Simpleview Terms & Conditions
The following are Terms and Conditions between Simpleview Worldwide, Inc., a Delaware Corporation, and its subsidiaries, (“Simpleview”) and the party (“Client”) that subscribes for the Services as described in a signed sales order or service order negotiated between Simpleview and Client (the “Sales Order”). These Terms and Conditions are effective as of the date of the Client’s initial Sales Order (the “Effective Date”).
1. Simpleview Services
Simpleview agrees to provide Client with services as set forth or described in one or more Sales Order agreed to in writing by the parties (the "Services"). Each Sales Order shall specify at a minimum the services to be performed, the start date of the Services (“Start Date”), term of the Sales Order (“Initial Term”), and fees. Client agrees that Simpleview is responsible only for providing the Services specifically set forth in a fully executed Sales Order.
Each Sales Order is hereby incorporated into these Terms and Conditions by this reference, and the provisions of these Terms and Conditions are hereby incorporated into each Sales Order. If any provisions of a Sales Order conflicts with these Terms and Conditions, these Terms and Conditions will prevail, except to the extent that such Sales Order expressly states that such provisions supersede the conflicting terms of these Terms and Conditions (and, in such case, only with respect to the Services to be performed under that Sales Order).
The Data Processing Agreement attached hereto is hereby incorporated into these Terms and Conditions by this reference. If any provision of the Data Processing Agreement conflicts with these Terms and Conditions or a Sales Order, the Data Processing Agreement will prevail.
2. Platform Development and Hosting
2.1 Delivery of Client Content
"Client Content" shall mean any materials provided by Client for incorporation into the Services, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips, text, copyrights, domain names, designs, images, trademarks, patents, trade secrets, and any other proprietary rights. Client shall deliver the Client Content to Simpleview in an electronic file format reasonably specified and accessible by Simpleview (e.g., .txt, .gif) or as otherwise specified in a Sales Order. Any services required to convert or input Client Content not set forth in a Sales Order as Services shall require a Change Order (as defined below) and may be charged as additional Services. Client shall promptly deliver all Client Content to Simpleview as reasonably required by Simpleview.
2.2 Change Orders
If Client wishes to implement upgrades or revisions to Services that differ materially from the Services in a Sales Order, Client shall submit to Simpleview a written change order containing (i) such revisions in detail and (ii) a request for a price quote for such change (collectively, the "Change Order"). Simpleview shall promptly evaluate the Change Order and submit to Client for its written acceptance a proposal for undertaking the applicable tasks, schedule and a price quote reflecting all associated fees associated with Client's Change Order. Client shall have ten (10) business days from receipt of such proposal to accept or reject Simpleview's proposal in writing. If Client accepts Simpleview's proposal to undertake the work necessitated by the Change Order, then the Change Order, as supplemented and/or modified by Simpleview's proposal, shall amend and become a part of the relevant Sales Order. Final Change Orders shall be signed by both parties prior to work commencing.
3. Service Fees
Client shall pay the fees set forth in the applicable Sales Order. As part of our continual investment into our products and services, Simpleview will increase the pricing of any renewed products and services during any subsequent Renewal Term by a five percent (+5%) per annum growth rate from the effective date of the expiring term, unless the parties agree in writing to different pricing at least 60 days prior to the end of the expiring term.
In the event Client chooses not to renew but does not terminate service, the Agreement will continue on a month-to-month basis, with pricing of products and services at a ten percent (+10%) per annum growth rate from the effective date of the expiring term, billed monthly for up to six months, at which time services will cease.
Client shall pay, or promptly reimburse Simpleview for, any reasonable out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Simpleview in connection with the performance of the Services, provided however, that the out-of-pocket expenses, travel and related expenses shall be approved in advance and in writing by an authorized officer of Client’s company. Client shall pay to Simpleview all fees within thirty (30) days of receipt of the applicable Simpleview invoice.
4. Proprietary Rights
4.1 Proprietary Rights of Client
As between Simpleview and Client, the Client Content, Work Product, Client Data and User Information (defined below) shall remain the sole and exclusive property of Client subject to section 4.2 of these Terms and Conditions. Nothing in these Terms and Conditions shall be construed to grant Simpleview any ownership right in the Client Content, Work Product, Client Data or User Information. Subject to section 5.1 of these Terms and Conditions, to the extent, if any, that ownership of Client Content, Work Product, Client Data and User Information does not automatically vest in Client by virtue of these Terms and Conditions or otherwise, Simpleview hereby transfers and assigns to Client all rights, title and interest which Simpleview may have in and to Client Content, Work Product, Client Data and User Information. Simpleview will use commercially reasonable efforts to cooperate with Client in the process of securing and enforcing Client’s rights to such Deliverables.
