Welcome to Advocate and Simplify. Thank you for using our products and services (“Services”). The Services and web application (“Platform”) are provided by Simplify Inc. (“Supplier”) located at 300 Valley Wood Drive, The Woodlands, Texas 77380, United States.
The Platform is owned and operated by the Supplier. These Terms of Service contain the terms and conditions that govern all use of the Platform, the Services and all content, services and/or products available on or through the Platform (collectively, the “Advocate Services”). Advocate Services are offered subject to acceptance without modification (other than Special Terms (as defined below) agreed by the Parties pursuant to these Terms of Service) of all the terms and conditions contained herein and all other operating rules, policies, the Guidelines (as defined below), any future modifications and procedures that may be published from time to time on the Platform or otherwise made available on or through the Advocate Services (collectively, the “Terms”). When accepted, these Terms form a legally binding contract between the Customer and Supplier (as defined below). The Customer signatory entering into these Terms must have legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. CUSTOMER ACKNOWLEDGES HAVING READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN THEY SHALL DENY ACCESS, BROWSING OR OTHER USE THE PLATFORM OR THE ADVOCATE SERVICES TO THEIR CUSTOMER ACCOUNT. CUSTOMERS AND/OR Users (Employees of Customer) who violate these Terms may have their access and use of the ADVOCATE Services suspended or terminated, at SUPPLIER’s discretion.
As used in these Terms, the following terms have the following meanings (such meaning to be equally applicable to both the singular and plural form of the terms defined):
|Access||the possibility to enter the System via a personal computer, mobile or other device online as made available by Supplier;|
|Account||the central means for Access and use of the Advocate Services, these services may be subject to a Fee;|
|Activity||appointments, tasks, projects, trouble tickets, billing inquiries, Moves, Adds, Changes, Disconnects;|
|Agreement||a contract for using the Advocate Services, into which (when applicable) these Terms have been incorporated by reference, inclusion or otherwise;|
|Advocate Services||Advocate Services are all services provided by Advocate, regardless of how they are accessed. (i.e. they may be accessed through the normal web portal or through a Phone App. Advocate Services ALL require a username and password to access;|
|Authorization||the set of rights and privileges on the Web Site available to a User;|
|Client||a company or organization who is a customer of Supplier;|
|Client Data||Files and any other digital data and information, which is subjected to the Advocate Services or otherwise inserted to the System by the Client (including the specific Users, Products, Persons, Activities, Stages, Deals, Proposals, Bill Breakdowns or Inventory associated with the Client);|
|Content||any data and information available through Advocate Services or contained within the structure of the System, including Client Data, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;|
|Fee||regular payment (when applicable) for using the activated Account;|
|Files||documents of any kind (images, spreadsheets, text files, etc) that are inserted to the System by the Client, and usually associated with a particular Quote, Project or Trouble Ticket;|
|Free Trial||temporary Access for the purposes of trying out the Web Site and Advocate Services in accordance with any selected Plan without paying a Fee for a period of time;|
|Guidelines||additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Advocate Services;|
|Party, Parties||Supplier and/or Client, as applicable;|
|Person||natural persons, either as individuals or as representatives or other types of members of Organizations;|
|Phone App||some Advocate Services are available through various Android or iOS phone apps. All Terms of Service shall apply regardless of mode of access;|
|Advocate Materials||the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Advocate Services;|
|Products||the goods or services that offered through Advocate, may be subject to additional fees;|
|Services||services that are offered through Advocate, may be subject to additional fees;|
|Special Terms||any particulars, specifications and conditions by which the Parties have agreed to deviate from these Terms;|
|Supplier||as the context requires, Simplify. Corporation|
|System||the integrated cloud computing solution for providing the Advocate Services, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;|
|User||a natural person granted with the Authorization to use the Account on behalf of a Client. A User will receive a username and set up a password to access Advocate Services. A User must be a full time employee of a Simplify Corporation customer. The Corporation for which the User is employed must have an signed copy of these Terms and Conditions on file at Supplier;|
|Web Site||the compilation of all web documents (including images, code- and html files) made available via www.simplifycorp.com or its sub domains or domains with identical names under other top domains and owned by the Supplier; and|
|you||means the Client or User, as the context requires.|
The Supplier whom Client is contracting is Simplify Corporation, 300 Valley Wood Drive, The Woodlands, TX, 77380.
