1. Introduction and general terms

1.1. Introduction

  1. The terms (“Terms”) found hereunder are applicable to any and all Syneto Products, Software and/or Services purchased by or on the behalf of a customer (the legal entity that buys the Products, Software and/or Services from Syneto) (“Customer”) or directly from S.C. Syneto S.R.L. (“Syneto”) for their own internal use only. The terms are exclusive towards all other Terms and Conditions. These Terms form a legally binding contract and agreement between the Customer and Syneto for the purchase of Products, Software and Services (“the Agreement”).
  2. If Customer and Syneto have a separate agreement in place for the purchase of Products, Software or Services, that agreement shall apply instead of these Terms. The terms set out on the Syneto website shall apply to Products, Software and Services purchased for sale & resale by the Customer.

1.2. Definitions

  1. Confidential Information means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how”, or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.
  2. Deliverables means tangible and intangible materials including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Syneto or its suppliers, licensors in the course of providing the Services. “Syneto-branded” means IT hardware, software and related products and services which are marked with the Syneto logo or sold under the Syneto brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products.
  3. Intellectual Property Rights means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
  4. Materials means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
  5. Order Documents means the quotation and/or the order confirmation and/or the invoice sent by Syneto to the Customer which describes the Products, Software and Services purchased by the Customer under the Agreement as well as Prices, payment terms and other provisions.
  6. Prices means the gross price payable for the Products, Software and/or Services including the charges set out in clause 3.2.
  7. Products means computer hardware and related products supplied by Syneto under the Agreement.
  8. Services means the services provided by Syneto as described in any Service Documents.
  9. Software means any software, library, utility, tool, or other computer or program code, in object (binary) or source- code form, as well as related documentation, provided by Syneto to the Customer. Software includes software (1) provided by Syneto and locally installed on Customer’s hardware and/or equipment or (2) made available by Syneto and accessed by Customer through the internet or other remote means (such as websites, portals, and cloud-based solutions).
  10. Statement of Work means any mutually agreed statement of work describing specific Services and/or Deliverables as agreed between the Customer and Syneto.
  11. Third Party Products means any non Syneto-branded products, software, or services.

1.3. General

  1. Notices given under the Agreement must be in writing and shall be effective when delivered to the other party’s legal officer at the address stated on Syneto’s invoice.
  2. Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by Syneto to assign to its affiliated companies and (2) Syneto may subcontract its obligations under the Agreement but shall remain liable and responsible to the Customer for such obligations.
  3. This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
  4. Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modified to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.
  5. A waiver by either party of a breach of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.
  6. A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1899 to enforce any term of the Agreement.
  7. The Agreement and any non contractual obligations shall be interpreted according to Romania law and the Romania courts shall have exclusive jurisdiction.
  8. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods 1880 (Vienna Convention) shall not apply to the Agreement.

2. Ordering, prices and payment

  1. Any quotes issued by Syneto shall be valid for 15 days unless stated otherwise in the quote. 
  2. Prices for the Products, Software and Services shall be stated in the Order Documents or Service Documents issued by Syneto. Where deliveries occur in instalments or phases Syneto may need to adjust Prices for Products, Software or Services due to changes in exchange rates, taxes, duties, freight, levies and purchase costs. Quotes provided by Syneto exclude value added tax and any other taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents. 
  3. Payment for Products, Software or Services must be received by Syneto prior to Syneto shipping the Products or providing the Software or Services to Customer or, if agreed in writing, within the time period noted on the Order Documents, or if not noted, within 30 days from the date of the invoice. Payment shall be made to the account indicated by Syneto (as may be amended from time to time.) Time for payment shall be of the essence. If any sum due from the Customer to Syneto under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to Syneto), Syneto shall be entitled to cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software and suspending provision of the Services until arrangements as to payment or credit have been established which are satisfactory to Syneto. Syneto may invoice parts of an order separately.
  4. All payments made or to be made by Customer to Syneto under this Agreement shall be made free of any restriction or condition and without any deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off or otherwise.

