Effective April 1, 2018
Symba Software Subscription Services
Terms and Conditions
These Terms and Conditions (as amended from time to time, “Terms and Conditions”), together with the Order Form(s) or Statement(s) of Work, as applicable, govern the provision of Services by Symba, Inc., a Delaware corporation (“Symba”).
1.1. “Agreement” means these Terms and Conditions, the Order Form, and any Statements of Work entered into by the parties, in each case, as amended from time to time.
1.2. “Analyzed Data” means data and information related to Customer’s use of the Platform that is aggregated and anonymized by Symba, including any statistical and performance information from the provision and operation of the Services, together with any related visualizations, analyses, and alerts generated by the Platform, whether or not made available to Customer.
1.3. “Customer” means the entity identified in the Order Form and/or any Statement of Work, as applicable.
1.4. “Customer Data” means any data and information that Customer and its Authorized Users deliver to Symba or upload to the Platform, but excluding, for the avoidance of doubt, Analyzed Data and any Symba Intellectual Property.
1.5. “Deliverables” means reports, analyses or deliverables furnished by Symba in connection with the performance of Professional Services, as specified in an Order Form, but does not include Analyzed Data included in such reports, analyses or deliverables.
1.6. “Documentation” means any specifications, user manuals, guides, and supporting materials, regardless of format, describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of the Platform made available to Customer by Symba under this Agreement.
1.7. “Intellectual Property” means, with respect to each party, its patents, trademarks, service marks, logos, collections of data, copyrights, trade secrets, and any other intellectual property.
1.8. “Marks” means, with respect to each party, its trademarks, trade names, service marks, tag lines and logos, whether or not registered.
1.9. “Order Form” means Symba’s standard order form entered into by Customer and Symba and pursuant to which Customer may order certain Services.
1.10. “Platform” means the web-based software applications, interfaces, and management tools provided by Symba and used to manage short-term employees.
1.11. “Platform Subscription” means Symba’s software-as-a-service subscription offering for the Platform, as described in the applicable Order Form.
1.12. “Professional Services” means the consulting and other professional services, as described in the applicable Order Form and/or Statement of Work.
1.13. “Services” means, collectively: (i) the Platform Subscription, (ii) the Professional Services, , and (iii) any other related services provided by Symba.
1.14. “Subscription Period” means, with respect to the Platform Subscription, the period commencing on the subscription start date set forth in the Order Form and continuing for the number of months set forth on the Order Form or until the Agreement is terminated, whichever is earlier.
1.15. “Symba Property” means the Platform, the Symba API, the Analyzed Data, the Documentation, the web interfaces, algorithms, methodologies, know-how, or technology used by Symba to provide the Services, and any and all other Symba Intellectual Property together with all improvements, modifications and derivative works thereof.
1.16. “User(s)” means Customer personnel authorized to access the Services via the Symba web interface.
1.17. “User Licenses” means the number of Users authorized to access the Services via the Symba web interface.
1.18. “Statement of Work” means Symba’s standard statement of work, entered into by Customer and Symba and pursuant to which Customer may order certain Services.
2.1. Services. Subject to this Agreement, Symba agrees to use commercially reasonable efforts to provide the Services to Customer during the Term (as defined below).
2.2. Platform Subscription; Changes to Services. Each applicable Order Form will include, among other information, the number of User Licenses initially ordered by Customer. During the Subscription Period, Customer may request to add Users; provided that any modifications or additions will be reflected in a modified or additional Order Form, executed by Customer and Symba. Symba reserves the right to modify the Platform from time to time in its sole discretion, including without limitation to (i) maintain, enhance or create additional features, functionality, capabilities and services for its customers, (ii) take into account the competitive strength of, or market for, Symba’s products or services, (iii) maximize cost efficiency or performance of its services, or (iv) comply with applicable law.
2.3. Professional Services. Customer may order Professional Services from Symba pursuant to an Order Form and/or a Statement of Work. The Order Form or Statement of Work, as applicable, will describe in reasonable detail the Professional Services to be provided by Symba and the fees payable therefor.
2.4. Support Services. Symba shall use commercially responsible efforts to make available standard technical support to Customer with respect to the Platform via phone, chat, and email during normal business hours during the Term.
2.5. Customer Obligations. Customer shall cooperate with Symba to enable Symba to provide the Services, including without limitation, providing Symba with a list of Users on or promptly after the beginning of the Term. Customer is responsible for keeping such lists current and providing Symba with updates. Customer shall restrict use of the Platform Subscription to authorized Users, using no more than the number of User Licenses ordered, and for implementing and enforcing industry-standard secure logon and password procedures. Customer is responsible for all activities occurring under its User accounts. Customer grants Symba the right to issue press releases and use Customer’s name and logo for marketing and promotion purposes.