3. General Conditions
- Relationship of the Parties. Parties will act solely as independent contractors. The Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and Supplier, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. The Agreement is not for the benefit or use of any third parties.
- Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
- Assignment. Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer the Agreement or delegate any of its rights and/or obligations under the Agreement without the Supplier’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer the Agreement or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
- No waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.
- Resolution of disputes. Subject to the terms and conditions set forth in Section 3.6 below, in the event of a dispute, controversy or claim arising out of or in relation to the Agreement, including but not limited to the formation, validity, breach or termination thereof, the Parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time. If the Customer has an executed MSA with Supplier, any conflict between these Terms and Conditions and that MSA shall be governed by the MSA.
- Governing law, Jurisdiction and Dispute Resolution. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to the Agreement. Any questions relating to the Agreement which are not expressly or implicitly settled by the provisions contained in the Agreement shall be governed by and construed in accordance with Montgomery County, TX.
Dispute Resolution. This Section 3.7 applies only to Agreements with Clients domiciled in the United States.
- In the interest of resolving any disputes that arise between you and Supplier in the most expedient and cost effective manner, you and Supplier agree that any and all disputes arising in connection with these Terms or your use of the Advocate Services or any part thereof shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Advocate Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of your Account for the Advocate Services. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND THE SUPPLIERS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Notwithstanding the contents of Section 3.7. (a) above, you and Supplier agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Any arbitration between you and either Supplier will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively herein, “AAA Rules”) of the American Arbitration Association (herein “AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Simplify Corporation.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Simplify Corporation does not have a physical address on file for you, by electronic mail (herein “Notice”). Supplier’s address for Notice is set forth in the table in Section 2 above. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (herein “Demand”). You and the Suppliers agree to use good faith efforts to resolve the claim directly, but if no such resolution is reached within 30 days after the Notice is received, you or either Supplier may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the applicable Supplier shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if the dispute is finally resolved through arbitration in your favor, the Suppliers shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by the applicable Supplier in settlement of the dispute prior to the arbitrator’s award.
- Fees. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the preceding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND THE SUPPLIERS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Applicable Supplier agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. In the event that Supplier makes any future change to this arbitration provision (other than a change to the either Supplier’s address for Notice), you may reject any such change by sending Simplify Corporation written notice within 30 days of the change to Simplify Corporation’s address for Notice, in which case your Account shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
- Enforceability. If the entirety of this Section 3.7 is found to be unenforceable, then the entirety of this Section 3.7 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 3.6 above, shall govern any action arising out of or related to the Terms or your use of the Platform and/or the Advocate Services or any part thereof.
4. Conclusion and term of the Agreement
A person may use the Advocate Services only upon concluding an Agreement between Supplier and their company. The person, who wishes to create an Account, must:
- be at least 18 years of age, if the person is a natural person, or have valid authorization from his/her legal representative and be a full time employee of the Simplify Client;
- be duly incorporated and have full legal capacity, if the person is a legal person;
- At no time shall a person who is not an authorized full time employee of a Simplify Client log into any part of Advocate Services, nor may their username or password be used in any way to share are information, pricing, quotes or trouble ticket information with third parties (any party that would not qualify as a User).
The Agreement is considered to be in force when:
- An authorized person from the Client has signed and returned this Agreement to Simplify.
Supplier is not obliged to an Agreement with any person and may refuse to do so at its sole discretion. Notwithstanding the foregoing, Supplier has the right to decline the formation of an Agreement, if it has reason to believe that the person:
- is a current or potential competitor of either Supplier; or
- must be denied Access or use of the Advocate Services according to applicable law.
- The Agreement remains effective until terminated.
5. Terms of the Agreement
- These Terms are an inseparable part of the Agreement. They are available on the Web Site.
- Supplier reserves the right, at their sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes from time to time on the Platform or otherwise making them available on or through the Advocate Services. Please check these Terms and Guidelines periodically for changes. Continued use of the Advocate Services after such changes have been published on or through the Platform constitutes binding acceptance of such changes. For any material modifications to the Terms, or in the event that such modifications materially alter your rights or obligations hereunder, such amended Terms will be effective upon obtaining new signature from Client. Notwithstanding the foregoing, the resolution of any dispute that arises between you and a Supplier will be governed by the Terms in effect at the time such dispute arose.
