MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR (“CUSTOMER(‘S)”) ACQUISITION AND USE OF SIMPLE BUT NEEDED, INC.’S (“SIMPLE BUT NEEDED(‘S)”) ENTERPRISE MOBILE SOLUTION SERVICES (“SERVICES”).
CUSTOMER’S ACCEPTANCE OF THE TERMS OF THIS AGREEMENT IS ESTABLISHED BY YOU CLICKING A BOX INDICATING ACCEPTANCE, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR THROUGH YOUR PURCHASE OF SERVICES FROM SIMPLE BUT NEEDED. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” OR “CUSTOMER’S” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. YOU MAY NOT USE OR ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF SIMPLE BUT NEEDED.
This Agreement is effective between Customer and Simple But Needed as of the date that Customer accepts this Agreement (“Effective Date”).
1.1 Provision of Services. Subject to the terms and conditions of this Agreement, Simple But Needed agrees to provide to Customer access to Simple But Needed enterprise mobile solution services (“Services”) accessed through the Simple But Needed proprietary application (“Application”) on Supported Devices (as defined in Section 7.1). All data, content, logos, information or material that is made available through the Services by Simple But Needed (“Simple But Needed Content”) and any materials licensed by third parties which is identified on the Order Form and made available through the Services (“Third Party Content”) may be used by Customer for Customer’s internal business purposes solely in conjunction with Customer’s authorized use of the Services during the term of this Agreement. “Activation Date” means the day the Services are first available to Customer. “Order Form(s)” means the ordering documents representing purchases or licenses agreed to between the parties electronically or in writing from time to time that incorporate or reference this Agreement. In the event that any provision of this Agreement conflicts with any provision in an Order Form, the conflicting provision in this Agreement shall control unless the Order Form expressly refers to the section of this Agreement which it purports to override. Each Order Form may set forth the number of users that may access the Services at any given time (“Registered Users”). Simple But Needed reserves the right, in its sole discretion, to make any changes to the Services or Application that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of the Services to its customers, or (b) to comply with applicable law.
1.2 Trial Versions. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO A TRIAL VERSION WILL BE PERMANENTLY LOST AND DELETED UNLESS CUSTOMER PURCHASES A PAID VERSION TO THE SERVICES BEFORE THE END OF THE TRIAL VERSION PERIOD. Any versions of the Services and/or Application for which Customer has paid a fee is a “Paid Version.”
2. LICENSE GRANT.
Subject to the terms and conditions of this Agreement, Simple But Needed hereby grants to: (i) Customer and its Registered Users a non-exclusive, non-transferable, non-sublicensable license to access and use the Services through the Application, solely for internal business purposes in accordance with any applicable end user documentation generally made available by Simple But Needed to its customers (“Documentation”), (ii) Customer a non-exclusive, non-transferable, non-sublicensable license to install the Application on the Supported Devices solely for use by Registered Users to access and use the Services and solely if Customer has purchased a Paid Version. Customer acknowledges and agrees that with respect to distribution of the Application to Registered Users, to download and distribute the Application, Customer may be required to provide certain information to the provider of the relevant app store and may have to agree to that provider’s legal terms and conditions. If Customer has received a Trial Version, Customer shall only use the Application and Services internally to evaluate whether or not to purchase a Paid Version.
3. LICENSE RESTRICTIONS.
Customer shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or the Application; (ii) modify, translate, or create derivative works based on the Services or the Application; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Services or the Application; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Services or the Application; (vi) publish or disclose to third parties any evaluation of the Services or the Application without Simple But Needed ‘s prior written consent.
4.1 Passwords. If applicable, Simple But Needed shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each Registered User of the Services authorized to use Customer’s account for whom Customer has paid the applicable Fee. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under the Customer’s account and/or sub-account and all charges incurred from use of the Services accessed with the Customer’s passwords. Customer agrees to immediately notify Simple But Needed of any unauthorized use of the Customer’s account (including each password of each user accessing the Services by means of Customer’s account or sub-account) or any other breach of security known to Customer. Simple But Needed shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.
4.2 Security. Customer acknowledges that, notwithstanding any security precautions that Simple But Needed implements with respect to the Services, the use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data (defined below). Accordingly, Simple But Needed cannot and does not guaranty the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
5. CUSTOMER SUPPORT, TRAINING AND CUSTOMIZATION SERVICES.
Simple But Needed will provide the support services as set forth in the Order Form (“Support Terms”). Any training and/or integration services will be provided as set forth in an Order Form.
6. PROPRIETARY RIGHTS.
7.1 Hardware. Except for any Supported Devices provided to Customer as part of a Trial Version, Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services. Customer acknowledges and agrees that the Services are only supported for use on those devices identified as a Supported Device in the Support Terms (“Supported Devices”).
