Simple Wires License Agreement
This Simple Wires License Agreement (the "Agreement")
is made and entered into by and between Holbrook Enterprises, Inc.(HEI) and the
entity or person agreeing to these terms ("Customer"). This Agreement
is effective as of the date Customer clicks to accept the Agreement (the
"Effective Date"). If you are accepting on behalf of Customer, you
represent and warrant that: (i) you have full legal authority to bind Customer
to this Agreement; (ii) you have read and understand this Agreement; and (iii)
you agree, on behalf of Customer, to this Agreement. If you do not have the
legal authority to bind Customer, please do not click to accept. This Agreement
governs Customer's access to and use of the Service
1. Provision of the Services.
1.1 Services Use. Subject to this Agreement, during
the Term, Customer may: (a) use the Services, (b) integrate the output of the
Service into any Application that has material value independent of the
Services. Customer may not sublicense or transfer these rights except as
permitted under the Assignment section of the Agreement.
1.2 Dashboard. HEI will provide the Services to
Customer. As part of receiving the Services, Customer will have access to the Projects
Dashboard, through which Customer may administer the Services.
1.3 Facilities. All facilities used to store and
process an Application and Customer Data are under the control the Microsoft
and the Azure Cloud Services.
1.4 Data Location. The current Azure Cloud Service
for Simple Wires is served from a location in the Central US.
1.5 Accounts. Customer must have an Account and is
responsible for the information it provides to create the Account, the security
of the Token and its passwords for the Account, and for any use of its Account
and the Token. If Customer becomes aware of any unauthorized use of its
password, its Account or the Token, Customer will notify HEI as promptly as
possible. HEI has no obligation to provide Customer multiple Tokens or
Accounts.
1.6 Modifications.
a. To the Services. HEI may make commercially
reasonable updates to the Services from time to time. If HEI makes a material
change to the Services, HEI will inform Customer, provided that Customer has
subscribed with HEI to be informed about such change.
b. To the Agreement. HEI may make changes to this
Agreement, including pricing (and any linked documents) from time to time.
Unless otherwise noted by HEI, material changes to the Agreement will become
effective 30 days after they are posted, except if the changes apply to new
functionality in which case they will be effective immediately. HEI will
provide at least 90 days’ advance notice for materially adverse changes to any
SLAs by either: (i) sending an email to Customer’s primary point of contact;
(ii) posting a notice in the Projects Dashboard; or (iii) posting a notice to
the applicable SLA webpage. If Customer does not agree to the revised
Agreement, please stop using the Services. HEI will post any modification to
this Agreement to the Terms URL.
c. To the Data Processing and Security Terms. HEI
may only change the Data Processing and Security Terms where such change is
required to comply with applicable law, applicable regulation, court order, or
guidance issued by a governmental regulator or agency, where such change is
expressly permitted by the Data Processing and Security Terms, or where such
change:
(i) is commercially reasonable;
(ii) does not result in a degradation of the overall security of
the Services;
(iii) does not expand the scope of or remove any restrictions on
HEI’s processing of Customer Personal Data, as described in Section 5.2 (Scope
of Processing) of the Data Processing and Security Terms; and
(iv) does not otherwise have a material adverse impact on
Customer’s rights under the Data Processing and Security Terms.
If HEI makes a material change to the Data Processing and
Security Terms in accordance with this Section, HEI will post the modification
to the URL containing those terms.
1.8
Service Specific Terms and Data Processing and
Security Terms
. The Service Specific Terms and Data Processing and Security
Terms are incorporated by this reference into the Agreement.
2. Payment Terms.
2.1 Free Quota. Certain Services are provided to
Customer without charge up to the Fee Threshold, as applicable.
2.2 Online Billing. At the beginning of the
applicable Subscription period, HEI will issue an electronic bill to Customer. Customer
will be responsible for all Fees up to the amount set in the Account and will
pay all Fees in the currency set forth in the invoice. If Customer elects to
pay by credit card, debit card, or other non-invoiced form of payment, HEI will
charge (and Customer will pay) all Fees immediately. If Customer elects to pay
by invoice (and HEI agrees), all Fees are due as set forth in the invoice.
