This Terms of Service was last updated on Jan 15, 2015.
Simpplr, Inc. (“Simpplr”) provides its cloud based social intranet services (“Service(s)”) to its customers (each a “Customer”) pursuant to this Terms of Service (the “Agreement”). By entering into a Services order with Simpplr (each a “Service Order”) or otherwise accessing or using the Services, Customer unconditionally accepts and agrees to all of the terms of this Agreement. If Customer does not agree to all of the terms of this Agreement, Customer may not use the Services. Subject to the terms of this Agreement, Simpplr will use commercially reasonable efforts to provide Customer the Services in accordance with the terms of each Service Order and reasonable support services in accordance with Simpplr’s standard practice. Services may only be accessed or used by the number of Authorized Users identified in each applicable Service Order. Capitalized terms not defined herein shall be given the meaning set forth in the applicable Service Order.
Simpplr reserves the right to change or modify portions of this Agreement at any time. If Simpplr does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Simpplr will also notify Customer, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Service after the date any such changes become effective constitutes acceptance of the new Agreement.
From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. Evaluation Services are for Customer’s internal evaluation purposes only and not for production use, are not considered “Services” under this Agreement, are not supported, are provided “as is” without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire 60 days from the trial start date. Simpplr may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Simpplr will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Simpplr or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. With respect to any Software (in any form) that is provided to Customer, Simpplr hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely internally in connection with the Services and for no other purpose. All Software is Confidential Information of Simpplr and subject to the terms of Section 3.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Simpplr’s standard published policies and codes of conduct then in effect (the “Policy”) and all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property and the like). Further, Customer acknowledges and agrees that the Services are designed to be used with certain platform services of salesforce.com, and, accordingly, Customer hereby agrees to the terms and conditions set forth in Exhibit A attached hereto. Customer hereby agrees to indemnify and hold harmless Simpplr against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any of the foregoing or otherwise from Customer’s use of Services. Although Simpplr has no obligation to monitor Customer’s use of the Services, Simpplr may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Simpplr includes all Software and other non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Simpplr to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data and other Customer intellectual property rights. Simpplr shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, maintenance and professional services, and (c) all intellectual property rights related to any of the foregoing.
Customer hereby grants Simpplr and salesforce.com the right to access and use Customer Data in connection with the provision of Services (and related support, maintenance, professional services and the like). Customer represents and warrants it has all rights necessary to Customer Data for the purposes contemplated by this Agreement and that Customer Data does not violate any applicable law, regulation or third party rights; Customer shall be solely responsible for the accuracy, legality, quality and integrity of Customer Data. Further, notwithstanding anything to the contrary, Simpplr shall have the right collect and analyze information relating to the use and performance of various aspects of the Services and related technologies, and Simpplr will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and other Simpplr offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Further, Simpplr shall have the right to use Customer’s name in a factual manner for marketing or promotional purposes on Simpplr’s website and in other communication with existing or potential Simpplr customers. No rights or licenses are granted except as expressly set forth herein.
Customer will pay Simpplr the then applicable fees described in the Service Order in accordance with the terms therein (the “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. If Customer’s use of the Services exceeds the Authorized User limits set forth on the Service Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Simpplr reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Initial Term or then‑current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Simpplr has billed Customer incorrectly, Customer must contact Simpplr no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Simpplr’s customer support department
If Customer has provided information regarding a credit card or other payment instrument for payment of Fees, Customer represents and warrants that such information is true and that Customer is authorized to use the payment instrument. Customer will promptly update its account information with any changes thereto that may occur. Customer hereby authorizes Simpplr to bill its payment instrument on a periodic basis in accordance with the terms of the applicable Services payment plan until this Agreement is terminated. Simpplr may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Simpplr thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Simpplr’s net income.
Subject to earlier termination as provided below, this Agreement is for the Initial Term as specified in the Service Order, and shall automatically renew for successive Renewal Terms (collectively, the “Term”), unless either party requests termination at least forty-five (45) days prior to the end of the then-current Term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Simpplr may also reasonably suspend your or Authorized Users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise place Simpplr (or its customers or other interests) at risk of harm, damage, loss or liability. Upon termination, all outstanding Fees due for the Services for the entire Services Term (regardless of any early termination) shall immediately become due and payable. Upon any termination, subject to payment of all applicable Fees, Simpplr will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Simpplr may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, and limitations of liability.
Simpplr shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Simpplr or by third-party providers, or because of other causes beyond Simpplr’s reasonable control, but Simpplr shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Simpplr does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES (AND RELATED SUPPORT, MAINTENANCE, PROFESSIONAL SERVICES AND THE LIKE) ARE PROVIDED “AS IS” AND SIMPPLR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. Further, Customer understands that the operation of the Service, including Customer Data, may be unencrypted and involve transmissions over various networks and to Simpplr’s third party vendors and hosting partners to provide the necessary technology and functionality required to operate and maintain the Services. Accordingly, Customer acknowledges that it bears sole responsibility for adequate security, protection and backup of Customer Data.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SIMPPLR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SIMPPLR’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SIMPPLR FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SIMPPLR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Simpplr’s prior written consent. Simpplr may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Simpplr in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Platform”means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Simpplr, Inc.
“Reseller Application” means Simpplr Social Intranet.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users”means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.