Software As A Service Agreement
Thank you for using the Services, a cloud-based platform as a service that allows registered users to create campaign specific microsites using SimplicityDX. Please read the FAQ located at https://www.simplicitydx.com/legal/legal-faq to familiarize yourself with the Services.
BY ACCEPTING THE AGREEMENT, THE ENTITY IDENTIFIED ASCUSTOMER IN THE APPLICABLE SERVICE ORDER (“CUSTOMER”) AGREES TO THESE TERMS ANDCONDITIONS WITH SIMPLICITYDX INC. (“SIMPLICITYDX”). YOU REPRESENT THAT YOU HAVETHE AUTHORITY TO BIND CUSTOMER TO THE AGREEMENT. IF YOU DO NOT HAVE SUCHAUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THE AGREEMENT.
1. Definitions
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with another entity where control means the direct or indirect ownership of 50% or more of the voting power or equity in an entity or de facto control by an entity of another entity’s decision making.
“Agreement” means the terms and conditions of this Master Subscription Agreement, any Service Order incorporating this Master Subscription Agreement and any documents, attachments or hosted terms and conditions referenced in this Master Subscription Agreement or any related Service Order.
“Confidential Information” means any information or data disclosed by either party marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances of disclosure. However, “Confidential Information” does not include any information which (a) is in the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or(d) is or was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Content” means the content managed by Customer in the Services.
“Documentation” means the printed and digital instructions, on-line help files, any technical documentation and user manuals made available by SimplicityDX for the Services, as updated from time to time.
“Effective Date” means the date which is the earlier of (a)Customer’s initial access to the Services (as defined below) through any online provisioning, registration or other process; or (b) the effective date of the first Service Order referencing this Agreement.
“Services” means the SimplicityDX cloud-based edge shopping platform as a service offering, including related programs, functions and services provided by SimplicityDX to Customer (including, as applicable, SimplicityDX APIs, Documentation and technical support made available by SimplicityDX to Customer in connection with such services), and any subsequent updates or upgrades of the foregoing.
“Service Order” means that certain SimplicityDX service order form mutually executed by the parties that sets forth specific Services, pricing and references this Agreement.
2. Services
2.1 Provision of Services and License.
Subject to the terms and conditions of this Agreement, SimplicityDX will make the Services available to Customer, and hereby grants Customer a non-exclusive right to access and use the Services and Documentation during the term of the Service Order, including the right to write and execute software applications or websites (“Customer Applications”) that interface with the Services. SimplicityDX will provide the Services in accordance with the Security Policy and Standards located at https://www.simplicitydx.com/legal/security-policy, which is hereby incorporated by reference into this Agreement.
2.2 Customer Responsibilities.
Customer will
(a) comply with the SimplicityDX Acceptable Use Policy available at https://www.simplicitydx.com/legal/acceptable-use-policy;
(b) be responsible for (I) all use of the Services and Documentation under its account and (II) the accuracy, quality, integrity and legality of Customer Content and Customer Applications;
(c) use commercially reasonable efforts to (Y) prevent unauthorized access to or use of the Services via Customer Applications or Customer accounts and (Z) configure its systems in a way to reasonably prevent unauthorized users from accessing Customer Applications and Customer accounts;
(d) notify SimplicityDX promptly of any unauthorized access to or use of Services in breach hereof, (and Customer hereby permits SimplicityDX to deactivate such compromised accounts or users);
(e) back up any data and information used in conjunction with the Services separately and at regular intervals; and
(f) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to use the Services, including as set forth in the Documentation. Customer will be solely responsible for its failure (and SimplicityDX will have no liability for such failure) to maintain such equipment, software and services, or to use the current version of any APIs made available by SimplicityDX. With Customer’s permission (which may be by email or other reasonably documented means), SimplicityDX may log into user accounts to debug the Services.
2.3 Changes.
SimplicityDX may change, deprecate or republish the Services or any part or features from time to time, and Customer will be responsible to ensure that any API calls to the Services are compatible with then-current APIs.