Customer’s obligation to pay all Fees is non-cancellable. HEI’s measurement of
Customer’s use of the Services is final. HEI has no obligation to provide
multiple bills.
2.2.1 Automatic Renewal. Approximately 3 days prior to the renewal of the
applicable Subscription period, HEI will issue an electronic mail to the Customer notifying
Customer of upcoming billing cycle. If no action is taken by the Customer to cancel prior
to the renewal date, the credit card on file shall be billed automatically. It is the
responsibility of the Customer to cancel prior to renewal. Failure to do so may result in addition
fees in accordance with section 2.4 below. In cases where no credit card is on file, or the card has
expired and can not be automatically renewed, the subscription will be switched to Free mode
with all of its accompanying limitations.
2.3 Taxes. (a) Customer is responsible for any
Taxes, and Customer will pay HEI for the Service without any reduction for
Taxes. If HEI is obligated to collect or pay Taxes, the Taxes will be invoiced
to Customer, unless Customer provides HIE with a timely and valid tax exemption
certificate authorized by the appropriate taxing authority. In some states the
sales tax is due on the total purchase price at the time of sale and must be
invoiced and collected at the time of the sale. If Customer is required by law
to withhold any Taxes from its payments to HEI, Customer must provide HEI with
an official tax receipt or other appropriate documentation to support such
withholding. If under the applicable tax legislation the Services are subject
to local VAT and the Customer is required to make a withholding of local VAT
from amounts payable to HEI, the value of Services calculated in accordance
with the above procedure will be increased (grossed up) by the Customer for the
respective amount of local VAT and the grossed up amount will be regarded as a
VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price
will be remitted to the applicable local tax entity by the Customer and
Customer will ensure that HEI will receives payment for its services for the
net amount as would otherwise be due (the VAT inclusive price less the local
VAT withheld and remitted to applicable tax authority).
(b) If required under applicable law, Customer will provide HEI
with applicable tax identification information that HEI may require to ensure
its compliance with applicable tax regulations and authorities in applicable
jurisdictions. Customer will be liable to pay (or reimburse HEI for) any taxes,
interest, penalties or fines arising out of any mis-declaration by the
Customer.
2.4 Invoice Disputes & Refunds. Any invoice
disputes must be submitted prior to the payment due date. If the parties
determine that certain billing inaccuracies are attributable to HEI, HEI will
not issue a corrected invoice, but will instead issue a credit memo specifying
the incorrect amount in the affected invoice. If the disputed invoice has not
yet been paid, HEI will apply the credit memo amount to the disputed invoice
and Customer will be responsible for paying the resulting net balance due on
that invoice. To the fullest extent permitted by law, Customer waives all
claims relating to Fees unless claimed within sixty days after charged (this
does not affect any Customer rights with its credit card issuer). Refunds (if
any) are at the discretion of HEI and shall incur a 20% processing fee if issued
as a cash, cash equivalent, or credit card refund. If issued in the form of a credit memo,
or as a prorated invoice for future Services, no processing fee shall be applied.
Nothing in this Agreement obligates HEI to extend credit to any party.
2.5 Delinquent Payments; Suspension. Late payments
may bear interest at the rate of 1.5% per month (or the highest rate permitted
by law, if less) from the payment due date until paid in full. Customer will be
responsible for all reasonable expenses (including attorneys’ fees) incurred by
HEI in collecting such delinquent amounts. If Customer is late on payment for
the Services, HEI may suspend the Services or terminate the Agreement for
breach pursuant to Section 9.2.
2.6 No Purchase Order Number Required. For clarity,
Customer is obligated to pay all applicable Fees without any requirement for HEI
to provide a purchase order number on HEI’s invoice (or otherwise).