“Work Product” means all elements of Services and documentation prepared specifically for Client by Simpleview in accordance with the terms of these Terms and Conditions including but not limited to HTML files, XML files, graphics files, animation files, data files, scripts and programs, in object code, source code or other programming code.
“Client Data” means all data and information about Client’s businesses, customers (current, former or prospective), employees, operations, facilities, products, markets, assets or finances that Simpleview obtains, creates, generates, collects or processes in connection with the Sales Order, and all intellectual property rights in that data and information.
“User Information” means all information about users, Client members and personnel and Internet browsers (whether or not users), that Client provides to Simpleview hereunder, or that Simpleview otherwise collects, compiles, creates or stores in connection with the Sales Order and, including without limitation (i) name, address, email address, password information, account numbers, financial information, demographic data, marketing data, credit data, any other identification data; (ii) any other user data submitted in the course of the access or use of Simpleview Products; and (iii) any information about an identifiable individual that constitutes “personal information” under applicable law.
On Client’s written request or upon termination of the Sales Order for any reason, Simpleview will promptly provide Client or their vendor(s) backups of Client Content, Work Product, Client Data and User Information such that Client and/or their vendor(s) can use the backups to migrate to different service providers.
4.2 Proprietary Rights of Simpleview
With the exception of: (a) any deliverables or Work Product created for Client, as designated in a Sales Order; (b) deliverables or Work Product based substantially on Client Content, Work Product, Client Data and User Information, which shall be deemed to be the sole and exclusive property of Client; or (c) Client Content, Work Product, Client Data and User Information, all materials related to services, programming code and materials previously developed by Simpleview, and any trade secrets, know-how, methodologies and processes related to Simpleview’s products and services, shall remain the sole and exclusive property of Simpleview or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Simpleview Materials"). Subject to section 5.2 of these Terms and Conditions, to the extent, if any, that ownership of the Simpleview Materials does not automatically vest in Simpleview by virtue of these Terms and Conditions or otherwise, Client hereby transfers and assigns to Simpleview all rights, title and interest which Client may have in and to the Simpleview Materials. Client acknowledges and agrees that Simpleview is in the business of designing and hosting Web sites, that they offer licensed applications, they resell third party services and applications, and that Simpleview shall have the right to provide to third parties services which are the same or similar to the Services, and to use or otherwise exploit any Simpleview Materials in providing such services.
4.3 Data
Aggregated Data shall be a defined term and Client accepts as acknowledgment that Simpleview collects, logs, and aggregates data derived from Client’s usage as part of the normal operation of the products and services (“Aggregated Data”). Aggregated Data is anonymized and as such is not considered Client Data. Simpleview shall own sole rights to use of the Aggregated Data for any business purpose during or after the term of the Agreements, subject to compliance with applicable data protection and privacy law; provided that, notwithstanding anything herein to the contrary, Simpleview will hold Client harmless for Simpleview’s use of Aggregated Data, including any failure to properly anonymize the data.
4.4 Simpleview Notices
Upon Client’s prior written consent, Simpleview may identify Client as a user of the Services and may use Client’s name and logo on Simpleview’s customer list, press releases, blog posts, advertisements, and website.
5. License
5.1 Grant of License - Client
Client shall secure for Simpleview a non-exclusive, non-transferable, worldwide, royalty free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content and Work Product strictly as instructed by Client and solely to the extent necessary to render the Services to Client under the Sales Order. Simpleview shall not, without first obtaining permission from Client, edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Data and User Information except strictly as instructed by Client and solely to the extent necessary to render the Services to Client under the Sales Order. This License shall automatically terminate upon the end of the Term.
5.2 Grant of License - Simpleview
Simpleview hereby grants to Client a non-exclusive nontransferable worldwide irrevocable royalty free license to make use of Simpleview Materials for Client’s business purposes strictly as instructed by Simpleview and solely to the extent necessary to render the Services to Client under the Sales Order. Client cannot use the Simpleview Materials for any other purpose, including selling, copying or transferring any portions to third parties, or providing marketing automation services for others. Simpleview hereby reserves for itself all rights in and to the Simpleview Materials not expressly granted to Client in the immediately foregoing sentence. This License shall automatically terminate upon the end of the Term.
