This SaaS and ServicesAgreement (hereinafter referredto as “Agreement”) is entered on the date of signing between
Simpliworks, situated at 1310 SE Maynard Rd Ste. 101 Cary, NC27511 (hereinafter referred to as “Company”), and
the signing party (hereinafter referred to as “Customer”). The Company and the Customer are jointly referred to as “Parties” and individually as “Party.”
The Customer wishes to obtain access to the SaaS Services from the Company, which the Company agrees to provide as per the terms of this Agreement.
Terms of the Agreement
1. Purpose: The Company agrees to provide the Simpliworks Platform and associated “ProductLicenses” (hereinafter referred to as “Platform”) by Simpliworks as a SaaS (Software as a Service)for digital marketing/advertising and also provide for the maintenance and support.
2. Services: The Company shall provide the best possible services:
a. Customer and Authorized Users access to the Platform.
b. Customer Professional Services.
3. Subscription Audits: Each subscription service and other related professional services shall provide the specification of the services, the platforms used, user limitations, the subscription term, and terms and conditions.
4. Changes to Platform: The Company may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to:
a. Maintain or enhance-
i. The quality or delivery of the Company’s products or services to its customers
ii. The competitive strength of, or market for, the Company’s products or services
iii. Such Platform’s cost efficiency or performance
b. Comply with applicable law.
2. Platform Access and Authorized User
1. Administrative Users: During the configuration and set-up process of the Platform, the Customer will identify an administrative user name and password for the Customer’s account with the Company. The Company shall reserve the right to refuse registration of or cancel user names and passwords or delete accounts as it deems inappropriate.
2. Authorized Users: Customers may allow these number of 10 employees and/or independent contractors as is indicated on an OrderForm to use the applicable Platform on behalf of the Customer as “Customer Users.” Additionally, if applicable to a Platform, the Customer may allow 10 designees (“VendorUsers” and together with Customer Users, “Authorized Users”). Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users.
3. Authorized User Conditions to Use:
a. As a condition to access and use of a Platform
ii. Customer Users shall agree to abide by the terms of this Agreement, or a subset thereof.
iii. Vendor Users shall agree to abide by the terms of the Company'sVendor Terms of Service applicable to such Platform, and, in each case, the Customer shall ensure such compliance.
b. The Customer shall immediately notify the Company of any violation of the term any of the foregoing by any Authorized User upon becoming aware of such violation.
4. Account Responsibility:
a. The Customer shall be responsible for:
i. All uses of any account that Customer has access to, whether or not the Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use.
ii. Securing the Company account, passwords (including but not limited to administrative and user passwords), and files.
b. The Company shall not be responsible for any loss of information due to any irresponsible act such as loss of the password by the user.
All confidential information that is communicated to and obtained by the Company from the Customer in connection with performing the above-mentioned services shall be held by the Company in full trust. At no time the Company shall use any confidential information obtained through conducting this service contract either directly or indirectly, for personal benefit, or disclose or communicate such information in any manner.
4. Proprietary Rights
a. The Company shall reserve the right to all title interest.
b. The Company shall own and retain all rights, title, and interest in:
i. Any kind of services software, applications, inventions, or other technology developed in connection with the Services;
ii. All intellectual property and proprietary rights in and related to any of the foregoing subscription services(collectively, “Services IP”).
c. To the extent Customer acquires any right, title, or interest in any Services IP, Customer hereby assigns all of its right, title, and interest in such Services IP to the Company.
2. Customer Data and Vendor Information License: Customer hereby grants the Company a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use and otherwise exploit
(i) customer data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. To avoid any doubt, Simpliworks shall use, reproduce and disclose Platform, Software andServices-related information, data, and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer, all of which information, data, and material, will be owned by Simpliworks.) It is the Customer’s sole responsibility to back-up Customer Data during the Term, and the Customer acknowledges that it will not have access to Customer Data through Simpliworks or any Platform following the expiration or termination of this Agreement.
3. intellectual property: The Company shall retain all the subscription services, including all documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Service, including the Company's name, logos and trademarks reproduced through the Service.
