Terms & Conditions

THIS SYMPLY MASTER SERVICES AGREEMENT (together with the terms set forth in the Order Form on the www.symply.io website, this“Agreement”) is entered into by and between Symply Software, Inc. (“Symply”) and you (the“License”).

BY USING THE SOFTWARE (AS DEFINED BELOW) AND CLICKING “I ACCEPT,” AND USING THE SERVICES (AS DEFINED BELOW), LICENSEE ACCEPTS THIS AGREEMENT. THIS IS A BINDING AGREEMENT, GOVERNING USE OF THE SOFTWARE AND THE SERVICES. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, LICENSEE ACKNOWLEDGES AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. SHOULD LICENSEE NOT ACKNOWLEDGE AND AGREE TO THESE TERMS, LICENSEE MUST IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND THE SOFTWARE. CONTINUED USE OF THE SERVICES AND SOFTWARE SIGNIFIES LICENSEE’S CONTINUED ACCEPTANCE OF THE TERMS OF THIS AGREEMENT AND ANY CHANGES TO THEM.

Symply has developed certain software to process payroll information (as further identified on Order Form, the “Services”) which it makes available to its customers; and

WHEREAS, Licensee wishes to obtain a non-exclusive license to access and use the Services, and Symply is willing to grant such non-exclusive license to Licensee on the terms set forth in this Agreement;

NOW, THEREFORE, in consideration of the premises and the mutual promises hereinafter set forth, the parties hereto agree as follows:

  1. Scope of Agreement
    1. Services. This Agreement, along with the Exhibits hereto, sets forth the terms and conditions under which Licensee may access and use the Services.
    2. Order. Forms The subscription term(s) for the Services and the applicable fees will be specified in one or more order forms that Licnensee has completed on Symply’s website (each, an “Order Form”) which are made a part of this Agreement. Each Order Form will be governed by the terms of this Agreement. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form
  2. Services
    1. License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement and the applicable terms of relevant Order Form(s), including, without limitation, Licensee’s payment of all applicable fees, Symply hereby grants Licensee a limited, revocable, non-transferable (except as may otherwise be provided herein), non-sublicensable, non-exclusive license to access and use the Services, solely in the form provided by Symply and solely for Licensee’s own internal business use.
    2. Service Access and Users
    3. Licensee’s license to access and use the Services grants access to the Services only to Licensee. Symply will provide Licensee with a user account and password for use with the Services (the "Account"). Licensee is responsible for maintaining the confidentiality of Licensee’s Account password. Licensee agrees not to share its Account password with anyone, let Sensitivity: Confidential anyone else access its’ Account password or do anything else that might jeopardize the security of its’ Account password. Licensee agrees to notify Symply if Licensee’s password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of its’ password or Account, or if Licensee learns of any other breach of security in relation to the Services. Licensee is solely responsible for any and all activities that occur through the use of Licensee’s Account. Licensee is at all times fully responsible and liable for all acts and omissions of users of its Account (“Users”) and Licensee agrees to indemnify Symply for all claims and losses related to any such acts and/or omissions.
    4. Restrictions. Licensee will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Symply Product (as defined herein) or otherwise attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Symply Product, or to any Symply server, by hacking, password "mining", or any other illegal means; (b) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Symply Product, (c) copy, alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Symply Product, (d) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer rights in or to the Symply Product, (e) use the Symply Product in commercial timesharing, rental or other sharing arrangements, (f) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Symply Product; (g) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Symply Product or any transaction being conducted on the Site, or with any other person's use of the Symply Product; (h) breach any security measures implemented on the Symply Product or otherwise attempt to use the Symply Product in a way that is intended to avoid incurring fees or exceed usage limits; (i) track or seek to trace any information on any other person who uses the Symply Product; (j) forge headers or otherwise manipulate identifiers in order to disguise Licensee’s identity, or the origin of any message or other communication that Licensee sends to Symply in connection with the Symply Product; (k) pretend that Licensee is, or that Licensee represents, someone else, or impersonate any other person; (l) use the Symply Product for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (m) upload or otherwise process any malicious content to, through, or in connection with the Symply Product. Licensee hereby agrees that Licensee will notify Symply if Licensee becomes aware that the Symply Product is being used for any illegal or unauthorized purpose.
