THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES.
This Master Subscription Agreement (this “Agreement”) is between Simpplr Inc., a Delaware corporation (“Simpplr”), and the entity entering into an Order Form with Simpplr (“Customer”) and is effective as of the date of such Order Form (the “Effective Date”).
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means Services that may be made available to Customer to try at Customer’s option at no additional charge, and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Customer Data” means electronic data, content, files, documents and information submitted by or for Customer or Customer’s Users to the Services.
“Documentation” means the help pages or other end user documentation provided by Simpplr to describe the functionality of the Services or how to use the Services.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer or one of Customer’s Affiliates, as one party, and Simpplr or one of Simpplr’s Affiliates, as the other party, and that references this Agreement and is mutually executed by the parties, including any addenda and supplements thereto.
“Services” means the products and services that are ordered by Customer under an Order Form, whether through paid subscriptions or free trials, and associated offline or mobile components. Services may include Simpplr’s packaged professional services if specified on the applicable Order Form.
“User” means an individual who is authorized by Customer to use a Service and who is registered with a user ID and password to access the Service. Users may include, for example, Customer’s employees, consultants, contractors and agents.
2. PROVISION OF SERVICES; ORDER FORMS
2.1 Provision of Services. Simpplr will (a) make Services available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide Simpplr’s applicable support for the Services to Customer and/or upgraded support if purchased, and (c) comply with the Service Level Agreement found at https://www.simpplr.com/legal/service-level-terms/ .
2.2 Privacy and Data Security. Each party will comply with applicable laws related to privacy and security of Customer Data. Simpplr’s security terms and Data Protection Addendum, which are incorporated into and part of this Agreement, are located at: https://www.simpplr.com/security-compliance/dpa/ .
2.3 Simpplr’s Personnel. Simpplr will be responsible for the performance of Simpplr’s personnel (including Simpplr’s employees and contractors) and their compliance with Simpplr’s obligations under this Agreement, except as otherwise specified herein.
2.4 Beta Services. From time to time, Simpplr may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not at Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Simpplr may discontinue Beta Services at any time at Simpplr’s sole discretion and may make material modifications to the Beta Service before releasing a production version or may never make a production version available at all. Simpplr’s maximum liability for any harm or damage arising out of or in connection with a Beta Service will not exceed US$100.
2.5 Affiliates. Any Affiliate of Customer or Simpplr will have the right to enter into an Order Form executed by such Affiliate and the other party (or its Affiliate) and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer and/or Simpplr, as applicable, in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity and Simpplr entity that executes such Order Form, and no other Customer entity or Simpplr entity has any liability or obligation under such Order Form.
3. USE OF SERVICES
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Customer’s access to the Services is purchased on a subscription basis, (b) additional Users may be added during a subscription term at the same per User pricing as the original subscription pricing, prorated for the portion of that subscription term remaining at the time the Users are added, and (c) the subscription for any added Users will terminate on the same date as the original subscription. Customer may also either increase or decrease the number of licensed Users when the subscription comes up for renewal, provided that Customer may decrease the number of licensed Users only upon the commencement of a renewal term by providing Simpplr with written notice of such reduction at least 60 days before the commencement of such renewal term.
3.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the applicable Order Form and Documentation. Unless otherwise specified in an Order Form, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may only be reassigned to a new individual replacing one who will no longer use the Service. If Customer exceeds a contractual usage limit, Simpplr may invoice Customer and Customer will be required to pay for excess usage in accordance with Section 4.2 (Invoicing and Payment).
3.3 Customer’s Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Simpplr promptly of any such unauthorized access or use, and (d) use Services only in accordance with this Agreement, the Documentation, Order Forms and applicable laws and government regulations.
3.4 Usage Restrictions. Customer will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer or Users, unless expressly stated otherwise in the applicable Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, obscene, or otherwise unlawful, objectionable or tortious material, or to store or transmit material in violation of a third-party’s rights, including but not limited to privacy rights or intellectual property rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, or use any Service to access or use any of Simpplr’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (j) access any Service (i) if Customer is Simpplr’s direct competitor, except with Simpplr’s prior written consent, (ii) for purposes of monitoring its availability, performance or functionality, or (iii) in order to build a competitive product or service or to benchmark with a competitive product or service, or for any other benchmarking or competitive purposes, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Neither Simpplr nor Simpplr’s suppliers or licensors has any responsibility for preventing or identifying Customer’s compliance with this Section or any liability, directly or indirectly, for any loss or damage caused by Customer Data. Any use of the Services in breach of this Agreement, Documentation or any Order Form, by Customer or Users that in Simpplr’s judgment threatens the security, integrity or availability of Simpplr’s services, may result in Simpplr’s immediate suspension of the Services and/or removal of the offending Customer Data; however, Simpplr will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3.5 AI Tools. If Customer elects to use any features or functionality that utilizes generative artificial intelligence technology, including Simpplr’s Writing Assistant, Smart Answers, and AI Assistant (collectively, “GenAI Tools”), the use of such GenAI Tools is subject to the following terms and conditions. For purposes hereof, “Input” means any Customer Data that Customer provide to be processed by GenAI Tools; and “Output” means any output generated and returned to Customer, or automatically generated and transmitted on behalf of Customer, by GenAI Tools based on the Input.
