SYNCrew Terms & Conditions
Last updated January 29, 2015
1. Accepting these Terms and Conditions
By signing the Services Agreement which incorporates these terms and conditions (the “Terms and Conditions”), the Customer (as defined in the Services Agreement) hereby confirms that it expressly accepts the Terms and Conditions as its agreement with SYNCrew, Inc. ("SYNCrew"), governing the Customer’s use of SYNCrew's online service and any related software the Customer and its vendors, customers, contractors or employees (collectively, the “Customer’s Users”) may install on any computers and/or mobile devices (collectively, the "Service"). By Customer’s execution of the Services Agreement, Customer represents that it is authorized to accept the Terms and Conditions on behalf of the Customer. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not sign the Services Agreement, and you may not use the Service.
2. License grant & restrictions
SYNCrew hereby grants to Customer, during the Term of the Services Agreement, the non-exclusive, non-transferable, worldwide right to use the Service (including with the installation of the Service on devices used by, and possibly owned by, the Customer’s Users), solely for Customer’s internal business purposes, subject to the Terms and Conditions. All rights not expressly granted to Customer are reserved by SYNCrew and its third party licensors or suppliers, if any (collectively, the "Licensors").
Customer, and Customer hereby warrants that the Customer’s Users, shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the content provided by or on behalf of SYNCrew through the Service (the “Content”) in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or copy, "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
3. Ownership of intellectual property rights
Customer acknowledges and agrees that, subject to the license grants contained herein, SYNCrew, or its Licensors as applicable, retains all right, title and interest, including all related intellectual property rights, in and to the SYNCrew software and technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, Customer’s Users or any other party relating to the Service (collectively, “Feedback”). The license provided by the Terms and Conditions is not a sale and does not convey to Customer or Customer’s Users any rights of ownership in or related to the SYNCrew software and technology, the Content or the Service, or any related intellectual property rights except for the limited licenses granted to Customer pursuant to the Terms and Conditions. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by SYNCrew or its Licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of SYNCrew or its Licensors, as applicable.
The trademarks, trade names, service names or logos associated with the Service (collectively, the "Marks") are trademarks of SYNCrew, and no right or license is granted to use them. Customer hereby acknowledges SYNCrew’s perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. Customer hereby agrees not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.
4. Customer data and account information
Customer retains all right, title and interest to any and all project or customer data, including customer and project information, photos and metadata captured by the Service including data generated by Customer’s Users or provided to SYNCrew (collectively, "Customer Data"), subject to SYNCrew's right to use such Customer Data to provide the Service to Customer. SYNCrew does not own any Customer Data, information or material that Customer submits or is generated pursuant to the Service in the course of Customer’s or Customer’s Users use of the Service. Except in accordance with the Terms and Conditions or as required by law, Customer Data in a form which would allow for the identification of specific Customers or Customer Users will not be disclosed, sold, assigned, licensed or otherwise disposed of by SYNCrew to any third party without Customer’s consent, which may be granted in the Service by Customer or Customer’s Users. Customer, and not SYNCrew, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in the Terms and Conditions or as required by law, SYNCrew shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous use, upload or extraction of any Customer Data. SYNCrew reserves the right to withhold, remove and/or delete and discard Customer Data without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon any termination of the Services Agreement, Customer’s right to access or use Customer Data shall immediately cease and SYNCrew shall have no obligation to maintain or provide to Customer any Customer Data.
Customer hereby acknowledges that SYNCrew may work with third parties to offer its customers additional products and services from time to time. SYNCrew collects anonymized, aggregate data in order to provide such additional product and services to Customer and Customer agrees to permit SYNCrew to use such anonymized, aggregate data.
5. Customer responsibility and passwords
Customer is solely responsible for any and all activity occurring under Customer or Customer’s Users user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
Customer will choose passwords and user names for all Customer’s Users on Customer’s account. Customer is entirely responsible for maintaining the confidentiality of the passwords and account. Customer agrees to notify SYNCrew immediately of any unauthorized use of Customer’s account (including the use of the account of any Customer’s User) or any breach of security. SYNCrew will not be liable for any loss that Customer may incur as a result of a third party using Customer’s passwords or account (including the account of any Customer’s User), either with or without Customer’s knowledge. Customer warrants and represents that: (i) the content to be transmitted by or on Customer’s behalf (including any transmission by Customer’s Users) is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (ii) Customer and Customer’s Users have complied and will comply with all applicable laws and regulations respecting the execution and performance of the Services Agreement (including the Terms and Conditions).
6. Email and text message compliance
SYNCrew may use automated email and text message communications to communicate with Customer and Customer’s Users. Customer alone is responsible for ensuring that the recipients of those communications have provided prior consent to receive them and that these messages do not constitute SPAM. Further, in the event that recipients opt out or update their preferences for communications from Customer and Customer’s Users, Customer will take required steps to comply with such requests and obey applicable laws.
