TERMS AND CONDITIONS
Please note that these Terms and Conditions were updated on January 15, 2021, and that the updated terms will apply to the Services upon any renewal, upgrade, or additional service purchase made after January 15, 2021.
“Account” means the account created through the Syncspace.Live Platform and used by Customer (“Customer Account”) as part of and to access the Services provided by Syncspace.Live.
“Affiliate” means any entity which directly or indirectly controls, i.e. having direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, is controlled by, or is under common control with the subject entity.
“Applicable Law” means all laws, statutes, common law, regulations, ordinances, codes, rules, guidelines, orders, permits, tariffs and approvals, including those relating to the environment or health and safety, of any governmental or regulatory authority that apply to the parties.
“AUA” means the Acceptable Use Agreement, available at [https://syncspace.live/acceptable-use-agreement], if applicable, which governs the use of the Syncspace.Live Platform by any Customers;
“Concert Attendee” means the individual who attends an event produced, promoted, and broadcast by Syncspace.Live by obtaining a ticket through the Syncspace.Live website.
“Customer” means the individual who Registers for an Account, agrees to a Subscription Plan of Syncspace.Live, or uses the Services.
“Customer Data” means all electronic data or information, including audio and video data (i) uploaded or transmitted by the Customer in the process of using the Services;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, eco-nomic, cultural or social identity of that natural person. For greater certainty, Personal Data does not include information that is anonymized or aggregated.
“Register” means the point at which the Customer creates an Account through the Syncspace.Live Platform.
“Services” shall have the meaning ascribed to it under Section 2.1.
“Subscription Plan” means one of the payment plans under which Syncspace.Live provides Customer the Services, available through the Syncspace.Live Platform.
“Subscription Term” means the period set out under a particular Subscription Plan.
“Support Services” means the support, maintenance and training services provided or to be provided by Syncspace.Live, or a third-party service provider engaged by Syncspace.Live, to the Customer.
“Syncspace.Live Platform” or “Platform” means the Platform through which Customers will access the Services;
“Syncspace Room” means the virtual room associated with a Subscription Plan through which the Customer will use the Platform in conjunction with other users invited by the Customer for the purposes of performing together across the Internet.
“Syncspace.Live Technology” means the technology and intellectual property used in providing the products and services offered by Syncspace.Live, including computer software, programs, connectors, websites, networks, and equipment. Syncspace.Live Technology does not include third-party applications or other software programs and technology provided or made available to Customer by third parties.
“Term” means the period from the effective date of the first Subscription Term for the first Service purchased, to the date of termination or expiration of the final Subscription Term.
“Users” means any person authorized by Customer to access the Customer account and use the Services under the applicable Subscription Plan, including performers who have been invited to a Customer’s Syncspace Room by Customer for the purpose of performing together across the Internet.
“Syncspace.Live” means Creativity at Scale Inc., d.b.a. Syncspace.Live, its employees, contractors, agents, Affiliates, and any other individual authorized by Syncspace.Live dealing in the matters under these Terms and Conditions.
“Website” means the website owned and operated by Syncspace.Live at https://www.syncspace.live.
2.1 Description of Service. Syncspace.Live, which is powered by the Syncspace.Live Technology and other Syncspace.Live proprietary technology, provides performing arts ensembles, musicians, and other artists access to a platform that enables a group of performers to sync audio and video in real-time across the Internet such that they can hear and see each other in a way that can come very close to being in the same room. Depending on the Subscription Plan that Customers sign up for, performers can also broadcast their performances live via third-party applications such as Facebook or YouTube, or through Syncspace.Live’s virtual broadcast venue. Syncspace.Live may sell tickets to performances to attendees, the proceeds of which are distributed to the performers after payment processing fees, taxes, and fees for Syncspace.Live’s broadcasting services (“Services”) have been deducted. Syncspace.Live grants the Customer a non-exclusive, non-transferable, worldwide right to access and use the Syncspace.Live Platform and Services during the Term. Any new features or tools which are added to the current Platform and related Services shall also be subject to these Terms and Conditions. Syncspace.Live reserves all other rights. Customer shall not use the Platform or any Services that are not set forth in the Subscription Plan they have Registered for through their Customer Account and accepted by Syncspace.Live, except as otherwise provided in these Terms and Conditions.
