Platform Access and Services Agreement
This PLATFORM ACCESS AND SERVICES AGREEMENT (“Agreement”) is effective the date services first began (“Effective Date”), by and between Synapse Group Corporation (“Synapse”), a California corporation, with a principal place of business at One Market, 36th Floor, San Francisco, CA 94105 and Client (“Client”).
Whereas Synapse has developed a proprietary rich media digital publishing and analytics platform, Syndeca ™, which among other functionality, enables the publishing, hosting and sharing of digital content and the tracking and analytics from users accessing such content;
Whereas Synapse provides certain professional services to its clients using its proprietary platform and enables access to the online services components of such platform on a subscription basis;
Whereas, Client desires to obtain certain services from Synapse pursuant to the terms and conditions set forth in this Agreement.
Now, Therefore, in consideration of the mutual covenants and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Synapse and Client agree as follows:
1.1 “Client Assets” shall mean the Client assets (including any adaptations of the same) provided by Client or its agents to Synapse and/or otherwise uploaded to the Syndeca Platform by Client or on behalf of Client, including but not limited to any trademarks and service marks, images, pictures, videos, HTML, Client Products and/or Services descriptions, or other marketing or pricing data, or any other written and digital content or information delivered by Client, its agents or systems to Synapse
1.2 “Client Products and/or Services” means the products and/or services of Client that Client wishes to promote using the Online Services.
1.3 “Consumers” shall mean the consumer or potential consumer of Client Products and/or Services.
1.4 “Online Services” shall mean the online services delivered by Synapse via the web using the Syndeca Platform, as identified on the Statement of Work mutually executed by the parties referencing this Agreement.
1.5 “Professional Services” shall mean the professional services to be delivered by Synapse which are identified and described in mutually agreed upon Statement of Work executed by the parties which references this Agreement.
1.6 “Digital Publication” shall mean any digital catalogs, look books, circulars, mailers or other publications developed hereunder using the Syndeca Platform and Client Assets, which is created under this Agreement in order to promote Client Products and/or Services.
1.7 “Services” shall mean the Online Services and/or Professional Services identified in a Statement of Work to be delivered by Synapse hereunder.
1.8 “Syndeca Platform” means Synapse’s underlying software as a service platform and technology (including any software, hardware, firmware, or other platform technology or software and any modifications updates or upgrades of the same) which is used by Synapse to provide Services (either Online Services and/or Professional Services identified in the relevant Statement of Work).
1.9 “Statement of Work” or “SOW” means a statement of work or Statement of Work attached hereto or otherwise executed by Client and Synapse which describes the Online Services and/or any Professional Services to be delivered by Synapse to Client, together with any Client obligations or Specifications, associated fees, and such other details as the parties may agree therein.
2. Professional Services; Change Orders; Acceptance; Designated Persons; Client Responsibilities.
2.1 Professional Services. Subject to the terms of this Agreement, Synapse agrees to use reasonable commercial efforts to perform the Professional Services set forth in the Statement of Work and to deliver the deliverables set forth in the Statement of Work (“Deliverables”) each in accordance with the any relevant specifications set forth in the Statement of Work (if any) (“Specifications”).
2.2 Change Orders. In the event that Client desires to request a change to a Statement of Work with respect to the scope of the Professional Services, the Specifications, the Deliverables or any other aspect of the Statement of Work, Client shall submit to Synapse a change order request, on which Client shall describe the exact nature of the changes requested. Within a mutually agreed upon time thereafter, Synapse will provide Client with at least the following information in response to the request: (i) Synapse’s proposal for implementing the requested changes in the change order request; (ii) the amount of additional fees, if any, payable to Synapse as a result of the proposed changes; and (iii) the impact, if any, on the delivery schedule arising from the proposed changes. Within three (3) business days after receiving Synapse’s response, Client shall accept or reject the same by written notice to Synapse; otherwise, the response shall be deemed rejected. No change order request or response shall be binding upon either party unless a final change order is agreed to and signed by both parties (“Change Order”). Upon execution by both parties, a signed Change Order shall amend the original Statement of Work and become a part thereof. Notwithstanding the foregoing, either party shall have the right to refuse a Change Order request for any reason in its sole and absolute discretion. Unless otherwise agreed to by the parties, Synapse may suspend performance which the Change Order is pending resolution.
