will comply with any and all local, state and/or national laws, and/or regulations applicable to such party, including those related to data privacy and the transmission of personal data.

9.2.          Disclaimer.  EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SYNTHIO PORTAL, THE DELIVERABLES AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND SYNTHIO, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.  SYNTHIO, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE SYNTHIO PORTAL, THE DELIVERABLES OR THE DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE ACCESS TO AND OPERATION OF THE SYNTHIO PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

9.3.          Exclusions of Remedies; Limitation of Liability.  EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL SYNTHIO OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SYNTHIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF SYNTHIO TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SYNTHIO BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

9.4.          Essential Basis of the AgreementCustomer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

10. INDEMNIFICATION

10.1.        Indemnification of Customer.  Synthio agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Synthio Portal, the Deliverables and/or the Documentation infringes such third party’s United States patents or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of the United States; provided that Customer promptly notifies Synthio in writing of the claim, cooperates with Synthio, and allows Synthio sole authority to control the defense and settlement of such claim. If such a claim is made or, in Synthio’s judgment, appears possible, Synthio, at Synthio’s sole discretion, will enable Customer to continue to use the Synthio Portal, the Deliverables or the Documentation, as applicable, or modify or replace any such infringing material to make it non-infringing, or obtain rights to permit Customer’s continued use. If Synthio determines that none of these alternatives is reasonably available, Synthio may terminate this Agreement with respect to the Synthio Portal or applicable Deliverable and Customer will cease use of the Synthio Portal or Deliverables and, if applicable, return or destroy all such Deliverables. This Section 10.1 will not apply to the extent that the alleged infringement arises from (i) modification or unauthorized use of the Synthio Portal, any of the Deliverables and/or the Documentation by Customer, (ii) combination, operation or use of the Synthio Portal, any of the Deliverables and/or the Documentation with other software, hardware or technology not provided by Synthio, (iii) use of a superseded or altered release of the Synthio Portal, any of the Deliverables and/or the Documentation if such infringement would have been avoided by the use of a then-current release of the Synthio Portal, the Deliverables and/or the Documentation, as applicable, and if such then-current release has been made available to Customer, (iv) any Customer Data or (v) Third Party Data (any of the foregoing circumstances under clauses (i), (ii), (iii), (iv) or (v) a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL SYNTHIO’S LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SYNTHIO BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS SECTION STATES SYNTHIO’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

10.2.        Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Synthio’s option, defend Synthio from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s or any Authorized End User’s negligence or willful misconduct; (ii) Customer’s violation of any applicable law(s), rules or regulations; (iii) Customer’s or any Authorized End User’s use of the Synthio Portal, the Deliverables and/or the Documentation in a manner not authorized or contemplated by this Agreement; or (iv) a Customer Indemnity Responsibility, provided that Customer will not settle any third-party claim against Synthio unless such settlement completely and forever releases Synthio from all liability with respect to such claim or unless Synthio consents to such settlement, and further provided that Synthio will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

11. TERM AND TERMINATION.

11.1.        Term.  Unless otherwise specified in the applicable Order Form, each term set forth in a Subscription Term will (i) begin on the start date set forth on the applicable Order, (ii) remain in effect for a minimum period of twelve (12) months, and (iii) after the initial Subscription Term, automatically renew for the same period of time as Customer’s Initial Subscription Term (each, a “Renewal Term”) unless either party provides written notice of cancellation at least thirty (30) days prior to the end of the then-current Subscription Term.

11.2.        Termination.  This Agreement may be earlier terminated by either party (i) if the other party breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Synthio may terminate this Agreement upon written notice to Customer if Synthio’s provision of the Synthio Portal or any applicable Deliverables is prohibited or made infeasible by applicable laws, rules or regulations.

11.3.        Effects of Termination.  Upon any expiration or termination of this Agreement: (a) All rights and obligations of the parties will cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement will survive; (b) Customer will make no further use of, and Synthio may immediately prohibit Customer’s use and access to, the Synthio Portal or the Documentation, provided that no termination will relieve the Customer of the obligation to pay any fees accrued or payable to Synthio;;and (c) Customer will make no further use of and will destroy or delete all Deliverables as set forth in Section 4.2. Upon request, Customer will provide a certification of such destruction or deletion executed by an authorized officer of Customer and Synthio will have the right to audit Customer’s systems and records to verify compliance.

11.4.        Deletion of Confidential InformationEach party will delete any of the other party’s Confidential Information still in their possession from computer storage or any other media including, but not limited to, online and off-line libraries; and each party will return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information. Synthio has no obligation to retain Customer Data following thirty (30) days after complete termination of the Agreement. This shall not require either party to delete or destroy copies of Confidential Information that have been made in such party’s standard back-up procedures; provided that such copies shall be deleted and destroyed in accordance with such party’s standard procedures and shall remain subject to the terms of this Agreement until so destroyed or deleted.  Either party may retain one copy of Confidential Information to confirm its obligation hereunder.

11.5.        SurvivalThe provisions titled Confidentiality, Proprietary Rights, Warranties, Disclaimers, Exclusions and Limitations on Liability, Indemnification, Effects of Termination and General Provisions will survive.

12. GENERAL PROVISIONS.

12.1.        Entire Agreement. This Agreement (which includes any Order Form(s) completed by Customer, as well as those terms and documents incorporated by reference) constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No oral statements or prior written material not specifically incorporated herein will be of any force and effect. The application of Customer’s general terms and conditions in any Customer purchase order, general vendor acknowledgement or Customer’s other general purchasing conditions (including pre-printed boilerplate terms) are hereby expressly excluded, rejected, and objected to by Synthio.

12.2.        Waivers, Consents and Modifications.  No waiver, consent or modification of this Agreement will bind Synthio or Customer unless in writing and signed by both parties. This Agreement may be modified solely upon the written agreement of both Customer and Synthio.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.

12.3.        Severability.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.4.        Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflicts of law provisions.  Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction will apply to this Agreement.

12.5.        Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party will give written notice thereof to the other party and its performance will be extended for the period of delay or inability to perform due to such occurrence.

12.6.        Notices.  Any notice or communication hereunder will be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of Customer, will be the address provided to Synthio in the Order Form, and, in the case of Synthio, will be the address set forth in the contact section of Synthio’s website, or at such other address for either party as is designated in a subsequent notice.  All notices will be in English, effective upon receipt.

12.7.        Assignment.  This Agreement will be binding upon and for the benefit of Synthio, Customer and their permitted successors and assigns.  Either party may assign this Agreement to its affiliates and as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates.  Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.

12.8.        Independent Contractors.  The parties will be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.