    5. Proprietary Rights. Symply or its licensors retain all right, title and interest in and to the Services and related documentation and materials, including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights embodied in, or otherwise applicable to the Services, whether such rights are registered or unregistered, and wherever in the world those rights may exist (“Symply Rights”). Licensee shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with the Symply Rights. All materials embodied in, or comprising the Services, including, but not limited to, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", arrangement of the Services and their content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Services (“Symply Marks”), are all owned by Symply or its licensors. Licensee is expressly prohibited from using the Symply Marks except as provided herein or as agreed to the parties in writing. Title to the Services shall not pass from Symply to Licensee, and the Services shall at all times remain the sole and exclusive property of Symply. Other than expressly set forth herein, there are no implied rights or licenses in this Agreement. All Symply Rights are expressly reserved by Symply and/or its licensors, as applicable.
  3. License and Responsibilities and Content
    1. License Responsibilities. Licensee is responsible for obtaining, configuring and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for provisioning, configuring, securing and paying all third-party services (e.g., ISP, telecommunications, computers, tablets, etc.) required to use the Services. Licensee is responsible for the accuracy, quality and legality of Licensee data and documents, which shall include all payroll data, personnel data and personally identifying information, even if Licensee has signed up for Symply’s premium service and Symply is inputing such data on Licensee’s behalf. Licensee acknowledges and agrees: (1) that Licensee is responsible for its employees, agents and contractors abiding by all local, state, national, and international laws and regulations applicable to Licensee’s and its Users’ use of the Services; (2) not to use the Services for illegal purposes; and (3) not to interfere or disrupt networks connected to the Services. Licensee shall be solely responsible for its actions and the actions of its employees, agents and contractors and other Users. Licensee shall not (a) sell, resell, rent or lease the Services, (b) use the Services to store or transmit infringing, libelous, otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit malicious code, or (d) interfere with or disrupt the integrity or performance of the Services or any third party documents or data contained therein.
    2. License Data. As between Licensee and Symply, Licensee retains all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that Licensee and Licensee’s Users upload or submit to the Services (collectively, "Licensee Data"). Licensee may not upload, post or otherwise make available through the Services any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on Licensee, and Licensee represents and warrants that it has all rights, permissions and consents necessary (a) to make the Licensee Data available on or through the Services, and (b) to grant Symply the limited rights to use Licensee Data set forth in this Agreement.
    3. License's Responsibilities Regarding Tax Services. In order for Licensee’s W-2 statements and payroll tax reporting to be accurate, wage and payroll information submitted by Licensee to Symply during the transition process must be reconciled with Licensee’s payroll tax returns for the current calendar year and Licensee’s wage and payroll tax information for the current quarter. Licensee agrees to obtain (if necessary) and maintain appropriate tax identification numbers for its own tax reporting, and to obtain and maintain any necessary forms and information from its employees, and to forward this information to Symply upon Symply’s request. It is Licensee’s responsibility to submit accurate information requested by Symply in connection with the Services. Symply will rely on the accuracy of such information in performing all Services, and is not responsible for detecting errors, omissions, fraud, or illegal acts in the Licensee’s preparation of such information. Any penalty or interest incurred due to the submission of inaccurate information by the Licensee will be the sole responsibility of Licensee, which agrees to hold Symply harmless from any and all such liability. Symply, at its option, may decide not to file Licensee’s payroll tax returns or pay Licensee’s payroll taxes if there are any unresolved problems with any information requested by Symply, or submitted by Licensee. If, through no fault of Licensee, Symply files late or incorrect payments, any claim against Symply by the Licensee shall be limited to the amount of penalties and interest incurred due to such late or incorrect payments, or in the case of incorrect payments, to the difference between the incorrect and correct payments. In the event of error caused solely by Symply’s actions or inaction, the sole remedy available to Licensee is for Symply to correct errors at no cost to Licensee (including the payment of penalties and interest by Symply). In no event shall Symply be responsible for the payment of Licensee’s taxes.
