PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS (THIS “AGREEMENT”). THIS AGREEMENT APPLIES TO YOUR USE/RESELL OF THE BACKOFFICE ASSOCIATES/SYNITI SOFTWARE OR MAINTENANCE SERVICES DESCRIBED HEREIN (EACH AN “APPLICABLE OFFERING”). BY (i) USING ALL OR ANY PORTION OF SUCH APPLICABLE OFFERING OR (ii) COMPLETING AN ORDER FOR SUCH APPLICABLE OFFERING WHICH INCORPORATES BY REFERENCE THIS AGREEMENT, THE PERSON OR ENTITY YOU REPRESENT, THE CUSTOMER, ACCEPTS AND AGREES TO AND BECOMES A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND THE CUSTOMER. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE APPLICABLE OFFERING. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH BACKOFFICE FOR USE OF THE APPLICABLE OFFERING, THEN SUCH AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT, WITH RESPECT TO SUCH APPLICABLE OFFERING NAMED IN SUCH AGREEMENT.
This Agreement is by and between Syniti and Reseller (as defined below) and is effective as of the date Software (as defined below) governed by the use of this Agreement was ordered by Reseller (the “Effective Date”). Each of Syniti and Reseller are sometimes referred to herein as a “Party” and collectively as the “Parties.” In consideration of the mutual promises and upon the terms and conditions set forth below, the Parties agree as follows:
NOW THEREFORE, in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties mutually agree as follows:
1.1 “Customer” means any independent end user (not affiliated with Reseller) which obtains rights to use a Product through Reseller for its own internal business purpose and not for further distribution or resale.
1.2 “Use Agreement” means Syniti’s end-user software license, subscription agreement, or cloud software subscription agreement, as then in effect, which governs a Customer’s use or access of a Subscription Service. Syniti’s current Use Agreement is available at http://bit.ly/CSSSTCv11.
1.3 “End-User Warranty” shall mean the warranty provided by Syniti to users of a Subscription Service, if any, as set forth in the Use Agreement in connection with any Subscription Service.
1.4 “First Level Support” means direct initial interaction with Customers regarding: (a) the use, access and operation of any Subscription Service; (b) intake and classification of errors regarding any Subscription Service; (c) delivery to Customers of any bug fixes, patches, error corrections, workarounds, new releases, updates and upgrades; (d) maintenance of a trouble ticketing system to track and manage all Customer interactions; (e) resolution of Customer questions regarding the use and operation of any Subscription Service, and (f) making technical staff available for problem identification and resolution.
1.5 “Intellectual Property Rights” shall mean any of Syniti’s patents, Trademarks, trade names, inventions, copyrights, design rights, know-how or trade secrets and any other intellectual property rights existing in the Territory or elsewhere, relating to the design, manufacture, programming, operation, sale, licensing, or support of any Subscription Service.
1.6 “Maintenance Services” means Syniti’s then current maintenance or uptime terms and conditions set forth in the Use Agreement at but excluding First Level Support (to be provided by Reseller).
1.7 “Subscription Service” means the object code version of all or any portion of a cloud-based software as a service, delivered software, or combination of cloud-based and delivered software made available to Customer by Syniti on a subscription basis, which Reseller is authorized to resell hereunder, and initially shall be as listed on Exhibit A, attached hereto. Each Subscription Service includes Maintenance Services for the Subscription Term. Each Subscription Service may be changed, removed, or added by Syniti, in its sole discretion, provided that Syniti gives at least thirty (30) days advance written notice of its intent to remove any Subscription Service from Exhibit A.
1.8 “Territory” has the meaning given such term in Exhibit A.
2.1 Appointment. Subject to the terms and conditions set forth herein, Syniti hereby appoints Reseller as a non-exclusive reseller of each Subscription Service to Customers in the Territory, and Reseller accepts such appointment. Syniti has the right to appoint other dealers, resellers, retailers, distributors, and sales representatives in the Territory or to make direct sales in the Territory, without any obligation to Reseller. When this Agreement says that Reseller will “purchase” or “sell” (or similar words) software programs, this means that Reseller will be authorized to permit Customers to receive a Subscription Service from Syniti in accordance with a Use Agreement entered into by and between Syniti and the Customer. Reseller may not make copies of any Subscription Service for resale and must furnish to its Customer any Subscription Service as furnished to Reseller by Syniti.
