Subscription Terms and Conditions

1. PERSONAL DATA COLLECTED
9. EUROPEAN PRIVACY NOTICE
10. CALIFORNIA PRIVACY NOTICE
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Effective Date: March 1, 2024

These Sylva Subscription Terms and Conditions (these “Terms”) forms part of, and is subject to, any Subscription Agreement or other agreement(s) (including all SOWs, Orders and other ordering agreements entered into under any of the foregoing) (each a “Subscription Agreement”) between Sylva, Inc., a Delaware corporation with its principal place of business at 2228 Park Ave. S PMB 48593, New York, NY 10003-1502, USA (“Sylva”) and the counterparty to the applicable Subscription Agreement (“Client”). By accessing or using the services provided or made available by Sylva in connection with the applicable Subscription Agreement ("Services"), Client agrees to be bound by these Terms. Capitalized terms used but not defined within these Terms shall have the meaning ascribed to them in the Subscription Agreement.

1. DEFINITIONS

  • “Aggregate/Anonymous Data” means: (i) data generated by aggregating Client Data with other data so that results are non-personally identifiable with respect to Client or Client Participants; and (ii) learnings, logs, and data regarding use of the Services that are non-identifiable to Client, non-personally identifiable with respect to Client Participants, and does not contain any identifying information related to either Client or Client Participants. 
  • “Authorized User” means Client’s employees, representatives, consultants, contractors, or agents who are authorized to use Trial Services and have been supplied user identifications and passwords by Sylva.
  • “Client Data” means Client Personal Data and Submitted Data.
  • “Client Personal Data” means Personal Data of Client Participants made available to Sylva by or on behalf of the Client in connection with the Services. 
  • “Client Properties” means Client’s online properties, products, and platforms, and the content and services made available thereon or therethrough for use by Client Participants that Sylva approve to utilize the Services.
  • “Client Participants” means those individuals that use Client Properties after successfully verifying their identity through a login process (i.e., individuals that are “authenticated users”).
  • “Content” means the data, information, software, and services, excluding Client Data, created, or made available to Client via operation of the Services.
  • “Data Privacy Laws” means all worldwide data protection and privacy laws and regulations applicable to the Processing of Personal Data pursuant to a Principal Agreement, including, where applicable: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”); (ii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); (iii) the California Consumer Privacy Act of 2018, California Civil Code 1798.100 et seq. (2018), as amended (“CCPA”); and (iv) any other similar data privacy laws in any other applicable territory, each as amendment, replaced, supplemented or superseded.
  • “Personal Data” means any information, in any form or format, that constitutes “personal information,” “personal data,” “personally identifiable information,” “covered data,” or similar that is defined in and subject to protections, obligations and/or restrictions of Data Privacy Laws(s).
  • “Submitted Data” means data uploaded, inputted, or otherwise submitted by Client to the Services.
  • “Technology” means Sylva’s proprietary technology, including but not limited to, software, hardware, products processes, user interfaces, know-how, data, techniques, and designs, made available to Client via the operation of or in support of the Services.
  • “Test Services” means those Sylva Services or functionality that may be made available to Community to try at its option at no additional charge which Sylva has not yet publicly launched or it designated as test, beta, pilot, limited release, non-production, evaluation, or by a similar description.
  • “User Documentation” means manuals, training materials, product descriptions, specifications, technical manuals, and other supporting materials that are normally supplied by Sylva in connection with the Services.

2. GRANT & RESTRICTIONS.

  1. Access & Use: Subject to Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and any applicable Order Form, Sylva grants Client a non-exclusive, no-sublicensable, non-transferable, and revokable right to access and use the Service and the Content via the mechanisms approved Sylva during the term of the Order solely for the Client’s own internal business purposes.