3. Customer Obligations.
3.1 Privacy. Customer will obtain and maintain any
required consents necessary to permit the processing of Customer Data under
this Agreement.
3.3 Restrictions. Customer will not, and will not
allow third parties under its control to: (a) copy, modify, create a derivative
work of, reverse engineer, decompile, translate, disassemble, or otherwise
attempt to extract any or all of the source code of the Services (subject to
Section 3.4 below and except to the extent such restriction is expressly
prohibited by applicable law); (b) use the Services for High Risk Activities;
(c) sublicense, resell, or distribute any or all of the Services separate from
any integrated Application; (d) create multiple Applications, Accounts, or
Projects to simulate or act as a single Application, Account, or Project
(respectively) or otherwise access the Services in a manner intended to avoid
incurring Fees; (e) (f) process or store any Customer Data that is subject to
the International Traffic in Arms Regulations maintained by the Department of
State. Unless otherwise specified in writing by HEI, HEI does not intend uses
of the Services to create obligations under HIPAA, and makes no representations
that the Services satisfy HIPAA requirements. If Customer is (or becomes) a
Covered Entity or Business Associate, as defined in HIPAA, Customer will not
use the Services for any purpose or in any manner involving Protected Health
Information (as defined in HIPAA) unless Customer has received prior written
consent to such use from HEI.
3.4 Third Party Components. Third party components
(which may include open source software) of the Services may be subject to
separate license agreements. To the limited extent a third party license
expressly supersedes this Agreement, that third party license governs
Customer’s use of that third party component.
3.5 Documentation. HEI may provide Documentation for
Customer’s use of the Services. The Documentation may specify restrictions
(e.g. attribution or HTML restrictions) on how the Services may be used and
Customer will comply with any such restrictions specified.
3.6 Copyright Policy. HEI cannot determine whether
something is being used legally or not without their input. HEI responds to
notices of alleged copyright infringement and terminates accounts of repeat
infringers according to applicable copyright laws including in particular the
process set out in the U.S. Digital Millennium Copyright Act. If Customer
thinks somebody is violating Customer’s or Customer End Users’ copyrights and
wants to notify HEI, contact support@simplewires.com.
4. Suspension and Removals.
4.1 Emergency Security Issues. If there is an
Emergency Security Issue, then HEI may automatically suspend the Service,
Project, and/or Account. Suspension will be to the minimum extent required, and
of the minimum duration, to prevent or resolve the Emergency Security Issue. If
HEI suspends the Service, Project, or the Account, for any reason, without
prior notice to Customer, at Customer’s request, HEI will provide Customer the
reason for the suspension as soon as is reasonably possible.
5.
Intellectual Property Rights; Use of Customer Data;
Feedback; Benchmarking
.
5.1 Intellectual Property Rights. Except as
expressly set forth in this Agreement, this Agreement does not grant either
party any rights, implied or otherwise, to the other’s content or any of the
other’s intellectual property. As between the parties, Customer owns all
Intellectual Property Rights in Customer Data and the Project (if applicable),
and HEI owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. HEI will not access or use
Customer Data, except as necessary to provide the Services to Customer.
5.3 Customer Feedback. If Customer provides HEI
Feedback about the Services, then HEI may use that information without
obligation to Customer, and Customer hereby irrevocably assigns to HEI all
right, title, and interest in that Feedback.
5.4 Benchmarking. Customer may not publicly disclose
directly or through a third party the results of any comparative or
compatibility testing, benchmarking, or evaluation (each, a “Testâ€) of the
Services, unless the disclosure includes all information necessary for HEI or a
third party to replicate the Test. If Customer conducts, or directs a third
party to conduct, a Test of the Services and publicly discloses the results
directly or through a third party, then HEI (or a HEI-directed third party) may
conduct Tests of any publicly available products or services provided by
Customer and publicly disclose the results of any such Test (which disclosure
will include all information necessary for Customer or a third party to
replicate the Test). To the extent this Section 5.4 conflicts with any other
Customer product or service terms, this Section 5.4 will govern.
