Symbio Developer Terms
These Symbio Developer Terms (the Terms) are a binding agreement between you and Symbio Holdings Limited (ABN 37 118 699 853) and its Affiliates (we or Symbio). In these Terms, you are referred to as you or Developer. If you are entering into these Terms on behalf of a company, organisation or another legal entity (an Entity), you are agreeing to these Terms for that Entity and representing to Symbio that you have the authority to bind such Entity to these Terms. If you do not have such authority, or if you do not agree with these Terms, you must not use the Symbio Assets.
By using or accessing any Symbio Assets, you agree to be bound by these Terms.
1. Symbio Assets. Symbio makes available certain APIs, documentation, guidelines and release notes (collectively, Symbio Assets) for use with its services (Symbio Services). Symbio may amend the Symbio Assets from time to time. Your continued use of the Symbio Assets after any change or alteration will be deemed acceptance of those changes. Symbio is not obliged to notify you of any changes but may identify any changes or updates made to the Symbio Assets on the Symbio Developer platform.
2. Credentials. You agree to follow the registration or credentialing requirements (if any) established by Symbio for access to and use of the Symbio Assets. All Symbio Assets access keys or developer credentials are Symbio's confidential information and may not be shared with third parties.
3. Your Right of Use. Subject to these Terms, you may use the Symbio Assets to enable access to, or interface with, Symbio Services but only as permitted by the relevant guidelines or documentation issued by Symbio as part of the Symbio Assets. All of your use rights in these Terms are limited, non-exclusive, non-sublicenseable and non-transferable.
4. Conditions on Use. In accessing and using the Symbio Assets, you agree not to (and not to authorise any third party to): (a) use the Symbio Assets except with the related Symbio Services and in accordance with the any guidelines issued by Symbio from time to time or as otherwise notified to you by Symbio; (b) modify or create any derivative works of the Symbio Assets (c) take any action that would subject the Symbio Assets to any third party terms, including without limitation any "open source" software license terms; (d) copy, distribute, sell, sublicense, rent or lease the Symbio Assets or any access key provided by Symbio or use such items for hosting, service provider or like purposes; or (e) access the Symbio Assets for competitive analysis or disseminate performance information (including uptime, response time and/or benchmarks) relating to the Symbio Assets or Symbio Services. From time to time Symbio may place limits on access to the Symbio Assets (e.g., limits on numbers of calls or requests). Further, Symbio may, but is not obliged to, monitor your usage of the Symbio Assets and limit the number of calls or requests you may make if Symbio forms the view, acting reasonably, that your usage is in breach of this Agreement or may negatively affect the Symbio platform or network (or otherwise impose liability on Symbio).
5. Use of Symbio Trade Marks. You may not use any Symbio Trade Mark without the prior written permission of Symbio, or as otherwise provided for in any Master Agreement you have entered into with Symbio. You agree not to contest the validity of ownership of any Symbio Trade Mark and You receive no other rights to Symbio Trade Marks under these Terms.
6. Your Responsibilities.
6.2. Symbio Master Agreement. Use of Symbio Services requires each customer to have a current Master Agreement. For the avoidance of doubt, your use of the Symbio Assets is subject to this Agreement, not the Symbio Master Agreement. If you use Symbio Services as a customer, that use remains subject to the Symbio Master Agreement.
6.3. No Resale. These Terms do not grant you the right to distribute or resell Symbio Services or to create any binding commitment on behalf of Symbio.
6.4. Your Representations and Warranties. You represent and warrant that (a) you have full power and authority to enter into and comply with these Terms; (b) your use of the Symbio Assets will not violate any third party rights (including intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications or the export of technical or personal data ("Laws"); (c) all information you provide to Symbio is and will be true, accurate, and complete and (d) you will not interfere with Symbio's business practices or the way in which it sells or distributes Symbio Services. You must not suggest any affiliation with Symbio, including any suggestion that Symbio sponsors, endorses or guarantees the performance of Symbio Assets or Services. You may not make any representations, warranties or commitments regarding Symbio, Symbio Assets or Symbio Services or on behalf of Symbio.
6.5. Indemnification. You will indemnify, defend and hold harmless Symbio, its affiliates and their respective directors, officers, employees, agents, contractors, end users and licensees from and against any claims, losses, costs, expenses (including reasonable legal fees), damages or liabilities based on or arising from (a) your relationships or interactions with any end users or third party, or (b) your breach or alleged breach of these Terms. Symbio may at its own expense participate in the defence and settlement of any claim with its own counsel, and you may not settle a claim without Symbio's prior written consent (not to be unreasonably withheld).
7. Symbio Ownership. Symbio retain all ownership and other rights in the Symbio Assets, Symbio Services and Symbio Trade Marks, including all intellectual property rights. Providing feedback, comments, or suggestions about the Symbio Assets or Symbio Services (Feedback) to Symbio is voluntary. Where you do provide Feedback, You assign all rights and interests in the Feedback (including any ideas, concepts, methods, know-how or techniques embodied in Feedback) for any purpose, without any restriction or obligation, to Symbio.
8. No Support or Maintenance. Symbio has no obligation to provide any maintenance or support for the Symbio Assets or to fix any errors or defects. If Symbio in its discretion provides any updates, modifications, enhancements, and other new releases to the Symbio Assets, such materials will be deemed included in the "Symbio Assets" under these Terms unless Symbio specifies otherwise.
9. Changes to Symbio Assets. From time to time, Symbio may change the Symbio Assets or related Symbio Services. Symbio typically makes these changes as part of its overall developer program and is unable to provide notice of the changes to developers individually. Symbio will have no liability resulting from the actions described in this paragraph.
