1. Services and Support
Subject to the terms of this Agreement, Synergist will use commercially reasonable efforts to provide Customer with access to its real-time negotiation platform (the „Services“). If agreed in an Order Form, Synergist will provide Customer with services related to the configuration of Customer specific contract templates („Implementation Services“).
As part of the registration process, Customer will identify an administrative user name and password for Customer’s Synergist account. Synergist reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
Subject to the terms hereof, Synergist will provide Customer with reasonable technical support services in accordance with Synergist’s standard practice.
2. Restrictions and responsibilities
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Synergist or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Synergist hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Synergist’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Synergist against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Synergist has no obligation to monitor Customer’s use of the Services, Synergist may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. Confidentiality; Proprietary Rights
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Synergist includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Synergist to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by applicable law.
Customer shall own all right, title and interest in and to the Customer Data. Synergist shall own and retain all right, title and interest in and to (a) the Services or Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed as part of the Implementation Services or in connection with Customer’s use of the Services, Software or support, and (c) all intellectual property rights related to any of the foregoing.
Synergist processes any personal data in accordance with applicable data protection regulations. If and to the extent Customer processes personal data on the Software, it shall inform Synergist thereof and enter into a data processing agreement with Synergist.
Notwithstanding anything to the contrary, Synergist shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Synergist will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Synergist offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Synergist shall be entitled to list Customer as a reference customer and to issue a press release in connection with the execution of this Agreement.
4. Payment of Fees
Customer will pay Synergist the then applicable fees described in the Order Form for the Services and the Implementation Services (if applicable) in accordance with the terms therein (the “Fees”). If Customer wants to change the Service Capacity level set forth on the Order Form, Customer shall notify Synergist thereof using the Software and Synergist will adjust the Service Capacity level and the corresponding level of Fees for the following month. Synergist reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Synergist has billed Customer incorrectly, Customer must contact Synergist no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
Synergist will charge the Fees to Customer’s bank account on a monthly basis at the beginning of each month. If Synergist chooses to bill through an invoice, full payment for invoices must be received by Synergist thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to late payment fees in accordance with Section 288 of the German Civil Code. Customer shall be responsible for all taxes associated with Services other than taxes based on Synergist’s net income.
5. Term and Termination
This Agreement remains in effect unless terminated by either party with thirty (30) days’ prior notice to the other party.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and does not cure that breach within thirty (30) days after being requested by the other party to do so. Synergist may terminate this Agreement without notice, if Customer fails to pay any amounts due within thirty (30) days after being requested by Synergist to do so.
Either party’s right to terminate for important cause (aus wichtigem Grund) remains unaffected. Either party’s right to rescind (zurücktreten) from the Agreement shall be excluded to the extent permissible under applicable law.
Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Synergist will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Synergist may, but is not obligated to, delete stored Customer Data.
6. Warranty and Disclaimer
Synergist shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Synergist or by third-party providers, or because of other causes beyond Synergist’s reasonable control, but Synergist shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
Synergist does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this Section, the Services and Implementation Services are provided “as is” and Synergist disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
Synergist does not provide legal advice and the use of the Services does not replace legal advice. Customer remains fully and solely responsible for its use of the Services and Synergist excludes any responsibility for the content of contracts concluded using the Services.
Synergist shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Synergist is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and control over defense and settlement; Synergist will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Synergist, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Synergist, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Synergist to be infringing, Synergist may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Service.
In case of damages caused by Synergist
- due to injury to life, body and health,
- due to fraudulent intent or on the basis of a warranty, or
- due to wilful intent or grossly negligent conduct of Synergist or its employees, agents and legal representatives,
Synergist shall be liable according to the statutory provisions. All other liability of Synergist shall be excluded unless it refers to property damages or financial damages due to the breach of a material contractual obligation (Kardinalpflicht) caused by Synergist or its employees, agents and legal representatives with simple negligence in which case the liability is limited to typical and foreseeable damages (vertragstypische und vorhersehbare Schäden). Material contractual obligations (Kardinalpflichten) are obligations that are absolutely necessary for the proper performance of the contract and that the user can normally trust and expect to be complied with. Liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
8. Limitation of Liability
If any provision of this Agreement is found to be unenforceable or invalid, 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. This Agreement is not assignable, transferable or sublicensable by Customer except with Synergist’s prior written consent. Synergist may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Synergist in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Federal Republic of Germany without regard to its conflict of laws provisions. Exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be Berlin, Germany.