6. Warranties
6.1 Simpleview Warranties
Simpleview represents and warrants: (i) that Simpleview has the right and authority to enter into and perform its obligations under the Sales Order; (ii) that Simpleview shall perform the Services in a timely, professional and workmanlike manner using personnel of required skill, experience, and qualifications; (iii) that nothing in the Simpleview Material infringes or violates any right of any third party; (iv) that Simpleview will take reasonable measures to protect Simpleview Materials from viruses, trojans, worms, or other malicious code and will take at least those measures that it takes to protect its own computer systems, but in no case less than reasonable care; (v) that the Services will conform in all material respects to the specifications set forth in the applicable Sales Order during the Initial Term and any Renewal Terms; (vi) that Simpleview, its subcontractors, representatives and personnel will comply with all terms of the Data Privacy Agreement; and (vii) that the Services will be provided in compliance with all applicable laws. 6.2 Client Warranties
Client warrants that: (a) it has all authorization(s) necessary for its Client Content; and (b) that the materials provided to Simpleview, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, are to the best of its knowledge true and accurate; and (c) that the Client Content as provided to Simpleview and used by Simpleview in accordance with these Terms and Conditions does not infringe or violate any right of any third party. Client shall provide all necessary Client Content, including database files, reports and other materials as reasonably requested and required by Simpleview to provide the Services.
7. Indemnification
7.1 Indemnification by Client
Client agrees to indemnify, defend, and hold harmless Simpleview, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the gross negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
7.2 Indemnification by Simpleview
Simpleview agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) would constitute a breach of any of Simpleview's representations, warranties, or agreements hereunder; or (ii) arises out of the gross negligence or willful misconduct of Simpleview; or (iii) any of the Simpleview Materials to be provided by Simpleview hereunder infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
7.3 Indemnification Procedures.
Indemnifying Party shall reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the Indemnified Party would be entitled to indemnification under the terms of this Agreement, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party hereto. Any Indemnified Party may, at its own expense, retain separate counsel in any action, claim or proceeding in which Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party; provided, however, that such Indemnified Party shall have the right to employ separate counsel at Indemnifying Party’s expense and to control its own defense of such action, claim or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between Indemnifying Party and such Indemnified Party that would make separate representation advisable. Indemnifying Party shall not, without the prior written consent of each applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding indemnifiable hereunder unless such settlement, compromise or consent (i) requires only the payment of money, which will be satisfied in its entirety by Indemnifying Party, (ii) contains no finding or admission of any violation of law by any Indemnified Party and (iii) includes an unconditional release of each Indemnified Party to which indemnification is owed from all liability arising or that may arise out of such claim, action or proceeding.
8. Warranty Disclaimer and Limitation of Liability
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6, SIMPLEVIEW MAKES NO WARRANTIES HEREUNDER, AND SIMPLEVIEW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE TOTAL LIABILITY OF SIMPLEVIEW HEREUNDER FOR ANY SERVICES NOT PROPERLY PERFORMED (INCLUDING ANY LIABILITY FOR NEGLIGENCE) SHALL BE LIMITED, AT THE SOLE DISCRETION OF SIMPLEVIEW, TO (a) PERFORMING THOSE SERVICES CORRECTLY, OR (b) IF SUCH PERFORMANCE IS IMPOSSIBLE, TO THE AMOUNTS PAID TO SIMPLEVIEW IN THE PRECEDING TWELVE MONTHS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SIMPLEVIEW BY CLIENT UNDER THE SALES ORDER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, EXCEPT FOR LIABILITIES RELATED TO INFRINGEMENT ON THIRD PARTY RIGHTS DUE TO NEGLIGENCE ON THE PART OF SIMPLEVIEW, IN WHICH CASE NO LIMITATION ON LIABILITY SHALL EXIST. ADDITIONALLY, THESE LIMITS SHALL NOT APPLY TO (a) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (b) LOSSES ARISING OUT OF OR RELATING TO A PARTY’S GROSS NEGLIGENCE OR MORE CULPABLE CONDUCT; or (c) LOSSES ARISING OUT OF OR RELATING TO A PARTY’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER SECTIONS 4 and 9.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY OF THIS PARAGRAPH SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF THE DATA PROCESSING AGREEMENT, A PARTY’S BREACH OF AN OBLIGATION OF CONFIDENTIALITY, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Confidentiality
Each party agrees that for the duration of the initial and any Renewal term of the Sales Order, information that is identified as confidential or proprietary may be disclosed to the other party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by individuals of the receiving party without access to the Confidential Information, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in the Sales Order, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with the Sales Order. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of the Sales Order.
Each of the parties shall use at least those precautions to protect such information and other property that it uses to protect its own information and other property, in no event less than those precautions generally required by industry standards.
If either party or its respective directors, officers, employees, consultants or agents is requested or required by legal process to disclose any of the Confidential Information of the other party, the party required to make such disclosure shall give prompt notice so that the other party may seek a protective order or other appropriate relief. If such a protective order is not obtained, the party required to make such disclosure shall disclose only that portion of that Confidential Information that such party’s counsel advises is legally required to be disclosed.
Each Party’s rights and obligations under this section shall survive any expiration or termination for a period of five (5) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the recipient (“Survival Period”).