3. Changes to products, software or services

  1. Changes in a product, software or service may occur after a Customer places an order but before Syneto ships the Product or Software or performs the Service, and Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders but they will meet or exceed all material functionality and performance of the Products, Software or Services that were originally ordered.

4. Products

  1. Syneto shall deliver the Products to Customer’s location as set out in the Order Documents and has been previously agreed upon. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time. Delivery of Products may be made in instalments. Syneto shall not be liable for any loss (including loss of profits), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by Syneto’s negligence), nor will any delay entitle Customer to terminate or rescind the Agreement. Syneto shall only be liable for any non-delivery of Products if Customer gives written notice to Syneto within 7 days of the date when the Products would, in the ordinary course of events, have been delivered. 
  2. The Products shall be at the risk of the Customer or its representative from the time of delivery. Syneto retains legal, beneficial and equitable ownership of the Products until full payment for such Products and all other money payable by the Customer to Syneto on any other account or under the Agreement or any other agreement is received by Syneto from the Customer. Therefore, until full payment is received, the Customer will (1) hold the Products on a fiduciary basis as Syneto’s bailee (2) store the Products (at no cost to Syneto) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Syneto’s property (3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products (4) maintain the Products in satisfactory condition and keep them insured on Syneto’s behalf for their full price against all risks to the reasonable satisfaction of Syneto. On request Customer shall produce the policy of insurance to Syneto. The Customer grants Syneto, its agents and employees an irrevocable license at any time to enter without restriction any premises where the Products are or may be stored without prior notice in order to inspect them, or, where Customer’s right to possession has terminated, to recover them. Syneto shall be entitled to maintain an action against Customer for the price of the Products notwithstanding that legal, equitable and beneficial title to and property in the Products has not passed to the Customer. 
  3. Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify Syneto of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify Syneto in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notification requirements in this clause, Customer shall not be entitled to reject the Products; Syneto shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. Syneto shall, at its discretion, repair or replace Products rejected in accordance with this clause. 
  4. If for any reason the Customer does not accept delivery of any of the Products when they are ready for delivery, or Syneto is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licenses or authorizations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Syneto’s negligence) and Syneto may:
    1. store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or 
    2. sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.

5. Services, software provided by Syneto in connection with the provision of the services & deliverables

  1. Syneto shall provide Services, Software, or Deliverables to the Customer in accordance with the Service Documents. Syneto may, at its option, propose to renew the Service and the Software license by sending the Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software. 
  2. All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to Syneto, its suppliers or its licensors except as expressly granted in this Agreement. 
  3. Subject to payment in full for the applicable Services, Syneto grants the Customer a non-exclusive, non-transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which Syneto delivers the Services, (2) for its internal use, and (3) as necessary for Customer to enjoy the benefit of the Services as stated in the applicable Service Documents. 
  4. Syneto may cancel or suspend its performance of the Services or Customer’s access or any user access to the Software provided by Syneto in connection with the provision of the Services where Syneto is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when Syneto has reasonable grounds to believe that Customer (or Customer’s users) are involved in any fraudulent or other illegal activities in connection with the Agreement. 
  5. It may be necessary for Syneto to carry out scheduled or unscheduled repairs or maintenance, or remote patching or upgrading of the Software provided by Syneto in connection with the provision of the Services and which is installed on the Customer’s computer system(s) (“Maintenance”), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer. 
  6. Customer agrees that the operation and availability of the systems used for accessing and interacting with the Software provided by Syneto in connection with the provision of the Services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to, use or operation of the Software. Syneto shall not be liable for any such interference with or prevention of Customer’s access to, use or lack of operation of the Software. 
  7. During the performance of the Services or in connection with the Customer’s use of the Software provided by Syneto in connection with the provision of the Services, it may be necessary for Syneto to obtain, receive, or collect data or information, including system specific data (collectively, the “Data”). The Customer grants Syneto a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to:
    1. use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in clause 6.7;
    2. a license to aggregate the Data with other data for use in an anonymous manner for Syneto’s marketing and sales activities; and
    3. a right to copy and maintain such Data on Syneto’s servers (or the servers of its suppliers) during the term of this Agreement.
  8. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which the Customer is located in connection with Syneto’s performance of the Services or the Customer’s use of the Software.

