Simplus Community Online Platform
PLEASE READ THESE TERMS CAREFULLY. IF CUSTOMER DOES NOT AGREE WITH ANY OF THESE TERMS OR CONDITIONS, DO NOT ACCESS OR OTHERWISE USE THIS WEBSITE OR ANY INFORMATION CONTAINED ON THIS WEBSITE.
For good and valuable considerations, the adequacy of which is hereby accepted, the parties therefore agree as follows:
Customer’s Use of the Services
Free Trials. Should Customer agree to this Agreement as part of a free trial, then this section shall apply. When Customer first agrees to these terms, Simplus allows for a thirty (30) day free trial (“Free Trial Period”) of the Services for no more than five (5) Authorized Persons to use the Services on behalf of Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. Simplus shall have the right to immediately suspend Services upon expiration of Customer’s Free Trial Period. To avoid any such interruption of Services, Customer may elect to continue using the Services after its Free Trial Period by accepting Simplus’ terms, which will set forth the Services, the subscription Term, the number of users (and how defined), pricing, fees (“Fees”), and reference to this Agreement (collectively, the “SOW”). Customer acknowledges and agrees that this Agreement will govern Customer’s use of Services during a Free Trial Period and any paid subscription Term for which Customer accepts an Order.
ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD TO AVOID THE RISK THAT CUSTOMER DATA WILL BE PERMANENTLY LOST.
Provision of the Services. Simplus will make available to Customer on a subscription basis for the Term the Services pursuant to this Agreement. Services are designed to be available 24 hours a day, 7 days a week, subject to maintenance. Customer will be notified of scheduled maintenance. Simplus will, as part of providing a Service, apply any update, bug fix or upgrade to the Service that it makes generally available to its customers of the Service. Services are provided to Customer “as is” and are revocable by Simplus at any time. Further, Services are provided subject to usage limits, including for example, the quantities specified in an accepte SOW or Agreement. Simplus will comply with all Laws applicable to it in connection with its provision of the Services to Customer.
Customer Obligations. Customer may enable access of the Services for use only by Authorized Persons solely for the internal business purposes of Customer and its Affiliates in accordance with this Agreement and not for the benefit of any third parties. Customer is responsible for all Authorized Persons’ use of the Services and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Data that is transmitted, stored, or otherwise provided to Simplus; (b) ensure that its employees receive any required disclosures and appropriate training concerning the use of the Services; (c) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Simplus promptly of any such unauthorized access or use. Customer shall not: (i) use the Services in violation of applicable Laws and regulations; (ii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights. Customer shall be liable for the acts and omissions of all Authorized Persons and Customer Affiliates relating to this Agreement.
Protection and Security. During the Term of this Agreement, Simplus shall establish, implement and maintain commercially reasonable administrative, physical and technical measures that are designed to protect the security and integrity of Customer Data that is provided to Simplus by Customer, and that are reasonably appropriate to the risks represented by the processing and nature of the provided Customer Data to be protected, and designed to guard against the accidental or unauthorized access, use, loss or disclosure of Customer Data while it is on Simplus’ network and systems. Customer understands that it has an independent duty to comply with any and all Laws applicable to it in connection with its provision of Customer Data to Simplus.
Unauthorized Disclosure. If either party believes that there has been unauthorized access, use, loss or disclosure of Customer Data while it is on Simplus’ network and systems, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in investigating, remediating or mitigating any potential damage, including providing reasonable assistance with respect to any legally required notifications concerning the disclosure or the provision of credit reporting services to such individuals. Each party shall bear the costs of such investigation, remediation, mitigation and/or notification associated with an unauthorized disclosure.
Fees and Payment
Fees and Payment Terms. Any fee or payment for usage of this Service will be determined upon execution of an agreement Statement of Work or Master Services Agreement between Simplus and Customer.
Taxes. Excluding taxes based on Simplus’ income, Customer is liable for all taxes relating to the Services.