2.3 Acceptance. If Specifications are described in the SOW with respect to a Deliverable, then after Synapse delivers the Deliverable, Client may accept or reject the Deliverable based on such Specifications within five (5) business days after delivery (unless a different acceptance period is identified in the SOW)(“Acceptance Period”); failure to give notice of acceptance or rejection within such Acceptance Period will constitute acceptance. A rejection notice will be effective only if it provides a detailed description of any material failures of the Deliverables to meet the Specifications stated in the relevant SOW. If Client properly rejects the Deliverables, Synapse will, attempt to promptly correct the failures specified in the rejection notice and the provisions above shall be reapplied until the Deliverable is accepted; provided that after the third or any subsequent rejection, either party may terminate the SOW and return any fees received for the failed Deliverable (if any) and Client shall return to Synapse any Deliverables rejected upon any such termination.
2.4 Designated Person. All communications between the parties and all materials submitted to or by each party for formal approval and/or acceptance shall be with or to or by a single individual designated by each party who shall: (a) be available to the other party during normal business hours via telephone and/or email; (b) respond to inquiries (whether by telephone, email, or otherwise) within one (1) business day from the time of such inquiry; and (c) be sufficiently authorized to make binding decisions and take the actions required under this Agreement (the “Designated Person(s)”). The parties shall have no obligation to communicate with or consider for approval or respond to any materials submitted other than through or by the Designated Person. Each may change its Designated Person from time to time by written notification to the other of such change. If the Designated Person is changed, the party whom is changing its Designated Person is obligated to notify the other party within 24 hours.
2.5 Client Delays. The Client understands that, in order to perform or deliver Services and/or Deliverables in a timely and efficient manner on the schedule agreed to by the parties, Synapse will need to rely on Client for: (a) the timely delivery of certain Client Assets and (b) timely access to and responses from Client personnel (including Designated Person) and (c) timely performance of Client obligations/tasks identified in the SOW. Therefore, any dates or time periods relevant to Synapse’s performance will be extended appropriately and equitably to reflect any delays resulting from Client actions or inactions or changes to Client Assets.
3. Access to Syndeca Platform; Hosting; Restrictions; Client Responsibilities; Client Assets.
3.1 Access to Syndeca Platform. Subject to the terms of this Agreement, including the payment of relevant fees, to the extent Online Services are outlined in a Statement of Work, Synapse will provide Client access to the Online Services identified in the Statement of Work for the subscription term identified in the relevant Statement of Work.
3.2 Hosting of Digital Publication. To the extent parties have agreed in a Statement of Work that Synapse with host the Digital Publication, Synapse will host the Digital Publication for the hosting period identified in the relevant Statement of Work.
3.3 Restrictions. Client shall not, and shall not allow any third party to: (i) use or duplicate the Syndeca Platform beyond the relevant Subscription Term; (ii) modify, translate, or prepare derivative works based upon the Syndeca Platform; (iii) reverse-compile or decompile, disassemble or otherwise reverse engineer the Syndeca Platform; (iv) disclose or publish the performance results for Syndeca Platform to any third party; (v) provide for uploading or upload any Client Assets to Syndeca Platform that violates or infringes on any third party rights or that is illegal, obscene, defamatory, or libelous; or (vi) use any Syndeca Platform to store or transmit infringing, libelous, other unlawful or tortious material, or other material in violation of any third party privacy or other rights; or (vii) interfere with or disrupt the integrity or performance of any Syndeca Platform; or (vii) defeat or circumvent any controls set within the Syndeca Platform.
3.5 License to Client Assets. Subject to the terms of this Agreement, Client hereby grants to Synapse a non-exclusive, non-revocable, non-transferable, royalty-free, limited license to use Client Assets solely to provide the Services contemplated herein. Synapse reserves the right to temporarily or permanently remove or remove access to any content/material available on or through the Digital Publications if it becomes the subject of any dispute, or if in Synapse sole and reasonable judgment believes the content may be illegal, libelous, defamatory, or obscene or otherwise violative of any third party right or in violation of any agreement or policy.