    4. Licensee’s Responsibilities re: ACH Origination and Account Debiting
      1. Symply has established a payroll processing arrangement with third party processors to provide services for the provision of electronic direct deposit services and the initiation of electronic signals for paperless entries for certain payroll services through an Automated Clearing house (“ACH”). Symply may reject any payroll request which does not comply with ACH requirements. If any payroll request is rejected, Symply will make a reasonable effort to notify Licensee promptly by telephone, facsimile or electronic communication, so that Licensee may correct such payroll request or request that Symply resubmit it. Symply will have no liability to Licensee by reason of the rejection of any payroll request. Further, the Licensee agrees to be bound by the NACHA Operating Rules and Guidelines (the “Rules”), including the following matters:
        1. Licensee expressly authorizes Symply to originate entries on behalf of Licensee to the recipients’ accounts;
        2. Licensee agrees not to originate entries that violate the laws of the United States;
        3. Symply may terminate or suspend this Agreement for breach of the Rules in a manner that permits Symply to comply with the Rules; and
        4. Licensee hereby grants Symply the right to audit the Licensee’s compliance with this Agreement and the Rules.
      2. Licensee will have the right to cancel or amend any payroll request received by Symply after it has been submitted to Symply for a fee. Except for entries created from payroll requests that have been pre- approved and resubmitted by Licensee in accordance with the requirement of this Agreement, Symply will have no obligation to retransmit a returned payroll request to the ACH or gateway operator. Symply will process the payroll request in accordance with its current processing schedule, provided the payroll request is received by Symply no later than 3:00 p.m. PST. Licensee acknowledges that Symply makes certain warranties with respect to its ACH operator. Licensee agrees to reimburse Symply for any loss Symply incurs, including reasonable attorneys’ and related fees incurred as a result of Symply’s breach of such warranty caused by Licensee. Licensee further agrees to reimburse Symply for any fees charged for nonsufficient funds or other return fees, any interest on any amounts due at such rate as permitted by law and for reasonable attorney’s fees, costs and expenses of collection as permitted by law.
      3. At least 72 hours prior to Licensee’s payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, Licensee authorizes Symply to initiate debit entries to Licensee’s account (“Licensee’s Account”) at the depository financial institution, the Routing Number of which is provided by Licensee, and to debit Licensee’s Account in such amounts as are necessary to (a) fund Licensee’s direct deposits; (b) pay any fees or charges associated with the Services; (c) pay Licensee’s payroll taxes; (d); and (d) pay any other amount that becomes owed under this Agreement. This authorization is to remain in full force and effect until this Agreement is terminated; provided that Symply has a Sensitivity: Confidential reasonable opportunity to act upon it. Licensee will maintain Licensee’s Account as of the applicable settlement date and time, with immediately available funds sufficient to cover all debit entries that Licensee originates through Symply. Licensee’s obligation to pay Symply for each debit entry matures at the time Symply transmits or otherwise delivers the debit entry to the ACH or gateway operator and is unaffected by termination of the Services or this Agreement. Licensee acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Amounts withdrawn for payroll taxes will be held by Symply until such time as those payments are due to the appropriate taxing agencies, and no interest will be paid to the Licensee on these amounts.
      4. If Licensee does not have sufficient funds in Licensee’s Account to pay disbursements, fees, payroll taxes or any other amounts due under this Agreement at the time required, or if Licensee refuses to pay, Symply shall notify Licensee immediately by telephone and/or in writing, and Symply shall have the option to (a) refuse to pay any collected but unremitted payroll taxes, in which case the payroll tax liability will become the sole responsibility of Company; (b) refuse to perform further Services; (c) refund monies due to Licensee, less any amounts owed to Symply; (d) apply any funds held by Symply for direct deposit; and/or (f) immediately terminate this Agreement. Symply in its sole discretion may charge a minimum fee of $150.00 for all drafts returned due to nonsufficient funds. Should the Services be recommenced after the resolution of Licensee’s Account, Symply reserves the right to extend the processing date.
    5. Feedback. If Licensee sends or transmits any communications to Symply by mail, electronic mail, telephone, other otherwise (“Feedback”) suggesting or recommending changes to the Services, Licensee hereby grants Symply a royalty-free, worldwide, transferable, sub-licensable (through multiple tiers), irrevocable, perpetual license to use such Feedback in connection with or incorporate it into the Services.
  4. Term & Termination
    1. Term. The term of this Agreement will begin on the Start Date listed on the Order Form and will continue for an initial period listed in the Order Form (the “Initial Period”). Upon the expiration of the Initial Period, this Agreement will automatically renew for subsequent renewal periods (each a “Renewal Period”) unless either party provides written notice to the other party by the agreed upon Non-Renewal Notification Deadline prior to the expiration of the Initial Period or the then-current Renewal Period.
