Synctera Platform Agreement

Synctera Platform Agreement

Synctera Platform Agreement Version 1.2
Effective Date: December 5, 2023

Last Updated Date: December 5, 2023

PLEASE READ THIS SYNCTERA PLATFORM AGREEMENT (THE “ AGREEMENT” ) CAREFULLY. BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (2) YOU AGREE TO THE SYNCTERA PRIVACY POLICY, WHICH CAN BE FOUND AT: https://synctera.com/privacy-policy, (3) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SYNCTERA, (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE COMPANY (THE “CLIENT ”), AND TO BIND THAT ENTITY TO THE TERMS OF THIS AGREEMENT, AND (5) CONSENT TO CONTRACT ELECTRONICALLY AND UNDERSTAND THAT YOUR ACCEPTANCE OF THIS AGREEMENT CONSTITUTES YOUR SIGNATURE TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE PLATFORM. SYNCTERA AND CLIENT EACH WILL BE REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”. THE EFFECTIVE DATE SHALL BE THE DATE CLIENT FIRST CLICKS TO ACCEPT THIS AGREEMENT. PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY SYNCTERA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Synctera will make a new copy of this Agreement available at the website and within the application and any new supplemental terms will be made available from within, or through, the affected service on the website or within the application. Synctera will also update the “Last Updated” date at the top of the Agreement. Any changes to the Agreement will be effective immediately upon posting. Client’s continued use of the website following the posting of changes will mean an acceptance and agreement to the terms. Synctera may require Client to provide consent to the updated Agreement in a specified manner before further participation in use of the platform is permitted. If Client does not agree to any change(s) after receiving a notice of such change(s), Client must immediately stop using the platform. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

Account Registration.
To obtain access to the platform, Client must register for an account (“Account”) and provide certain information requested by Synctera. When registering with Synctera, Client must:
provide true, accurate, current, and complete information and (b) maintain and promptly update registration or profile data to keep it true, accurate, current, and complete. Client is responsible for maintaining the confidentiality of Account log-in information and is fully responsible for all activities that occur under Client’s Account. Client agrees to immediately notify Synctera of any unauthorized use, or suspected unauthorized use of Client’s Account or any other breach of security.
Client shall promptly deliver to Synctera within a commercially reasonable timeframe complete and correct copies of all of the items Synctera reasonably requires to perform its initial and ongoing due diligence review of Client. The information furnished to Synctera, subject to any limitation stated therein, will fairly represent the financial condition, operations, and data security controls of Client at the time the same are furnished, and all other information, reports and other papers furnished to Synctera will be, at the time the same are furnished, accurate and complete in all material respects and complete insofar as completeness may be necessary to give Synctera a true and accurate knowledge of the subject matter. Synctera cannot and will not be liable for any loss or damage arising from Client’s failure to comply with the above requirements.
Registering for an Account does not give Client any right to participate in any program or receive any services from Synctera or its Sponsoring Banks. Client hereby consents to Synctera’s sharing information with its Sponsoring Banks as may be necessary to determine Client’s ability to participate in a program or receive services. The determination of eligibility shall be in Synctera’s (and Synctera’s Sponsoring Banks’) sole discretion. Synctera may reject Client for any reason whatsoever and Client.
By registering for an account and by requesting to find a Sponsoring Bank, Client agrees that Synctera may share your information with its Sponsoring Banks and you acknowledge receipt of and agree to the terms of each Sponsoring Bank’s privacy policy which can be found at: https://synctera.com/liftoff-documents, which is hereby incorporated into this Agreement by reference (the “Sponsoring Bank Privacy Policy”). Any inconsistency between this Agreement and a Sponsoring Bank Privacy Policy to be governed by this Agreement.