4. Payments; Taxes; Expenses. Client shall pay Synapse the fees identified in the Statement of Work in accordance with the payment terms set forth in the applicable Statement of Work (the “Fees”). Unless otherwise specified in the relevant SOW, fifty percent (50%) of all Fees specified in the SOW shall be due on the Effective Date of the relevant SOW and the remaining fifty percent (50%) shall be paid upon notice of completion of the Deliverable(s). Client’s payment of Synapse’s invoices shall in no way be conditioned upon or delayed pending Client’s receipt of payment from any third party. Unpaid Fees shall accrue interest at the rate of 10% per annum. Client shall be responsible for the payment of all sales, use and similar taxes not related to Synapse’s income. Synapse shall be entitled to reimbursement from Client for all approved out-of-pocket expenses incurred in connection with the provision of Services under this Agreement, including, without limitation, travel, lodging, meals and transportation, such expenses to be billed to Client on a monthly basis and due within thirty (30) days of invoice. Synapse shall be entitled to expenses incurred in its efforts to collect unpaid Fees, if necessary, including, without limitation, court costs and reasonable attorneys’ fees.
5. Term and Termination of Agreement.
5.1 Term. This Agreement shall become effective on the Effective Date, and unless terminated in accordance with the terms herein, this Agreement shall continue until all Services outlined in the Statement of Work have been performed and subscriptions expired.
5.2 Termination for Breach. Either party may terminate this Agreement upon written notice to the other party in the event of a material breach by the other party, which breach remains uncured for more than thirty (30) days (ten (10) days for non-payment) after written notice thereof. The foregoing right to terminate is in addition to, not in lieu of, all other rights and remedies which may be available to either party under this Agreement, at law and/or in equity.
5.3 Bankruptcy or insolvency. Either party may terminate this Agreement upon ten (10) days written notice to the other party upon the occurrence of any one or more of the following: (i) the institution by or against either party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts; (ii) either party making an assignment for the benefit of creditors; or (iii) either party’s dissolution.
5.4 Effect of Termination. The obligations in the following Sections will survive any expiration or termination of this Agreement: Sections 1, 3.3, 3.4, 4, 5, 6, 7, 8, 9, 10, and 11. All other obligations will terminate as of the effective date of expiration or termination.
6. Confidentiality. Each party agrees that any non-public data, information and other materials regarding the products, services or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided to the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary shall be deemed the “Confidential Information” of the other Party. Without limiting the foregoing, the Syndeca Platform, any performance data, benchmark results, and technical information relating thereto, Synapse’s pricing information shall be deemed the Confidential Information of Synapse. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or (iv) is approved for release by written authorization of the Disclosing Party. Each party (the “Receiving Party”) agrees to keep the Confidential Information of the other party (the “Disclosing Party”) in confidence and not to use such Confidential Information except in performing hereunder.
7. Ownership. Client acknowledges that, as between the parties, Synapse owns all right, title, and interest in and to the Synapse Syndeca Platforms (including all components of and underlying technology relating to the same and any derivatives or modifications of the same by whoever created). Synapse acknowledges that Client and its’ licensors own all right, title and interest in and to the Client Assets.
8. Indemnity. Synapse hereby agrees to defend, indemnify and hold Client harmless from and against all claims, demands, costs, damages and/or losses incurred by Client arising from any third party claim (a) that the Syndeca Platform infringes on any third party copyright or (b) that Synapse has misappropriated any third party trade secret in connection with any Services provided under this Agreement. Except to the extent covered by the indemnity above, Client hereby agrees to defend, indemnify and hold Synapse harmless from and against all claims, demands, costs, damages and/or losses incurred by Synapse relating to or arising from: (l) the use or access to the Syndeca Platform as contemplated herein; (m) the Client Assets or (n) any promises or warranties Client extends to Consumers or (o) any violation of any law by Client or by Client Assets or any violation of Consumer rights, Consumer end user policies (including privacy policies) or Consumer agreements; and/or (p) any violation of any third party rights of privacy or publicity or any violation of any third party intellectual property rights or any claim of defamation, libel, or misrepresentation arising from or in connection with the Client Assets or Client directed features/functionality. The forgoing indemnity obligations shall be subject to the following: (x) that the indemnitee gives the indemnitor prompt written notice of any such claim; (y) that the indemnitee permits the indemnitor to control and direct the defense or settlement of any such claim; and (z) that the indemnitee provides the indemnitor all reasonable assistance in connection with the defense or settlement of any such claim, at the indemnitor’s sole expense.
