PLEASE READ THESE ENTERPRISE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY “SIMPLEQL”. BY CLICKING THE “SUBMIT” BUTTON, OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. USE OF SIMPLEQL’S SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE AND CUSTOMER WILL HAVE NO RIGHT TO USE THE SERVICES.
1. Access to the Service
Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the Service and/or during the registration process) SimpleQL grants Customer the right to access and use the services ordered by Customer through the SimpleQL website (collectively, the “Service,” or “Services”) during the Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with SimpleQL’s applicable user documentation.
2. Modification of Terms.
SimpleQL reserves the right, at its sole discretion, to modify or replace any of the provisions of this Agreement, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Service or by sending Customer a written notice. SimpleQL may also impose limits on certain features and services or restrict Customer’s access to parts or all of the Service without notice or liability. It is Customer’s responsibility to check this Agreement periodically for changes. Customer’s continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
3. Service Updates
For time to time, SimpleQL may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement. Notwithstanding the foregoing, SimpleQL shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that SimpleQL may cease supporting old versions or releases of the Services at any time in its sole discretion.
4. Ownership; Restrictions; Feedback
As between the parties, SimpleQL retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by SimpleQL for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services”. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Subject to the foregoing, Customer shall retain all right, title and interest in and to the Customer Data (as defined below), including all intellectual property rights therein. Customer may from time to time provide suggestions, comments or other feedback to SimpleQL with respect to the Service (“Feedback”). Notwithstanding anything else, Customer shall, and hereby does, grant to SimpleQL a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair SimpleQL’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
5. Fees; Payment
Customer shall pay SimpleQL’s then-standard fees for the Service as applicable and set forth on the Service (“Fees”). All payments issued under this Agreement are payable in U.S. dollars. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service other than taxes based on SimpleQL’s net income.
6. Cancellation & Refund Policy
All purchases payments or fees for the company’s products or services are final and non-refundable. No refund shall be given, including cases where: (1) an existing subscription or program participation is canceled or altered; (2) products/services have not been used or have been partially used; (3) products/services under support, configuration or maintenance. A subscription can only be canceled or altered by sending an email to firstname.lastname@example.org, in which case additional monthly fees may still apply if the request was submitted less than 8 business days prior to the next renewal date. Special or unique claims may be forwarded by email to email@example.com.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any SimpleQL product or service. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Additionally, Customer shall not: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures SimpleQL may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).
8. Customer Data
For purposes of this Agreement, “Customer Database” shall mean any Customer or third party database or application that Customer connects to the Service, or that Customer otherwise searches using the Service, and “Customer Data” shall mean any of Customer’s information, data or other materials that are stored in a Customer Database. “Usage Data” shall mean any data, information or other material (including without limitation queries and usage data) provided, uploaded, or submitted by Customer to the Service in the course of using the Service; provided that “Usage Data” shall exclude all Customer Data. Customer, not SimpleQL, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. SimpleQL shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. SimpleQL is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to SimpleQL’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, and any person who gains access to Customer Data, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer hereby grants SimpleQL a limited, non-exclusive, non-transferable (except to the extent this Agreement is assigned by SimpleQL in accordance with Section 10), sublicensable, worldwide right and license to (i) internally use (but not disclose) the Customer Data solely as necessary to provide the Service to Customer and improve the Service, (ii) internally use and modify (but not disclose) Usage Data for the purposes of (A) providing the Service to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (iii) freely use and make available Aggregated Anonymous Data for purposes of improving, testing, operating, promoting and marketing SimpleQL’s products and services. “Aggregated Anonymous Data” means data in aggregate, anonymized form which can in no way be linked specifically to Customer. Customer shall own and hereby reserves all right, title and interest in the Customer Data.
9. Term; Termination
This Agreement shall commence on the date Customer first accesses the Services and shall last for the applicable subscription period selected during the ordering process, including any applicable renewals described on the Services (the “Term”). In the event of a material breach of this Agreement by the either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, SimpleQL may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with SimpleQL’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) SimpleQL shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, SimpleQL shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) SimpleQL shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
11. Limitation of Liability
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO SIMPLEQL HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and SimpleQL with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and SimpleQL with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to SimpleQL at the physical address of SimpleQL’s main U.S. office (as set forth on SimpleQL’s web site), and to Customer at the address provided to SimpleQL during registration. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) SimpleQL may utilize subcontractors in the performance of its obligations hereunder. Customer shall defend, indemnify, and hold harmless SimpleQL, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) that arise from or relate to any claim that the Customer Data or Customer’s use of the Service, infringes, violates, or misappropriates any third party intellectual property or proprietary right. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.