2.2 Syniti Documentation. Reseller’s right to distribute any Syniti documentation and Customer’s rights to use the Syniti documentation shall be governed exclusively by the terms and conditions of Section 2.1 and the Use Agreement.
2.3 Territorial and Customer Limitation. Reseller may not sell any Subscription Service for use outside the Territory or to entities other than Customers, without the prior written consent of Syniti. Reseller must purchase the Subscription Service from the price list applicable to the Customer’s country where such Subscription Service will be used. Reseller agrees that any prohibited sale will constitute a material breach of this Agreement.
2.4 Reservation of Rights. Subject only to the limited rights granted to Reseller hereunder, Syniti reserves all rights, including all Intellectual Property Rights, in and to any Subscription Service, the Maintenance Services and Trademarks, and any and all localizations and translations thereof. No ownership rights in any Subscription Services, the Maintenance Services, Trademarks, localizations, or translations, are granted or transferred to Reseller under this Agreement. This Agreement is not a sale of any Subscription Service or the Maintenance Services or any technology or intellectual property thereof.
2.5 Use Agreement. Each Subscription Service is subject to a Use Agreement. The Use Agreement is subject to change by Syniti without notice, and the Use Agreement that applies to a Customer’s use of a Subscription Service is the most recent version in existence as of the date of such Order (unless a separate agreement is provided by Syniti). Reseller agrees to inform its Customers of the Use Agreement and the Customer’s obligation to enter into the Use Agreement with Syniti as a condition of license, use and access, and to notify Syniti of known breaches by any of its Customers.
3.1 License Grant. Subject to the terms and conditions and the accuracy of Reseller’s representations hereinafter set forth, Syniti grants to Reseller a non-exclusive, non-transferable, non-sublicensable license to use and demonstrate any Subscription Service specified in Exhibit A hereto within the Territory solely for non-production demonstration purposes as contemplated by this Agreement. No additional copies of any Subscription Service or any part thereof may be made by Reseller without the express written consent of Syniti.
3.2 Restrictions on Use. Reseller will not: (i) use any Subscription Service for service bureau use, outsourcing, renting, or time-sharing; (ii) use any Subscription Service for volume, stress, or performance testing activities without prior written permission from Syniti; (iii) reprint, distribute, or embed any Syniti documentation or other content; (iv) copy, modify, create a derivative work of any Subscription Service; (v) reverse engineer, reverse assemble, disassemble or decompile any part of any Subscription Service; (vi) attempt to discover any source code of any Subscription Service, modify any Subscription Service, or use unauthorized modified versions of any Subscription Service; (vii) use any Subscription Service, or any products or services provided by Syniti to develop a similar or competitive product or service; (viii) gain or attempt to gain unauthorized access to any Subscription Service; (ix) interfere with or disrupt any Subscription Service or a Customer’s access to any Subscription Service; (x) introduce any open source software into any Subscription Service; or (xi) permit a competitor to Syniti to use the licenses set forth in this Section 3.
4.1 Prices. Prices are as stated in Syniti’s published price list for the Territory in effect at the time the purchase order is received, less the applicable Reseller fee as stated in Exhibit A herein. Syniti may, from time to time, unilaterally revise such published list prices. Syniti will use commercially reasonable efforts to inform Reseller of any price increase at least thirty (30) days in advance of the effective date of such increase, and will allow Reseller to purchase additional Subscription Services at the current price, provided (a) the corresponding purchase order is received by Syniti prior to the effective date of the price increase, and (b) any Subscription Service ordered are for delivery within ninety (90) days of the purchase order date. In addition, Syniti shall honor any price quoted in a valid, unexpired, formal written price quotation provided by Syniti to Reseller in connection with a specific pending proposal or existing contract between Reseller and a Customer. Any price decrease shall be effective when announced and shall apply to all orders for Subscription Services then pending but not yet delivered. Except as provided herein, any revised list prices shall apply to all orders received after the effective date of the revision.