2.4 Affiliates.
Any Affiliate of Customer or SimplicityDX may enter into a Service Order and Customer’s or SimplicityDX’s rights, duties, liabilities and obligations under this Agreement, as the case may be, will apply and inure to such Affiliate signatory (or contractor thereto, as permitted below) and any references to Customer or SimplicityDX, respectively, in this Agreement or in any such Affiliate-executed Service Orders shall be deemed to be references to any such contracting Affiliates only; no other non-signatory Affiliate of either party will have any rights, duties, liabilities or obligations under any such Service Order. Additionally, Customer may sublicense the rights granted in section 2.1 to its Affiliates and Customer and any Affiliate sublicensees may permit their contractors to use the Services as reasonably necessary for such contractors to provide services to Customer or Affiliate sublicensees.
3. Fees and Payment
3.1 Fees and Payment.
Customer will pay in full to SimplicityDX the fees set forth in the applicable Service Order. Additional usage fees for use of the Services above any applicable volume thresholds may be applied. Except as expressly set forth herein or in any applicable Service Order (a) fees are quoted and are due and payable in United States Dollars, net of taxes, within thirty (30) days of the date of any applicable invoice, if any, or service period, if no such invoice; (b) fees paid are non-refundable; and (c) payment obligations are non-cancelable.
3.2 Net of Taxes; No Setoff.
Fees do not include taxes. Customer is responsible for paying all taxes associated with its purchases hereunder (including with holding taxes possibly imposed on its payments hereunder). If SimplicityDX has the legal obligation to pay or collect taxes for which Customer is responsible under this section, SimplicityDX will invoice Customer and Customer will pay that amount unless Customer provides SimplicityDX with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer may not withhold any taxes or charges from any amounts due to SimplicityDX or set off any amounts due to SimplicityDX.
4. Proprietary Rights and Confidentiality
4.1 SimplicityDX’s Ownership Rights.
As between the parties, SimplicityDX retains all right, title and interest in all its trademarks, service marks, logos and domain names(“SimplicityDX Marks”) and patents, copyrights, trade secrets, and other intellectual property rights) in and to all Services, and any and all related and underlying technology and documentation, and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback(as defined below), (collectively, “SimplicityDX Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in or to any SimplicityDX Technology or SimplicityDX Marks is granted to Customer.
4.2 Feedback.
SimplicityDX has full, unencumbered right, title and license, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any suggestions or comments Customer provides for enhancements improvements, new features, additional functionality or any other feedback (collectively, “Feedback”) with respect to the Services, now or in the future. Feedback will not include any Customer Content or Customer Confidential Information.
4.3 Customer Content and Customer Applications.
Customer Content and Customer Applications are owned exclusively by Customer. Customer grants to SimplicityDX a revocable, fully-paid, non-exclusive, worldwide license to copy, distribute and use Customer Content for the sole purpose of providing the Services to Customer.
4.4 Confidentiality.
Each party will use the Confidential Information of the other solely in accordance with the provisions of this Agreement and will not disclose, or permit Confidential Information to be disclosed, directly or indirectly to any third party without the other’s prior written consent, except as otherwise permitted herein. Either party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations at least as stringent as those herein; or as required by law, in which case the party disclosing the other’s information to any third party will (if permitted by law and to the extent practicable) (a) provide the other with (I) prior written notification thereof and (II) the opportunity to contest such disclosure; and (b) use reasonable efforts to minimize such disclosure. Each party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations set forth herein.
4.5 Aggregated Information.
SimplicityDX may aggregate, collect and analyze information relating to the provision, use and performance of the Services and may use(during and after the term hereof) such information to develop and improve the Services and other SimplicityDX offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no Customer nor any individual or household can be identified or re-identified.
5. Representations, Warranties and Disclaimers
5.1 SimplicityDX.
SimplicityDX warrants that it will, consistent with prevailing industry standards, maintain the Services in a manner which minimizes errors in the Services and perform the Services in a professional and workmanlike manner. The Services shall be deemed defective only if and to the extent they materially deviate from the Documentation to customer’s disadvantage.