9. Warranties; Disclaimers.
9.1. Services Warranty. Synapse warrants to Client that all Services and Deliverables provided hereunder by Synapse shall meet the relevant Specifications outlined in the SOW. Client must notify Synapse of any warranty deficiencies within thirty (30) days from performance or delivery of the deficient Service or Deliverable in order to receive any warranty remedy for such deficiency. For any breach of the forgoing warranty, Client’s exclusive remedy shall be for Synapse to correct or re-perform such deficient Services and redeliver any deficient Deliverables, provided that if correction or re-performance in compliance with this warranty is not possible or practical, then Client shall be entitled to a refund of the relevant fees paid to Synapse for such deficient Services and/or Deliverables.
9.2 Exclusions. The express warranties specified above do not apply (i) if the applicable Service or Deliverable or any portion thereof has been altered by anyone other than Synapse or its representatives (ii) if Deliverable is used on equipment, products, or systems not meeting specifications identified by the parties in the relevant SOW or (v) for problems arising from third party software, systems or data.
9.3 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH THIS SECTION, NEITHER PARTY PROVIDES ANY WARRANTIES OF ANY KIND WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SYNAPSE IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS, SERVICES, SYSTEMS OR DATA, EVEN IF SUCH THIRD PARTY PRODUCTS, SERVICES, SYSTEMS OR DATA ARE INTEGRATED WITH OR COMMUNICATE WITH THE SERVICES OR DELIVERABLES PROVIDED HEREUNDER.
10. Limitation of Liability. SYNAPSE SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF SYNAPSE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. SYNAPSE’S MAXIMUM AND TOTAL LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, ANY STATEMENT OF WORK, THE SERVICES, DELIVERABLES AND/OR ANY OTHER MATERIALS PROVIDED HEREUNDER SHALL NOT EXCEED THE TOTAL OF THE PAYMENTS ACTUALLY PAID TO AND RECEIVED BY SYNAPSE UNDER THE APPLICABLE STATEMENT OF WORK DURING THE TERM HEREOF. THE FORGOING LIMITATIONS SHALL NOT APPLY WITH RESPECT TO ANY LIABILITY ARISING FROM THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS DESCRIBED HEREIN OR ANY INDEMNITY OBLIGATION OUTLINED HEREIN.
11.1 Notices. For purposes of all formal notices required to be given hereunder, the addresses of the parties hereto shall be as indicated below. All notices shall be in writing and shall be deemed to have been duly given on the date sent if sent by facsimile, the receipt of which is confirmed by return facsimile, or on the date received if sent by first class registered or certified mail or its equivalent, return receipt requested, or overnight delivery service addressed to the parties at their addresses set forth below:
If to Synapse:
Attn: Zach Saltzberg
San Francisco, CA 94105
11.2 Relationship of the Parties. The parties hereto are independent contractors as to each other and nothing in this Agreement shall give rise to a partnership, joint venture, or other relationship between the parties. Neither party is authorized to make commitments on behalf of or otherwise bind the other party without the prior written consent of that party.
11.3 Non-solicitation. During the term of this Agreement and continuing for one (1) year after its termination, Client shall not, without the written consent of Synapse, solicit (either directly or indirectly) any employee or consultant of Synapse, for the purpose of engaging such employee or consultant as an employee, consultant, agent or independent contractor, or engage the services of such employee or consultant as an employee, consultant, agent or independent contractor. In the event Client does so engage any such person, Client shall pay Synapse, a fee equal to 300% of such person’s total yearly compensation (at the rate prevailing immediately after such employee’s engagement) as a reimbursement to the other party of its recruitment and training costs. This Section shall survive termination or expiration of this Agreement.