4.2 Payment Terms and Credit Limits. Payment terms are advance payment unless credit terms have been established in writing with Syniti. If credit terms are established, payment terms are net thirty (30) days from the date of invoice, unless otherwise specified by Syniti. All payments shall be in Philippines Peso or as otherwise may be permitted by Syniti in its sole discretion. Credit limits and payment terms decisions are made, at Syniti’s sole discretion, by an analysis of Reseller’s current and historical financial information, bank references, trade references, and payment practices. To facilitate Syniti’s determination of credit limits and payment terms, Reseller must provide current financial information to Syniti on an annual basis, or more frequently if requested by Syniti. Syniti may withdraw or revise credit terms upon notice to Reseller in the event Syniti determines, in its sole discretion, that such credit terms would create an unreasonable credit risk to Syniti. In such event, Syniti may impose advance payment, or letter of credit terms, in its sole discretion.
4.3 Interest. All amounts which are not paid by Reseller as required by this Agreement shall be subject to a late charge equal to one and one-half percent (1.5%) per month (or, if less, the maximum rate permitted by applicable law), compounded daily. Syniti reserves the right to suspend deliveries of any Subscription Service under this Agreement during such time as Reseller is delinquent on its account.
4.4 Reseller’s Resale Prices. Reseller is free to determine and has the sole responsibility for the prices it charges to Customers.
(a) General. The prices referred to in this Agreement do not include taxes and other similar charges. Reseller is responsible for, and shall pay or reimburse Syniti for, all taxes, including sales, use, general services, goods and services, gross receipts, excise, withholding, personal property, import duties, tariffs, or other federal, state, or local taxes, or any similar assessments based on the sale to Reseller of Subscription Services, or other services provided under this Agreement, and any penalties, interest, and collection or withholding costs associated with any of the foregoing items, excluding taxes on Syniti’s net income.
(b) Tax Exemption. Reseller may provide Syniti with a tax exemption certificate acceptable to the taxing authorities in lieu of paying such taxes. Reseller shall reimburse Syniti for any fines, penalties, taxes, and other charges, including expenses incurred by Syniti, due to Reseller’s submission of invalid information.
(a) Placement of Orders. All orders placed by Reseller hereunder shall be pursuant to a written purchase order submitted by fax, e-mail, or other method as mutually agreed (each, an “Order”), that includes: (i) a description of each Subscription Service ordered; (ii) the use restriction with respect to any such Subscription Service; (iii) the requested download or accessibility dates; and (iv) Reseller’s purchase price for each Subscription Service ordered. Each Order shall also include the duration of the period of time a Customer is authorized to use and access a Subscription Service (the “Subscription Term”), provided, that, unless otherwise agreed to in an Order, any and all Subscription Terms shall expire and become renewable at the end of any calendar or fiscal year, as applicable.
(b) Acceptance of Orders. Syniti shall use reasonable efforts to notify Reseller in writing of its acceptance of an Order within seven (7) days of receipt. If any changes are required to be made to an Order in order for Syniti to accept it, or if Syniti rejects a purchase order, Syniti shall use reasonable efforts to notify Reseller in writing of the necessary changes or of its rejection within seven (7) days of receipt of the purchase order.
(c) Agreement Governs Purchase Order. Although Reseller may use its standard purchase order and other forms, the terms and conditions of this Agreement will prevail over Reseller’s forms, and any conflicting or additional terms in such forms will be of no effect.
4.7 Download Dates and Rescheduling. Download availability or date of accessibility shall be scheduled by Syniti to meet Reseller’s requested delivery date whenever possible, but Syniti shall not have any liability to Reseller for failure to meet such date. Syniti shall make reasonable efforts to meet any download availability or accessibility date(s) quoted or acknowledged; however, Syniti shall not be liable for any failure to meet such date(s).