10. Termination. These Terms remain in effect until terminated. You may terminate these Terms at any time by ceasing all use of the Symbio Assets and any relevant developer credentials. Symbio may terminate these Terms (a) for no reason or any reason upon twenty (20) days' notice to you or (b) if you breach any provision of these Terms and do not cure such breach within fifteen (15) days after written notice of the breach (or immediately in Symbio's discretion in case of wilful or significant breaches). Symbio may also suspend your use of Symbio Assets or terminate these Terms immediately if Symbio is required to do so by Law, if Symbio ceases to offer the Symbio Assets or Symbio Services or if Symbio determines that continuing under these Terms could result in legal or business liability or cause harm to its network, services, reputation or users. Upon any termination, your rights to use the Symbio Assets (including related access keys and credentials) will immediately terminate and you will cease all such use, but all other provisions of these Terms will survive. You acknowledge agree and understand that after termination you will have no further access to any Symbio developer website or portal or to any data or content that you submitted to Symbio relating to the Symbio Assets. Symbio will have no obligation or liability resulting from termination or suspension of these Terms as permitted above.
11. Disclaimer of Warranties. To the full extent the law permits, Symbio, its Affiliates and all directors, officers, employees, contractors or agents exclude all terms, conditions, representations, warranties and guarantees not expressly set out in this Agreement, whether implied or imposed by law, including any warranty as to the description, quality, merchantability, completeness or fitness for any purpose of the Symbio Assets or Symbio Services. To the full extent the law permits, Symbio limits its liability for breach of any terms, conditions, representations, warranties and guarantees which cannot be excluded by law to resupplying the Symbio Assets or the Symbio Services, where practicable. Symbio does not represent, warrant or guarantee that the Symbio Assets or its developer sites, or any use of the Symbio Assets or developer site will be secure, timely, uninterrupted, error free or meet your requirements or expectations. You may have other statutory rights, in which case the disclaimers above will apply to the full extent permitted by law.
12. Limitations of Liability. To the full extent the law permits, Symbio will not be liable to the Developer under contract, tort (including negligence), equity, under statute or otherwise for any loss of profit, loss of actual or anticipated savings, loss of revenue, loss of opportunity, loss of goodwill, loss of equipment value, loss or corruption of data, or for any business interruption, whether direct or indirect, or for any incidental, exemplary, punitive or special damage or for any indirect or consequential loss or damage of any kind however caused and whether or not the party in default was aware or ought to have been aware of the possibility of that loss, arising under or in relation to this Agreement. To the full extent the law permits, Symbio limits its total liability to you for all loss suffered or incurred by you for all Claims, in aggregate total, to AUD10,000.
13. Symbio Confidential Information.
13.1. Definition. All information disclosed by Symbio that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is ‘Confidential Information’. Confidential Information includes non-public aspects of Symbio Assets. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Symbio or anyone else.
13.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must promptly provide Symbio with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if Symbio wishes to contest the disclosure.
13.3. Injunctive Relief. In the event of actual or threatened breach of this Section 13, Symbio shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
14. Information You Provide Is Not Confidential.
14.1. You understand and agree that Symbio develops its own products and services and works with many other vendors and developers, and either Symbio or these third parties could in the future develop (or already have developed) products similar to yours.
14.2. You should not provide to Symbio any information that you consider confidential and you agree that Symbio is not subject to any confidentiality obligations or use restrictions related to information that you may provide to Symbio in relation to this Agreement.
15. Changes to Terms. Symbio may modify these Terms from time to time, including any referenced policies and other documents. Symbio may, but is not obliged to, use reasonable efforts to notify you of modifications as provided in Section 17 (General).
16. Open Source Software. The Symbio Assets may contain or be provided with components subject to the terms and conditions of "open source" software licenses (Open Source Software). To the extent applicable, Symbio will identify Open Source Software included in the Symbio Assets. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
17. General. These Terms are the parties' entire agreement and supersede any prior or contemporaneous agreements relating to its subject matter. The words "including" and similar terms are to be construed without limitation. Failure to enforce any provision is not a waiver and all waivers must be in writing. If any provision is found to be unenforceable it (and related provisions) will be interpreted to best accomplish its intended purpose. Developer may not assign, transfer or delegate any right or obligations under these Terms and any non-permitted assignment is void. Symbio may assign these Terms and its rights and obligations to any of its Affiliates or in connection with a merger, reorganisation, acquisition or other transfer of all or substantially all of its assets or voting securities to which these Terms relate. Notices must be in writing and will be deemed given when delivered. Symbio may provide notice to the email or physical address provided by Developer. Your notices to Symbio must be given by either email to notices@SymbioGroup.Limited or by post to Level 4, 580 George Street, Sydney NSW 2000 Attn: Legal. The parties are independent contractors and these Terms do not create any agency, partnership, or joint venture. These Terms will be governed by and construed in accordance with the laws of the State of New South Wales and each party submits to the personal and exclusive jurisdiction of the courts of New South Wales. Symbio will not be liable to Developer for any delay or failure to perform any obligation under these Terms if the delay or failure is due to unforeseen events that are beyond its reasonable control.
Affiliate means in relation to Symbio Holdings Limited, a corporation or other legal entity effectively controlled by Symbio Holdings Limited, or controlling Symbio Holdings Limited or under the same effective control as Symbio Holdings Limited
Claim means any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind), under or in connection with this Agreement or its subject matter or failure or interruption of the supply or use of the Symbio Assets, whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory including repudiation), in equity, in restitution, negligence or any other tort, strict liability, under statute or
Symbio Master Agreement means a current master services agreement You have entered into with Symbio or any of Symbio’s Affiliates for the provision of services.
Services means each service which Symbio or its Affiliates provides to you or Developer under this Agreement or a Symbio Master Agreement.