SIMPLII LLC provides a set of managed services, which may include certain data integrations and customer experience tools via software products that are deployed on Customer’s premise (“Software”), or via SIMPLII’S software-as-a-service (SaaS) product (“SaaS Offering FUSION). Fusion will be known throughout this agreement as Simplii’s Services and/or Fusion.
By entering into an Order form, Quote, or downloading the Fusion extension from the chrome web store, Customer is agreeing to be bound by this agreement according to the effective date of the download of Simplii’s Software.
- Software License. Fusion is subject to the terms and conditions of this Agreement, during the subscription term specified on the Order Form, Simplii hereby grants to Customer a personal, non-sublicensable, non-exclusive, non-transferable license to: (i) install, or have installed,Fusion on Customer’s system, and (ii) use Fuson for Customer’s internal business purposes only in accordance with the Fusions normal and intended use and subject to applicable user license limits.
- SaaS Terms. If the Order Form provides for the provision of the SaaS Offering, subject to the terms and conditions of this Agreement, during the subscription term specified on the Order Form, Simplii will provide Customer with access to the Fusion Offering on a non-exclusive and subscription basis.
- Restrictions. Except as expressly permitted herein, Customer may not: (i) rent, lease, lend, sell, redistribute, or sublicense Fusion; (ii) modify, disassemble, de-compile, reverse engineer, or otherwise attempt to derive the source code of any of Simplii’s Services or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Simplii Services), (iii) use the Simplii Services in any manner to provide service bureau, time-sharing or other computer services to third parties, (iv) use the Simplii Services, or allow the transfer, transmission, export, or re-export of the Simplii Services or portion thereof in violation of any export control laws or regulations administered by any government agency, (v) resell, distribute or otherwise transfer the Simplii Services, and code comprising the same, or any Simplii trademark, logo or likeness, or (vi) use the Simplii Services to develop competing products or services. Any attempt to do so is a violation of the rights of Simplii and its licensors. You may not use the Simplii Services for any use other than its intended use.
- Services. Subject to the terms and conditions of this Agreement, The Services may include, without training or certain professional services.
- Customer’s Authorized Users. During the Term, Customer may allow End Users (defined below) that are Customer’s employees, agents and other personnel (“Authorized Users”) to use the Simplii Services on behalf of Customer. As a condition to such use, Authorized Users shall abide by the terms set forth herein. Customer shall immediately notify Simplii in the event that it becomes aware of any violation of the terms of this Agreement by any Authorized User. Customer shall be liable for any breach of the Agreement by any Authorized User.
- Third-Party Systems. Customer and its Authorized Users must have valid and verifiable accounts for certain Simplii – Confidential 1 third party systems or components provided by entities other than Simplii, such as a CRM (e.g. Salesforce) or a phone system (e.g. Netsapiens) (“Third-Party System(s)”) in order for such Third Party Systems to interoperate with the Simplii Services. Customer agrees to abide by any terms that govern the use of such Third-Party Systems (“Third-Party Terms”). In addition, Customer may need to license, modify, and/or install the ThirdParty Systems and is solely responsible for such activities. Customer represents and warrants that Customer’s and its Authorized Users’ Third-Party System accounts are in good standing and that Customer’s and its Authorized Users’ use of the Simplii Services, including without limitation any integration Services provided by Simplii, will not be in violation of any applicable Third-Party Terms. Customer acknowledges and agrees that Simplii has no control over the provision of Third-Party Systems or provision of access to the Third-Party Systems by Customer’s provider(s), Simplii does not guarantee that Customer will be able to use the Simplii Services with the Third-Party Systems. Simplii will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in Customer’s inability to use the Simplii Services to access Customer’s accounts, obtain data, or otherwise use or access the Third-Party Systems. Further, information Customer makes available via Third-Party Systems is subject to the privacy policies of such third parties. Customer agrees that Simplii will use the Third-Party Systems at Customer’s sole risk.
- Fees. Applicable fees and pricing for the Simplii Services (“Fees”) are located on the Order Form,quote or insome cases the backend administration system located at fusioncomm.net. Unless otherwise set forth in an Order Form or quote. Simplii will issue an invoice for the full payment amount corresponding to the billing period as indicated on the corresponding invoice. Customer shall pay all Fees within the number of days payable on the Order Form or, if no payment term defined, within 30 days. In addition, If Simplii does not receive payment by the corresponding due date for any reason, Customer hereby authorizes Simplii to charge the credit card (or other electronic payment method) on file with Customer’s account for all Fees. All Fees are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to us, as required by applicable law. If payment is not made on the respective due date, Simplii may, at its discretion and in addition to other remedies it may have, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and (ii) suspend Customer’s and its Authorized Users’ use of and access to the Simplii Services [Saas – will be charged annually for all fees; services – can pay by check /invoice and if they stop paying, can charge their card]
- Ownership. Except expressly agreed to by Simplii pursuant to a separate written agreement mutually executed by the parties, Simplii shall own and retain ownership of all right, title, and interest in and to: (i) the Simplii Services; (ii) any deliverables and other work product created as a result of the Services, (iii) any ideas, suggestions, or feedback relating to the Simplii Services (“Feedback”); (iv) all and all modifications or derivative works to any of the foregoing; and (v) and all intellectual property rights embodied within any of the foregoing. Customer hereby irrevocably assigns and agrees to assign all of Customer’s right, title, and interest in and to any Feedback to Simplii.