- The original language of these Terms is English. Supplier may make available the translations of these Terms in certain other languages at the request of a Client. In case of conflicts between the original English version and the translations into other languages, the English version shall prevail.
- Each Client interested in forming an Agreement with the Supplier must carefully read these Terms and accept them. If Client does not agree to all of these Terms or Supplier is unwilling to provide Access and Advocate Services and, as a result, that entity may not access or use all or any portion of the Advocate Services and must stop such activities.
The consent to these Terms is granted as follows:
- when the Client completes an Agreement with Supplier; or
- when a User continues to use the Advocate Services after these Terms have been delivered and/or changed.
- When using Advocate Services, you will be subject to Guidelines. All such Guidelines are hereby incorporated by reference into these Terms.
- The Parties may always agree upon Special Terms, which are also an inseparable part of the Agreement. In case of conflicts between the Special Terms and these Terms, the Special Terms shall prevail.
- Any new features, functions, enhancements and developments in Advocate Services, including the release of new tools and resources, shall be subject to these Terms.
- Certain features, functions, parts or elements of the Advocate Services can be used or accessed only by means of an Account. The Client, who wishes to activate an Account, must do so in adherence to Section 5.
Any person has the right to create an Account, except if the person:
- does not have an Agreement with Supplier (through their employer);
- is a current or potential competitor of Supplier; or
- must be denied Access or use of the Advocate Services according to applicable law; or
- is not a full time employee of a Simplify Client.
- Each Client may have only one Account. If several persons need to use Account on behalf of Client, then Client must designate such persons as Users. For the avoidance of doubt, each User designated by such Client shall be subject to the restrictions set forth in such Client’s Agreement (including, without limitation, these Terms).
- If Client has designated a certain number of Users to its Account and granted them Authorization, it is presumed that such Users have the right of representation or other authorization to act on behalf of Client when using the Account. The Suppliers are not obliged to check or verify the right of representation or validity of Authorization of any User, but Supplier may ask for additional information or proof of the person’s right of representation and authorization.
- The Client and any of the Users associated with the Account must provide Supplier with true, accurate, current, and complete information about the Client, Users or Account and keep such information updated.
- The Supplier shall provide the Client with the following credentials in order to log in to its Account: (1) username and (2) password. These login credentials must not be used by multiple persons. If the Client has designated several Users to use its Account, each User is provided with separate credentials. The Client is responsible for keeping confidential all login credentials associated with the Account, so that they would not become known or available to any third persons for unauthorized uses.
The Client must promptly notify Supplier:
- of any disclosure, loss or unauthorized use of the login credentials;
- if (i) a User has left the Client’s organization, (ii) a User’s role in the Client’s organization has changed or (iii) if there are other reasons due to which a User does not have the right to use the Account on behalf of the Client.
- If the Client has requested to terminate the Agreement or otherwise close or delete the Account, then Supplier shall permanently delete the Account, including permanently delete all Client Data therein, as soon as reasonably practicable after 2 weeks but no later than within 12 months as of receipt of such request.
- No User shall permit their credentials to be used or retained by a device that is not in their control.
- The use of Account may subject to a Fee.
The Fee is charged according to each Clients specific circumstances.
- A fee charged will be set and approved by an applicable Service Order Form (SOF) mutually signed and executed.
- All Fees are non-refundable, i.e. there are no refunds or credits available for periods where the Client did not use an activated Account, used it only partially, replaced the current Plan with a new Plan or deactivated the Account or terminated the Agreement during an ongoing payment interval.
- All Fees are exclusive of all taxes, levies or duties applicable under any legal acts or imposed by tax authorities, unless stated otherwise in the Agreement. Payment of such taxes, levies or duties is the responsibility of the Client.
- Supplier may offer special discounts.
8. Client Data
- If the Client adds Client Data to the Platform, such Client Data and any kind of processing of such Client Data must be in compliance with the Agreement, best practices at the Web Site and applicable law.