(a) Input and Output. Input and Output constitute Customer Data hereunder. Customer must ensure that the Input, Output and Customer’s use of GenAI Tools do not violate any applicable law or infringe, violate, or misappropriate any proprietary rights. Customer acknowledges that, due to the nature of machine learning and the technology powering GenAI Tools, Output may not be unique, and GenAI Tools may generate the same or similar output for third parties.
(b) Other Restrictions. Customer will not use GenAI Tools: (i) to mislead any person that Output was solely human generated; or (ii) in violation of Simpplr’s policies, or any third party terms, guidelines, policies or the like to which the GenAI Tools link in connection with generation of Output.
(c) Disclaimers. Notwithstanding anything herein, Simpplr does not make any warranty as to, and will have no liability with respect to, GenAI Tools, Output, the results that may be obtained from the use of GenAI Tools or the accuracy of any information obtained through GenAI Tools, including with respect to the factual accuracy of any Output or suitability for Customer’s use case. Use of any material and/or data obtained through the use of any GenAI Tool is at Customer’s sole risk. Customer should not rely on factual assertions in Output without independently fact checking their accuracy. No information or advice, whether oral or written, obtained by Customer from or through GenAI Tools creates any such warranty.
3.6 Product-Specific Terms. Certain terms and conditions apply specifically to certain Services (“Product-Specific Terms”). Those Product-Specific Terms are available at https://www.simpplr.com/legal/product-terms/ and, if applicable, are hereby deemed part of this Agreement and incorporated herein by reference.
3.7 Professional Services Terms. Any professional services (“Professional Services”) shall be performed under a mutually agreed statement of work (“SOW”). Customer will reimburse Simpplr for reasonable travel and lodging expenses it incurs in providing Professional Services. Professional Services shall be performed in a workmanlike manner in accordance with industry standards. Simpplr and its licensors retain all intellectual property and other rights in any Professional Services deliverables, which are licensed to Customer for internal use by Customer solely in connection with its permitted use of the Services during the applicable subscription term in accordance with Section 3.1.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Service subscriptions purchased and not actual usage (except to the extent usage limits are exceeded as described in Section 3.2), (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. Simpplr will invoice Customer in advance for subscriptions and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Simpplr and notifying Simpplr of any changes to such information. If Customer requires a purchase order for payment, Customer will provide Simpplr with a valid purchase order form; provided, however, that no terms on any purchase order will be binding on Simpplr to the extent they differ from the terms of this Agreement and the Order Form.
4.3 Overdue Charges. If any invoiced amount is not received by Simpplr by the due date, then without limiting Simpplr’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Simpplr may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4 Suspension of Service and Acceleration. If any amount owing by Customer under this Agreement for Services is 30 or more days overdue, Simpplr may, without limiting Simpplr’s other rights and remedies, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Services to Customer until such amounts are paid in full. Simpplr will give Customer at least 10 days’ prior notice that Customer’s account is overdue before suspending Services to Customer.
4.5 Payment Disputes. Simpplr will not exercise Simpplr’s rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. Simpplr’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Simpplr has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Simpplr will invoice Customer and Customer will pay that amount unless Customer provide Simpplr with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Simpplr is solely responsible for taxes assessable against Simpplr based on Simpplr’s income, property and employees.
4.7 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Simpplr regarding future functionality or features.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, as between the parties, Simpplr owns and reserves all of Simpplr’s right, title and interest in and to the Services and System Data, including all related intellectual property rights. “System Data” means data collected by Simpplr regarding the Services that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Services. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License to Host Customer Data. Customer grants Simpplr, Simpplr’s Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data, in connection with use of the Services by Customer and Users, and to use Customer Data to provide and improve the Services. Subject to the limited licenses granted herein, Simpplr acquires no right, title or interest from Customer under this Agreement in or to any of Customer Data.
5.3 License to Use Feedback. Customer grants to Simpplr and Simpplr’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Simpplr’s and/or Simpplr’s Affiliates’ products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to Simpplr’s or Simpplr’s Affiliates’ products or services.