    2. Termination. Either party may terminate this Agreement, effective immediately without further notice, in the event that the other party materially breaches this agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach. Either party may, but is under no obligation to, terminate this Agreement immediately by giving written notice to the other party in the event that the other party files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if the other party discontinues or dissolves its business or if a receiver is appointed for the other party or for such party’s business and such receiver is not discharged within 60 days.
    3. Effects of Termination. Upon the termination of this Agreement for any reason: (i) the Licensee shall cease use of the Services immediately; (ii) Symply’s obligations to provide the Services Sensitivity: Confidential shall immediately cease; and (iii) Licensee shall pay to Symply the full amount of any outstanding fees due hereunder within thirty (30) days of termination. Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: Sections 2(b) (Service Access and Users) (last sentence only), 2(c) (Restrictions), 2(d) (Proprietary Rights), 3 (Licensee Responsibilities), 4(c) (Effects of Termination, (Disclaimer of Warranties), (Indemnification), (Limitation of Liability), (Confidentiality) (Governing Law & Jurisdiction), (Notices), and (General Provisions).
    4. Suspension. Subject to Symply’s obligations to maintain uptime as provided in the Service Level Agreement that is made a part of this Agreement, the Site, Software and/or any or all of the Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability or as a result of system failures or force majeure events. Symply will use commercially reasonable efforts, to provide information regarding any such interruptions and the restoration of use of, and access to, the Site, Services and Software (collectively the “Symply Product”) following any such interruption, as per the Service Level Agreement listed in the Order Form. Symply reserves the right to suspend or terminate Licensee’s access to the Services if Symply reasonably determines that: (i) there is a threat or attack on the Services (including a denial of service attack) or other event that may create a risk to the Services, Symply, Licensee, or any user of the Services; (ii) Licensee’s or its users’ use of the Services or Licensee Data disrupts or poses a security risk to the Services or any user of the Services, may harm Symply’s systems, or may subject Symply or any third party to liability; (iii) Licensee or any User is using the Services for fraudulent or illegal activities; (iv) subject to applicable law, Licensee has ceased to continue Licensee’s business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (v) Licensee or any User is using the Services or other Symply property in breach of this Agreement; or (vi) Licensee is in default of its payment obligations hereunder (collectively, "Service Suspensions"). Subject to the remainder of this Section 4(d), Symply will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Licensee, and to provide updates regarding resumption of Licensee’s access to the Services following any Service Suspension. Symply may immediately effectuate a Service Suspension in accordance with this Section 4(d), except that in the event that Symply intends to effectuate a Service Suspension as a result of Sections 4(d)(v) or 4(d)(vi), Symply will provide Licensee with 10 days’ written notice prior to implementing the Service Suspension and will only effectuate such Service Suspension if Licensee has not cured the underlying breach within such notice period.
  5. Fees & Payment Terms
    1. License Fees. Unless otherwise expressly agreed by Symply and specified in the applicable Order Form, all fees are payable in the currency of the United States of America. All fees are exclusive of all taxes, levies or duties, and Licensee will be responsible for payment of such taxes, levies or duties, excluding only U.S. taxes based solely upon Symply’s net income. Symply will automatically charge the bank account on file on a monthly basis. If the bank account on file is nonfunctional or has insufficient funds, Symply will send a notice to Licensee and Licensee shall replace such account within five (5) days. If Licensee fails to pay or keep current payment information on file with Symply, Symply may immediately suspend the Service and terminate this Agreement. Except as otherwise mutually agreed upon by the parties in writing, each party is responsible for its own expenses under this Agreement. All fees payable under this Agreement are non-refundable.
    2. Changes to Fees. Symply may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Licensee until the start of the next Renewal Period (“Fee Modifications”). Symply will provide written notice to Licensee of any changes to fees, including through notices sent to Licensee’s e-mail address
  6. Warranties & Disclaimer of Warranties
    1. General Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) it has complied, and will in the future comply, with all applicable laws, rules and regulations in connection with the execution, delivery and performance of this Agreement.

      Further, Licensee represents and warrants to Symply that: (i) Licensee will not engage in any illegal or fraudulent business practice in connection with Licensee’s use of the Symply Product; and (ii) that all of the information provided by Licensee to Symply in Licensee’s Account is correct and current at all times.