2.2 Provision of Service. Syncspace.Live shall make the Platform available to Customer and its designated Users during the Term. Customer may subscribe for Services for the number of Users affiliated with Customer Account through Customer Account by selecting and purchasing a Subscription Plan. Customer agrees that its purchase of a Subscription Plan is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Syncspace.Live with respect to future functionality or features. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality.
2.4 Syncspace.Live Technology and Application. Syncspace.Live Technology (including any third-party support software) and Syncspace.Live Application is owned by Syncspace.Live or applicable third-party licensors and suppliers and is subject to the terms of the AUA, which forms part of these Terms and Conditions.
2.5 Beta Services. From time to time, Syncspace.Live may offer to certain Customers test versions of a new Service, functionality, or feature of an existing Service (“Beta Service”) for evaluation by you and Users. Customer is not charged any additional fee to use Beta Services. If you use a Beta Service, you accept and acknowledge that: (a) the Beta Service is a pre-release version that is still under development and may not work as it is intended, or at all; the Beta Service might not be reliable and the results of the Beta Service may not be accurate; and, your use of the Beta Service might present risks of operational failure; (b) the Beta Service is intended for testing and evaluation only, and is provided on an “AS IS”, “AS AVAILABLE” and “WITH ALL FAULTS” basis; (c) Syncspace.Live reserves the right to change or terminate the Beta Service at any time without notice to you, and we are not obligated to release a commercial version of the Beta Service; (d) any commercial version of the Beta Service may be substantially different from the Beta Service and may not be compatible with certain software or systems; (e) Syncspace.Live is not obligated to provide you with customer support for the Beta Service; and (f) any and all information you obtain regarding the Beta Service is confidential and you may not disclose that information to any other person or entity, or use that information for any purpose other than providing feedback to us.
2.6 Concert Meetup Rooms. Concert Attendees of performances produced and broadcast by Syncspace.Live will have the ability to access Syncspace.Live Meetup Rooms, which enable attendees to gather together and interact with each other in a video-conference type setting (“Meetup Rooms”). Syncspace.Live may provide the ability for Users to submit, post, display, transmit, and/or exchange information, ideas, opinions, photographs, images, video, creative works, or other information, messages transmissions or material to Syncspace.Live or others (“Posts” or “Postings”). Postings by Customers and/or Users do not reflect the views of Syncspace.Live, and Syncspace.Live has no obligation to monitor, edit, or review any Postings in the Meetup Rooms. Syncspace.Live assumes no responsibility or liability arising from the content of any such Postings nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Postings in the Meetup Rooms. Customer and users are strictly prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law.
Without limiting the foregoing, the following behaviours are strictly prohibited in Meetup Rooms:
- Strong, vulgar, obscene or otherwise harmful language;
- Racially, ethnically or otherwise objectionable language;
- Harassing, intimidating, stalking or threatening other Syncspace.Live Customers and/or Users;
- Libelous, defamatory or otherwise tortious language;
- Online vandalism;
- Impersonation of another person;
- Posting, distributing, transmitting, or promoting illegal content;
- Invasion of another’s privacy;
- Actions that are hurtful to minors; and
- Posting, providing, transmitting or otherwise making available any materials or information infringing on the rights, including the intellectual property rights, of a third party, including other Customers’ and Users’ rights;
3.1 Customer Account. Syncspace.Live shall enable a Customer Account for Customer to manage their Subscription Plan and related Services. Syncspace.Live shall allow Customer to create a username and password for Customer Account. Customer must Register for a Customer Account by providing a first name, last name, phone number, and valid email address, and any other information required by Syncspace.Live. Syncspace.Live may, in its sole and absolute discretion, reject an application for an Account for any reason, and Syncspace.Live reserves the right to refuse service to anyone for any reason at any time.
Customer shall maintain the confidentiality of all usernames, passwords, access, and account information (“Customer Login”) under their control. Except to the extent caused by Syncspace.Live’s breach of this Agreement, including its obligations under Section 8 (Confidentiality), Syncspace.Live is not responsible for unauthorized access to any Account.