6. Support for Syneto Storage OS running as a VMware VSA

  1. Syneto will support customers who run Syneto Storage OS products, irrespective of whether they are running in VMware environments or not. Syneto S.R.L. supports Syneto Storage OS, not specific hardware configurations. Accordingly, VMware operates as a hardware abstraction layer.
  2. VMware supports a set of certified Operating Systems and Hardware, and the customer and VMware will be responsible for any interactions or issues that arise at the Hardware or Operating System layer as a result of their use of VMware.
  3. Syneto will not require clients to recreate and troubleshoot every issue in a non-VMware environment; however, Syneto does reserve the right to request our customers to diagnose certain issues in a native certified Operating System environment, operating without the virtual environment. Syneto will only make this request when there is reason to believe that the virtual environment is a contributing factor to the issue.
  4. Any time spent on investigation of problems that may, in the sole opinion of Syneto be related to VMware, will be handled in the following fashion:
    1. Syneto will provide standard support to all Syneto Storage OS products.
    2. If a problem is encountered while Syneto Storage OS is/are running in a VMware environment, the client may be required to recreate the problem on a non-VMware server unit, at which time Syneto will provide regular support.
    3. The client can authorize Syneto to investigate the VMware related items at normal time and materials rates. If such investigation shows that the problem is VMware related, the client may contract Syneto to provide a software change to resolve the issue if such a resolution is possible.
    4. Regardless of the problem type or source, if the problem is determined to be a non VMware related issue – time spent on investigation and resolution will be covered as part of regular maintenance, and support will be provided as usual.

7. Services

  1. Where the Services purchased consist of repair of Syneto-branded Products, such Services shall be those repair services that are necessary to fix a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and Syneto shall not be responsible for repairs of Syneto-branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than Syneto or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Syneto or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, flooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned. 
  2. Customer authorises Syneto to use or access any Customer provided Third Party Products as necessary or as requested by the Customer in Syneto’s performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold Syneto harmless from any third party claim or action arising out of Customer’s failure to provide such authorization (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certifications, or approvals associated with technology, software, or other components).

8. Software

  1. Software is subject to separate software license agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software.
  2. In the absence of license terms accompanying the Software, Syneto grants Customer a non-exclusive license to access and use the Software provided by Syneto. Software provided or made available to the Customer by Syneto in connection with the provision of the Services may be used only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services.
  3. For Software provided by Syneto in connection with the provision of the Services, the following clauses shall apply:
    1. The Customer may not: (1) copy (save for making a back up copy), adapt, license, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorized number of licensed seats for concurrent users, sites, or other criteria
      specified in the applicable Service Documents. 
    2. The Customer is prohibited from (1) attempting to use or gain unauthorized access to Syneto or to any third party’s
      networks or equipment; (2) attempting to probe, scan, or test the vulnerability of the Software or a system, account, or network of Syneto or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any of Syneto’s (or Syneto’s suppliers’) facilities used to deliver the Services. 
  4. Customer grants Syneto, or an agent designated by Syneto, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with Syneto in such an audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to verification of Customer’s compliance with the terms of usage relating to such Software under this Agreement.

