Symba LLC. Terms and Conditions
Symba Software Subscription Services
Terms and Conditions
1.1. “Agreement” means these Terms and Conditions, the Order Form, any additional or Customer Specific Terms attached to the Order Form, and any Statements of Work for Professional Services entered into by the parties.
1.2. “Analyzed Data” means the Data, as presented by the Service, together with any related visualizations, analysis, and alerts generated by the Services and made available to Customer via Symba’s web interface.
1.3. “Brand” means an entity whose Data on Third Party Properties is tracked and monitored by Symba.
1.4. “Customer” means the entity identified in the Order Form.
1.5. “Customer Specific Terms” means terms, if any, specific to a given Customer that are included in the Order Form.
1.6. “Intellectual Property” means, with respect to each party, its patents, trademarks, service marks, logos, copyrights, trade secrets, and any other intellectual property.
1.7. “Marks” means, with respect to each party, its trademarks, service marks, and taglines and associated logos.
1.8. “Order Form” means Symba’s standard order form entered into by Customer and Symba and pursuant to which Customer may order Services.
1.9. “Professional Services” means the consulting and other professional services ordered by Customer pursuant to an Order Form and/or which are set forth in a separate Statement of Work entered into by the parties.
1.10. “Services” means Customer’s use of Symba to manage short term employees using Symba’s web interface.
1.11. “Strategic Services” means Symba’s analytic and other strategic services which are personalized for Customer and provided by a Symba consultant as subscribed for by Customer in the applicable Order Form for the Services.
1.12. “Subscription Period” means 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.
1.13. “Symba Property” means the Services, the Symba API, the Data, the Analyzed Data, 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.
1.14. “User(s)” means Customer personnel authorized to access the Services via the Symba web interface.
1.15. “User Licenses” means the number of Users authorized to access the Services via the Symba web interface.
2.1. Services. Symba provides Services to Customer in which it provides tools to manage short term employees. Symba has three interfaces: 1) HR/Admin teams 2) Supervisors/Managers and 3) Short Term Employees. Symba’s features helps Customer streamline and manage workflow and track performance of Users. The parties acknowledge and agree that Symba will use commercially reasonable efforts to continually develop, deliver and provide ongoing innovation to the Services in the form of new features, functionality, capabilities and services and, accordingly, Symba reserves the right to modify the Services from time to time in its sole discretion.
2.2. Ordering Services and Strategic Services. Customer shall execute an Order Form to order Services, which will include, among other information, the number of User Licenses initially ordered and any Strategic Services ordered by Customer. During the Subscription Period, Customer may add Users or may add or modify Strategic Services through a modified or additional Order Form. All Order Forms are subject to approval by Symba.
2.3. Professional Services. Customer may order Professional Services from Symba pursuant to an Order Form and/or a separate 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. Symba’s standard technical support is available via phone, chat, and email.
2.5. Customer Obligations. Customer shall cooperate with Symba to enable Symba to provision and provide the Services, including without limitation, providing Symba with a list of Users on or promptly after the Effective Date. Customer is responsible for keeping such lists current and providing Symba with updates. Customer is responsible for restricting use of the Services 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. Contingent on Customer’s compliance with the terms of the Agreement, Symba hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Services, 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 Users Licenses ordered by Customer under an Order Form. 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 Data and Analyzed Data as set forth in Section 2.7 above; (iii) reverse engineer or otherwise decompile or disassemble the Symba Property in whole or in part; (iv) interfere with or disrupt the integrity or performance of the Services; (v) attempt to gain unauthorized access to the Services or circumvent or modify any security mechanism employed by Symba; (vi) use or publish Data, Analyzed Data or any data derived therefrom or otherwise use the Services 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 Services 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. Customer shall comply with all applicable laws and regulations concerning export, data privacy and protection 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 suspend the Services immediately for any material breach by Customer of this Section 2.8 and will promptly restore the Services upon Customer’s cure of such breach.
2.8. Compliance. Symba will monitor Customer’s use of the Services 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 the terms and conditions of this Agreement.
3.1 Fees for Services. Fees for the Services, Professional Services and Strategic Services are set forth in each Order Form and/or Statement of Work.
3.2 Reimbursable Expenses. Customer will reimburse Symba for all travel, lodging and expenses incurred in providing Strategic Services and Professional Services, which have been pre-approved by Customer and are invoiced within ninety days of the date incurred. All reimbursable expenses will be invoiced to Customer and Customer shall pay the invoice in accordance with Section 3.4.
3.3 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.
- PROPRIETARY RIGHTS
4.1 Generally. Each party shall retain all rights, title, and interest, in and to its own Intellectual Property. Symba expressly retains all rights, title, and interest to the Symba Property. 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 Data, Analyzed Data or Documentation. Customer grants Symba the right to use the Brands and Customer’s Marks for purposes of providing the Services to Customer. 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 rights, 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.
- LIMITED WARRANTY; DISCLAIMER
6.1. Mutual Warranties. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; (iv) will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party, and (vi) will comply, in its performance related to the Agreement, with all applicable law.
6.2. Services. Symba represents and warrants that the Services will conform in all material respects to their Documentation during the Subscription Period. As Customer’s sole and exclusive remedy for a breach of the foregoing, Symba will reperform the Services or repair the Services such that the Services are conforming, or if the foregoing is not commercially feasible, Symba may terminate the Order Form for the affected Services and will refund to Customer the pre-paid fees for the unused portion of the Subscription Period.
6.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6 OF 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 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 DATA, 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.
- 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, AND A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, 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 elements of the basis of the agreement between the parties and the parties would not enter into this Agreement absent such limitations.
8.1. Symba Indemnities. 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 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. 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 if the Services or use thereof would not infringe without such combination; (iii) Symba’s compliance with Customer’s instructions; or (iv) the Data or Analyzed Data. The foregoing states Symba’s entire liability and Customer’s sole and exclusive remedy for claims of intellectual property infringement.
8.2. Customer Indemnity. Customer shall defend (at Customer’s expense) Symba and its employees, officers, and directors harmless against any Claims made or brought against Symba by a third party arising out of or related to Customer’s use of the Services, Data or the Analyzed Data in violation of the Agreement 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).
- TERM and TERMINATION
9.1. Term. This Agreement shall continue in full force and effect for the duration of the Subscription Period. The Subscription Period will automatically renew for 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; (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, or (iii) immediately if any change occurs in any applicable laws or regulations that would, in that party’s reasonable opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge.
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.
- ADDITIONAL PROVISIONS
10.1. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to conflicts of law principles, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the district and federal courts located in Washington, DC.
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. General. 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. 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. 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. 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. The Agreement may only be amended in writing, signed by both parties. 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. 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 dependent upon any oral or written, public or private comments made by Symba with respect to future functionality or features for the Services. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail if so expressly stated therein. 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. Notices may be delivered in person, by mail, or electronic mail and shall be deemed served when delivered, to the address provided by each party. The Services and Symba are “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, API 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.