Confidential Information Defined. “Confidential Information” means all information disclosed by a party (“Disclosure”) to the other party (“Recipient”), orally or in writing, designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstance of disclosure. Customer’s Confidential Information includes Customer Data; Simplus Confidential Information includes the Services, Simplus Content and Documentation; and Confidential Information of each party includes the terms of this Agreement and each Order (including signed order forms or statements of work entered under this Agreement), each party’s proprietary technology and technical information, business processes and technical product information, product plans and designs, issues, and all communication between the Parties regarding the Services.
Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; (iv) is received from a third party without breach of any obligation owed to the other party; or (v) is Aggregated Data.
Confidentiality Obligations. During the course of the parties’ relationship, each party may have access to Confidential Information of the other party. Neither party shall disclose any Confidential Information of the other party, orally or in writing, to any third party without the prior written consent of the other party, except as provided in this Agreement. The parties shall protect each other’s Confidential Information using commercially reasonable administrative, physical and technical safeguards. Neither party shall use the other party’s Confidential Information for any purpose other than lawful performance of this Agreement.
Disclosure to Third Parties and as Required by Law. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, notifies Discloser of such requirement prior to disclosure and (ii) makes diligent efforts to avoid and limit disclosure. Notwithstanding Recipient’s conformance with the procedures set forth in the prior sentence, the disclosure required by Law shall not itself cause the information to lose its confidential character unless the information ceases to be Confidential Information as a result of one of the reasons specifically set forth above.
Injunctive Relief and other Remedies. Each party understands that Confidential Information constitutes valuable business assets of Discloser and its disclosure may irreparably harm Discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by Recipient, Discloser shall be entitled to seek injunctive relief.
Ownership and Reservation of Rights to Simplus Technology. Simplus and its licensors own all right, title and interest in and to the Services, Documentation, Simplus Content, and other Simplus Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, Simplus reserves all rights, title and interest in and to the Services, Documentation, and Simplus Content, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
License Grant. Simplus hereby grants Customer a non-exclusive, non-transferable, right to use the Services, Documentation and Simplus Content, solely for the business purposes of Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement.
License Restrictions. Customer shall not (i) except as allowed, modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, offer in a service bureau, or time share the Services; (iii) otherwise make the Services or Documentation available to any third party, other than to Authorized Persons as permitted herein; (iv) transfer or assign this Agreement except as otherwise permitted hereunder; (v) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Simplus in the provision of the Services and Documentation, except to the extent required by Law; (vi) access the Services or Documentation in order to build any commercially available product or service; or (vii) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, Simplus owns and has the perpetual right to use for its business and or operating purposes the aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Simplus from utilizing the Aggregated Data for purposes of operating Simplus’ business, provided that Simplus’ use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services. In no event does the Aggregated Data include any Customer Confidential Information, Customer Data or any information that personally identifies a specific individual.
Term, Termination, Suspension, and Dispute Resolution
Term. This Agreement shall have a term commencing as of the Effective Date and ending upon expiration or termination issued hereunder. Customer’s subscription Term will automatically renew for subsequent 12-month period(s) (each a “Renewal Term”) on the anniversary of the effective date, unless either party sends the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Term (whether initial or renewal, each is a “Term”.)
Termination for Default. Either party may terminate this Agreement in its entirety with 60 days written notice, or if the other party breaches any material term of these General Terms or the applicable Order and does not cure such material breach within forty-five (45) days of receiving a Termination Notice.
Effect of Expiration or Termination. When this Agreement or any Order expires or is terminated, Customer shall pay all money due to Simplus for Services rendered up to the expiration or termination date and any payments that may become due pursuant to this Agreement subsequent to such expiration or termination. Customer also agrees to immediately stop using the Services and accessing the software and Simplus Content upon expiration or termination of the Order(s) and/or Agreement and both parties agree to stop using the Confidential Information of the other party and to return or destroy (at the party’s discretion) all the copies of the other party’s Confidential Information. To the extent the Recipient is required to keep a copy of any of the Discloser’s Confidential Information as required by applicable law, the Recipient shall continue to treat such Disclosers Confidential Information as Confidential Information in accordance with the terms of this Agreement.