Because of various technologies and service providers which may be used by Customer or Customer’s Users, SYNCrew makes no expressed or implied warranty of individual message receipt. SYNCrew shall not be liable for any damages or claims that arise associated with the content that Customer or Customer’s Users provide or any liabilities relating thereto. Further, SYNCrew is in no way responsible for any fees associated with these communications (including any internet service provider charges, data or SMS charges or the like).
7. Third-party software
The Service may receive data from third-party software systems, which Customer will designate in the process of setting up the Service. If Customer elects to change, upgrade or materially alter the third party software system from which the Service receives data following the initial installation of the Service, SYNCrew makes no guarantee that all Customer Data or Service functionality will be preserved. Customer is responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact SYNCrew's ability to receive and process Customer Data. In addition, Customer is responsible for providing SYNCrew with accurate instructions and information regarding the third party systems and databases with which the Service will interface, and Customer shall bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases used by Customer as conveyed to SYNCrew in connection with set up or maintenance of the Service.
8. Accessing and downloading the application from iTunes
The following applies to any application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
a. Customer acknowledges and agrees that (i) the Terms of Service are concluded between Customer and SYNCrew only, and not Apple, and (ii) SYNCrew, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Customer’s use of the App Store Sourced Application must comply with the App Store Terms of Service.
b. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
c. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to Customer and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between SYNCrew and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SYNCrew.
d. Customer and SYNCrew acknowledge that, as between SYNCrew and Apple, Apple is not responsible for addressing any claims Customer or Customer’s Users have or any claims of any third party relating to the App Store Sourced Application or Customer’s possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. Customer and SYNCrew acknowledge that, in the event of any third party claim that the App Store Sourced Application or Customer’s possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between SYNCrew and Apple, SYNCrew, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms of Service.
f. Customer and SYNCrew acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms of Service as related to Customer’s license of the App Store Sourced Application, and that, upon Customer’s acceptance of the Services Agreement (including the Terms and Conditions), Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms and Conditions as related to Customer’s license of the App Store Sourced Application against Customer as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, Customer must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
9. Limited liability
IN NO EVENT SHALL SYNCREW, ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF SYNCREW HAS BEEN ADVISED OR WARNED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER OF CUSTOMER’S CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR THE OPERATION OF SYNCREW OR ITS LICENSORS' NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY CUSTOMER VIA SYNCREW OR ITS LICENSORS' NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF SYNCREW TOGETHER WITH ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO SYNCREW IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF SYNCREW HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION OR CLAIM RELATING TO THIS AGREEMENT SHALL BE MADE AGAINST SYNCREW OR ITS LICENSORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR AFFILIATES BY CUSTOMER OR ON CUSTOMER’S BEHALF MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM.
Customer agrees to indemnify and hold SYNCrew (including its affiliates, officers, directors, agents, and employees, contractors, sub-contractors, licensors, and partners) harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of Customer’s breach or alleged breach of the Services Agreement (including the Terms and Conditions) or the documents it incorporates by reference, or Customer’s violation of any law or the rights of a third party (including without limitation any negligent, willful, tortious or illegal conduct by you affecting a third party).
Unless otherwise agreed by SYNCrew, the Terms and Conditions will survive the term of the Services Agreement.
12. Termination of Service
Any breach of Customer’s payment obligations or unauthorized use of the Service or Content will be deemed a material breach of the Services Agreement and the Terms and Conditions. SYNCrew, in its sole discretion, may terminate Customer’s password, account or use of the Service if Customer breaches or otherwise fails to comply with the Services Agreement and the Terms and Conditions. In addition to any other rights granted to SYNCrew herein, SYNCrew reserves the right to suspend or terminate the Service and Customer’s access to the Service if Customer’s account becomes delinquent or Customer otherwise engages in fraudulent or unlawful activities. In addition, SYNCrew may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that SYNCrew has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached the Services Agreement or the Terms and Conditions, including but not limited to failure to pay fees for the Service, and such breach has not been cured within five (5) days of notice of such breach.
13. Billing, pricing & Taxes
SYNCrew charges and collects for use of the Service according the Services Agreement and the Terms and Conditions. No refunds will be available for fees Customer have paid unless you were billed in error. SYNCrew will automatically renew and bill Customer’s credit card or issue an invoice to Customer (a) every month for monthly licenses and fees, (b) every quarter for quarterly licenses and fees, (c) each year on the subsequent anniversary for annual licenses, or (d) in an otherwise mutually agreed upon manner. The renewal charge will be equal to the then-current license fee in effect at the time of renewal. The pricing during any automatic renewal term will renew at the then current rate and SYNCrew will give Customer notice of a pricing increase at least thirty (30) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter in the new term. Fees for other services will be charged on an as-quoted basis.