10. Term and Termination
10.1 These Terms and Conditions shall be effective when Sales Order(s) are signed by the parties and thereafter shall remain in effect for as long as any Sales Orders remain active hereunder, unless earlier terminated as otherwise provided in the Sales Order or these Terms and Conditions.
10.2 As of the expiration date of the Sales Order(s), the Sales Order(s) shall automatically renew for subsequent periods equal to the length of the expiring term unless either party gives the other written notice at least 60 days prior to the end of the expiring term. Each renewal term is defined herein as a “Renewal Term”.
10.3 Either party may terminate the Sales Order: (i) if the other party materially breaches any of its representations, warranties or obligations under these Terms and Conditions, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach; and Client may terminate the Sales Order if Simpleview (ii) makes a general assignment for the benefit of creditors, becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law, or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) challenges or disputes the validity or applicability of any of Client’s intellectual property rights; or (v) becomes involved in any situation or occurrence which brings Simpleview into public disrepute or reflects unfavorably upon Client ((i) – (v) collectively, and individually, a “Termination For Cause”). Termination shall be effective upon receipt by the breaching party of such notice unless a later date is specified therein.
10.4 Upon termination of the Sales Order, as applicable for any reason, Simpleview will at Client’s sole option, promptly return or destroy and erase from all systems it directly or indirectly uses or controls all originals and copies of all documents, materials, and other embodiments and expressions in any form or medium that contain, reflect, incorporate, or are based on Client’s Confidential Information, in whole or in part.
11. Miscellaneous
11.1 Entire Agreement
These Terms and Conditions and any Sales Order hereunder constitute the entire agreement between Client and Simpleview with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in these Terms and Conditions. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
11.2 Governing Law
These Terms and Conditions shall be construed in accordance with the laws of the State of Delaware.
11.3 Independent Contractors
The Parties agree that Simpleview and its personnel, in performance of the Sales Order, are acting as independent contractors and that the Sales Order shall not create any agency between the parties.
11.4 Arbitration
Any claim, controversy or dispute among the parties to the Sales Order, except those involving Client Data, User Data, Confidential Information or the Data Processing Agreement, will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in Delaware. The arbitrator's award will be final and binding and may be entered in any court having jurisdiction thereof. The prevailing party shall be awarded all its costs, including but not limited to any filing fees, the fees of the arbitrator, reasonable attorneys' fees, travel expenses, and/or any other costs incurred relating to the dispute. Notwithstanding the foregoing, all disputes between the parties with regard to Client Data, User Data, Confidential Information or the Data Processing Agreement shall be governed, enforced, and construed under the laws of Delaware without regard to conflict of laws principles that would require the application of any other laws and a Party shall bring any such action or suit in federal or state court in Delaware. Simpleview and Client consent to Jurisdiction in federal or state court in Delaware.
11.5 Force Majeure
Neither party shall be liable for delays or failure in performance thereunder caused by acts of God, war, strike, riot, labor dispute, work stoppage, fire, judicial or governmental action, or any other cause, whether similar or dissimilar, beyond reasonable control of that party.
11.6 Waiver
The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
11.7 Amendment
This Agreement may only be amended by an instrument in writing signed by both parties that specifically purports to amend this Agreement. The terms hereof may not be waived, except by a written instrument signed by the party waiving compliance.
11.8 Successors and Assigns
These Terms and Conditions may not be assigned or transferred by either party, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that a party may assign or transfer these Terms and Conditions and its Sales Orders, in whole, to any affiliate of such party or in connection with any merger, acquisition, sale of all or substantially all of its assets, sale of the line of business or assets to which these Terms and Conditions relate, or similar organizational transaction, provided that such assignee or transferee agrees to honor all obligations of the assignor or transferor. Subject to the foregoing, these Terms and Conditions are binding upon, and inure to the benefit of, the parties and their respective successors, heirs, administrators and assigns.
11.9 Severability
If any provision of these Terms and Conditions is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms and Conditions shall remain enforceable.
11.10 Survival
All provisions of these Terms and Conditions relating to warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of these Terms and Conditions.
11.11 Taxes
All payments due under the Sales Order are exclusive of taxes. Client agrees to bear and be responsible for the payment of all such taxes (except for taxes on Simpleview’s net income or capital), including, without limitation, all sales, use, rental receipt, personal property, royalty, value added or other taxes which may be levied or assessed in connection with Sales Order.
11.12 Accessibility
While Simpleview will encourage and support clients in their efforts to meet guidelines, website accessibility implementation completed by Simpleview does not cover accessibility issues introduced by third party scripts or forms, and client generated content. Simpleview provides no warranties or indemnities on website accessibility and recommends review of any implementation with appropriate legal representatives.