Customer shall contact Syncspace.Live promptly if (i) the Account information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to Customer Login or Syncspace.Live’s Platform or Services that may have occurred or is reasonably likely to occur. Syncspace.Live will not be liable for any loss, damage, or claims, whether instigated by Customer or otherwise, directly or indirectly resulting from your failure to maintain the security of Customer Login or Customer Account. Customer is solely responsible and liable for the acts, omissions and defaults arising from its Users use of Customer Accounts in the performance of obligations under these Terms and Conditions as if they were Customer’s own acts, omissions, or defaults.
3.2 Customer Account Requirements. To Register for a Customer Account and receive a Customer Login, you must
(i) have attained the age of majority in your jurisdiction where you reside.
Persons under the age of majority in their jurisdiction or are less than 18 years of age (“Minor”) may not create or use Customer Accounts. If you intend to use the Services to provide teaching services to Minors, you are responsible for obtaining consent from that Minor’s parents or legal guardian to use the Platform during your lessons and you represent and warrant to Syncspace.Live that you will obtain consent from the Minor’s parent or legal guardian prior to interacting with the Minor on the Platform. Customer will be responsible and liable for any activities in connection with the Minor’s use of the Platform.
4. Use of the Service.
4.1 Syncspace.Live Responsibilities. Syncspace.Live shall: (i) maintain the integrity of the Platform and related Services; (ii) provide certain Support Services to Customer and Users, at no additional charge; and (iii) use commercially reasonable efforts to make the Platform and Services available 24 hours a day, 7 days a week, except for (each of the following being an “Exception”): (a) planned downtime (of which Syncspace.Live shall give at least 8 hours’ notice via the Service and which Syncspace.Live shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST Friday to 3:00 a.m. EST Monday); or (b) any unavailability caused by circumstances beyond Syncspace.Live’s reasonable control, including without limitation, acts of God, acts of government, government declared states of emergencies, government restrictions on businesses, epidemic, pandemic (including COVID-19), plague, flood, fire, earthquakes, tornado, tsunami, hurricane, civil unrest, war, insurgency, armed insurrection, civil war, riots, acts of terror, security breaches, strikes or other labor problems (other than those involving Syncspace employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Syncspace.Live’s possession or reasonable control, and denial of service attacks.
4.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer Accounts and the Syncspace Rooms and for Users’ compliance with these Terms and Conditions. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use the Platform and Services in compliance with the Use Guidelines described in Section 4.3; (iii) use reasonable efforts to prevent unauthorized access to, or use of, the Platform and Services, and notify Syncspace.Live promptly of any such unauthorized access or use, including any such improper or unauthorized use by Users; (iv) accept and abide by the terms of the AUA and/or ensure that Users affiliated with Customer Account accept and abide by the terms of the AUA (where applicable); and (v) comply with all Applicable Laws in using the Platform and Services.
4.3 Use Guidelines. Customer shall use the Platform and related Services, and ensure that Users who join Customer in Customer’s Syncspace Room use the Platform and Services, solely for their personal and/or professional purposes during the Term as contemplated by these Terms and Conditions and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or related Services or individual Syncspace Rooms within the Platform available to any third party, other than to Users or as otherwise contemplated by these Terms and Conditions; (ii) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Laws; (iii) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party intellectual property or privacy rights; (iv) send or store Malicious Code (whether intentional or inadvertent); (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform, related Services, individual rooms within the Platform for which you are not provided access, or its related systems or networks. You are responsible for all activity and content uploaded by you or your Users through the Syncspace.Live Platform, including without limitation, photographs, images, audio recordings, videos, graphics, written content, code, information, and other data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited in connection with your Account. With the exception of a Virtual Venue Subscription Plan, Customer shall not invite Users to access the Platform through Customer’s Syncspace Room unless Customer is also present in the Syncspace Room and collaborating with Users in the capacity as a performer or teacher.
5. Fees & Payment.
5.1 User Fees. Customer shall pay all fees specified under its Subscription Plan, accessed through Customer Account, using credit card payment through a third-party service payment system (Stripe). Except as otherwise provided all fees are quoted and payable in Canadian Dollars. Except as otherwise specified in these Terms and Conditions, under the Subscription Plan: (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable, and (iii) fees paid are non-refundable.