    Where specified in the Order, the Services may require installation of Sylva Technology on Client’s Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Sylva Technology on the specified Client Properties.
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  2. Restrictions on Rights. The rights granted to Client under the Agreement are limited to solely those set forth in Section 2.1. Without limiting the foregoing, Client represents and warrants that it shall not, directly or indirectly:
  • allow anyone but Authorized Users to and use of the Services;
  • implement the Services in a manner or using technology not designated by Sylva;
  • allow unique a I.D. and password assigned by Sylva to an Authorized User to be shared with or used by anyone other than the Authorized User;
  • copy, modify, or create any derivative work of the Services, Content, or any portion thereof;
  • reverse assemble, decompile, reverse engineer, or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure, or organization) from the Service;
  • create Internet “links” to the Service or “frame” or “mirror” any Content on any other server, wireless, or Internet-based device;
  • rent or lease access to the Service or use it for timesharing or service bureau purposes or otherwise for the benefit of a third party;
  • transmit or permit transmission of any data to the Services that contains software viruses, harmful or deleterious computer code, files or programs, or any other data that may damage, misappropriate, or interfere with the Services;
  • transmit any data to the Services that infringes the intellectual property or other rights of any third party;
  • transmit any data to the Service that is libelous, defamatory, threatening, obscene or could give rise to civil or criminal liability under U.S. or international law;
  • interfere with or disrupt servers or networks connected to the Service, or violate any regulations, policies or procedures associated with such networks;
  • disclose the results of any performance tests or evaluations to any third party without Sylva’s prior written permission; 
  • remove the copyright, trade secret or other proprietary protection legends or notices which appear on or in the Service; or
  • Use the Services or Content in order to build or assist a third party in building a competitive product to the Services or otherwise use the Services or Content for a commercial purpose.

3. CHANGES TO THE SERVICE‍

Sylva reserves the right to update and make other changes to the Services: (i) to comply with applicable law; and (ii) provided such changes do not, in Sylva’s sole reasonable discretion, materially diminish the reasonably expected benefit of the Service without prior notice to Client.
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4. CLIENT’S 3rd PARTY SERVICES ACCOUNTS

  • Access Grant. Client understands and agrees that Sylva’s provision of the Services requires Client to provide Sylva with the necessary administrative, managerial, or similar rights to Client’s accounts with certain third-party service providers, including, without limitation, third-party communication service providers (e.g., Slack, Zoom) integrated into or made available in connection with Client Properties. Data obtained by Sylva with the Client account credentials shall be deemed Client Data hereunder. Sylva will use such access only as specifically instructed by Client. Client shall be responsible for ensuring that such instructions comply with all applicable laws and Client’s agreement(s) with the third-party service providers (including all applicable third-party service provider’s policies, guidelines, TOUs, and privacy policies. 
  • Client Participant Transparency & Choice. Client acknowledges its responsibility for ensuring compliance with all applicable Data Privacy Laws related to the processing (as defined in the applicable Data Privacy Law(s)) of Client Personal Data (including contents of communication occurring via third-party communication providers) by Client, its third-party service providers, and Sylva including, without limitation, providing all required disclosures to, and obtaining any required consents from, Client Participants. Client represents and warrants that all such necessary disclosures have been made and consents obtained for Sylva to process the applicable Client Personal Data as permitted under this Agreement.

5. SERVICES FEES & PAYMENT

‍Services Fees will be as specified in an Order and are due and payable as specified in the applicable Order. Except as otherwise specified in a specific Order: payment obligations are non-cancelable and non-refundable. If any payment due to be made by Client is delinquent or is declined, rejected, or otherwise made invalid for any reason, Sylva shall have the right to charge an additional 5% of the amount payable, per instance. Sylva shall also have the right to suspend access to Services during any period of payment delinquency. Client shall be responsible for all of Sylva’s costs of collection of any unpaid Services Fees due or payable pursuant to this Agreement, including without limitation any fees payable to any collection agency, applicable filing fees and other court costs and reasonable attorney’s fees, and other associated costs and expenses.