- Content. Customer and its Authorized Users may input or upload text, images, photos, videos, sounds, links, works of authorship, or other materials to the Simplii Services (collectively, "Content"). We do not claim ownership of your Content. By posting or sharing the Content, you grant to us only the limited rights that are reasonably necessary for us to provide the Simplii Services to you and your Authorized Users. You represent and warrant that: (i) you own your Content or otherwise have the right to grant the license set forth in this section, and (ii) transmitting Your Content on or through the Simplii Services does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. Custom Agreement, any applicable Third-Party Terms, or applicable law. Customer acknowledges that Simplii will have access to the Content as it is being transmitted via the Simplii Services to the applicable Third-Party System and may need to translate, reformat, re-tag or otherwise modify technical elements of the Content to make it more appropriately visualized in the applicable Third-Party System or otherwise conform to the specifications of a Third-Party System. It is Customer’s sole responsibility to back-up its Content. Customer acknowledges and agrees that after termination of this Agreement, Customer may not have access to the Content via the Simplii Services.
- Data Ownership. A between Customer and Simplii, Customer owns all End User Data. We may collect usage data, meta data, performance data, traffic patterns, usage statistics and other data related to how you and your Authorized Users use and interact with the Simplii Services, including information verifying whether Content was successfully transmitted via the Simplii Services to the intended Third-Party System, provided that such data will be aggregated, anonymized and will not identify Customer or any End Users as the source of such data.
- Data Privacy Laws. Customer acknowledges and agrees that the Simplii Services stores data (including End User Data) on servers in the U.S. or any other country in which Simplii or its affiliates, subsidiaries, agents or contractors maintain facilities. Customer agrees, without Simplii’s prior written consent, not to provide Simplii with any End User Data or other data that: (i) could be deemed “sensitive personal data” under the EU Data Protection Directive 95/46/EC, (ii) is subject to the laws of any jurisdiction, or (iii) subject to the requirements of any industry or standards setting organization, in each case that would subject such data to heightened restrictions related to the storage, security, transmission and processing of such data (including without limitation data subject to the requirements of the Health Insurance Portability and Accountability Act (HIPAA), the PCI Security Standards Council (PCI-DSS) or the Children’s Online Privacy and Protection Act (COPPA)). Customer shall comply with all laws, rules, regulations, requirements and standards applicable to it as a provider of information technology services, including without limitation all obligation imposed upon Customer or its customers under any applicable data privacy laws, rules, regulations, requirements or standards (“Customer Laws”). Customer shall be responsible, with Simplii’s cooperation and assistance, for interpreting Customer Laws or changes in Customer Laws and for identifying the impact of such Customer Laws or changes in Customer Laws on Customer’s use of the Simplii Services. In addition, Customer shall maintain written security management policies and procedures to prevent, detect, contain, and correct violations of measures taken to protect the confidentiality, integrity, availability, or security of confidential information and data, including any End User Data that Customer may receive.
- Term. Unless earlier terminated, this Agreement will commence on the Effective Date set forth on the Order Simplii – Confidential 3 Form and will continue for: (i) the initial term set forth on the Order Form, or (ii) if no initial term is set forth on the Order Form, for an initial term of one (1) year. Thereafter, this Agreement shall automatically renew for subsequent periods of the same length as the initial subscription term, unless either party notifies the other of its intention not to renew not less 30 days prior to the renewal date. The rates for renewals or additional orders shall be at Simplii’s then-current list subscription rates. The initial term and any renewal terms are collectively referred to herein as the “Term.”
- Termination. Customer may cancel its access to the Simplii Services as set forth in the Order Form. Such cancellation will be effective, and this Agreement will terminate, 30 days after Simplii receives notice of such cancellation. In addition, either party may terminate this Agreement if the other party is in material breach of any term of this Agreement, and the breach is not cured in the 30-day period following notice from the non-breaching party. In addition to the right to terminate this Agreement, each party reserves all rights and remedies available to that party under law or equity, including the right to seek damages and injunctive relief for breach or threatened breach of this Agreement by the other party.
- Effect of Termination. Customer and all Authorized Users shall immediately cease all use of and all access to the Simplii Services. Sections 3, 6, 7 (as to amounts due at termination or expiration), and 8, 9, 10 11, 12, 15, 16, 17(b), 17(c) and 18-25 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect. Upon termination of this Agreement and/or deletion of any Authorized User accounts associated with Customer, Customer will not have access to any Content or other data associated with such accounts.