Dispute Resolution. Prior to instituting formal proceedings, the parties shall attempt to resolve all disputes arising out of or relating to this Agreement informally. To invoke this process a party shall appoint a designated executive and request that the other party do the same. The other party shall make such appointment within five (5) days of receipt of the request. The designated executives shall then have up to thirty (30) days to attempt in good faith to resolve the matter. The informal dispute resolution process shall terminate at the end of the thirty (30) day period unless extended by mutual agreement. Disputes not resolved by informal dispute resolution as provided in this section will be resolved by litigation unless the parties mutually agree to an alternative dispute resolution method such as arbitration. Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction. The parties agree that all negotiations pursuant to this section will be confidential and therefore treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPLUS MAKES NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT OR APPLICABLE SCHEDULE(S), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer’s USE OF THIS SITE OR SERVICES IS AT Customer’s OWN RISK. THE CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. Simplus DO NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES, DISABLING DEVICES OR OTHER HARMFUL COMPONENTS. Simplus DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND Simplus MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. Customer, AND NOT Simplus, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THIS SITE OR ITS CONTENT. Simplus ASSUME NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
Indemnification by Simplus. Simplus will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Service in accordance with this Agreement and the applicable Order infringes or misappropriates such third party’s United States or Canadian patent, copyright or trademark, or its trade secret(s) (a “Third Party Intellectual Property Claim Against Customer”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Third Party Intellectual Property Claim Against Customer, provided Customer (a) promptly gives Simplus written notice of the Third Party Intellectual Property Claim Against Customer, (b) gives Simplus sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Customer (except that Simplus may not settle any Third Party Intellectual Property Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Simplus all reasonable assistance, at Simplus’ expense. If Simplus receives information about an infringement or misappropriation claim related to a Service, Simplus will either, in its discretion and at no cost to Customer, (i) modify the Service so that it no longer infringes or misappropriates, without materially degrading the functionality as described in the Documentation, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Third Party Intellectual Property Claim Against Customer arises from or is related to the provision of Customer Data by Customer to Simplus, including the unauthorized disclosure of Customer Data, Customer’s breach of this Agreement, modifications to the Services performed by parties other than Simplus, or combination of the Services with other materials not provided by Simplus.
Indemnification by Customer. Customer will defend Simplus against any claim, demand, suit or proceeding made or brought against Simplus by a third party alleging that Customer Data, Customer Content, or Customer’s use of any Service in breach of this Agreement and the applicable Order, infringes or misappropriates such third party’s intellectual property rights (a “ Third Party Intellectual Property Claim Against Simplus”), and will indemnify Simplus from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Simplus as a result of, or for any amounts paid by Simplus under a court-approved settlement of, a Third Party Intellectual Property Claim Against Simplus, provided Simplus (a) promptly gives Customer written notice of the Third Party Intellectual Property Claim Against Simplus, (b) gives Customer sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Simplus (except that Customer may not settle any Third Party Intellectual Property Claim Against Simplus unless it unconditionally releases Simplus of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
Entire Indemnification. This Section sets forth each party’s liability and the other party’s sole and exclusive remedy for indemnification related to a Third Party Intellectual Property Claim Against Customer or a Third Party Intellectual Property Claim Against Simplus.
Limitation of Liability
Direct Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, A PARTY’S AGGREGATE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION FIRST AROSE (“FEE EXPOSURE”), THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OR FEES OBLIGATIONS.