5.2 Customer.
Customer warrants that it has the necessary right, title, license, consent, permission, waivers and releases to use, make available and distribute Customer Applications and Customer Content in connection with the Services.
5.3 Compliance with Laws.
Each party will at all times comply with all federal, state, and local laws, ordinances, regulations and orders that are applicable to the operation of its business and to this Agreement and its performance related thereto, except to the extent that failure to comply could not reasonably be expected to have a material adverse effect on its business or the business of the other party, or on its ability to comply with its obligations under this Agreement.
5.4 WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMSANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED,INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESSFOR A PARTICULAR PURPOSE.
6. Indemnification
6.1 Indemnification by SimplicityDX.
a) SimplicityDX will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a valid patent, copyright or trade secret.
b) Further, SimplicityDX will indemnify Customer from any damages finally awarded against Customer or any settlement approved in writing by SimplicityDX in connection with any such Claim.
c) The foregoing obligations of SimplicityDX are subject to (i) Customer promptly notifying SimplicityDX of such Claim; (ii) SimplicityDX having the sole and exclusive authority to defend and/or settle any such Claim (provided that SimplicityDX may not settle any Claim without Customer’s prior written consent – which consent will not be unreasonably withheld, conditioned or delayed – unless the settlement unconditionally releases Customer of all related liability); and (iii) Customer reasonably cooperates with SimplicityDX in connection therewith.
d) If the use of the Services by Customer has become, or in SimplicityDX’s opinion is likely to become, the subject of any Claim, SimplicityDX may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make them non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees.
e) SIMPLICITYDX AND ITS AFFILIATES HAVE NO LIABILITY OROBLIGATION WITH RESPECT TO ANY CLAIM TO THE EXTENT SUCH CLAIM IS CAUSED BY (I)COMPLIANCE WITH DESIGNS, GUIDELINES, PLANS OR SPECIFICATIONS PROVIDED BYCUSTOMER; (II) USE OF THE SERVICES BY CUSTOMER NOT IN ACCORDANCE WITH THE TERMSHEREIN; (III) MODIFICATION OF THE SERVICES BY OR ON BEHALF OF CUSTOMER WITHOUTSIMPLICITYDX’S EXPRESS, PRIOR, WRITTEN CONSENT; (IV) CUSTOMER CONTENT ORCUSTOMER APPLICATIONS; OR (V) THE COMBINATION, OPERATION OR USE OF THE SERVICESWITH OTHER APPLICATIONS, PORTIONS OF APPLICATIONS, PRODUCTS OR SERVICES WHERETHE SERVICES WOULD NOT BY THEMSELVES BE INFRINGING (CLAUSES (I) THROUGH (V)COLLECTIVELY, “EXCLUDED CLAIMS”). THIS SECTION STATES SIMPLICITYDX’S AND ITSAFFILIATES’ SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’SEXCLUSIVE REMEDY, FOR ANY CLAIM RELATED TO INFRINGEMENT OR MISAPPROPRIATION OFINTELLECTUAL PROPERTY.
6.2 Indemnification by Customer.
Customer will defend, indemnify, and hold harmless SimplicityDX, its Affiliates and licensors, and each of their respective employees, officers, directors, agents and representatives (“Indemnified Parties”) against any Claim made or brought against any Indemnified Party by a third party relating to the Excluded Claims. Further, Customer will indemnify the Indemnified Parties from any approved settlement or damages finally awarded against Indemnified Parties in connection with any such Claim. The procedures set forth in section 6.1 apply to Indemnified Parties with respect to the foregoing indemnification obligations of Customer.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, UNDER NOLEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BELIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL ORPUNITIVE DAMAGES OF ANY CHARACTER, OR DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS,LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSTCONTENT OR DATA, COVER OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF AREPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THEPOSSIBILITY OF SUCH DAMAGES; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS,ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BYCUSTOMER UNDER THE APPLICABLE SERVICE ORDER DURING THE 12 MONTHS PRECEDING THEINCIDENT OR CLAIM.