Ownership.
Client’s Content. Synctera does not claim ownership of Client’s content. Client agrees that Client, not Synctera, is responsible for all of Client’s content.
Feedback. Client agrees that submission of any ideas, suggestions, documents, and/or proposals to Synctera through its suggestion, feedback, wiki, forum, or similar pages (“Feedback” ) is at Client’s own risk and that Synctera has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. Client represents and warrants that Client has all rights necessary to submit the Feedback. Client hereby grants to Synctera a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Synctera’s business.
Fees; Settlement. Currently there are no fees for use of the platform. Client shall be solely responsible for its development, legal, audit and/or examination fees associated with its activities performed in connection with this Agreement.

Confidentiality.
Confidential Information. The term “Confidential Information” shall mean nonpublic information of any kind whatsoever which a Party (“Discloser”) discloses, in writing, orally or visually, to the other Party (“Recipient”) or to which Recipient obtains access in connection with the performance of this Agreement, and which relates to this Agreement and all proprietary information, data, trade secrets, and business information.

1. Disclosure to Employees and Agents. Each of the Parties, as Recipient, hereby agrees on behalf of itself and its employees, officers, affiliates and subcontractors that Confidential Information will not be disclosed or made available to any person for any reason whatsoever, other than on a “need to know basis” and then only to: (i) its employees and officers; (ii) subcontractors specifically permitted under this Agreement, provided that all such persons are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this section; and (iii) as required by law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement. Prior to any disclosure of Confidential Information as required by law, the Recipient shall:

• notify the Discloser of any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated, and
• cooperate with the Discloser’s reasonable, lawful efforts to resist, limit or delay disclosure.

Exceptions. With the exception of the obligations related to nonpublic personal information, the obligations of confidentiality in this section shall not apply to any information which a Party rightfully has in its possession when disclosed to it by the other Party, information which a Party independently develops, information which is or becomes known to the public other than by breach of this section or information rightfully received by a Party from a third party without the obligation of confidentiality.

**Representations and Warranties. **

Client represent and warrant as follows:

1. This Agreement is valid, binding, and enforceable against Client in accordance with its terms, except as such enforceability may be limited by laws governing creditors’ rights and general principles of equity. Neither the execution of this Agreement nor Client’s performance of its obligations hereunder requires any consent, authorization, approval, notice to, license, or other action by or in respect of, or filing with, any third party or any regulatory authority.
2. Client is a corporation duly incorporated, validly existing and in good standing and is duly qualified and is properly licensed to do business in each jurisdiction in which Client does business.
3. Neither Client nor any Principal has been subject to the following: (a) criminal conviction (except minor traffic offenses and other petty offenses) in the United States of America or in any foreign country; (b) federal or state tax lien, or any foreign tax lien; (c) administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any state securities regulatory authority, Federal Trade commission, federal or state bank regulator, or any other state or federal regulatory agency in the United States or in any other country; or (d) restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of Client or any Principal. The word “Principal” shall include any person directly or indirectly owning ten percent (10%) or more of Client, any officer or director, or any person actively participating in the control of Client’s business.
4. Client has delivered, or will deliver, to Synctera, complete and correct copies of all of the items Synctera requires to perform its initial and ongoing due diligence review. Any information, subject to any limitation stated therein, which have been or which hereafter will be furnished to Synctera to induce it to enter into this Agreement do or will fairly represent Client’s financial condition, operations and data security controls, and all other information, reports and other papers furnished to Synctera will be, at the time the same are furnished, accurate and complete in all material respects and complete insofar as completeness may be necessary to give Syncteraa true and accurate knowledge of the subject matter.

Disclaimer. EXCEPT AS WARRANTED IN THIS AGREEMENT, SYNCTERA PROVIDES THE SERVICES “AS IS” AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER SUCH WARRANTY BE STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE. SYNCTERA MAKES NO WARRANTY WITH RESPECT TO THE PLATFORM OR ANY SERVICES PROVIDED.

Limitation of Liability. IN NO EVENT SHALL SYNCTERA, OR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT CORPORATIONS, SPONSORING BANKS, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, CLIENT’S ACCESS TO OR USE OF THE PLATFORM, WHETHER BASED ON A THEORY OF NEGLIGENCE, CONTRACTOR, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF SYNCTERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SYNCTERA SHALL HAVE NO LIABLE FOR ANY LOSS OR DAMAGE THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH CLIENT’S USE OF THE PLATFORM.