5. Payment Terms
1. The Customer shall pay the Company the then-applicable fees described in an Order Form or Statement of Work, as applicable, in accordance with the terms set forth therein (“Fees”).
2. The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company 30 days after the mailing date of the invoice (unless otherwise specified on the applicable OrderForm).
3. This Agreement will automatically renew at the end of each term until terminated by the Company or Customer.
4. Unpaid amounts are subject to a finance charge each month on any outstanding balance.
5. The Company further reserves the right to suspend Services in the event of payment delinquency.
1. Compliance with Notification Laws: The Company shall comply with all applicable laws regarding the notification of individuals in the event of an unauthorized release of personally identifiable information and notification other unauthorized data and information disclosures.
2. Procedure After Unauthorized Disclosure: Within 30 days of discovering any breach of the Company's security obligations or any other event requiring notification under applicable law, The Company shall notify the Customer, and any other individual's Law requires to be notified, of the breach or other events by telephone and e-mail.
1. Customer may terminate this agreement for any reason on 30 days’ notice to the Company.
2. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if:
a. The other party has made any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and;
b. The failure, inaccuracy, or breach continues for a period of 7 days' after the injured party delivers notice to the breaching party reasonably detailing the breach.
3. The Company may terminate this agreement with immediate effect by delivering notice of the termination to the Customer if the Customer fails to pay the invoice amount on time 3 times over any term.
4. Upon termination of this Agreement, the Company shall cease reproducing, advertising, marketing, and distributing any material or information pertaining to the Customer immediately.
5. The full outstanding balance of the Order Form or Statement of Work will remain payable by the Customer upon termination.
6. The Company reserves the right to collect any unpaid or outstanding balances of the terminated Agreement through reasonable measures.
The Parties each agree to indemnify and hold harmless the other Party, its respective affiliates, employees, and permitted successors and assigns against any losses, claims, damages, penalties, liabilities, punitive damages, expenses, reasonable legal fees of whatsoever kind or amount, which result from the negligence of or breach of this Agreement by the indemnifying party, its respective affiliate or successors and any assign that occurs in connection with this Agreement. This section remains in full force and effect even after the termination of the agreement.
9. Limitation of Liability
1. In no event shall either Party:
a. have liability arising out of or related to this Agreement, whether, in contract, tort or under any other theory of liability exceed in the aggregate of the total fees paid or owed by the Customer and Vendors hereunder during the 2 months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident).
b. have any liability to the other for any lost profits or revenues or any indirect, incidental, consequential, cover, special, exemplary, or punitive damages, howsoever caused, whether, in contract, tort, or under any other conditions of liability.
2. The foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.
In the event of any dispute arising in and out of this Agreement between the Parties, it shall be resolved by Arbitration. The Arbitrators' decision shall be final and will be binding on both the Parties.
1. Assignability: Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other Party which shall not be unreasonably withheld.
2. Notices: Any notice required to be given to the Customer shall be delivered by certified mail, personal delivery, or overnight delivery paid for by the Company.
3. Force Majeure: Neither party shall be liable for any failure in performance of the obligation under this Agreement due to cause beyond that party's reasonable control (including and not limited to any pandemic, fire, strike, act or order of public authority, and other acts of God) during the pendency of such event.
4. Modification: No modification of this Agreement shall be made unless in writing, signed by both parties.
5. Severability: If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, all other terms will remain in full force and effect until the Agreement termination.
6. GoverningLaw and Jurisdiction: This Agreement shall be governed by the laws of the State of North Carolina. If the disputes under this Agreement can not be resolved by Arbitration, they shall be resolved by litigation in the courts of the State of North Carolina including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail and hereby waive any jurisdictional or venue defenses otherwise available to it.
7. Legal and binding Agreement: This Agreement is legal and binding between the Parties as stated above. This Agreement may be entered into and is legal and binding in the State of North Carolina. The Parties each represent that they have the authority to enter into this Agreement.
8. Entire Agreement: This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior contracts between the Parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.