5.2 Subscription Plans. Customer’s Subscription Plan for the Services and status thereof is specified in Customer Account. Subject to Section 2.2, Customer may not reduce Customer’s commitment under the Subscription Plan specified in Customer Account during the Subscription Term. If Customer wishes to switch Subscription Plans, then Customer must notify Syncspace.Live before the start of the next Subscription Term for the applicable Service; any changes will be effective at the start of that next Subscription Term.
5.3 Invoicing & Payment. Fees for the Services must be paid in advance and billed monthly in accordance with a Subscription Plan, available at https://syncspace.live/subscribe/ and payable through Customer Account. Syncspace.Live provides monthly payment options through our e-commerce store hosted by WooCommerce, and utilizes Stripe to process payments. You acknowledge that these third-party service providers will be your default payment gateway. You are responsible for maintaining complete and accurate billing and contact information through our e-commerce store.
5.4 Suspension or Termination for Non-Payment. If the monthly payment is not provided by Customer, either through the automated payment system or otherwise, Syncspace.Live reserves the right to suspend or revoke access to the Services, without liability to Syncspace.Live, until any outstanding amounts are paid in full. Your Account(s) will be reactivated upon payment of any outstanding amounts including the payment for the next billing cycle. If an outstanding balance remains unpaid on your Account for more than sixty (60) days, Syncspace.Live reserves the right to terminate your Account.
5.5 Effect of Suspension. If Syncspace.Live suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Syncspace.Live’s error or omission.
5.6 Taxes. Unless otherwise stated, Syncspace.Live ‘s fees do not include any direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Syncspace.Live ‘s net income or property. If Syncspace.Live has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer.
5.7 Annual Increases. Following the first Subscription Term, Service fees may be subject to increases at the level of then-current pricing under the Subscription Plans, which will become effective beginning upon the first day of each subsequent Subscription Term. Syncspace.Live shall notify Customer of any increase at least 30 days prior to Customer’s subsequent Subscription Term. Such notice may be in the form of notice commonly used by Syncspace.Live to communicate with Customer. If Customer objects to the increase, then Customer may elect to not renew its Subscription Plan. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or an additional Service that Customer orders, and (ii) expiration of any discount or incentive programs to which Customer was previously entitled.
5.8 Payment Disputes. Customer must assert any payment dispute in writing to Syncspace.Live’s accounting department at [[email protected]] within 15 days after the due date of the invoice giving rise to the dispute. Syncspace.Live shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
5.9 Promotions. Syncspace.Live may, in its sole and absolute discretion, create promotional codes that may be redeemed for Account credit, discounts, or other features or benefits related to any Subscription Plan. Syncspace.Live reserves the absolute right to (i) limit promotional offers to any Customer; (ii) cancel or amend promotional offers at any time; or (iii) exercise its suspension or termination rights under Section 12 where Syncspace.Live reasonably suspects fraudulent activity respecting any promotion(s). Customer may be required to pay further tax or duties for the use of the coupon or promotional offer. Syncspace.Live is not obligated to replace stolen, lost, or deleted promotional codes. You agree to be bound by any supplemental terms that may be included for promotional offers.
6. Proprietary Rights.
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Syncspace.Live reserves all right, title, and interest, including all intellectual property rights, in and to the Platform and Services and all technologies related thereto, including any and all algorithms or processes developed by Syncspace.Live and all derivatives, modifications, or improvements of or to any of the foregoing made by or for Syncspace.Live, whether or not created or developed in connection with the Platform or Services. No rights are granted to Customer or Users hereunder other than as expressly set forth herein.
6.2 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Platform and Services; (ii) frame or mirror any content forming part of the Platform or Services; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform or Services, in whole or in part; (iv) access the Platform or Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or Services; (v) circumvent or attempt to circumvent security measures implemented by Syncspace.Live to ensure the integrity and privacy of the Platform, the Services, and the “rooms” that can be rented by other Customers; or (vi) disrupt the use of the Services or Platform by any other Customer, including interrupting their performances, lessons, or collaboration sessions.
6.3 Customer Data. As between Syncspace.Live and Customer, Customer or User, as applicable, exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under these Terms and Conditions. Subject to Section 6.4, Syncspace.Live shall not access Customer Accounts.