- (a) Simplii Indemnity. Simplii shall defend Customer from and against all claims, demands, suits or proceedings made or brought by a third party (“Claims”) to the extent alleging that the Services infringe or misappropriate such third party’s intellectual property rights, and shall indemnify Customer from any damages, attorney fees and costs finally awarded against Customer or agreed upon in settlement of such Claims; provided that Customer: (i) promptly provides Simplii with written notice of the Claim, (b) gives Simplii sole control of the defense and settlement of the Claim (provided that Simplii will not settle any Claim unless it unconditionally releases Customer of all liability), and (iii) gives Simplii all reasonable assistance, at Simplii’s expense. If Simplii receives information about an infringement or misappropriation Claim related to the Services, Simplii may in its discretion and at no cost to Customer: (a) modify the Services so that they are no longer infringing or misappropriating, (b) obtain a license for Customer’s continued use of the Services, or (c) terminate Customer’s subscriptions for the applicable Services upon 30 days written notice and refund Customer any unused, prepaid fees for the remainder of the Term for such Services. The forgoing indemnification obligations do not apply to the extent a Claim arises from Customer’s Content, a third party service, or Customer use of the Services in violation of this Agreement, the documentation or applicable Order Form(s).
Warranties and Disclaimers. Simplii – Confidential 4
- (a) Warranty. Simplii warrants that, during the thirty (30) day period after installation of any Software or Customer’s first use of the SaaS Offering, any Software or SaaS Offering set forth in an Order Form will perform in accordance with generally accepted industry standards in Simplii’s industry. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Simplii will repair or replace the affected portion of the Simplii Services so that it conforms to the warranty.
- (b) Warranty Exclusions. The foregoing limited warranty is made to and for the benefit of Customer only. The warranty will apply only if (i) the relevant Services been properly installed and used in accordance with the instructions in the applicable documentation; (ii) no modification or alteration has been made to the relevant Services by anyone other than Simplii; and (iii) Simplii receives written notification of the breach during the warranty period described above. The above warranties shall not apply: (a) to defects in the Services due to negligence, abuse or improper use by Customer; or (b) items provided on a no charge or evaluation basis.
- (c) Disclaimer. EXCEPT FOR THE FOREGOING WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Simplii SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/ OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE Simplii SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE Simplii SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE Simplii SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE Simplii SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY. (d) Without limiting the generality of the foregoing, Simplii makes no warranty, expressed or implied, regarding accuracy, adequacy, completeness, legality, readability, reliability or usefulness of any Content, including End User Data, that is transmitted, formatted or translated via the Simplii Services, even where Content has been translated, reformatted, re-tagged or otherwise subjected to technical modifications pursuant to Section 9. The foregoing disclaimer applies to both isolated and aggregate processing, transmission and uses of Content and End User Data. Customer acknowledges that electronic data in transmission may be altered during and subsequent to original distribution. Customer is solely responsible for verifying the accuracy, completeness and appropriate rendering of Content and End User Data before and after transmission through the Simplii Services.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL Simplii BE LIABLE FOR (i) PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF COVER OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE Simplii SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF Simplii HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) ANY DAMAGES WHATSOEVER ARISING OUT OF INTERACTIONS AND TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES (INCLUDING WITHOUT LIMITATION THIRD PARTY SYSTEMS) THROUGH THE Simplii SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL Simplii’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY Simplii – Confidential 5 Simplii) EXCEED THE GREATER OF (I) THE TOTAL AMOUNT THAT PAID BY CUSTOMER FOR THE Simplii SERVICES, IF ANY, IN THE 6-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $10,000.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Compliance with Law. To the extent you choose to use the Simplii Services, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or reexport it except as authorized by United States law and the laws of the jurisdiction in which the Simplii Services were accessed.
- Government Users. If Customer is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Simplii Services are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).
- Other Third Party Components and Software. Customer acknowledges that (i) the Simplii Services may contain other software or components that are either owned by a third party or in the public domain, and (ii) Simplii has no proprietary interest in such software or components (collectively and each, the “Third-Party Software”), and as such, cannot grant Customer a license to use such Third-Party Software. A listing of such Third-Party Software is available upon written request. Customer’s rights in the Third-Party Software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein. Customer acknowledges and agrees to fully comply with such terms and conditions. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, THE DISCLAIMERS SET FORTH AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO Simplii AND ITS LICENSORS WITH RESPECT TO SUCH THIRD -SOFTWARE. In addition, certain components of the Simplii Services are, due to their interaction with third party software, required to be made available to you under terms and conditions other than this Agreement.
- Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (i) Utah law shall apply, (ii) the arbitration will be conducted by a single arbitrator; however, at the request of either Party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the Parties and the third appointed by the other two arbitrators, (iii) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (iv) the proceedings shall be in the English language and shall take place in Sandy, Utah or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Each party may seek injunctive relief in any court of competent jurisdiction. You and Simplii agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah, USA, without regard to any principles of conflict of laws.
- Assignment. Simplii may freely transfer or assign this Agreement and any of its rights or obligations hereunder. Customer shall not assign this Agreement, directly or indirectly without the prior written consent of Simplii; provided that such consent shall not be required in the event of an assignment to a successor via merger, sale of substantially all assets or similar transaction. Any such attempted assignment shall be void.
- General. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for Simplii – Confidential 6 any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement. This Agreement may only be modified by mutual written agreement executed by both parties.