7.2 Customer Responsibilities. Customer shall be solely responsible for its actions and the actions of its Registered Users while using the Services. Customer acknowledges and agrees: (1) that Customer is responsible for Customer and Customer’s Registered Users abiding by all local, state, national, and international laws and regulations applicable to Customer’s use of the Services; (2) not to use the Services for any unlawful or illegal purposes; (3) not to interfere with the functionality of the Services or disrupt networks connected to the Services; (4) not to attempt to disable or circumvent any security features of the Services or permit unauthorized access to the Services; and (5) that Customer assumes the risk and liability for Customer’s Registered Users’ use of the Services.
8. FEES AND TAXES.
8.1 Fees. For Paid Versions, Customer agrees to pay the applicable fee(s) set forth in the Order Form for the Services and other associated services in accordance with the fees, charges, and billing terms set forth in this Agreement (“Fees”). Except as otherwise provided in the Order Form, all Fees are quoted in the United States currency. Except as otherwise provided in this Agreement, Fees are non-cancellable and once paid are non-refundable. In addition to such Fees, Customer shall pay all applicable sales, use and other taxes or duties (excluding taxes based on Simple But Needed’s income).
8.2 Payments. Unless otherwise stated in the Order Form for Fees that are invoiced, all Fees are due within thirty (30) days from the invoice date and monthly Fees will be invoiced on a monthly basis. Fees that are not invoiced and are in an electronic Order Form will be due and payable in advance. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments. If Customer believes that the bill is incorrect, Customer must contact Simple But Needed in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
The term of this Agreement shall commence on the Effective Date and the Services shall commence on the Activation Date. For Paid Versions, the term of this Agreement and the Services shall continue for a period specified in the Order Form. Unless otherwise set forth on the Order Form, if applicable, thereafter, for Paid Versions, this Agreement will automatically renew, for additional one (1) year periods at Simple But Needed’s then current rates, unless either party gives the other party notice of its intent not to renew at least sixty (60) days prior to the anniversary of the Activation Date at the end of the then-current term. Termination will be effective at the end of the applicable term in which such notice is received. Customer shall be responsible for all Fees for any renewal terms (even if Customer discontinues use of the Service, unless terminated by Customer in accordance with Section 10.2 below). For Trial Versions, the term of this Agreement and the Services shall continue for the Trial Version term specified in the Order Form and shall automatically terminate on the expiration of the Trial Version term.
10.1 Suspension. Customer acknowledges and agrees that Simple But Needed may remotely access the Services and suspend or terminate the Services, at its sole option, if: (i) any payment is overdue and Simple But Needed has provided at least ten (10) days’ written notice to Customer that such payment is past due , or (ii) Simple But Needed has reasonably determined that Customer is using the Services in a manner that creates a security vulnerability or threat to the stability of the Services.
10.2 Breach. Except as provided in Section 10.3 below, either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
10.3 Insolvency. Either party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.
10.4 Effect of Termination. If Customer or Simple But Needed terminates this Agreement, Customer will be obligated to pay the balance due for all Services provided prior to termination. Unless this Agreement is terminated by Customer pursuant to Section 10.2 for Simple But Needed’s material breach, Customer also will be obligated to pay the balance for other services ordered under an Order Form for the remainder of the applicable term. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Customer or Simple But Needed, Customer’s right to use the Services and Application shall immediately cease and Customer shall work with Simple But Needed to return or destroy, at Simple But Needed’s option, the Application and the software used to provide the Services. For Paid Versions, Simple But Needed shall retain Customer Data for a period of thirty (30) days after expiration or termination of this Agreement. During such period, Customer may request that Simple But Needed conduct a mass export of Customer Data, and Simple But Needed agrees to provide such services at its then current rates on a time and materials basis. After thirty (30) days, Simple But Needed may delete and destroy all Customer Data without notice or further liability to Customer. Sections 1.2, 6, 7, 10.4 and 11 through 16 of this Agreement shall survive its expiration or termination for any reason.
11.1 Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (‘Confidential Information’). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
11.2 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
11.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
12. WARRANTY AND WARRANTY DISCLAIMER.
12.1 Limited Warranty. For Paid Versions, Simple But Needed warrants that the Services will perform substantially in accordance with the functions described in the applicable Documentation provided by Simple But Needed under normal use and circumstances by authorized Registered Users of the Services. For any breach of this warranty, the Customer’s sole and exclusive remedy and Simple But Needed’s sole and exclusive liability, shall be for Simple But Needed to use reasonable commercial efforts under the support services to modify the Services or Application to correct any reported failure in the Services causing a breach of this warranty, or, if Simple But Needed is unable to provide such correction, the Customer shall be entitled to terminate this Agreement and recover the prepaid portion of the Fees in respect of the non-conforming Services for the remainder of the then-current term. Simple But Needed shall not be responsible for any failures of the Services caused in whole or in part by Customer’s hardware or network or if the Services or Application has not been used in accordance with the applicable Documentation, this Agreement or applicable law.