6. PROPRIETARY RIGHTS

  • Sylva Proprietary Rights. The Services, Content, Technology, and User Documentation and all associated patent rights, copyrights, derivative rights, trade secrets, trademarks, and other proprietary rights in and to the foregoing (collectively, “Sylva IP”) are the property of Sylva (or its licensor(s), if applicable). Sylva (and any relevant third-party licensors of Sylva) shall retain all of its respective rights in and to any of its Sylva IP, subject to the limited license granted herein. From time to time, Authorized Users may provide Sylva feedback, analysis, suggestions, and comments related to the Services and/or Content (collectively, “Feedback”). As between Sylva and Client or the applicable Authorized User, as applicable, all right, title and interest in and to any such Feedback shall be owned by Sylva and Sylva shall have the right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation or credit to Client or the applicable Authorized User.
  • Client Proprietary Rights. As between Client and Sylva, all Client Data and Properties (excluding any Sylva Technology) and all associated patent rights, copyrights, derivative rights, trade secrets, trademarks, and other proprietary rights in and to the foregoing (collectively, “Client IP”) are the property of Client (or its licensor(s), if applicable). Client (and any relevant third-party licensors of Client) shall retain all of its respective rights in and to any of its Client IP, subject to the limited license granted herein. Notwithstanding anything to the contrary above, Client agrees that Sylva will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Sylva Technology, which Sylva may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Sylva’s products and services and to create and distribute reports and other materials). For clarity, Sylva will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Client or Client Participants and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs).
  • Grant to Sylva. Client hereby grants all rights and permissions in or relating to Client IP as are necessary or useful to provide the Services and evaluate the performance thereof. For the avoidance of doubt, Client grants Sylva the right to process (as defined in applicable Data Privacy Laws) as necessary or useful to provide the Services.

7. CONFIDENTIAL INFORMATION

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, 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, such as information concerning the other party's business, plans, customers, technology, and products. Sylva Confidential Information shall include, without limitation, Sulva IP. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

The Receiving Party shall: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement. Except as required by law, neither party will disclose the terms of this Agreement, including, without limitation, the financial terms of this Agreement, to any third party other than to its attorneys, accountants, and professional advisors with a need to know and who are under a duty of confidentiality at least as protective as those set forth in this Agreement.

The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.

8. DATA PRIVACY & SECURITY

‍In the course of performing the Services, Sylva is expected to be given access to Client Personal Data. The provision of any such Client Personal Data and Sylva’s use thereof shall be governed by Sylva’s Data Processing Addendum (“DPA”), available at [hyperlink to page webpage there the DPA will live] and which is hereby incorporated herein by this reference. 

9. TERM & TERMINATION

  • ‍Term. The term of the Agreement shall begin on the Agreement Effective Date and remain for an indefinite period of time unless earlier terminated in accordance with Section 9.2 below. The term of an Order shall be as set forth in the applicable Order.
  • ‍Termination. Either party may terminate the Agreement with written notice to the other party; provided that there is no active Order in effect. Either party may terminate this Agreement or any Order if the other party commits a material breach and said breach has not been cured within thirty (30) days of the date of notice from the non-breaching party. 

10. REPRESENTATIONS & WARRANTIES

Mutual Representations & Warranties. Each party represents and warrants to the other that: (a) it is a duly authorized company in good standing and has the right and authority to enter into this Agreement, to grant the rights granted by it hereunder, and to fully perform all of its obligations hereunder; (b) it has not entered into, nor will it enter into, any agreement that would conflict with its obligations hereunder or render it incapable of performing satisfactorily hereunder; and (c) it will comply with the requirements and restrictions of the DPA; 

Sylva Representations & Warranties. With regard to all Services, excluding Test Services provided by Sylva pursuant to an Order, Sylva represents and warrants that it will render the Services in a professional and workmanlike manner in accordance with generally accepted industry standards.

Client Representations & Warranties. Client represents and warrants that: (a) it will seek to ensure that all employees or agents (including Authorized Users) comply with the obligations under the Agreement, these Terms and the applicable Order; (b) neither it nor any of its employees or agents (including Authorized Users) will make use of the Services except as explicitly permitted hereunder; and (c) the provision of Client Confidential Information and Client Personal Data and Sylva’s use thereof in compliance with this Agreement will not infringe upon any patent, trademark, service mark, copyright, right to publicity, or other intellectual property, proprietary or privacy rights of any third party. 