Exclusion of Consequential and Related Damages. EXCEPT TO THE EXTENT THAT THE DAMAGES OR COSTS SET FORTH IMMEDIATELY ABOVE ARE DEEMED CONSEQUENTIAL OR INCIDENTAL DAMAGES, NEITHER PARTY (INCLUDING IN THE CASE OF SIMPLUS, ANY OF ITS SUPPLIERS OR THIRD PARTY LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, LOST PROFITS OR REVENUES, COVER OR PUNITIVE DAMAGES, HOWEVER ARISING AND EVEN IF THE PARTY AGAINST WHOM THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Essential Elements of Agreement. THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES APPLY REGARDLESS OF THE FORM IN WHICH AN ACTION (LEGAL, EQUITABLE OR OTHERWISE) IS BROUGHT, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE LIMITATIONS OF LIABILITIES, DISCLAIMERS OF WARRANTIES, EXCLUSIVITY OF REMEDIES, AND OTHER LIMITATIONS SET FORTH HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES (WITHOUT WHICH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD NOT OCCUR) AND WILL APPLY EVEN IF A REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
Access to This Site. To access the Services or some of the resources it has to offer, Customer may be asked to provide certain registration details or other information. It is a condition of Customer’s use of this Site that all the information Customer provide on this Site will be correct, current, and complete. If the Simplus have reason to believe that the information Customer provide is not correct, current, or complete, they retain the right to deny access to this Site or any of its resources, and to terminate or suspend Customer’s access at any time.
Cookies. Simplus sends Site visitors “cookies,” a small data file sent by the Site to Customer’s browser, which may then be stored on Customer’s hard drive. Simplus’ cookie enables the Site to recognize Customer if Customer have utilized certain Site features. In addition, the cookie may recall information so that Customer do not have to resubmit it, and also automatically updates Site information. If available, Customer may program Customer’s browser software to notify Customer of attempts to send cookies and/or Customer may decline to accept or delete them.
Information Customer Provide. Customer may not post, send, submit, publish, or transmit in connection with this Site any material that:
- Customer do not have the right to post, including proprietary material of any third party;
- advocates illegal activity or discusses an intent to commit an illegal act;
- is vulgar, obscene, pornographic, or indecent;
- does not pertain directly to this Site;
- threatens or abuses others, libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
- seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details, or otherwise;
- infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
- violates any law or may be considered to violate any law;
- impersonates or misrepresents Customer’s connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
- advertises any commercial endeavor (e.g. offering for sale products or services) or otherwise engages in any commercial activity (e.g. conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as may be specifically authorized on this Site;
- solicits funds, advertisers, or sponsors;
- includes programs which contain viruses, worms, and/or Trojan horses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications;
- amounts to a “ponzi” or similar scheme;
- disobeys any policy or regulations established from time to time regarding use of this Site or any networks connected to this Site; or
- contains hyperlinks to other sites that contain content that falls within the descriptions set forth above.
Password Security. Passwords used for this Site (if any) are for individual use only. Customer will be responsible for the security of Customer’s password. The Simplus will be entitled to monitor Customer’s password and, at their discretion, require Customer to change it. If Customer use a password that the Simplus consider insecure, the Simplus will be entitled to require the password to be changed and/or terminate Customer’s account.
Customer agree that the Simplus shall not be responsible for damages or losses resulting from any breach of security caused by Customer’s failure to maintain the confidentiality of Customer’s password. If Customer permit access to Customer’s password by third parties, the Customer agree to defend, indemnify and hold the Simplus harmless against any liability, losses, damages, or costs and expenses (including attorneys’ fees) arising out of, or resulting from, such access and related use of this Site. The Simplus reserve the right to block access to this Site for any reason. Customer also agree to immediately notify the Simplus if Customer become aware of any loss or theft of Customer’s password, or become aware of any unauthorized use of Customer’s password..