2.6. License Grant; Deliverables. Contingent on Customer’s compliance with the terms of the Agreement, Symba hereby grants to Customer a limited term, non-exclusive, revocable, non-sublicensable and non-transferable, license to access and use the Platform, in object code only, solely (i) for Customer’s own internal business purposes; (ii) during the Subscription Period; (iii) subject to the Agreement; (iv) for authorized Users only; and (v) for the number of User Licenses ordered by Customer under an Order Form. If Symba provides Deliverables to Client in connection with any Professional Services, then contingent on Customer’s compliance with the terms of the Agreement (including, without limitation, payment of all fees hereunder), Symba hereby assigns to Customer all right, title and interest in and to the Deliverables, which shall be deemed to be “works made for hire” under federal copyright laws. Notwithstanding the foregoing, to the extent the Deliverables include Symba Property (including any components, code, designs, templates, processes, tools or methodologies owned or developed by Symba prior to or independently from the Professional Services (“Pre-Existing Materials”)), Symba shall retain all rights to the Pre-Existing Materials, including any modifications or improvements to the Pre-Existing Materials made during or as a result of Professional Services. In connection with the foregoing, Symba hereby grants Customer a perpetual non-exclusive, non-sublicensable and non-transferable license to use all Pre-Existing Materials in the Deliverables to the limited extent necessary to enable Customer to make reasonable use of the Deliverables. Any and all rights not expressly granted to Customer are reserved by Symba. For the avoidance of doubt, the right to use the Services includes the right to incorporate the Analyzed Data and/or the data in internal reports and to internally distribute copies of such reports.
2.7. Restrictions. Customer may not, directly or indirectly: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Symba Property in whole or in part; (ii) copy, modify or make derivative works based upon the Symba Property in whole or in part, provided, that Customer shall have the right to copy the Analyzed Data as set forth in Section 2.6 above; (iii) reverse engineer or otherwise decompile, disassemble the Symba Property, in whole or in part or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Symba Property; (iv) interfere with or disrupt the integrity or performance of the Symba Property; (v) attempt to gain unauthorized access to the Symba Property or circumvent or modify any security mechanism employed by Symba; (vi) use or publish Analyzed Data or any data derived therefrom (other than Customer Data) or otherwise use the Symba Property other than for lawful, internal, business purposes and as authorized under this Agreement; (vii) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the Symba Property or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses; (viii) intentionally or negligently transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature; or (ix) make use of the Symba Property in whole or in part in any way to build a competitive product or service or to copy any of its features, functions, or graphics.
2.8. Customer Compliance. Customer shall use, and will ensure that all Users use, the Platform Subscription in full compliance with this Agreement and all applicable laws and regulations, including, without limitation, applicable laws and regulations concerning export, data privacy and protection, and the transmission of technical or personal data and cooperate with Symba in connection with compliance thereto. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. Symba retains the right to temporarily or permanently suspend the Services immediately without notice if Symba believes that Customer is in breach or violation of this Agreement. Symba may monitor Customer’s use of the Platform for compliance with the Agreement and at Symba’s request, Customer will provide a written certification to Symba, signed by an executive officer of Customer, that Customer and its Users are in compliance with this Agreement.
3.1. Fees for Services. Fees for the Services are set forth in each applicable Order Form and/or Statement of Work. The Customer will pay Symba the fees set forth in an Order Form or Statement of Work as applicable, in accordance with the terms set forth therein. Following execution of the Order Form and/or Statement of Work, Symba will submit an invoice to the Customer, and payment will be due within the Payment Terms set forth (“Due Date”).
3.2. Overdue Charges: If any undisputed, invoiced amount is not received by Symba by the Due Date, then: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and (b) Symba may condition future Subscriptions on receipt of payment for previous Subscriptions and/or payment terms shorter than those specified on the previous Order Form.
3.3. Reimbursable Expenses. Customer will reimburse Symba for all reasonable out-of-pocket expenses incurred in providing Professional Services, if applicable. All reimbursable expenses will be invoiced to Customer and Customer shall pay the invoice upon receipt.
3.4. Taxes. All fees and expenses payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Customer’s receipt of use of the Services, except for taxes based on Symba’s net income. If Symba is required to collect or pay any taxes for which Customer is responsible, Customer will pay such tax directly to Symba. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Symba with written documentation of all such tax payments, including receipts.