12.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 12.1 ABOVE FOR PAID VERSIONS, THERE ARE NO WARRANTIES OR CONDITIONS (WHETHER IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) FOR THE SERVICES, APPLICATION, SIMPLE BUT NEEDED CONTENT, THIRD PARTY CONTENT, TRIAL VERSIONS OR SUPPORT. SIMPLE BUT NEEDED DISCLAIMS ALL OTHER EXPRESS, STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SIMPLE BUT NEEDED DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES AND APPLICATIONWILL BE UNINTERRUPTED OR ERROR-FREE.
13.1 By Simple But Needed. Simple But Needed shall indemnify, defend, or at its option settle, any third party claim or suit against Customer based on a claim that the technology used to provide the Paid Version of the Services infringes any United States patent, copyright, trademark or trade secret and Simple But Needed shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement; provided (a) Simple But Needed is promptly notified in writing of such claim or suit; (b) Simple But Needed or its designee has sole control of such defense and/or settlement; and (c) Customer gives all information and assistance requested by Simple But Needed or such designee. To the extent that use of the Services is enjoined or Simple But Needed reasonably determines that the Services may be enjoined, Simple But Needed may at its option either (i) procure for Customer the right to use the Services; (ii) replace the Services with other suitable products; or (iii) refund the prepaid portion of the Fee(s) paid by Customer for the Services or the affected part thereof. Simple But Needed shall have no liability under this Section 13 or otherwise to the extent a claim or suit is based upon (a) use of the Services in combination with software or hardware not provided by Simple But Needed if infringement would have been avoided in the absence of such combination; (b) modifications to the Services not made by Simple But Needed, if infringement would have been avoided by the absence of such modifications; (c) use of the Services not in accordance with this Agreement; or (d) any action or omission of Customer for which Customer is obligated to indemnify Simple But Needed under Section 13.2 below. THIS SECTION 13.1 STATES SIMPLE BUT NEEDED’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS BASED ON THE SERVICES.
13.2 By Customer. Customer shall indemnify, defend, or at its option settle, any third party claim or suit against Simple But Needed based on a claim: (i) arising out of Customer’s failure to use the Services in accordance with all applicable laws and regulations; and (ii) relating to or based upon the Customer Data or alleging that the access, use or provision of any Customer Data violates any applicable law, regulation or the proprietary rights of others. Simple But Needed will promptly notify Customer in writing of such claim or suit and give all information and assistance reasonably requested by Customer or such designee.
14. LIMITATION OF LIABILITY.
14.1 Limitation on Direct Damages. IN NO EVENT SHALL SIMPLE BUT NEEDED’S OR ITS THIRD PARTY SUPPLIERS OR LICENSORS AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER FOR THE SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED AND THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
14.2 Disclaimer of Consequential Damages. IN NO EVENT SHALL SIMPLE BUT NEEDED OR ITS THIRD PARTY SUPPLIERS OR LICENSORS BE LIABLE (A) FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (B) TO THIRD PARTIES CLAIMING THROUGH CUSTOMER; EVEN IF SIMPLE BUT NEEDED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 Essential Purpose. The essential purpose of this Section 14 is to limit the potential liability of the parties arising under this Agreement. The parties acknowledge that the limitations set forth in this Section 14 are intricate to the amount of consideration levied in connection with the license of the Services and that, were Simple But Needed to assume any further liability, such consideration would out of necessity, been set much higher. These exclusions are meant to apply to the fullest extent permitted by applicable law and regardless of the failure of any specific remedy.
15. GOVERNMENT RIGHTS.
The Application and Services licensed to Customer under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
All notices to a party shall be in writing shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may not be assigned or transferred by Customer, by operation of law or otherwise, without Simple But Needed’s prior written consent (not to be unreasonably withheld). Notwithstanding the foregoing, Customer may assign this Agreement without the consent of Simple But Needed in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of Simple But Needed. This Agreement, together with the Order Form, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings between the parties relating to the subject matter hereof. This Agreement may be amended or superseded only by a written instrument signed by both parties. Pre-printed terms and conditions on or attached to any Customer purchase order or Order Form shall be of no force or effect and are hereby rejected. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The federal and state courts seated in Alameda County, California, will have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, this Agreement, and each party hereby irrevocably waives any objection to such exclusive jurisdiction. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.