Indemnification.
Client covenants and agrees to defend, indemnify and hold harmless Synctera, its Sponsoring Banks, its parent, subsidiaries or affiliates, and their respective officers, directors, employees and permitted assigns, as such, against any legal action, claim, demand, or proceedings brought against any of them by a third party and any resulting charges, penalties, fees or damages awarded to such third party (or agreed to in a settlement approved by Client) (collectively, a “Claim”) to the extent arising out of (a) any breach of this Agreement, misrepresentation or breach of warranty on the part of Client, or (b) any act or omission of Client or its subcontractors that violates Applicable Law.
The provisions of this Section 8 shall survive termination or expiration of this Agreement.

Severability. If any part or parts of Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of Agreement shall continue in full force and effect.
General Provisions.

1. Non-Disparagement. Client covenants and agrees that it, or their representatives, employees or agents will not directly or indirectly, verbally or in writing, make statements to any third party which detract from or reflect adversely on Synctera’s reputation or its business, services or products, or defame or make disparaging statements regarding the Synctera’s business, service or products, or its directors, officers, employees, or agents. Disparaging statements shall be defined as any statement, whether expressed as fact or opinion, that a reasonable person would consider to impugn or call into question in a negative manner the business or personal ethics, reputation, character or integrity of the Synctera or its directors, officers, employees, or agents, or impugn or call into question in a negative manner the quality of Synctera’s products, services, or practices. This Agreement does not preclude Client from making statements that may be required by legal process, applicable law, or any regulatory authority with jurisdiction over the Parties.
2. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO CLIENT’S USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
3. Exclusive Venue. To the extent the Parties are permitted under this Agreement to initiate litigation in a court, both Client and Synctera agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of Delaware.
4. Waiver of Jury Trial. CLIENT AND SYNCTERA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.
5. Electronic Communications. The communications between Client and Synctera may take place via electronic means, whether Client sends Synctera emails, or whether Synctera posts notices on the platform or communicates with Client via email. For contractual purposes, Client (a) consent to receive communications from Synctera in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Synctera provides to Client electronically satisfy any legal requirement that such communications would satisfy if it Synctera were to be in writing. The foregoing does not affect Client’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ E-Sign” ).
6. Assignment. The Agreement, and Client’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Client without Synctera’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
7. Force Majeure. Synctera shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
8. Questions, Complaints, Claims. If Client has any questions, complaints or claims with respect to the platform, please contact us at: legalnotices@synctera.com, 228 Hamilton Ave 3rd Floor, Palo Alto, CA 94301.
9. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
10. Notice. Where Synctera requires that Client provide an email address, Client is responsible for providing Synctera with Client’s most current email address. In the event that the last e-mail address Client provided to Synctera is not valid, or for any reason is not capable of delivering to Client any notices required/ permitted by the Agreement, Synctera’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Client may give notice to Synctera at the following address: legalnotices@synctera.com, 228 Hamilton Avenue 3rd Floor Palo Alto, CA 94301. Such notice shall be deemed given when received by Synctera by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
11. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13. Export Control. Client may not use, export, import, or transfer any services except as authorized by U.S. law, the laws of the jurisdiction in which Client obtained the services, and any other applicable laws. In particular, but without limitation, any services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the platform and services, Client represents and warrants that (i) Client is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Client is not listed on any U.S. Government list of prohibited or restricted parties. Client also will not use the platform or any services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical, or biological weapons. Client acknowledge and agree that products, services, or technology provided by Synctera are subject to the export control laws and regulations of the United States. Client shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Synctera products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14. Entire Agreement; Amendment. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. This Agreement and the terms hereof may be amended, supplemented, waived or modified only by an instrument in writing executed by each party, provided, however, that Synctera reserves the right to change this Agreement at any time to the extent, but only to the extent, necessary to effect a change in the platform. Synctera will provide Client with written notice of a change at least 30 days prior to the effective date of such change.