- All rights, title and interest in and to the Client Data belong to the Client (including Users, Persons and Organizations).
Client must assure that:
- the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the rights of Supplier, other Clients or Users, Persons or Organizations or is harmful (for example viruses, worms and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, pornographic, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful;
- Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account;
- Supplier is allowed to further process the Client Data, acting as an authorized processor of Client Data on behalf of Client for the purposes of performing under the Agreement.
- Client retains all ownership rights in their Client Data, whether posted and/or uploaded by you or made available on or through the Advocate Services by the Supplier.
- Supplier makes no representations that it will publish or make any Client Data available on or through the Advocate Services, and reserves the right (but has no obligation), in its sole discretion, to refuse to allow any Client Data on the Platform, or to edit or remove any Client Data at any time with or without notice. Without limiting the generality of the preceding sentence, Simplify Corporation complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice (see Section 13.6 below).
- You understand that when using the Platform, Supplier does not endorse, nor is responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Client Data. You understand that the Suppliers cannot, and does not, review all Client Data and do not endorse any Client Data. Supplier will make its best effort to provide timely and accurate data and execute projects and trouble tickets to the best of their ability. That said, Simplify Corp relies on accuracy of data regarding all requests, quotes, proposals, trouble tickets, etc. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against the Supplier with respect thereto. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Supplier is not obliged, in its own initiative, to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of either Supplier or if there is reason to believe that certain Client Data is unlawful, either Supplier has the right to:
- notify the Client of such unlawful Client Data;
- deny its publication on the Web Site or its insertion to the System;
- demand that the Client brought the unlawful Client Data into compliance with the Agreement, best practices at the Web Site or applicable law;
- temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
- If Supplier is presented convincing evidence that the Client Data is not unlawful, Supplier may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.
Advocate Services and any part or element thereof is allowed to be used only in the scope, with the means and for purposes, which their functionality has been created for and made available to the Client and Users. Any such use must be done in compliance with the Agreement, best practices at the Web Site and applicable law. For avoidance of doubt, this means that the Client nor any User must not:
- use the Advocate Services or any part or element thereof for committing a crime, conducting some other breach of applicable law or for calling up for others to carry out such illegal actions;
- copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Advocate Services or any part or element thereof nor otherwise attempt to extract the source code thereof, unless it is expressly allowed under applicable law, and to the extent that the Supplier is not permitted by that applicable law to exclude or limit the foregoing rights;
- use the Advocate Services or any part or element thereof in the scope, which it does not agree to these Terms or other terms of the Agreement.
The Client or any User must get Supplier’s prior written expressed consent, at least in a format which can be reproduced in writing (e-mail, fax, Skype etc), if he/she/it wishes to:
- sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Advocate Services available in whole or in part to any third persons, unless such third person is a User;
- use Advocate Services or any part or element thereof in a scope, with means or for purposes other than those, which their functionality was created for;
- use the Advocate Services or any part or element thereof by means of program, which send them automatic inquiries or requests, unless such program has been made available by Supplier (or with written approval of Supplier);
- create interfaces between the Advocate Services or any part or element thereof from one side and any third party systems from the other side, unless the Client creates (or grants written permission for) such interface for its own systems.
Each Supplier takes the privacy of its Clients and Users very seriously. It is suggested that each Client also sign a Mutual NDA (if they haven’t already) with Supplier to protect both entities.
Intellectual Property Rights
- The Advocate Services, including without limitation, the Web Site, Services, System, Content (except Client Data) and any parts or elements thereof are solely and exclusively owned and operated by the Supplier and their third party vendors and hosting partners. Except for any Client Data or other content owned and/or posted by you, all Advocate Materials are the property of the Suppliers, their affiliates and/or third party licensors. Furthermore, all trademarks, service marks, and trade names contained in the Advocate Materials are proprietary to the Supplier, their affiliates and/or third-party licensors. Your use of the Advocate Services does not grant to you ownership of any content, code, data or any part of the Advocate Materials you may access on or through the Platform. Any commercial or promotional distribution, publishing or exploitation of the Advocate Materials is strictly prohibited unless you have received the express prior written permission from the Supplier or the otherwise applicable rights holder. The Supplier reserves all rights to the Advocate Materials not expressly granted in the Terms.
