Last Modified March 27, 2024
BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OF THIS SERVICE AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”, AND TOGETHER WITH THIS SERVICE AGREEMENT, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY SERVICE (AS DEFINED BELOW).
This Agreement, by and between Customer and Sygma Labs Inc. (“Company”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Company’s proprietary software-as-a-service platform (the “Company Service”), which facilitates collaboration for hardware development teams. Company reserves the right to change or modify portions of this Service Agreement at any time. If Company does so, it will post the changes on this page and will indicate at the top of this page the date this Service Agreement was last revised. Company will also notify Customer, either through an email notification or through other reasonable means. Any such changes will become effective upon Customer’s acceptance of the same (which acceptance may be granted by clicking a box indicating acceptance of the new Service Agreement or by delivery of an email notification of such changes to Customer’s email address set forth in the Order Form without an objection to such changes issued by Customer to Company in writing within ten (10) business days of such delivery). Each of Company and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.
3.1. Fees; Payment Terms. In exchange for use of the Company Service and the rights granted pursuant to this Agreement, Customer will pay to Company the fees set forth in the Order Form (the “Fees”) in accordance with the terms and conditions set forth herein and therein. Payment obligations are non-cancelable and any Fees paid are non-refundable.
3.2. Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
4. TERM; TERMINATION.
4.1. Term; Termination. Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), and will automatically renew for additional periods of the same duration, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). In addition, (a) a Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof and (b) Company may terminate this Agreement for any or no reason upon fourteen (14) days’ prior written notice to Customer.
4.2. Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the Company Service will immediately terminate, and Customer will (a) cease use of the Company Service; and (b) pay to Company all amounts due and owing under this Agreement (to the extent not previously paid). In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.
4.3. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimers), 6.3 (No Professional Advice), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.
5.1. Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.
5.2. Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3. Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
5.4. Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
6.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. In addition, Customer represents, warrants and covenants that (i) it has all rights necessary to permit Company and its third-party service providers to use the Customer Data as contemplated hereunder and (ii) the Customer Data will be true, accurate and complete.
6.2. General Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICE IS ERROR-FREE OR THAT OPERATION OF THE COMPANY SERVICE WILL BE SECURE OR UNINTERRUPTED.
6.3. AI Technology. Unless otherwise set forth in the Order Form, Customer acknowledges that the Company Service may use proprietary and third-party advanced technologies, such as artificial intelligence, machine learning systems, third party large language models and similar technology and features (together, “AI Technology”). Unless otherwise set forth in the Order Form, certain Customer Data may be input into AI Technology in connection with use of the Company Service and the AI Technology will generate and return data, recommendations and/or other information through the Company Service (“Output”). Customer acknowledges and agrees that, in addition to any other limitations and restrictions set forth in this Agreement, there are numerous limitations that apply with respect to AI Technology and Output, including that (a) it may contain errors or misleading information and may not be accurate or reliable; (b) AI Technology is based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content; and (c) AI Technology can generate Output that is out of context, does not make sense or is biased. Customer will use independent judgement and discretion before relying on or otherwise using Output. In addition to (and without limiting) any other restrictions set forth in this Agreement, Customer will not: (i) use the AI Technology, Customer Data or Output in any manner that violates any applicable laws or policies of the third-party provider of the applicable AI Technology; (ii) use the AI Technology, Customer Data or Output in any manner that infringes, misappropriates or otherwise violates any third-party rights; (iii) send any personal information of children under 13 or the applicable age of digital consent or allow minors to use the AI Technology without consent from their parent or guardian; (iv) reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks, or otherwise attempt to discover the source code or underlying components of the AI Technology, algorithms and systems of the AI Technology (except to the extent these restrictions are contrary to applicable law); (v) use Output to develop any artificial intelligence models; provided, that, Customer may use Output to (A) develop artificial intelligence models primarily intended to categorize, classify or organize data (e.g., embeddings or classifiers) as long as such models are not distributed or made commercially available to third parties and (B) fine tune models provided as part of the AI Technology; (vi) use any method to extract data from the AI Technology other than as permitted through the AI Technology APIs; or (vii) buy, sell or transfer AI Technology API keys from, to or with a third party. Customer acknowledges that Customer Data input into AI Technology and corresponding Output can be used by AI Technology third-party providers in accordance with their privacy commitments, and as necessary to provide the AI Technology, comply with applicable laws and to enforce such third-party provider policies. Notwithstanding anything to the contrary in this Agreement, Company bears no liability to Customer or anyone else arising from or relating to AI Technology or Output, including under Section 8.1.
7.1. Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2. General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1. Indemnification by Company. Company will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Company Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Company is entitled to indemnification under Section 8.2, in which case Company will have no indemnification obligations with respect to such claim). Company will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Company Service by any party other than Company; (b) the combination, operation, or use of the Company Service with other product(s), data or services where the Company Service would not by itself be infringing; or (c) unauthorized or improper use of the Company Service. This Section 8.1 states Company’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2. Indemnification by Customer. Customer will indemnify, defend and hold Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Company Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Company Service in violation of this Agreement, (b) the Customer Data, including Company’s use of the Customer Data in accordance with this Agreement, or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.
8.3. Action in Response to Potential Infringement. If the use of the Company Service or any portion thereof by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Company Service as set forth hereunder; (b) replace or modify the Company Service to make it non-infringing so long as the Company Service has at least equivalent functionality; (c) substitute an equivalent for the Company Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
8.4. Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
10.1. Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.
10.2. Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.
10.3. Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
10.4. Remedies. Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages. Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.
10.5. Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.
10.6. Assignment; Delegation; Binding Effect. Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase. Company may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Company will bear full liability and responsibility for their acts and omissions. Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.
10.7. Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party in writing in accordance with this Section 10.7.
10.8. No Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.9. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in the body of this Service Agreement and any applicable Order Form, the terms of this Service Agreement will prevail, unless the Order Form expressly amends a provision in this Service Agreement.
10.10. Publicity. Company may identify Customer as a customer of Company, and Company may use Customer’s name, logos and/or trademarks in its advertising, promotional or sales literature, or in any other form of publicity, without Customer's prior written consent. Further, Customer will participate in good faith with Company in developing testimonials and/or case studies with respect to the Company Service and its use thereof.
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