6. Technical Support Services
6.1 Subject to payment of applicable subscription Fees, HEI
will provide TSS to Customer during the Term in accordance with the TSS
Guidelines.
7. Deprecation of Services
7.1 Discontinuance of Services. Subject to Section 7.2,
HEI may discontinue any Services or any portion or feature for any reason at
any time without liability to Customer.
7.2 Deprecation Policy. HEI will announce if it
intends to discontinue or make backwards incompatible changes to the Services
specified at the URL in the next sentence. HEI will use commercially reasonable
efforts to continue to operate those Services versions and features identified
without these changes for at least one year after that announcement, unless (as
HEI determines in its reasonable good faith judgment):
(i) required by law or third party relationship (including if
there is a change in applicable law or relationship), or
(ii) doing so could create a security risk or substantial
economic or material technical burden.
The above policy is the "Deprecation Policy."
8. Confidential Information.
8.1 Obligations. The recipient will not disclose the
Confidential Information, except to Affiliates, employees, agents or
professional advisors who need to know it and who have agreed in writing (or in
the case of professional advisors are otherwise bound) to keep it confidential.
The recipient will ensure that those people and entities use the received
Confidential Information only to exercise rights and fulfill obligations under
this Agreement, while using reasonable care to keep it confidential.
8.2 Required Disclosure. Notwithstanding any
provision to the contrary in this Agreement, the recipient may also disclose
Confidential Information to the extent required by applicable Legal Process; provided
that the recipient uses commercially reasonable efforts to: (i) promptly notify
the other party of such disclosure before disclosing; and (ii) comply with the
other party’s reasonable requests regarding its efforts to oppose the
disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will
not apply if the recipient determines that complying with (i) and (ii) could:
(a) result in a violation of Legal Process; (b) obstruct a governmental
investigation; and/or (c) lead to death or serious physical harm to an
individual. As between the parties, Customer is responsible for responding to
all third party requests concerning its use and Customer End Users’ use of the
Services.
9. Term and Termination.
9.1 Agreement Term. The “Term†of this Agreement
will begin on the Effective Date and continue until the Agreement is terminated
as set forth in Section 9 of this Agreement.
9.2 Termination for Breach. Either party may
terminate this Agreement for breach if: (i) the other party is in material breach
of the Agreement and fails to cure that breach within thirty days after receipt
of written notice; (ii) the other party ceases its business operations or
becomes subject to insolvency proceedings and the proceedings are not dismissed
within ninety days; or (iii) the other party is in material breach of this
Agreement more than two times notwithstanding any cure of such breaches. In
addition, HEI may terminate any, all, or any portion of the Services or
Projects, if Customer meets any of the conditions in Section 9.2(i), (ii),
and/or (iii).
9.3 Termination for Inactivity.
HEI reserves the right to terminate Service(s) without notice if the Customer has any or all of the following: (i) not logged into the system in 365
days. (ii) Customer has no projects or drawings. (iii) subscription fees have gone unpaid or subscription status is not active.
9.4 Termination for Convenience. Customer may stop
using the Services at any time. Customer may terminate this Agreement for its
convenience at any time and upon termination, must cease use of the applicable
Services. HEI may terminate this Agreement for its convenience at any time
without liability to Customer.
9.5 Effect of Termination. If the Agreement is
terminated, then: (i) the rights granted by one party to the other will
immediately cease; (ii) all Fees owed by Customer to HEI are immediately due
upon receipt of the final electronic bill; (iii)Customer data shall be irrevocably
destroyed/anonomized.
9.6 Termination for Non-communication. Services will be terminated
if Customer enters a non-reachable email. No other attempt to communicate with
Customer will be required on the part of HEI even if a valid phone number is on file.
Customer data shall be irrevocably
destroyed/anonomized.
