SynergySuite Subscription Agreement

Upon execution of a SynergySuite Purchase and Sales Order Form under this Agreement by the Customer and SynergySuite (See SynergySuite Purchase and Sales Order Form), the Customer accepts a non-exclusive, non-transferable license to Use the Cloud Services at the Outlet(s) for the Term of the Agreement. Upon such execution, SynergySuite grants to the Customer a non-exclusive, non-transferable license and undertakes to support the Cloud Services all upon the terms and subject to the conditions contained in this Agreement.

1) Definitions

      a) "Cloud Services" means, collectively, SynergySuite’s information technology services including all SynergySuite Cloud Services, software, mobile applications, documents, outsourcing services, hosting and IT support services, as modified by SynergySuite from time to time.
      b) "System" or "Platform" shall mean the framework upon which the Cloud Services operates.
      c) "Module" shall mean each software package as included in the SynergySuite Purchase and Sales Order Form.
      d) "Outlet" shall mean the site or sites at which the Customer will deploy the Cloud Services as set out in the SynergySuite Purchase and Sales Order Form.
      e) "Term" shall mean that this agreement shall be renewable at the end of the current term for a successive term unless either party gives written notice of its intention not to renew within sixty (60) days before expiration of the current term.
      f) "End User" shall mean an individual user who is an employee of a Customer or a contractor working on behalf of the Customer, authorized by the Customer to use the Cloud Services.

2) License Grant

SynergySuite grants to the Customer a non-exclusive, non-transferable License to:
      a) Receive the Cloud Services for use at the designate Outlet(s), together with the necessary documentation to install and use the same;
      b) Install the Cloud Services as appropriate to the Outlet(s) and as specified in the SynergySuite Purchase and Sales Order Form;
      c) Use the Cloud Services in accordance with the provisions of this Agreement.

3) License Fee

      a) Price Quotes: Prices are only valid if expressed in writing by SynergySuite and only for the period stated in quotation or contract. If not stated, the price validity period is 14 days.
      b) Fees. Fees are based on quantities purchased and not on actual usage. Quantities purchased cannot be reduced during the subscription term. Designated Outlet quantities above the purchased amounts will be billed to the Customer accordingly and will be co-terminus with the original subscription term and date. Payment obligations during the subscription period are non- cancellable and all amounts paid are non-refundable.
      c) Payment Terms. Unless otherwise stated on the Sales Order and Purchase Form, payment of all invoiced amounts will be within 14 days of the date of invoice or before any due date for payment shown on the invoice. Customer access to SynergySuite Platform will not be granted until the initial payment as stipulated by the Sales Order and Purchase Form is received. License fees are invoiced in advance as specified in the Sales Order and Purchase Form for full access to the SynergySuite Cloud Services.
      d) Payment Options. Payment is to be made via Electronic Fund Transfer or credit card. If the Customer has provided SynergySuite with credit card details, the Customer authorizes SynergySuite to charge such credit card on the first day of the billing period as specified on the Sales Order and Purchase Form for all Services listed in the Sales Order and Purchase Form for the initial subscription period and any renewing subscription periods.
      e) Taxes. All payments due to SynergySuite do not include taxes unless specifically stated. The Customer is responsible for payment of all applicable taxes (except for SynergySuite’s federal state, and local income taxes), however designated or incurred in connection with the transaction under this Agreement.
      f) Late Payments. If any payment is not made by the Customer by the due date, SynergySuite reserves the right to charge interest at the rate of 1.5% of the amount due (calculated on a monthly basis) until payment is received in full. Additionally, if payment is not made for 15 days after the due date (29 days after the invoice date), SynergySuite reserves the right to suspend the Cloud Services to the Customer.

4) Technical Support

SynergySuite Support Services will be provided through the SynergySuite Platform, unless otherwise specified. All service requests will receive a ticket allocation by which users can track responses. SynergySuite will use its best endeavors to provide a first response within four (4) business hours.

5) Customer's Undertakings

The Customer undertakes not to perform any of the acts referred to in this sub-clause except only to the extent permitted by the Agreement and only then for the specific limited purposes stated in the Agreement. The Customer undertakes:
      a) Not to copy the Cloud Services (other than for normal system operation) nor otherwise reproduce the same provided that the Customer may copy the Cloud Services for back-up purposes;
      b) Not to translate, adapt, vary, modify the Cloud Services;
      c) Not to disassemble, decompile or reverse engineer the Cloud Services;
      d) Not to provide or otherwise make available the Cloud Services in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the End Users without prior written consent from SynergySuite;