- All Content (except Client Data) is owned or controlled by the Supplier, their affiliates or their licensors, and is protected by copyright and other intellectual property laws. Subject to the foregoing, the Supplier authorizes you to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the Advocate Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the Advocate Services or as otherwise permitted by applicable law.
- You retain all your ownership rights in original aspects of your Client Data. By submitting your Client Data to the Supplier through the Advocate Services, you hereby grant the Supplier and their affiliates, sub licensees, partners, designees, and assignees of the Advocate Services a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sub licensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your Client Data and derivatives thereof for any purpose whatsoever in connection with the Advocate Services and the Supplier’s (and their successors’) business, including, without limitation, for providing you with the services you have chosen consistent with the intended features of the Advocate Services and for marketing, promoting, and/or redistributing part or all of Advocate Services (and derivative works thereof) in any media formats and through any websites, social media networks or media channels now known or hereafter discovered or developed.
- You are solely responsible for your own Client Data and the consequences of posting or publishing them. In connection with Client Data, you affirm, represent, and warrant that: (i) you either own your Client Data or have the necessary licenses, rights, consents, and permissions to use and authorize the Suppliers to display or otherwise use your Client Data under all patent, trademark, copyright, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the Advocate Services and these Terms, and to grant the rights and license set forth in Section 13.3, and (ii) your Client Data, the Suppliers or any Advocate Licensee’s use of such Client Data pursuant to these Terms, and the Suppliers or any Advocate Licensee’s exercise of the license rights set forth in Section 13.3, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation; or (c) require obtaining a license from or paying any fees and/or royalties by either Supplier to any third party for the performance of any Advocate Services you have chosen to be performed by the Applicable Supplier or for the exercise of any rights granted in these Terms, unless you and the Applicable Supplier otherwise agree.
- If you provide Supplier with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Advocate Services (herein “Feedback”), Supplier shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Advocate Services. You hereby grant Supplier a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and you believe that any content hosted on Advocate Services infringes your copyrights in the United States of America, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Simplify Corporation US Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Advocate Services are covered by a single notification, a representative list of such works at the Advocate Services;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Simplify Corporation to locate the material;
- Information reasonably sufficient to permit Simplify Corporation to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Simplify Corporation’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
300 Valley Wood Dr, The Woodlands, TX 77380
- For the avoidance of doubt, only DMCA notices should go to Simplify Corporation's Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to the Applicable Supplier customer service through the contact information set forth in Section 10.3 above. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
- No personal data or any User or Client provided through Advocate will be sold or used by any entity other than Simplify Corporation for the purpose of providing Advocate Services, other services or in communications from Simplify., Inc
11. Third-Party Sites, Products and Services
Advocate Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. The Suppliers do not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, the Suppliers make no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
12. Disclaimers; No Warranty
- UNLESS OTHERWISE EXPRESSLY STATED BY THE APPLICABLE SUPPLIER, THE ADVOCATE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ADVOCATE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SUPPLIER AND THEIR AFFILLIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
- UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER AND THEIR AFFILIATES DO NOT WARRANT THAT THE ADVOCATE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ADVOCATE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED BEYOND WHAT IS EXPRESSED IN THE SLA OF ANY APPLICABLE EXECUTED MSA, OR THAT ADVOCATE SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ADVOCATE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER AND THEIR AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE ADVOCATE SERVICES, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE DUE LARGELY TO CORRECTNESS BEING CONTINGENT ON INFORMATION FROM CUSTOMERS OR CARREIRS.
- THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify and hold harmless the Supplier and their affiliates from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Advocate Services, representations made to the Suppliers and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. The Supplier reserves the right, at their own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Supplier, and you agree to cooperate with such defense of these claims.
14. Modifications of the Services
- The Supplier is constantly innovating and improving the Advocate Services.
Supplier reserves the right to modify the Advocate Services or any part or element thereof from time to time without prior notice. For avoidance of doubt, either Supplier may:
- rebrand the Advocate Services at its sole discretion;
- stop providing or discontinue to develop any particular Advocate Service or part or element of the Platform temporarily or permanently (except as governed by an executed MSA);
- take such action as is necessary to preserve the good name of Supplier at its sole discretion upon any use of the Advocate Services that may be reasonably interpreted as violation of Supplier’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses and other destructive activities or illegal activity.