4. PROPRIETARY RIGHTS
4.1. General. Each party shall retain all right, title, and interest, in and to its own Intellectual Property. Symba expressly retains all right, title, and interest to the Symba Property and no other rights are granted to Customer thereto except to the extent expressly set forth herein. Any Intellectual Property produced, conceived, or otherwise developed by or for Symba hereunder shall be the exclusive property of Symba. Customer shall not remove any Symba Marks from any Analyzed Data, Pre-Existing Materials or Documentation. Customer grants Symba a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit Customer’s Marks, and Customer Data for purposes of providing the Services to Customer and as necessary or useful to monitor and improve the Platform and the Services, both during and after the Term. Customer acknowledges and agrees that Symba may compile data collected or generated from Customer’s use of the Services with data from Symba’s other customers in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Services and may make such information publicly available, provided that such information does not include any Customer Confidential Information or any data that would enable the identification of Customer or Customer’s data. Symba retains all right, title and interest in and to such statistical and performance information, all of which shall be deemed Symba Property hereunder.
4.2. Feedback. Customer and its Users may, from time to time, make known to Symba suggestions, enhancement requests, techniques, know-how, comments, feedback or other input to Symba with respect to the Services or Symba Intellectual Property (collectively, “Suggestions”). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, Symba shall have a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Suggestion with no obligation to license or to make available the Improvement to Customer or any other person or entity.
“Confidential Information” means all written or oral information, disclosed by one party (the “Discloser”) to the other (the “Recipient”), identified as confidential, as well as information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider to be confidential or proprietary. The Recipient will keep confidential any Confidential Information disclosed to it by the Discloser; provided such information shall not be considered proprietary once it is in the public domain by no fault of the Recipient. With respect to any Confidential Information, the Recipient shall: (i) maintain confidentiality using the same care that it would use for its own confidential information, but in any event with reasonable care; (ii) use the confidential information solely in connection with the Agreement; (iii) cease use of such confidential Information immediately upon termination of the Agreement and either return or destroy it upon request of the Discloser; and (iv) not attempt to reverse engineer or create derivative works from or using the Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given notice to the other, if legally permissible, and provided such assistance as may be reasonably requested to limit or prevent such disclosure. Symba may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing, and to third parties for purposes of due diligence.
6. LIMITED WARRANTY; DISCLAIMER
6.1. Mutual Representations. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; and (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder
6.2. Symba Representations. Symba represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. As Customer’s sole and exclusive remedy for a breach of the foregoing, Symba will re-perform the Professional Services.
6.3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SYMBA DOES NOT WARRANT THAT THE PLATFOM, SERVICES OR THE SYMBA API WILL (i) MEET ALL OF CUSTOMER’S REQUIREMENTS; (ii) WILL OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; OR (iii) WILL PROVIDE DATA, ANALYZED DATA OR OTHER RESULTS THAT ARE COMPLETE, ACCURATE OR RELIABLE OR (iv) WILL MEET CUSTOMER’S EXPECTATIONS. SYMBA IS NOT RESPONSIBLE FOR ANY ANALYZED DATA OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR THE SYMBA API, ALL OF WHICH IS OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK. SYMBA EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, ANY THIRD PARTY COMPONENTS WHICH ARE OUTSIDE SYMBA’S CONTROL, SUCH AS INTERNET ACCESS, AND COMPUTER OR NETWORK EQUIPMENT, ALL OF WHICH ARE THE RESPONSIBILITY OF CUSTOMER.
7. LIMITATION OF LIABILITY
7.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS TO PROCURE SUBSTITUTE SERVICES, LOSS OR CORRUPTION OF DATA OR DOCUMENTATION, USE OR INABILITY TO USE THE SERVICES, SYMBA WEB INTERFACE OR THE SYMBA API, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO CUSTOMER’S BREACHES OF THE LICENSES OR RESTRICTIONS SET FORTH IN SECTION 2 OR SYMBA’S PROPRIETARY RIGHTS SET FORTH IN SECTION 4, A PARTY’S BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, AND CUSTOMER’S OBLIGATIONS TO PAY ANY FEES, THE TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO SYMBA BY CUSTOMER UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
7.3. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. The Limitation of Liability set forth above is a fundamental element of the basis of the agreement between the parties and the parties would not enter into this Agreement absent such limitations.