10. Publicity. Customer is permitted to state
publicly that it is a customer of the Services, consistent with the Trademark
Guidelines. If Customer wants to display Simple Wires Brand Features in
connection with its use of the Services, Customer must obtain written
permission from HEI. HEI may include Customer’s name or Brand Features in a
list of HEI’s customers, online or in promotional materials. HEI may also
verbally reference Customer as a customer of the Services. Neither party needs
approval if it is repeating a public statement that is substantially similar to
a previously-approved public statement. Any use of a party’s Brand Features
will inure to the benefit of the party holding Intellectual Property Rights to
those Brand Features. A party may revoke the other party’s right to use its
Brand Features under this Section with written notice to the other party and a
reasonable period to stop the use.
11. Representations and Warranties. Each party
represents and warrants that: (a) it has full power and authority to enter into
the Agreement; and (b) it will comply with all laws and regulations applicable
to its provision, or use, of the Services, as applicable. HEI warrants that it
will provide the Services in accordance with the applicable SLA (if any).
12. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEI AND ITS
SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE AND NONINFRINGEMENT. HEI AND ITS SUPPLIERS ARE NOT RESPONSIBLE
OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER
COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER
IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS, PROJECT, AND CUSTOMER
DATA. NEITHER HEI NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE
SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE
SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK
ACTIVITIES.
13. Limitation of Liability.
13.1 Limitation on Indirect Liability. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR HEI’S SUPPLIERS,
WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY
KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT
DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR HEI’S SUPPLIERS,
MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY
CUSTOMER TO HEI UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE
EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of
liability do not apply to violations of a party’s Intellectual Property Rights
by the other party, indemnification obligations, or Customer's payment
obligations.
14. Indemnification.
14.1 By Customer. Unless prohibited by applicable
law, Customer will defend and indemnify HEI and its Affiliates against
Indemnified Liabilities in any Third-Party Legal Proceeding to the extent
arising from: (i) any Application, Project, Instance, Customer Data or Customer
Brand Features; or (ii) Customer’s, or Customer End Users’, use of the Services
in violation of the AUP.
14.2 By HEI. HEI will defend and indemnify Customer
and its Affiliates against Indemnified Liabilities in any Third-Party Legal
Proceeding to the extent arising solely from an Allegation that use of (a) HEI’s
technology used to provide the Services or (b) any HEI Brand Feature infringes
or misappropriates the third party’s patent, copyright, trade secret, or
trademark.
14.3 Exclusions. This Section 14 will not apply to
the extent the underlying Allegation arises from:
a. the indemnified party’s breach of this Agreement;
b. modifications to the indemnifying party’s technology or Brand
Features by anyone other than the indemnifying party;
c. combination of the indemnifying party’s technology or Brand
Features with materials not provided by the indemnifying party; or
d. use of non-current or unsupported versions of the Services or
Brand Features;
14.4 Conditions. Sections 14.1 and 14.2 will apply
only to the extent:
a. The indemnified party has promptly notified the indemnifying
party in writing of any Allegation(s) that preceded the Third-Party Legal
Proceeding and cooperates reasonably with the indemnifying party to resolve the
Allegation(s) and Third-Party Legal Proceeding. If breach of this Section
14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the
indemnifying party’s obligations under Section 14.1 or 14.2 (as applicable)
will be reduced in proportion to the prejudice.
b. The indemnified party tenders sole control of the indemnified
portion of the Third-Party Legal Proceeding to the indemnifying party, subject
to the following: (i) the indemnified party may appoint its own non-controlling
counsel, at its own expense; and (ii) any settlement requiring the indemnified
party to admit liability, pay money, or take (or refrain from taking) any
action, will require the indemnified party’s prior written consent, not to be
unreasonably withheld, conditioned, or delayed.
14.5 Remedies.
a. If HEI reasonably believes the Services might infringe a
third party’s Intellectual Property Rights, then HEI may, at its sole option
and expense: (a) procure the right for Customer to continue using the Services;
(b) modify the Services to make them non-infringing without materially reducing
their functionality; or (c) replace the Services with a non-infringing,
functionally equivalent alternative.
b. If HEI does not believe the remedies in Section 14.5(a) are
commercially reasonable, then HEI may suspend or terminate Customer’s use of
the impacted Services.