9. Warranty

  1. Subject to clause 9.3, Syneto warrants that Syneto-branded Products shall conform to their product specification. Performance of any one of the options set out at clause 9.3 below shall constitute an entire discharge of Syneto’s liability under the warranties given in this clause 9.1.
  2. All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement.
  3. Syneto shall at its own discretion, repair or replace Syneto-branded Products that do not comply with the warranties, provided Syneto is notified in writing of the alleged defect within 7 days of the time when the Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If Syneto elects to replace Syneto-branded Products or parts, Syneto shall deliver the replacement Products or parts to Customer at Syneto’s own expense at the address to which the defective Syneto-branded Products were delivered and the legal, equitable and beneficial title to the defective Products or parts which are being replaced shall (if it has vested in the Customer) re-vest in Syneto. The Customer shall make any arrangements as may be reasonably necessary to deliver to Syneto the defective Products which are being replaced and Syneto shall be entitled to charge the Customer if such defective Product or parts are not returned on request.
  4. Syneto warrants that (1) the Services and Deliverables shall conform to the Service Documents and (2) the Services shall be performed with reasonable skill and care during the applicable service period.
  5. Syneto warrants that Syneto-branded Software will be capable of functioning in all material respects in accordance with the relevant specifications provided (1) Customer notifies Syneto of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides Syneto with documented examples of such errors or defects. Syneto provides no assurance or warranty that the Software will be free from minor errors. Syneto’s sole responsibility in respect of the warranty given in this clause 9.5 and Customer’s sole remedy shall be the correction of any failure of the Syneto-branded Software so that it functions in material respects in accordance with the relevant specifications.
  6. Syneto shall not be liable under the warranties given in this clause 9 in respect of:
    1. any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to
      follow Syneto’s instructions (whether oral or in writing), misuse or alteration, modification, adjustment or repair of
      the Products and/or Software without Syneto’s approval; 
    2. if the total Price for the Products and/or Software has not been paid by the due date for payment; 
    3. for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by Syneto, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier to Syneto to the extent that they are assignable by Syneto to the Customer; 
    4. any Software, Deliverables and Products manufactured, produced or provided by Syneto pursuant to the Agreement in accordance with any design, specification, instruction or recommendation made to Syneto by the Customer; 
    5. any type of defect, damage or wear specifically excluded by Syneto by notice in writing; and/or 
    6. if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 9.3. 
  7. Syneto does not warrant that the Products, Software, Deliverables or Services will function (1) with any specific configuration not provided by Syneto or (2) to produce a specific result even if the configuration or result has been discussed with Syneto.

10. Liability

  1. Neither party excludes or limits liability to the other party for (1) death or personal injury resulting from negligence, (2) fraud or (3) fraudulent misrepresentation or (4) any other liability that cannot be excluded by law. 
  2. Neither party shall be liable for:
    1. special, indirect or consequential loss or damages;
    2. loss of profit, income or revenue;
    3. loss of use of Customer’s system(s) or networks;
    4. loss of goodwill or reputation;
    5. loss of, corruption of or damage to data or software; or 
    6. recovery of data or programs.
  3. Syneto’s total liability to the Customer howsoever arising out of or in connection with the Agreement whether for negligence or breach of contract or otherwise shall not exceed 125% of the Price payable by the Customer under the Agreement for Products, Software, Deliverables and/or Services.

11. High risk activities

  1. The Customer acknowledges that the Products, Software, Deliverables and Services are not designed or intended for use in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage (“High risk activities”). Syneto expressly disclaims any express or implied warranty of fitness for High Risk Activities.

12. Confidentiality

  1. Each party must treat all Confidential Information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.

13. Indemnities

  1. Syneto shall defend and indemnify the Customer against any third-party claim or action that Syneto-branded Products, Software, Deliverables or Services prepared or produced by Syneto and delivered pursuant to this Agreement infringe or misappropriate that third party’s Intellectual Property Rights enforceable in the country in which Syneto delivers and the Customer is authorised to receive such Products, Software, or Services (“IPR Claim“). If Syneto receives prompt notice of an IPR claim that, in Syneto’s reasonable opinion, is likely to result in an adverse ruling, then Syneto shall at its option, (1) obtain a right for the Customer to continue using such Products, Deliverables or Software or allow Syneto to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non-infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.
  2. Notwithstanding clause 13.1, Syneto shall have no obligation under clause 13.1 for any IPR Claim arising from (1) modifications of Syneto-branded Products, Deliverables, Software, or Services that were not performed by or on behalf of Syneto; (2) the combination, operation, or use of such Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) Syneto’s compliance with the Customer’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by the Customer. 
  3. Clauses 13.1 and 13.2 set out the Customer’s sole and exclusive remedies for any IPR Claim. 
  4. The Customer shall defend and indemnify Syneto against any third party claim or action arising out of (1) the Customer’s failure to
    obtain any appropriate license, Intellectual Property Rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by the Customer, or (2) associated with software or other components directed or requested by the Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer’s breach of Syneto’s proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export license; or (5) any allegation made against Syneto due to the Customer’s breach or alleged breach of applicable export laws, regulations, or orders.