11.4 Entire Agreement. This Agreement, including all Statements of Work, all of which are incorporated herein by reference, contains the entire understanding and agreement of the parties with respect to the subject mater contained herein. This Agreement supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided, and may not be altered, modified or waived in whole or in part, except in writing, signed by duly authorized representatives of the parties. In the event of a conflict between the terms stated herein and the terms specified in a Statement of Work, the terms herein shall govern, unless (and only to the extent) the parties explicitly state the desire to override the terms herein with terms in the Statement of Work.
11.5 Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, that provision shall modified, limited or eliminated to the minimum extent necessary to effectuate the parties original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
11.6 Assignment. Synapse may use its employees and contractors to perform the Services, provided that Synapse is solely responsible for its employees and contractors and their compliance with the terms of this Agreement. Neither party may assign this Agreement to a third party without the other party’s prior consent, provided, however, that either party may freely assign this Agreement to a successor of all or substantially all of its stock, assets or business, provided such successor agrees in writing to be bound by the terms of this Agreement.
11.7 Waiver and Amendments. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless consent is given by both parties in writing. No failure or delay by either party in exercising any rights, powers, or remedies under this Agreement shall operate as a waiver of any such right, power, or remedy.
11.8 Governing Law. The laws of the State of California shall govern the validity, construction, performance, and enforcement of this Agreement without giving effect to principles of conflicts of laws.
11.9 Dispute Resolution.
(a) Disputes. The Parties will attempt in good faith to promptly address and resolve by negotiation any legal controversy or claim arising out of or relating to this Agreement (whether in contract, statute, tort such as negligence, or otherwise (each a “Dispute”). If necessary for resolution, the Dispute must be escalated to appropriate senior management of each Party.
(b) Mediation. If good faith settlement negotiations pursuant to section (a) above are not successful within thirty (30) days, either Party may commence mediation by providing to JAMS and the other Party a written request for mediation, setting forth the subject of the Dispute and the relief requested. The Parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutral mediators and in scheduling the mediation proceedings which must, in any event, occur within thirty (30) days after written notice by the Party requesting mediation. The Parties covenant that they will participate in at least one full day of mediation in good faith and that they will share equally in its costs. If mediation fails to resolve the Dispute, the Parties will resolve the Dispute as set forth in Section (c) below.
(c) Choice of Forum. If neither Party requests mediation, or if mediation is not successful, the Parties agree that any Dispute will be decided in its entirety by a single judge sitting in the federal or state courts located in San Francisco, California (“Competent Courts”). The Parties irrevocably consent to the jurisdiction of such courts and waive any right to object to the venue of such courts. THE PARTIES SPECIFICALLY WAIVE ALL RIGHTS TO TRIAL BY JURY.
(d) Arbitration. If, for any reason, the jury trial waiver in Section (c) above is declared unenforceable by a Competent Court, the Parties agree to arbitrate the Dispute, and either Party may file a written demand for final and binding arbitration, which proceeding must occur within one hundred eighty (180) days following the initial demand. Any arbitration will be conducted before a single arbitrator in San Francisco, California. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, and judgment on the award may be entered by any court of competent jurisdiction. The Arbitrator shall award the prevailing party reasonable costs, fees, and expenses, including attorney’s fees incurred by the prevailing party in connection with such arbitration. Unless otherwise agreed by the Parties, the mediator will be disqualified from serving as arbitrator in the case. The provisions of this Section may be enforced by any Competent Court, and the Party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.
11.10 Excusable Delay. Neither party shall be liable to the other party for any delay or failure to perform which is due to causes beyond the control of such party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes. If the act or condition beyond a party’s reasonable control that prevents that party from performing any of its obligations under this Agreement continues for thirty (30) days or more, then either party may terminate this Agreement and/or the applicable SOWs with ten (10) days written notice to the other party.