14.6 Sole Rights and Obligations. Without affecting
either party’s termination rights, this Section 14 states the parties’ only
rights and obligations under this Agreement for any third party's Intellectual
Property Rights Allegations and Third-Party Legal Proceedings.
15. U.S. Federal Agency Users. The Services were
developed solely at private expense and are commercial computer software and
related documentation within the meaning of the applicable Federal Acquisition
Regulations and their agency supplements.
16. Miscellaneous.
16.1 Notices. All notices must be in writing and
addressed to the other party’s legal department and primary point of contact.
The email address for notices being sent to HEI’s Legal Department is
legal-notices@simplewires.com
. Notice will be treated as given on receipt
as verified by written or automated receipt or by electronic log (as
applicable).
16.2 Assignment. Neither party may assign any part
of this Agreement without the written consent of the other, except to an
Affiliate where: (a) the assignee has agreed in writing to be bound by the
terms of this Agreement; (b) the assigning party remains liable for obligations
under the Agreement if the assignee defaults on them; and (c) the assigning
party has notified the other party of the assignment. Any other attempt to
assign is void.
16.3 Change of Control. If a party experiences a
change of Control (for example, through a stock purchase or sale, merger, or
other form of corporate transaction): (a) that party will give written notice
to the other party within thirty days after the change of Control; and (b) the
other party may immediately terminate this Agreement any time between the
change of Control and thirty days after it receives that written notice.
16.4 Force Majeure. Neither party will be liable for
failure or delay in performance to the extent caused by circumstances beyond
its reasonable control.
16.5 No Agency. This Agreement does not create any
agency, partnership or joint venture between the parties.
16.6 No Waiver. Neither party will be treated as
having waived any rights by not exercising (or delaying the exercise of) any
rights under this Agreement.
16.7 Severability. If any term (or part of a term)
of this Agreement is invalid, illegal, or unenforceable, the rest of the
Agreement will remain in effect.
16.8 No Third-Party Beneficiaries. This Agreement
does not confer any benefits on any third party unless it expressly states that
it does.
16.9 Equitable Relief. Nothing in this Agreement
will limit either party’s ability to seek equitable relief.
16.10 U.S. Governing Law.
a. For U.S. City, County, and State Government Entities.
If Customer is a U.S. city, county or state government entity, then the
Agreement will be silent regarding governing law and venue.
b. For U.S. Federal Government Entities. If Customer
is a U.S. federal government entity then the following applies: ALL CLAIMS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED
BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS
RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW: (I) THE LAWS OF THE STATE
OF IDAHO WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL
CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE
PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE
COURTS IN CANYON COUNTY, IDAHO.
c. For All Other Entities. If Customer is any entity
not set forth in Section 16.10(a) or (b) then the following applies: ALL CLAIMS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED
BY IDAHO LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE
LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF THE COURTS IN CANYON
COUNTY, IDAHO, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE
COURTS.
16.11 Amendments. Except as set forth in Section
1.7(b) or (c), any amendment must be in writing, signed by both parties, and
expressly state that it is amending this Agreement.
16.12 Survival. The following Sections will survive
expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 16.
16.13 Entire Agreement. This Agreement sets out all
terms agreed between the parties and supersedes all other agreements between
the parties relating to its subject matter. In entering into this Agreement,
neither party has relied on, and neither party will have any right or remedy
based on, any statement, representation or warranty (whether made negligently
or innocently), except those expressly set out in this Agreement. The terms
located at a URL referenced in this Agreement and the Documentation are
incorporated by reference into the Agreement. After the Effective Date, HEI may
provide an updated URL in place of any URL in this Agreement.