YOU ACKNOWLEDGE BY USING THE SYNCSPACE.LIVE PLATFORM AND RELATED SERVICES THAT YOUR PERFORMANCE, INCLUDING COPYRIGHTED INTELLECTUAL PROPERTY THAT YOU HAVE CREATED MAY BE DISPLAYED, PUBLISHED, DISTRIBUTED, RECORDED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE TO THE PUBLIC. YOU ACKNOWLEDGE THAT YOUR USE OF THE PLATFORM AND RELATED SERVICES IS AT YOUR OWN RISK, AND THAT SYNCSPACE SHALL NOT BE LIABLE FOR ANY LOSS, VULNERABILITY, OR DAMAGES RESULTING FROM THE UNAUTHORIZED RECORDING, DISTRIBUTION, PUBLISHING, OR DISSEMINATION OF ANY PERFORMANCE IN VIOLATION OF THESE TERMS AND CONDITIONS OR THE ACCEPTABLE USE AGREEEMNT. IF YOUR INTELLECTUAL PROPERTY RIGHTS HAVE BEEN VIOLATED, OR YOU SUSPECT YOUR INTELLECTUAL PROPERTY RIGHTS HAVE BEEN VIOLATED WHILE USING THE PLATFORM, SYNCSPACE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH ANY NECESSARY INVESTIGATION AND ASSIST WITH ANY TAKEDOWN NOTICES OR OTHER ACTIONS REQUIRED TO ADDRESS SUCH VIOLATION OR SUSPECTED VIOLATION.
6.4 Usage Data. Syncspace.Live may collect certain data and information regarding Customer and/or Users use of the Services, including, but not limited to, data involving functions within the Platform and Services most used by Customer or Users or other items (“Usage Data”). Syncspace.Live may use and exploit Usage Data for any purpose in connection with operating, improving and supporting the Platform and Services and any machine learning technology that underlies the Services (“Usage Data Purpose”). Notwithstanding any term in these Terms and Conditions to the contrary, Customer hereby consents to the use of such Usage Data for the Usage Data Purpose, and Customer represents and warrants it has obtained the necessary consent and legal right from Users (if applicable) to do the same, and Customer irrevocably assigns all rights, title and ownership of the Usage Data to Syncspace.Live, and Customer hereby waives any applicable non-assignable rights to such Usage Data to the extent Customer is legally permitted to do so, and Customer represents and warrants it has obtained the necessary consent and legal right from Users (if applicable) to do the same. Syncspace.Live represents and warrants that it shall not use the Usage Data for any other purpose other than the Usage Data Purpose.
6.5 Suggestions. Syncspace.Live shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Platform or related Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Platform and Services.
7. Privacy Rights.
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of Customer or User disclosed to Syncspace.Live, whether orally or in writing, or whether disclosed purposefully or inadvertently, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Customer Data, except those portions of Customer Data that are disseminated to the public with Customer’s consent. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Customer or User; (ii) was known to Syncspace.Live prior to disclosure by Customer or User without breach of any obligation owed to Customer or User; (iii) is received from a third party without breach of any obligation owed to Customer or User; or (iv) was independently developed by Syncspace.Live without any use of or reference to Customer’s Confidential Information.
8.2 Confidentiality. Syncspace.Live shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Customer Data, Confidential Information, or Personal Data. Syncspace.Live shall implement processes and maintain procedures designed to comply with Applicable Laws. These Terms and Conditions are Customer’s instructions for storing Customer Data, and Syncspace.Live shall not process Customer Data for any other purpose. Syncspace.Live may use subcontractors to facilitate its obligations under these Terms and Conditions. Syncspace.Live shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Customer’s Data, Personal Data, or Confidential Information. Syncspace.Live shall not disclose or use any Confidential Information for any purpose outside the scope of these Terms and Conditions, except with Customer or User’s prior written permission, subject to Section 8.3.
8.3 Compelled Disclosure. If Syncspace.Live is compelled by law to disclose Confidential Information of Customer or User, including encrypted Customer Data, it shall provide Customer or User, as applicable, with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Customer or User’s cost, if Customer or User wishes to contest the disclosure.
9. Warranties & Disclaimers.
9.1 Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into this Agreement and perform its obligations hereunder; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.