    2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (I) THE SERVICES ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; (II) SYMPLY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND (III) SYMPLY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL LOSSES CAUSED BY A DATA BREACH, HACK OR OTHER UNLAWFUL ACCESS OF SYMPLY’S SYSTEMS OR SERVERS. SYMPLY DOES NOT WARRANT THAT THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES AND ALL RESULTS OF SUCH USE IS SOLELY AT LICENSEE’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SYMPLY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES PROVIDED HEREIN. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE. IN SUCH EVENT, SYMPLY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION
    3. Licensee acknowledges that Licensee shall maintain sole responsibility for the accuracy of any product produced by the Services, including payroll processing, tax payments and payroll reporting. If there are errors with the product (that are not attributable to the Licensee Data), Licensee shall immediately, and in any event within three (3) business days, notify Symply in writing of any such discrepancies or deficiencies. Symply shall reprocess the applicable Service and update the Software to correct any errors. The remedy in the foregoing sentence shall be Licensee’s sole remedy for any errors with the Services. All Services furnished hereunder are deemed acceptable to Licensee unless proper notice has been delivered to Symply in accordance with the terms hereof
  7. Indemnification
    1. By License. License shall, at its expense indemnify, defend and hold Symply and Symply’s directors, officers and employees (collectively, the “Symply Indemnitees”) harmless from and against any third party claims, actions, proceedings and suits (collectively “Claims”) and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, Sensitivity: Confidential reasonable attorneys’ fees and other litigation expenses) (collectively, “Losses”) incurred by the Symply Indemnities, to the extent such claims allege: (i) that Licensee Data or its use by Symply in the provision of the Services infringes or misappropriates any third-party’s rights; (ii) a misrepresentation or error in any payroll reporting, government filing (including payroll tax), employment filings or other regulatory items submitted or provided by Licensee to its employees and consultants or to any governmental authority (ii) Licensee’s violation of applicable laws (including classification of employees, wage and hour claims and other employment issues), rules or regulations in connection with the Services; (iii) Licensee’s willful misconduct, fraud, misrepresentation, or violation of law; or (iv) any negligence by Licensee or any other act or omission by Licensee, including without limitation any breach of this Agreement by Licensee. Licensee will not enter into a settlement that would result in liability to Symply without Symply’s prior written consent.
    2. By Symply. Symply shall, at its expense, indemnify, defend and hold harmless Licensee from third party claims brought against Licensee, and shall pay or reimburse Licensee for all damages, costs and expenses payable by Licensee to such third party to the extent they are awarded in a final judgment or agreed to in a settlement, as a result of any third party claims against Licensee alleging that the Services infringes or misappropriates any U.S. patent issued prior to the Effective Date, copyright, or trade secret; provided that Licensee: (1) promptly notifies Symply in writing of the claim; (2) grants Symply sole control of the defense and settlement of the claim; and (3) provides Symply, at Symply’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Symply will not enter into a settlement that would result in liability to Licensee without Licensee’s prior written consent.
    3. Exceptions. Symply’s above indemnity obligations do not apply to (1) any use of the Services beyond the scope of license granted herein, (2) any modification or derivative works of the Services made by or for Licensee, (3) use of a superseded infringing version of the Services (or component thereof) by Licensee after release of a non-infringing version by Symply, or (4) any use or combination of the Services with any technology, software or hardware not supplied by Symply, if such alleged infringement would be avoided by use of the Services without such technology, software or hardware.
    4. Mitigation. If a claim of infringement occurs that is subject to Section 7(a) and not subject to the exceptions in Section 7(c), or if Symply determines that a claim is likely to occur, Symply may, in Symply’s sole discretion: (1) procure for Licensee the right or license to continue to use the Services, free of the infringement claim; or (2) replace or modify the affected Service, to make it noninfringing provided that the replacement Service substantially conforms to Symply's then-current specification for such Service. If these remedies are not reasonably available in Symply’s opinion, Symply may elect to terminate this Agreement, in which case Licensee shall be entitled a pro rata refund of fees already paid to Symply for the then-current Initial Period or Renewal Period, as applicable.
    5. Exclusive Remedy. Sections 7(a) through 7(d) state the sole and exclusive obligations and liability of Symply for any intellectual property rights infringement and are in lieu of any warranties of non-infringement, all of which are disclaimed.