16.14 Conflicting Terms. If there is a conflict
between the documents that make up this Agreement, the documents will control
in the following order: the Agreement, and the terms at any URL. If HEI
provides this Agreement in more than one language for the country of your billing
address, and there is a discrepancy between the English text and the translated
text, the English text will govern.
16.15 Definitions.
·
"Account"
means Customer’s HEI Cloud Platform account.
·
"Projects
Dashboard" means the online console(s) and/or tool(s) provided by HEI to
Customer for administering the Services.
·
"Affiliate"
means any entity that directly or indirectly Controls, is Controlled by, or is
under common Control with a party.
·
"Allegation"
means an unaffiliated third party’s allegation.
·
"Application(s)"
means any web or other application Customer creates using the Services,
including any source code written by Customer to be used with the Services, or
hosted in an Instance.
·
"Brand
Features" means the trade names, trademarks, service marks, logos, domain
names, and other distinctive brand features of each party, respectively, as
secured by such party from time to time.
·
"Committed
Purchase(s)" have the meaning set forth in the Service Specific Terms.
·
"Confidential
Information" means information that one party (or an Affiliate) discloses
to the other party under this Agreement, and which is marked as confidential or
would normally under the circumstances be considered confidential information.
It does not include information that is independently developed by the
recipient, is rightfully given to the recipient by a third party without
confidentiality obligations, or becomes public through no fault of the
recipient. Subject to the preceding sentence, Customer Data is considered
Customer’s Confidential Information.
·
"Control"
means control of greater than fifty percent of the voting rights or equity
interests of a party.
·
"Customer
Data" means content provided to HEI by Customer (or at its direction) via
the Services under the Account.
·
"Customer End
Users" means the individuals Customer permits to use the Application.
·
"Documentation"
means the HEI documentation (as may be updated from time to time) in the form
generally made available by HEI to its customers for use with the Services
at
https://simplewires.com/help/
.
·
"Emergency
Security Issue" means either: (a) Customer’s or Customer End Users’ use of
the Services, which could disrupt: (i) the Services; (ii) other customers’ or
their customer end users’ use of the Services; or (iii) the HEI network or
servers used to provide the Services; or (b) unauthorized third party access to
the Services.
·
"Fee Accrual
Period" means a calendar month or another period specified by HEI in the Billing
Console.
·
“Feedback†means feedback or suggestions about
the Services provided to HEI by Customer.
·
"Fees" means
the applicable fees for each Service and any applicable Taxes.
·
Activities" means uses such as the
operation of nuclear facilities, air traffic control, or life support systems,
where the use or failure of the Services could lead to death, personal injury,
or environmental damage.
·
"HIPAA"
means the Health Insurance Portability and Accountability Act of 1996 as it may
be amended from time to time, and any regulations issued under it.
·
"Indemnified
Liabilities" means any (i) settlement amounts approved by the indemnifying
party; and (ii) damages and costs finally awarded against the indemnified party
and its Affiliates by a court of competent jurisdiction.
·
"Intellectual
Property Rights" means current and future worldwide rights under patent,
copyright, trade secret, trademark, and moral rights laws, and other similar
rights.
·
"Legal
Process" means a data disclosure request made under law, governmental
regulation, court order, subpoena, warrant, governmental regulatory or agency
request, or other valid legal authority, legal procedure, or similar process.
·
"Package
Purchase" has the meaning set forth in the Service Specific Terms.
·
"Project"
means a logical grouping of drawings and data.
·
"Services" means
the Simple Wires cloud based design tools service.
·
"SLA" means Service
Level Agreement.
·
"Taxes"
means any duties, customs fees, or taxes (other than HEI’s income tax)
associated with the purchase of the Services, including any related penalties
or interest.
·
"Term" has
the meaning set forth in Section 9 of this Agreement.
·
"Third-Party
Legal Proceeding" means any formal legal proceeding filed by an
unaffiliated third party before a court or government tribunal (including any
appellate proceeding).
·
"Token"
means an alphanumeric key that is uniquely associated with Customer’s Account.