9.2 Customer Warranties. Customer represents and warrants that for any Customer Data or Personal Data controlled by it, any Personal Data controlled by Users affiliated with Customer Account, or any other Customer Data or Personal Data provided or transmitted by Customer or User to Syncspace.Live, whether advertent or otherwise, Customer or User, as applicable, has obtained the necessary consent or legal right to provide or transmit such data.
9.3 Syncspace.Live Warranties. Syncspace.Live represents and warrants that (i) it will provide the Platform and Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the functionality of the Platform and Services will not be materially decreased during the Term; (ii) the Platform and Services will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (iv) it owns or otherwise has sufficient rights in the Platform and Services to grant to Customer the rights to use same granted herein; and (v) the Platform and SErvices does not infringe any intellectual property rights of any third party.
9.4 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DOCUMENTATION, PLATFORM, AND SERVICES ARE PROVIDED “AS IS,” AND SYNCSPACE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE DOCUMENTATION OR THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY SYNCSPACE. SYNCSPACE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
10.1 Indemnification by Customer. Subject to these Terms and Conditions, Customer shall defend, indemnify and hold Syncspace.Live harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims“) made or brought against Syncspace.Live by a third party alleging that the Customer Data, or Customer’s use of the Platform and/or Services: (i) infringes the intellectual property rights of such third party, or (ii) has harmed such third party because Malicious Code was uploaded or inputted by Users, (iii) electronic data or information was uploaded or inputted by Users without such third party’s authorization or permission, or (iv) violates any Applicable Law, or has otherwise harmed a third party; provided, that Syncspace.Live (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Syncspace of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
11. Limitation of Liability.
11.1 Limitation of Liability. IN NO EVENT SHALL SYNCSPACE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, OR THE RELATIONSHIP BETWEEN SYNCSPACE AND CUSTOMER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE PRICE OF THE SUBSCRIPTION PLAN TO WHICH CUSTOMER REGISTERED AND SUBSCRIBED.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL SYNCSPACE HAVE ANY LIABILITY TO CUSTOMER OR USER(S) FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER OR USER(S) HAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Limitation of Claims. EXCEPT WITH RESPECT TO CLAIMS RELATING TO THE MISUSE OF CONFIDENTIAL INFORMATION OR PERSONAL DATA, CUSTOMER SHALL NOT BRING ANY CLAIM RELATING TO THE AGREEMENT MORE THAN TWO YEARS AFTER THE EVENTS GIVING RISE TO THE CLAIM OCCURRED.
11.4 General. THESE EXCLUSIONS AND LIMITATIONS APPLY EVEN IF THE REMEDIES ARE INSUFFICIENT TO COVER ALL OF THE LOSSES OR DAMAGES OF CUSTOMER OR USERS. WITHOUT THESE LIMITATIONS THE FEE FOR THE PLATFORM AND SERVICES WOULD BE HIGHER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND THE PARTIES MAY HAVE ADDITIONAL RIGHTS.
12. Term and Termination.
12.1 Term and Automatic Renewal. The Term of this Agreement begins on the effective date of the Subscription Term when Customer purchases the Services through the Syncspace.Live e-commerce store and ends on the date of termination, cancellation or expiration of the Subscription Term. At the end of the then-current Subscription Term, each Subscription Plan will automatically renew for an additional one-month period. Customer may cancel the Subscription under Section 12.2 below unless: (a) Customer provides written notice of non-renewal and cancellation under Section 12.2 to Syncspace.Live on or before the expiration date of the then-current Subscription Term, or (b) Syncspace.Live provides written notice of non-renewal to Customer at least 90 days before such expiration date. Customers must submit notice of non-renewal or cancellation to [email protected]. Unless another payment method has been specified, Syncspace.Live will charge Customer’s payment information on file for the Subscription Plan for the renewal term.
12.2 Termination for Cause. Syncspace.Live may terminate the Agreement or any affected Services by notice to Customer or Users (i) if Customer or User materially breaches their obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon Syncspace ceasing to operate in the ordinary course of business, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. Material breach by Customer or User includes the following: (1) Customer or User is unable to resolve any issue leading to suspension of Customer or User’s Services to Syncspace.Live’s reasonable satisfaction within 30 days following notice of suspension, or (2) Customer or User’s use of the Services is in violation of Applicable Law. Customer will not be entitled to any refunds of any payments to Syncspace.Live, pro rata or otherwise. Customer and User acknowledge and agree that Syncspace.Live shall not be liable for costs, fees, damages, lost profits, or the like, as a result of termination or any reason whatsoever under this Section 12.2.