8.1. Indemnification by Symba. Symba shall defend (at Symba’s expense) Customer and its employees, officers, and directors from any third party claim, suit or proceeding (“Claims”) brought against Customer contending that Customer’s use of the Services infringes any U.S. patent or copyright rights of a third party and shall indemnify and hold Customer harmless from all damages finally awarded by a court of competent jurisdiction or agreed to by Symba in settlement of the Claim. In the event that the Services or any part thereof are likely to, in Symba’s sole opinion, or do become the subject of an infringement related Claim, and Symba cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non infringing, then Symba may terminate the Services and will refund to Customer any prepaid fees for the unused portion of the Subscription Period. Notwithstanding the foregoing, Symba shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Services are the basis of the Claims; (ii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed or provided by Symba; (iii) the addition to or modification of the Services following delivery or grant of access by Symba; (iv) Symba’s compliance with Customer’s instructions; (v) the Customer Data or Analyzed Data; (vi) Customer’s continued allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vii) Customer’s failure to use the Services strictly in accordance with this Agreement. The foregoing states Symba’s entire liability and Customer’s sole and exclusive remedy for Claims hereunder.
8.2. Indemnification by Customer. Customer shall defend (at Customer’s expense) Symba and its employees, officers, and directors against any Claims made or brought against Symba arising out of or related to (i) Customer’s use of the Services in violation of the Agreement or (ii) the Customer Data or the Analyzed Data, and shall indemnify and hold Symba harmless from all damages awarded by a court of competent jurisdiction or agreed to by Symba in settlement of the Claim.
8.3. Procedure. The party seeking indemnification hereunder (the “Indemnified Party”) shall promptly inform the other party (the “Indemnifying Party”) of any suit or proceeding filed against the Indemnified for which the Indemnified Party is entitled to indemnification hereunder. The Indemnifying Party may direct the defense and settlement of any such claim, with counsel of its choosing. The Indemnified Party will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not settle any such action without the written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed).
9. TERM and TERMINATION
9.1. Term. This Agreement shall continue in full force and effect until its termination as provided below (the “Term”). The initial Term shall be set forth on each applicable Order Form or Statement of Work and, with respect to the Platform Subscription, is the Subscription Period. Upon expiration of the initial Term, this Agreement will automatically renew for an additional period equal to the initial Term, unless a party provides written notification of non-renewal at least ninety (90) days prior to the expiration of the then-current Subscription Period.
9.2. Termination. In addition to any termination rights set forth in this Agreement, a party may terminate the Agreement (i) for a breach of the Agreement by the other party, if such other party has not cured the breach within thirty (30) days of receiving notice that it is in breach; or (ii) immediately, upon notice, if the other party (a) is adjudged insolvent or bankrupt, (b) has instituted against it, and not dismissed within thirty (30) days after filing, or institutes any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency, (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business.
9.3. Effect. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Symba prior to the effective date of termination. Upon expiration or termination of the Agreement, the Subscription Period will end, all licenses granted hereunder shall immediately terminate, Customer’s right to access or use the Services shall cease, and each party shall immediately cease using the other party’s Intellectual Property and Confidential Information.
9.4. Survival. Sections 5, 6.3, 7, 8, 9 and 10 shall survive any termination or expiration of the Agreement.
10. ADDITIONAL PROVISIONS
10.1. Governing Law; Jurisdiction. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
10.2. Assignment. Neither party may assign the Agreement without prior written consent of the other party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may assign the Agreement upon notice to (i) a successor-in-interest as a result of a merger, change of control, or consolidation, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates or (ii) an affiliate controlled by or under common control with such party.
10.3.1. The Agreement, including these Terms and Conditions: (i) covers the parties’ entire agreement, and supersedes all prior and contemporaneous discussions and writings between them, relating to its subject matter; (ii) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (iii) creates no agency, partnership or employer-employee relationship between the parties; their relationship is that of independent contractors; and (iv) has no third party beneficiaries.
10.3.2. If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect.
10.3.3. Customer shall pay on demand all of Symba’s reasonable attorney fees and other costs incurred by Symba to collect any fees or charges due Symba under this Agreement.
10.3.4. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control.
10.3.5. The Agreement may only be amended in writing, signed by both parties.
10.3.6. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement.
10.3.7. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or Statement of Work or dependent upon any oral or written, public or private comments made by Symba with respect to future functionality or features for the Services.
10.3.8. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail if so expressly stated therein.
10.3.9. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.3.10. All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form or Statement of Work, as applicable. Notices shall be effective upon receipt.
10.3.11. The Platform and any Documentation provided by Symba are deemed to be “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services or such Documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.