8. Termination
8.1 Term.
The term of this Agreement begins on the Effective Date and will remain in effect until terminated in accordance with its terms.
8.2 Termination.
Each party has the right to terminate this Agreement upon written notice if (a) there is no Service Order currently in effect; (b) the other party commits any material breach of this Agreement and fails to remedy such breach (if capable of remedy) within 30 days after written notice of such breach; or (c) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings, insolvency or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within 60 days. Material breach by Customer includes, but is not limited to, failure to pay fees timely as they become due, those events listed in section (c) above, wilful unauthorized use of the Services by Customer, breach of section 4 (Proprietary Rights and Confidentiality), 5.3 (Compliance with Laws) and 6 (Indemnification).
8.3 Survival.
Upon termination of this Agreement all rights and obligations granted therein will immediately terminate except that any accrued rights and the following sections will survive: 2.2, 3, 4, 6, 7, 8 and 9.
8.4 Suspension.
SimplicityDX may suspend any Services immediately upon notice if SimplicityDX reasonably determines (i) Customer violated or is violating the Acceptable Use Policy; or (ii) SimplicityDX’s provision of any of the Services is prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory reason.
9. General
9.1 Export Compliance.
Each party will comply with applicable export laws and regulations when providing and using the Services. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any E.U. or U.S. government list of prohibited or restricted parties or located in(or a national of) a country that is subject to a E.U. or U.S. government embargo or that has been designated by the E.U. or the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any E.U. or U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
9.2 Assignment; Delegation.
Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent toa successor to all or substantially all of its assets or business. In addition, Customer agrees that SimplicityDX may perform its obligations through an Affiliate, provided that SimplicityDX remains responsible for its obligations hereunder and liable for such Affiliate’s performance as if it were SimplicityDX. Any attempted assignment, delegation or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
9.3 Amendment; Waiver.
Except as expressly stated herein, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless executed in writing by a duly authorized representative of each party. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of present or future enforcement of that or any other provision.
9.4 Relationship.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to bind or represent the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.5 Unenforceability.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect and bind the parties according to its terms. If application of this Unenforceability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the party adversely impacted will be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the party seeking such compensation.
9.6 Governing Law and Jurisdiction.
This Agreement will be governed by the laws of the State of Delaware, USA, exclusive of its rules governing choice of law and conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of the State of Delaware and the parties hereby consent to the personal jurisdiction of these courts. In the event of actual or threatened breach of confidentiality obligations or the SimplicityDX Acceptable Use Policy, the non-breaching party may seek specific performance, immediate injunctive and other equitable relief in any competent court without prejudice to any other rights or remedies.
9.7 Notices.
Any legal notice required or permitted to be given here under will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customer must be sent to the email or other address set forth in the applicable Service Order. Notices to SimplicityDX must be sent to the following address: SimplicityDX Inc., 202 Washington Street, Suite 350, Brookline MA 02445 Attn: Legal with a copy, which shall not constitute Notice, to operations@SimplicityDX.com, or such other address as SimplicityDX specifies. Day to day operational and business messages may be sent by email.
9.8 Entire Agreement.
This Agreement, including linked terms incorporated by reference, comprises the entire agreement between the parties with respect toits subject matter and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).No oral or written information or advice given by SimplicityDX, its agents or employees will create a representation, warranty or guarantee or in any way increase the scope of the warranties in this Agreement. No terms or conditions stated in a Customer purchase order, vendor or partner onboarding process or web portal, or any other Customer order documentation (excluding Service Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void, notwithstanding any language to the contrary therein.
9.9 Order of Precedence.
In the event of any discrepancy between the contractual documents, the order of precedence is the following, except that specific portions of a lower-ranking document may supersede specified portions of a higher-ranking document expressly noted: (i) Master Subscription Agreement,(ii) Security Standards, (iii) Service Order.
9.10 Force Majeure.
Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, “acts of God”, labor controversy, civil disturbance, terrorism, war (whether or not officially declared),cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Government Terms.
SimplicityDX provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services or any related software technology or Documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Services were developed fully at private expense.
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