For Customer’s protection, Simplus may require the use of encryption technologies for certain types of communications conducted through this Site. This Site has adopted industry standard security measures to protect the loss, misuse, and alteration of the information under our control. While we provide those technologies and use other reasonable precautions to protect confidential information and provide suitable security, we do not guarantee or warrant that information transmitted through the Internet is secure, or that such transmissions will be free from delay, interruption, interception, or error. While there is no such thing as “perfect security” on the Internet, we will take reasonable steps to insure the safety of Customer’s personal information. There is always the possibility of unknowingly acquiring computer viruses on the Internet and thus we want to warn Customer about infections or viral contamination on Customer’s system. It is Customer’s responsibility to scan any and all downloaded materials received from the Internet. Simplus are not responsible or liable for any damage caused by viruses or related hazards, whether or not that virus or hazard resulted from a visit to this Site. Customer, and not Simplus, assume the entire cost of all necessary servicing, repair, or correction related to computer viruses.
BY ACCEPTING THESE TERMS Customer WAIVE AND HOLD HARMLESS Simplus FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Simplus DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER Simplus OR LAW ENFORCEMENT AUTHORITIES.
Electronic Transactions. In the event this Site permits Customer to view, change information and make payment transactions on Customer’s account and receive other information or services related to a contract or policy issued by a Site Owner company through electronic transmission via a compatible personal computer and a secure web browser, access to such services requires an electronic identification that consists of a user name, password, or other security measures that we may require. By obtaining a username and password, Customer agree that the use of this electronic identification is the legal equivalent to Customer’s written signed instructions to the applicable Site Owner company and that Customer’s identity as an authorized user of our online services is determined solely by Customer’s username and password. Customer acknowledge that Customer are responsible for the safekeeping of Customer’s username and password and the Simplus are unable, and under no obligation, to confirm the identity or authority of any user of our online services.
Recommended Browser. For optimal performance, please use either Microsoft Edge/Internet Explorer 10.0 or higher with all critical updates, Safari 2.0 or higher (for Mac), or Google Chrome 2.0 or higher when connecting to this Site.
Notices. All notices required or permitted by this Agreement shall be in writing and delivered by personal delivery, express courier, or certified or registered mail, and shall be effective upon delivery. Notices will be sent to a party at its contact (and to the attention of each party’s General Counsel) at the address set forth in this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.
All notices to Simplus should be sent to:
Outbox Systems, Inc., d.b.a. Simplu
9350 S. 150 E., Suite 220
Sandy, UT 84070
Attn: General Counsel
Assignment. Subject to Simplus’ right to utilize Suppliers to supply all or part of the Services, neither party shall assign or transfer any of its rights or delegate any of its duties under this Agreement, whether by operation of law, as a result of a change of control or otherwise, without the other party’s prior written consent, which consent the other party shall not unreasonably withhold, delay or condition, and any purported assignment or transfer shall be null and void. Notwithstanding the above, either party may assign the Agreement as part of a general assignment to a successor-in-interest who is not a direct competitor of the non-assigning party without the other party’s prior written consent.
Survivability. The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing fees, confidentiality, ownership, termination, representations and warranties, indemnity, limitation of liability, and the applicable miscellaneous sections.
Law and Jurisdiction. Utah law shall govern this Agreement, excluding its conflict of laws provisions. The provisions of any federal or state Uniform Computer Information Transactions Act shall not apply. The federal and state courts in the Third District of Utah shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Services.
Section Headings. The Section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
Force Majeure. Except for Customer’s obligation to pay Simplus or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
Severability. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
Waivers. The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.
Publicity. Simplus may add Customer’s name and logo to Simplus’ published list of customers so as long as Customer continues to be a subscriber of the Services. Customer also agrees that after signing up for Services, Simplus may immediately issue a generic press release which announces that a deal has been executed by the parties.
Modifications, Additional Terms, Entire Agreement, Amendment. No purchase order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by Simplus or Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This Agreement constitutes the entire agreement and understanding between the parties concerning Customer’s access to the Services and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Services. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
Definitions. Any and all capitalized or undefined terms shall have the meaning commonly associated with the term which is customary and standard for industry of this Agreement.
Last updated: June 2018
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