Without limiting the breath of the immediately preceding clause 10.3(c), Client represents and warrants to Sylva that: (i) it has the right to grant Sylva the right to process (as defined under applicable Data Privacy Laws) Client Personal Data as necessary and useful to provide the Services; (ii) it shall not transmit or make available to Sylva any Client Personal Data that contain sensitive or special categories of information, precise location information, sensor information, or personal directory information; (iii) its published privacy policies fully and accurately reflect, support and are consistent with the collection, transfer, storage, and use of Client Personal Data by Client and by Sylva and Sylva’s third-party Artificial Intelligence technology provider in support of Sylva’s provision of the Services; (iv) Data notices to Client Participants required by applicable Privacy Laws are provided/presented in the form and manner required; (v) all consents (opt-in and/or opt-out) and the mechanisms via which Client Participants can provide and revoke such consents have been obtained in the form and manner required by applicable Data Privacy Laws; (vi) without limiting the immediately preceding subclause (vii), Client clearly and conspicuously notifies individuals of the options available for not having Client Personal Data used by Client and/or third parties (including Sylva) by providing a link to an acceptable opt-out mechanism; (viii) appropriate physical, technical, and administrative safeguards designed to ensure that compliance with applicable Data Privacy Laws are implemented and maintained; (ix) with regard to Client Personal Data transferred out of the jurisdiction(s) where the applicable Data Privacy Law applies, such transfer(s) will comply with all Data Privacy Laws applicable to such transfer; (x) all Client Personal Data subject to the protection of the GDPR or the UK GDPR, shall be provided to Sylva with an associated TC String. A TC String is an encoded string that identifies whether a Client Participant has granted consent to collect and use their personal data. 

11. DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SYLVA, TO THE GREATEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES, WILL MEET CLIENT REQUIREMENTS OR THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE.

12. INDEMNIFICATION

Each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party, its parents, subsidiaries and affiliates and each of their respective officers, agents, employees, directors and advisors (the “Indemnified Party(ies)”) from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or related to any third party claim alleging any breach of such party’s representations and warranties hereunder.

Upon receiving notice of any claim covered by the above indemnity obligations, the Indemnified Party shall promptly notify the Indemnifying Party in writing of the claim. The Indemnifying Party may assume sole control of the defense of any such claim. The Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. The Indemnified Party shall provide the Indemnifying Party reasonable assistance regarding such claim at the Indemnifying Party’s expense. Unless a settlement is solely for monetary damages for which the Indemnified Party is fully indemnified hereunder, the Indemnifying Party shall not settle any claim without the Indemnified Party’s prior, written consent, which shall not be unreasonably withheld 

13. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT; AND (B) EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S LIABILITY SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT TO SYLVA UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. 

14. GENERAL TERMS

  1. For all purposes under this Agreement, Sylva and Client will be and act as an independent contractor and will not bind nor attempt to bind the other to any contract.
  2. Client may not assign its rights and obligations under this Agreement without the prior written consent of Sylva.
  3. This Agreement is governed by New York state law, excluding conflicts of laws principles. Any action arising under or related to this Agreement will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction) located in New York, New York.
  4. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand (and duly receipted), or sent via next-day delivery by a nationally recognized carrier (e.g., the United States Post Office, United Parcel Service, or Federal Express) with proof of delivery requested to the addresses for each party given above.
  5. The terms, provisions, and representations contained in this Agreement that by their sense and context are intended to survive shall so survive the completion of performances and termination of this Agreement, including the making of any and all payments due hereunder.
  6. This Agreement represents the entire agreement between the parties regarding the subject hereof; and it may not be modified, waived, or amended except in a writing signed by both parties. This Agreement will inure to the benefit of and be binding upon the parties and their respect successors and assigns. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, it shall not affect any of the other portions of this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
  7. To the extent permitted by applicable law, Sylva  may update these Terms. Updates will be posted here. Updates will not apply retroactively and generally will become effective 14 days after they are posted. However, changes addressing new functions for a Service or made for legal reasons will be effective immediately. Client’s continued use of the Services after the effective date of any updates constitutes Client’s acceptance of and agreement to follow and be bound by such changes.