12.2 Cancellation. Customer may cancel the Account and any affiliated User Accounts and terminate this Agreement at any time through the Customer Account. Upon such cancellation, Customer shall pay to Syncspace.Live all undisputed amounts due and payable hereunder, if any. Customer will not be entitled to any refunds of any payments to Syncspace, pro rata or otherwise.
12.3 Outstanding Fees. Termination or cancellation shall not relieve Customer of the obligation to pay any fees accrued or payable to Syncspace.Live prior to the effective date of termination.
12.4 Return and Retention of Customer Data. Within sixty (60) days after the effective date of termination, Customer, and Users with Accounts affiliated with Customer’s Account, may download and close their Account(s). After such 60-day period, Syncspace.Live shall have no obligation to maintain or provide access to Customer Data and shall thereafter, delete all Customer Data in its systems.
12.5 Surviving Provisions. The following provisions of these Terms and Conditions shall survive any termination or expiration of these Terms and Conditions: Sections 5 through 13.
13. General Provisions.
13.1 Relationship of the Parties. These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 Verification of Identity. In the event that you or User requests Support Services, or other Services, from Syncspace.Live, which require the verification of your identity and right to any Account, Syncspace.Live reserves the right to request documentation from you or User to determine or confirm Account ownership. Such documentation may include, without limitation, a scanned copy of government issued photo identification, the last four digits of the credit card used for payment under the Account, or your phone number on file, if any.
13.2 No Third-Party Beneficiaries. Except as otherwise expressed herein, there are no third-party beneficiaries under these Terms and Conditions.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms and Conditions shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect.
13.6 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Syncspace.Live (not to be unreasonably withheld). Notwithstanding the foregoing, Syncspace.Live may assign this Agreement in its entirety, without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign its rights or obligations under these Terms and Conditions is in breach of this Section shall be void and of no effect. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Dispute Resolution. Except for Claims related to the infringement of intellectual property rights, all disputes or controversies as between Customer and Syncspace.Live arising out of or relating to these Terms and Conditions, any Syncspace.Live Service and its marketing (“Disputes“) shall be determined first by mediation. The Parties shall first attempt to resolve any Dispute informally for at least thirty (30) days before initiating mediation. If the Parties cannot resolve the Dispute informally, the Parties may elect to initiate mediation. The mediation shall be facilitated by a mediator of Syncspace.Live’s choice and conducted in person in the City of Ottawa, Province of Ontario, Canada. The language of the mediation and/or arbitration shall be English (each Party shall be responsible for obtaining their own translation and legal services). If the Parties cannot resolve the Dispute through mediation, the Parties may commence a claim pursuant to these Terms and Conditions. The initial cost of such mediation shall be paid by Syncspace.Live. Upon final determination of the dispute, the prevailing party shall be entitled to recovery of their reasonable fees, costs, and expenses incurred in resolving the dispute, including reasonable attorney’s fees.
13.8 Governing Law and Jurisdiction. These Terms and Conditions will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. Subject to section 13.7, and only after the Parties have attempted the mediation proceedings contemplated therein, the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with these Terms and Conditions that is not resolved by mediation. Customer agrees that each Party may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
13.9 Equitable Relief. Customer acknowledges that damages may be an inadequate remedy if Customer or the Users violate the obligations under these Terms and Conditions, and Syncspace.Live shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
13.10 Notices. Syncspace.Live shall communicate announcements of general interest by email or by posting on its Website. Syncspace.Live shall provide Customer with legal notices by email provided by Customer. Customer shall immediately notify Syncspace.Live if Customer’s email address for notice changes. Except as otherwise specified in these Terms and Conditions, all notices must be in writing to [email protected].
13.12 Supplemental Terms. Supplemental terms may apply to certain Services, such as rules for activities or promotions, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, these Terms. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Last Updated: January 24, 2021