6) Warranty

      a) The Customer acknowledges that Cloud Services in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement. SynergySuite represents and warrants that it will use good faith efforts during the full term of this Agreement to sustain the quality, quantity, currency and variety of the Cloud Services at no less than the level of the Cloud Services as of the date of this Agreement. If Customer believes that SynergySuite has materially breached this representation, Customer will notify SynergySuite in writing, and the parties agree to negotiate in good faith to reach a resolution of the matter without altering this Agreement.
      b) In the event that the Customer discovers a material error which substantially affects the Customer's use of the same and notifies SynergySuite of the error SynergySuite shall at its sole option either pro-rata refund the License Fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Cloud Services which does not so comply PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Cloud Services not performed by SynergySuite or caused by its incorrect use, abuse or corruption of the Cloud Services or by use of the Cloud Services with other Cloud Services or on equipment with which it is incompatible.
      c) SynergySuite represents and warrants that (i) it possesses all rights necessary to permit Customer to use the Cloud Services as provided by this Agreement, (ii) the Cloud Services will not infringe any U.S. patents, trademark, copyright, privacy rights, publicity rights or other proprietary right of any third party. In the event of a material breach of any representation or warranty set forth in this section c), Customer may terminate under Clause 13 of the Agreement.      
      d) TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED HEREIN, SYNERGYSUITE DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE CLOUD SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

7) SynergySuite' Liability

      a) Except for SynergySuite’ obligations as set forth in Clause 10 below, neither party shall be liable to the other party for any loss or damage under this Agreement caused arising directly or indirectly in connection with this Agreement, the Cloud Services, its use, support or otherwise, except to the extent to which is unlawful to exclude such liability under the applicable law.
      b) Notwithstanding the generality of a) above, each party expressly excludes liability for consequential loss or damage which may arise in respect of the Cloud Services, its use, the System or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.   

8) Copyright, Patents, Trademarks and Other Intellectual Property Rights

The Customer acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Cloud Services shall be and remain the sole property of SynergySuite. The Customer shall not during or at any time after the expiry or termination of this Agreement (whether in whole or with respect to support only) in any way question or dispute the ownership by SynergySuite.

9) Confidential Information

      a) All information, data, drawings, specifications, documentation, Cloud Services listings, source or object code or other confidential information which either party may have imparted and may from time to time impart to the other party relating to its business, the Cloud Services, (other than the ideas and principles underlying the same) or support documentation or procedures or modems is proprietary and confidential. Each party hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement (in whole or with respect to support only), disclose the same, whether directly or indirectly to any third party without the other party's prior written consent.
      b) The Customer further agrees that it shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the Cloud Services or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any Cloud Services or other program written or developed for it based on any confidential information supplied to it by SynergySuite.
      c) The foregoing provisions shall not prevent the disclosure or use by either party of any information which is or hereafter, through no fault of the other party: becomes public knowledge or if it has been developed independently by the other party, or was lawfully known to the other, or has been lawfully received from other sources.

10) Data Protection

SynergySuite is committed to data security and manages strict controls over access and security of data. Please review the SynergySuite Data Protection Policy and Commitment to GDPR 

11) Force Majeure

Neither party shall be liable to the other party for any loss or damage due to a breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of the party which shall include (but shall not be limited to) acts of God, telecommunication or internet outages, computer or network outages, power outages, strikes, lockouts, riots, acts of war, terrorist acts, floods, earthquakes, fires and explosions.

12) Termination

       a) In addition to provisions for termination as herein provided, either party may by notice in writing to the other party terminate this Agreement, if any of the following events shall occur:
            i) If the other party is in material breach of any term, condition or provision of this Agreement or required by applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach;
            ii) If the other party generally fails to pay its debts as they become due, admits in writing its inability to pay its debts generally, makes a general assignment for the benefit of creditors or any proceedings are instituted by or against such party.
      b) Upon termination by SynergySuite under Clause 13 a), the Customer shall pay to SynergySuite any outstanding amount of the License Fee in respect of this Agreement.
      c) Termination, howsoever or whenever occasioned shall be subject to any rights and remedies both parties may have under this Agreement or in Law.

13) General

      a) Assignment: Neither party shall assign or otherwise transfer all or part of the Cloud Services or this Agreement, without the other party’s prior written consent, which shall not be unreasonably withheld, except to an affiliate or a purchaser of all of the assignor’s assets, in which case, such consent shall not be required.
      b) Waiver: Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party's rights to take subsequent action.      
      c) Headings: The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions of this Agreement.
      d) Severability: In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
      e) Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts and the courts of the Massachusetts shall have exclusive jurisdiction over all disputes arising hereunder or in connection with the subject matter hereof. In any such action the parties hereby waive any right to allege lack of personal jurisdiction, improper venue or inconvenient forum.