14. Termination

  1. Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement by notice in writing immediately if the other party:
    1. commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or 14.1.2 ceases, or threatens to cease, to carry on business or, becomes insolvent. 
  2. Syneto may terminate this Agreement with immediate written notice if the Customer:
    1. fails to pay undisputed sums properly due to Syneto in accordance with the Agreement;
    2. Customer breaches or Syneto reasonably suspects Customer has breached export control laws; 
    3. Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.
  3. On termination of this Agreement, all rights and obligations of the parties relating to the Products, Services and/or Software relevant to the specific Order Documents under the Agreement will automatically terminate except for rights of action accuring prior to its termination.
  4. The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Definitions); 3.3 (Payment); 5 (Products); 6 (Services, Software & Deliverables); 7 (Services); 9 (Warranties); 10 (Liability); 11 (High Risk Disclaimer); 12 (Confidentiality); 13 (Indemnities); 14 (Termination); 15 (Force Majeure); 16 (Export Compliance); 17 (Data Privacy); 18 (WEEE Compliance); and 18 (General).

15. Force majeure

  1. Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by any circumstances beyond a party’s reasonable control including, without limitation, fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (“Force Majeure Event”) provided that the delayed party shall provide the other party with prompt written notice of the Force Majeure Event. The delayed party’s time for performance shall be excused for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.

16. Export compliance

  1. Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to European customs and export control laws, (2) may be rendered or performed in countries outside Europe, or outside of the borders of the country in which Customer or Customer’s Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilised by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. The Customer agrees to abide by those laws and regulations.
  2. The Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If the Customer cannot make the preceding representation, the Customer agrees to provide Syneto with all of the information needed for Syneto to obtain export licenses from any other national government and to provide Syneto with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, the Customer is solely responsible for obtaining any necessary licenses relating to the export of software. Syneto also may require export certifications from the Customer for the Software.
  3. Syneto’s acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by any applicable national government. Syneto shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer’s failure to obtain such license or to provide such certification.
  4. The Customer agrees to indemnify, defend and hold Syneto harmless from any third party claims, demands, or causes of action against the Customer’s breach or alleged breach of the applicable export laws.

17. Data privacy

  1. In this section, the terms “data controller”, “data processor”, “personal data” and “processing” shall be as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.
  2. To the extent the Customer and Syneto are data controllers for the purpose of any personal data processed under or in connection with this Agreement, each party shall comply with the provisions and obligations imposed by the Directive to the extent required by that legislation of each party. As a data controller, the Customer confirms that it has obtained all necessary authorizations for lawful processing, prior to passing personal data to Syneto.
  3. To the extent Syneto processes personal data as a data processor for the Customer under or in connection with this Agreement, Syneto shall ensure appropriate protection is in place to safeguard such personal data. Syneto shall use its reasonable efforts to assist the Customer to comply with its obligations, as a data controller, to respond to requests for access to the Customer records made by individuals to whom the personal data relates, subject to the payment by the Customer of Syneto’s reasonable professional charges for the time engaged by Syneto staff in so doing.
  4. The Customer authorizes Syneto to collect, use, store and transfer the personal data the Customer provides to Syneto for the purpose of performing Syneto’s obligations under this Agreement and for any additional purposes described, pursuant to the Agreement.
  5. Syneto may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Syneto shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.
  6. Syneto shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Syneto to the extent that such action or omission resulted from compliance by Syneto with the Customer’s instructions.