5.4 Federal Government End Use Provisions. Simpplr provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Simpplr to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Simpplr’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, including the Order Forms and pricing thereunder, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Obligations. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Notwithstanding the foregoing, Simpplr may disclose the terms of this Agreement (including any Order Form) to Simpplr’s subcontractors to the extent necessary to perform Simpplr’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein. In addition, either party may disclose the terms of this Agreement (including the Order Forms) confidentially to any actual or potential financing source or acquirer.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Simpplr’s Warranties. Simpplr warrants that during the applicable subscription term (a) the Services will perform materially in accordance with the applicable Documentation, and (b) Simpplr will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are to access Simpplr’s support services and those described in Sections 10.3 and 10.4 below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY OR ITS SUPPLIERS OR LICENSORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. SIMPPLR DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Simpplr. Simpplr will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Simpplr in writing of, a Claim Against Customer, provided Customer (a) promptly gives Simpplr written notice of the Claim Against Customer, (b) gives Simpplr sole control of the defense and settlement of the Claim Against Customer (except that Simpplr may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Simpplr all reasonable assistance, at Simpplr’s expense. If Simpplr receives information about an infringement or misappropriation claim related to a Service, Simpplr may in Simpplr’s discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Simpplr’s warranties under “Simpplr’s Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (1) the combination of the Service with software, hardware, content or other items not supplied by Simpplr; or (2) Customer Data or Customer’s use of the Services in violation of this Agreement, the Documentation, the applicable Order Form or applicable law ((1) and (2), collectively, the ”Excluded Claims”). This Section 8.1 states Simpplr’s sole liability and Customer’s exclusive remedy for any claim described in this Section 8.1.
8.2 Indemnification by Customer. Customer will defend Simpplr against any claim, demand, suit or proceeding made or brought against Simpplr by a third party arising from any Excluded Claims (each a “Claim Against Simpplr”), and Customer will indemnify Simpplr from any damages, attorney fees and costs finally awarded against Simpplr as a result of, or for any amounts paid by Simpplr under a settlement approved by Customer in writing of, a Claim Against Simpplr, provided Simpplr (a) promptly gives Customer written notice of the Claim Against Simpplr, (b) gives Customer sole control of the defense and settlement of the Claim Against Simpplr (except that Customer may not settle any Claim Against Simpplr unless it unconditionally releases Simpplr of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS, CUSTOMER’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S BREACH OF SECTION 3.4 (USAGE RESTRICTIONS) OR SIMPPLR’S INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY, “EXCLUDED LIABILITIES“), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND CUSTOMER’S AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR EXCLUDED LIABILITIES, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS AND LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until terminated as set forth below.
10.2 Term of Purchased Subscriptions. The term of each Order Form shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, each Order Form will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 60 days before the end of the expiring subscription term. Simpplr may increase the per-unit pricing upon the commencement of any renewal term by up to 10% above the applicable pricing in the prior term without prior notice. For any increase in pricing of greater than 10%, Simpplr will provide Customer notice of such increase in pricing at least 75 days prior to the applicable renewal term. Notwithstanding the foregoing or anything else to the contrary, if Customer decreases the number of licensed Users for any renewal term, Simpplr may re-price Customer’s per-unit pricing for the Services without regard to the prior term’s per-unit pricing. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Simpplr’s applicable list price in effect at the time of the applicable renewal.
10.3 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. In addition, a party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. This Section sets forth Customer’s only rights to terminate this Agreement or any Order Form.
(a) No Right to Terminate for Convenience. For clarity, Customer does not have the right to terminate this Agreement or any Order Form for convenience. Upon the commencement of any subscription under an Order Form, Customer will be liable for payment of all amounts owed for the duration of such Order Form, except as expressly set forth in Section 10.4.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer for cause in accordance with Section 10.3 (Termination), Simpplr will provide Customer a pro rata refund of any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Simpplr for cause in accordance with Section 10.3 (Termination), Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Simpplr for the period prior to the effective date of termination.
10.5 Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Simpplr will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Simpplr will have no obligation to maintain or provide any of Customer Data, and as provided in the Documentation may thereafter delete or destroy all copies of Customer Data in Simpplr’s systems or otherwise in Simpplr’s possession or control, unless legally prohibited.
10.6 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Surviving Provisions”, “Notices, Governing Law and Jurisdiction” and “General Provisions” will survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant contact designated by Customer.
11.2 Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California. Any action related to or arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts in San Mateo County, California or the federal district court for the Northern District of California.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services and other technology Simpplr makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Simpplr’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement (including applicable Product-Specific Terms) is the entire agreement between Customer and Simpplr regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
12.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Simpplr will refund to Customer any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.7 Identification of Customer. Simpplr may identify Customer as a customer of Simpplr on Simpplr’s website or in presentations, marketing materials and other documentation regarding Simpplr and may use Customer’s logo in connection with such customer lists.
12.8 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.10 Force Majeure. Neither party shall be liable to the other for any delay or failure in the performance of any of its obligations hereunder (other than payment obligations) due to any cause beyond such party’s reasonable control or due to acts of god, acts of civil or military authorities, fires, labor disturbances, natural disasters, floods, epidemics, governmental rules or regulations, war, riot, power outages, or unauthorized or criminal acts of third parties.
12.11 Facsimile and PDF. Delivery of an executed signature page of this Agreement by facsimile, portable document format (PDF) or electronic signature service will be effective as delivery of a manually executed signature page of this Agreement.
12.12 Modifications. Simpplr reserves the right to modify any Product-Specific Terms upon thirty (30) days prior written notice to Customer. Except as set forth in this Section, no amendment or modification to this Agreement (including any Order Form) will be effective unless agreed to in writing by both parties.