  8. Limitation of Liability
    1. Limitation of Liability. EXCEPT ITS’ INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF SECTION 10 OR SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH Sensitivity: Confidential DAMAGES IS BASED AND EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
    2. Limitation of Damages. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF SECTION 10 OR SECTION 2, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. LICENSEE AGREES THAT SYMPLY’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
    3. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    4. Jurisdictional Issues. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, LIABILITY FOR SUCH DAMAGES WITH RESPECT TO THE SERVICE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
    5. Allocation of Risk. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.
  9. Export
  10. The Services may include technology or software that is subject to the customs and export control laws and regulations of the United States and every country in which the Services is provided. Licensee may not use or otherwise export or re-export the Services except as authorized by U.S. law and the laws of the jurisdiction in which the Services was obtained. By using the Services, Licensee represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) Licensee is not on any U.S. government list of prohibited or restricted parties

  11. Confidentiality; Publicity
    1. Confidential Information. “Confidential Information” means all non-public information disclosed in written, oral or visual form by either party to the other. Confidential Information may include, but is not limited to, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder
    2. Obligation of Confidentiality. Neither party will use any Confidential Information of the other party except as expressly permitted by this Agreement or as expressly authorized in writing by the disclosing party. The receiving party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but Sensitivity: Confidential in no circumstances less than a reasonable standard of care. The receiving party may not disclose the disclosing party’s Confidential Information to any person or entity other than to those of its employees and contractors who: (i) are subject to a written agreement with the receiving party that includes use and confidentiality restrictions that are at least as protective as those set forth in this Agreement, and (ii) need access to such Confidential Information solely for the purpose of fulfilling the receiving party’s obligations or exercising the receiving party’s rights hereunder. The foregoing obligations will not restrict the receiving party from disclosing Confidential Information of the disclosing party: (1) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party required to make such a disclosure gives reasonable notice to the disclosing party prior to such disclosure; and (2) on a confidential basis to its legal and financial advisors.
      With respect to any Confidential Information disclosed after the Effective Date, the terms of this Agreement supersede any previous non-disclosure agreements or any other preliminary representations or understandings that have been entered into by the parties to this Agreement with regard to the Symply Product. Symply may disclose the existence or terms of this agreement to third parties in connection with any merger or sale of all or substantially all of Symply assets
    3. Licensee agrees it will not, without prior written approval of Symply in each instance (i) make any use, including without limitation in advertising, publicity, promotional materials or otherwise, of the name of Symply, or any affiliate of Symply, or any partner or employee of Symply, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Symply or its subsidiaries or affiliates (the “Symply Trademarks”); (ii) make any public statements or issue press releases or similar announcements about this Agreement or its Services; or (iii) represent, directly or indirectly, that any product or any service provided by Licensee has been used, approved or endorsed by License.
  12. Governing Law & Jurisdiction
  13. This Agreement will be construed and interpreted in all respects in accordance with the laws of the state of California, without reference to its choice of law rules. Each party agrees to resolve any disputes arising out of or relating to this Agreement through binding arbitration in Los Angeles, CA administrated by the American Arbitration Association under its’ Commercial Arbitration Rules in front of one arbitrator mutually selected by the parties. Notwithstanding anything in this Agreement to the contrary, Symply may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors, and each party hereby submits to the jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds. Licensee agrees that any breach of the license restrictions or other infringement or misappropriation of the intellectual property rights of Symply or its licensors may result in immediate and irreparable damage to Symply for which there is no adequate remedy at law. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement. Furthermore, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.

  14. Notices
  15. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Mailed notices shall be sent to the addresses set forth on the first page of this Agreement, or the then current address as indicated on either parties’ website. Licensee also Sensitivity: Confidential consents to receive communications from Symply electronically by e-mail. Licensee agrees that all agreements, notices, disclosures, and other communications that Symply provides to Licensee electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

  16. General Provisions
  17. Licensee may not assign any rights under this Agreement without the prior written consent of Symply, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent to: (a) an affiliate; or (b) any person, firm, organization, corporation or other entity which succeeds to the business of the party as a going concern of such party by acquisition, merger, reorganization or otherwise. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral, except to the extent Symply makes any software or other products and services available to Licensee under separate written terms. The terms on any purchase order, confirmation, or similar document submitted by Licensee to Symply will have no effect and are hereby rejected. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties. Neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder. This Agreement may be entered into in one or more counterparts, each of which will be deemed an original, and all of which taken together shall constitute one and the same instrument.