5.1 General Conduct. Reseller agrees: (i) to conduct its business in a manner that reflects favorably at all times on any Subscription Service and the good name, goodwill, and reputation of Syniti; (ii) to avoid deceptive, misleading, and unethical practices that are or might be detrimental to Syniti or the public, including disparagement of Syniti or any Subscription Service; (iii) to make no representations or warranties to Customers or to the trade press with respect to the specifications, features, or capabilities of any Subscription Service other than those made by Syniti.
5.2 Minimum Activity Commitments. Reseller shall meet or exceed the Minimum Activity Commitments and other requirements set forth in Exhibit B, which exhibit Syniti may modify prior to the commencement of any Renewal Term hereunder. At any time during the Term, in the event Syniti determines that the Reseller has failed, or is failing, to meet or exceed such Minimum Activity Commitments, Syniti, may, at its option (i) modify the applicable Reseller fee made available to Reseller by providing written notice to Reseller; (ii) reclassify Reseller to another program level, or (iii) terminate this Agreement pursuant to Section 10(a)(ii).
5.3 Quarterly Marketing Plan. Reseller will submit a written marketing plan to Syniti no later than thirty (30) days prior to the end of each calendar quarter for the following quarter, setting forth its proposed efforts in support of Syniti’s business plan and key objectives for that quarter, together with such additional information as Syniti may request. Promptly thereafter, as requested by Syniti, the Parties will review the marketing plan and such other matters as may be appropriate to assist Reseller in promoting, marketing, and concluding sales of any Subscription Service in the Territory.
5.4 Customer Licensing. Reseller shall make available to each Customer the Use Agreement provided by Syniti. Each Customer receiving any Subscription Service shall agree to become a party to such Use Agreement subject to the terms and conditions of such Use Agreement.
5.5 Maintenance Services. The purchase of certain Subscription Services requires that the Reseller concurrently resell, and that the Customer purchase, Maintenance Services for an initial term of one (1) year, provided, however that, unless otherwise agreed to in an Order, Reseller shall provide all First Level Support for any Subscription Service to Customers. Reseller shall maintain a database of the expiration dates of Customer’s Maintenance Services and shall notify the Customer prior to the expiration of Maintenance Services and provide Customer with the option of renewing Maintenance annually only directly with Syniti. Upon request by Syniti, Reseller shall provide said database contents to Syniti.
5.6 U.S. Government Restricted Rights. Reseller shall ensure that each Customer that is an agency, department or entity of the United States Government understands and agrees that each Subscription Service is a commercial product, which was developed at private expense; and, in accordance with 48 C.F.R. 227.7202.4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government’s rights in any Subscription Service, including its rights to use, modify, reproduce, release, perform, display or disclose any Subscription Service, will be subject in all respects to the commercial license rights and restrictions provided in the Use Agreement.
5.7 Audit Rights. Reseller shall maintain full and complete records of its sales of Subscription Services and other evidence of its compliance with this Agreement, including without limitation copies of the reports described in Sections 5.2 and 5.5, for at least three (3) years after the sale of such Subscription Services. Syniti may, at any time during the period when Reseller is obliged to maintain such books and records, audit such books and records upon thirty (30) days written notice in order to confirm the accuracy of such reports; provided, however, that no more than one (1) such audit may be conducted in any six (6) month period. Any such audit shall be performed at Syniti’s expense during normal business hours. If requested by Reseller, the auditor shall execute a reasonable form of non-disclosure agreement.
5.8 Feedback and Further Assistance by Reseller. Reseller shall provide Syniti with prompt written notification of any comments or complaints about any Subscription Service that are made by Customers and of any problems with any Subscription Service or their use of which Reseller is aware (“Feedback”). Such Feedback shall be the property of Syniti and shall be considered Syniti’s Confidential Information. In addition, Reseller agrees to provide to Syniti such other and further assistance as Syniti may reasonably request from time to time in connection with the manufacture, resale and support of any Subscription Service.