Unless otherwise stated, the SYNCrew fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, plus interest, penalty and additions thereon (collectively, "Taxes"). Customer is responsible for paying all Taxes applicable to its use of SYNCrew products or services. If SYNCrew has the legal obligation to pay or collect taxes (or an amount in respect of taxes) for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides SYNCrew with a valid tax exemption certificate authorized by the appropriate taxing authority. SYNCrew is responsible solely for taxes based on its income.
14. Credit card authorization
By submitting its credit/debit card ("Bank Card") data to SYNCrew, Customer authorizes SYNCrew in its complete discretion to submit a financial transaction(s) to Customer’s issuing bank for settlement. Customer agrees that once SYNCrew has approved or declined its transaction, SYNCrew has fully performed under the terms of the Services Agreement and the Terms and Conditions. Customer agrees to contact SYNCrew in the event that it desires to cancel any recurring charge, prior to the next billing cycle. Should Customer fail to contact SYNCrew, Customer agrees to indemnify and hold SYNCrew harmless from any losses or damages that it suffers as a result of a recurring charge. SYNCrew may be contacted at: email@example.com or SYNCrew, Inc., 1000 Brannan St, Suite 402 San Francisco, CA 94103, (415) 968-1594. If Customer thinks that there is an error on its account, including an incorrect amount or unauthorized transaction, Customer agrees to contact SYNCrew prior to the next billing cycle. Upon proper notification, SYNCrew, in its sole discretion may issue a credit to Customer’s Bank Card.
15. Representations & warranties
Each party represents and warrants that it has the power and authority to enter into this Agreement. SYNCrew represents and warrants that it will provide the Service in a manner consistent with generally accepted industry standards. Customer represents and warrants that it has not falsely identified itself, or provided any false information to gain access to the Service, and that all Bank Card and other billing information that Customer has provided is correct. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE". EXCEPT AS EXPLICITLY SET FORTH ABOVE, SYNCREW IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND SYNCREW AND ITS LICENSORS, DISTRIBUTORS, PARTNERS AND AFFILIATES (COLLECTIVELY, THE “AFFILIATES”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, SYNCREW, ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND SYNCREW'S OR ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS AFFILIATES’ CONTROL.
16. Governing law; venue; dispute and waiver of class action
a. Governing law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles to the contrary.
b. Venue. Customer will not commence or prosecute any action, suit, proceeding or claim arising under or by reason of the Services Agreement (including the Terms and Conditions) other than in the state or federal courts located in San Francisco, California. Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement.
c. Dispute and waiver of class action. In the event of a dispute, the parties will first attempt in good faith to resolve such dispute by negotiation and consultation between themselves. IF SUCH NEGOTATION AND CONSULTATION FAILS TO RESOLVE SUCH DISPUTE OR CLAIM WITHIN 20 DAYS, ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SYNCREW SERVICE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. The arbitration will be held in English, in San Francisco, CA, by a sole arbitrator in accordance with the regulations of the American Arbitration Association. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. EACH PARTY AGREES THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, CUSTOMER AGREES THAT IT AND SYNCREW ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, CUSTOMER AGREES TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. CUSTOMER AGREES THAT IT HAS EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. The award of the arbitrator shall be final and binding upon both parties and may be entered as a judgment in any court of competent jurisdiction. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interest of justice. Each party will be responsible for its attorneys’ fees and other expenses in connection with the arbitration; provided that the parties will share equally in the fees and expenses of the arbitrator.
This Section shall survive expiration, termination or rescission of the Services Agreement (including the Terms and Conditions).
a. If any provision of the Services Agreement or the Terms and Conditions is found to be invalid or unenforceable, then the remainder will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective.
b. The Services Agreement including the Terms and Conditions will bind and inure to the transferee of a party’s business, and will be enforceable in the event of a change in ownership or control.
c. The Services Agreement including the Terms and Conditions constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein.
d. Failure by either party to enforce any term of the Services Agreement including the Terms and Conditions will not be deemed a waiver of future enforcement of that or any other term in the Services Agreement including the Terms and Conditions or any other agreement that may be in place between the parties.
e. SYNCrew reserves the right to modify the terms of the Terms and Conditions from time to time, at its sole discretion; and Customer’s continued use of the Service or products constitutes Customer’s acceptance of such modified terms.
f. The section headings contained in the Services Agreement including the Terms and Conditions are for reference purposes only and will not affect in any way the meaning or interpretation of the Services Agreement including the Terms and Conditions.
g. Except as expressly set forth herein, the Services Agreement including the Terms and Conditions is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of the Services Agreement including the Terms and Conditions or any of the transactions contemplated by the Services Agreement including the Terms and Conditions. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of the Services Agreement including the Terms and Conditions.
If you have questions regarding the Services Agreement including the Terms and Conditions or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org.