- The Supplier reserves the right to modify certain parts or elements of the Advocate Services from time to time by notifying the Client beforehand. The notification of the modifications is displayed on the Web Site when logging in to the Account. The prior notification period for modifying the Plans and the rates of Fees contained therein, shall be 30 days before the effective date of such modification.
- If the Client does not accept the modification, then the Client shall notify Supplier before the effective date of the modification, and the Agreement will terminate on the effective date of the modification. The Client’s continued use of the Advocate Services, or any part or element thereof, after effective date of modifications shall indicate its consent to the modifications.
- Supplier shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Advocate Services, or any part or element thereof (except as governed by an executed customer specific MSA).
15. Limitation of liability
Supplier shall not be liable to the Client or User for any consequences resulting from:
- any modifications in these Terms, Plans and rates of Fees, the Advocate Services or any part or element thereof (including but not limited to Account), including any permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the , the Advocate Services (except as governed by a customer specific MSA);
- deletion of, corruption of, or failure to store any Client Data;
- use of Client Data by the Client or any of the Users associated with the Account;
- any disclosure, loss or unauthorized use of the login credentials due to Client’s failure to keep them confidential;
- the Client’s use of the Account or the Advocate Services by means of browsers other than those accepted or supported by the Applicable Supplier;
- the application of any remedies against the Client or User by the Applicable Supplier, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the Advocate Services or any part or element thereof;
- the differences between technologies and platforms used for Access, for example if certain features, functions, parts or elements of the Advocate Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
- the Supplier’s application of the remedies described in a previous section, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
Supplier shall not be liable to the Client for any claim by any User, Person, Organization or third persons against the Client arising out of the Client’s failure to:
- provide Supplier with accurate information about the Client, Users or Account;
- notify Supplier of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
- provide any Products which it has agreed to provide to such a Person or Organization (whether such failure arises as a result of Supplier’s negligence, breach if this Agreement or otherwise);
- assure the lawfulness of the Client Data;
- assure the necessary rights to use the Client Data; or
- abide by any of the restrictions described in Section 11;
- UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SUPPLIER OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE ADVOCATE SERVICES, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE ADVOCATE SERVICES OR ANY LINKED SITES, THE MATERIALS, OR ANY OTHER INTERACTIONS WITH EITHER SUPPLIER, EVEN IF EITHER SUPPLIER OR AN AUTHORIZED REPRESENTATIVE OF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE SUPPLIERS’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- The Supplier’s liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the performance OF their obligations under the Agreement for all events or series of connected events occurring in any year of the term of the Agreement, shall not exceed in the aggregate 100% of the Fees paid by the Client for the use of Account pursuant to the Agreement during 6 months prior to the event giving rise to liability.
- NO Party shall be liable to ANY other for any failure or delay in the performance of its obligations hereunder as a result of any cause beyond its reasonable control, including but not limited to default or failure of a third party (including telecommunications operators, suppliers, installers or maintainers), war, riot, civil common strike, lockout or other industrial action, act of God, storm, fire, earthquake, explosion, flood, electrical failure, confiscation and action or threat of action of any government or government agency provided that it endeavors to minimize the effect of the force majeure event on its performance of its obligations. If such delay or failure continues for more than ninety (90) days, the non-affected Party(IES) shall be entitled to terminate the Agreement forthwith by notice in writing to the other party provided that all sums due by the Client for any Services supplied prior to the date of termination shall remain payable in accordance with the Agreement.
- THESE LIMITATIONS OF LIABILITY AND DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED on any LINKED sites or otherwise BY THIRD PARTIES OTHER THAN THE SUPPLIERS AND RECEIVED THROUGH THE PLATFORM OR RECEIVED THROUGH ANY LINKED sites.
- YOU ACKNOWLEDGE AND AGREE THAT THE SUPPLIER HAS OFFERED THE ADVOCATE SERVICES, SET THE PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE SUPPLIERS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE SUPPLIER. THE SUPPLIER WOULD NOT BE ABLE TO PROVIDE ADVOCATE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.