5.9 Indemnity by Reseller. Reseller shall defend, indemnify, and hold harmless Syniti and Syniti’s directors, officers, employees, and agents (collectively, the “Indemnified Party”) from and against all claims, suits, losses, costs, expenses, and liabilities (including Syniti’s reasonable attorney’s fees) arising out of (i) any breach of this Agreement by Reseller; (ii) Reseller’s representation of any Subscription Service in a manner inconsistent with Syniti’s descriptions or End-User Warranty; or (iii) any intentional wrongful acts, or negligent acts or omissions of Reseller, its directors, officers, employees, or agents in connection with this Agreement. Syniti shall have the right to participate at its expense in the defense of any such dispute. Notwithstanding the foregoing, Reseller assumes no liability hereunder for claims or actions resulting from or arising out of any Subscription Service standing alone. Syniti shall (a) give Reseller prompt notice in writing of such claim or dispute, (b) permit Reseller sole control, through counsel of its choice to defend or settle such claim or dispute (subject to Syniti’s approval of any settlement, which will not be unreasonably withheld or delayed), and (c) give Reseller all the needed information, assistance and authority, at Reseller’s expense, to enable Reseller to defend or settle such claim or dispute.
5.10 Compliance with Laws.
(a) General. Reseller shall comply with all applicable federal, state, and local laws in performing its duties hereunder and in any of its dealings with any Subscription Service.
(b) Export Law Regulations. The Subscription Services, technical data, software, documentation, or other materials supplied hereunder (collectively “Technical Data”) and the product thereof are subject to all pertinent import and export laws, rules and regulations of the United States, specifically the U.S. Export Administration Regulations and the laws, rules, and regulations of the country in which Reseller obtained the Technical Data. Reseller agrees that it will not export or re-export any Technical Data received from Syniti except in compliance with all applicable U.S. export control regulations and any requirements imposed by the authorities in the country of exportation. Reseller agrees to comply with all applicable international and national laws that apply to the Technical Data, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Reseller agrees that Reseller does not intend to, and will not, without the prior written approval, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230 U.S.A., transmit either directly or indirectly, any portion of the Technical Data to any country for which such approval is required. The Technical Data may not be exported or re-exported to certain countries or to persons or entities prohibited from receiving U.S. exports (including Denied Parties, Specially Designated Nationals, and entities on the Bureau of Export Administration Entity List or involved with missile technology or nuclear, chemical, or biological weapons). These requirements shall survive the term or termination of this Agreement or relationship between Syniti and Reseller. Violation of any export law requirements shall be grounds for immediate termination of this Agreement without a cure period, in accordance with Section 10.2 below.
5.11 Protection of Syniti Rights. Reseller shall not take any action to jeopardize, limit, or interfere in any manner with Syniti’s ownership of or rights with respect to any Subscription Service. Reseller may not disclose the results of any performance, functional, or other evaluation or benchmarking of any Subscription Service to any third party without the prior written permission of Syniti. Reseller shall use its best efforts to prevent the unauthorized manufacture, duplication, reverse engineering (in any form), distribution or use of any Subscription Service. Reseller shall take all available steps to protect Syniti against piracy, registration without prior written Syniti consent, or other infringement of any copyright, trademark, or other intellectual property. Reseller shall take all available steps to protect Syniti against the misappropriation or unauthorized disclosure of any Syniti trade secret or confidential information, and to protect Syniti’s right, title and interest in and to any Subscription Service, the Maintenance Services and Trademarks. Reseller shall promptly notify Syniti of any infringement of any copyright, trademark, or other intellectual property or right of Syniti, or of any misappropriation or unauthorized disclosure of any trade secret or confidential information of Syniti.
6.1 Information and Brochures. Syniti shall provide Reseller with marketing and technical information concerning any Subscription Service, as well as reasonable quantities of brochures, price lists, advertising, literature, reprints of published articles, and other Subscription Services data. Syniti hereby grants to Reseller a limited, nonexclusive, nontransferable, revocable license to reproduce, for distribution to Customers and prospective customers within Territory only, any Subscription Services collateral developed by and provided by Syniti hereunder. Reseller shall include all copyright and trademark and proprietary legends and notices in full on all such reproductions as set forth in any Subscription Service collateral developed by Syniti, and shall advertise and promote any Subscription Service at Reseller’s sole cost and expense, with copies of such advertisements and promotional materials to be submitted to Syniti for its prior approval. Reseller shall not remove any of Syniti’s marks (or those of Syniti’s licensor(s)) from any Subscription Services, nor shall Reseller add any additional marks to any Subscription Service without obtaining Syniti’s prior written consent thereto. If so requested in writing by Reseller, Syniti may (at its sole discretion) grant to Reseller a royalty-free, non-transferable, non-exclusive license to translate and distribute, at Reseller’s sole cost and expense, Subscription Services collateral developed and provided by Syniti hereunder, where such distribution is to Customers and prospective customers within Territory only; before first use, Reseller must submit any such translation (in final format) to Syniti for approval. If so requested in writing by Reseller, Syniti may (at its sole discretion) grant to Reseller a royalty-free, non-transferable, non-exclusive license to, at Reseller’s sole cost and expense, modify or extract elements of Subscription collateral developed and provided by Syniti hereunder, where such modification or extraction is for use solely in Reseller’s collateral distributed to Customers and prospective customers within Territory only; before first use, Reseller must submit any such collateral (in final format) to Syniti for approval.
6.2 Changes and Discontinuation to Subscription Services. Syniti reserves the right to change, improve, add, or discontinue manufacture of any Subscription Service at any time. Syniti shall use reasonable commercial efforts to provide advance written notice of any major changes to Subscription Services purchased under this Agreement that affect form, fit, or function and to provide thirty (30) days advance written notice of the discontinuance of any Subscription Service purchased under this Agreement.
7.1 Right to Use Trademarks. During the Term of this Agreement, Reseller shall have the right to indicate to the public that it is a ‘Reseller’ of each Subscription Service and to advertise such Subscription Services within the Territory using the Trademarks; provided, however, that (i) Reseller conspicuously indicates that Trademarks are owned by Syniti; and (ii) Reseller complies with the Trademark Guidelines; and (iii) Reseller obtains Syniti’s written approval prior to all first uses of the Trademarks. Reseller acquires no right to Syniti Trademarks by its use of the Trademarks and any goodwill from such use inures to Syniti. Upon termination of this Agreement for any reason, Reseller will immediately cease all use of the Trademarks and, at Syniti’s election, destroy or deliver to Syniti all materials in Reseller’s control or under Reseller’s possession which bear the Trademarks, including any sales literature. Reseller will not challenge any Intellectual Property Rights claimed by Syniti in the Trademarks, nor assert any rights in the Trademarks other than as granted in this Section 7.1, nor use or seek to register any mark or trade name which is confusingly similar to a Trademark. Reseller hereby grants to Syniti a royalty-free, non-transferable, non-exclusive license to use and reproduce Reseller’s trademarks and trade names during the Term in order to advertise, market, and support Syniti’s rights under this Agreement.
7.2 Enforcement of Trademarks. Syniti shall have the sole and exclusive right to bring legal action in the Territory for infringement with respect to Syniti Trademarks. Reseller shall assist Syniti in such legal proceedings. Reseller shall notify Syniti promptly of any infringement of a Trademark of which it becomes aware.
8.1 Any warranty for any Subscription Service shall run directly from Syniti to the Customer, under the End-User Warranty. NO WARRANTY OF ANY NATURE AS TO ANY PRODUCT, THE SUBSCRIPTION SERVICES, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY FOR USE OR PERFORMANCE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ACCURACY OF INFORMATION GENERATED SHALL RUN FROM SYNITI TO RESELLER UNDER ANY CIRCUMSTANCES. SYNITI NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, OR USE OF ITS PRODUCTS, THE SUBSCRIPTION SERVICES OR THE MAINTENANCE SERVICES.
Choice of Law and Jurisdiction
Notices or Communication
Revision date: June 30, 2020