SIMPLY MEASURED, INC.
SERVICE SUBSCRIPTION AGREEMENT
This Service Subscription Agreement is made and entered between Simply Measured, Inc. (“Simply Measured”) and the subscriber identified on one or more applicable Service Orders (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Simply Measured’s web-based services. The parties agree as follows:
- “Simply Measured Services” means the web-based services identified in one or more applicable Service Orders.
- “Documentation” means Simply Measured-provided user documentation, in all forms, relating to the Simply Measured Services (e.g., user manuals, on-line help files).
- “Scope Limitations” means the limitations on Subscriber’s use of the Simply Measured Services specified in one or more applicable Service Orders.
- “Effective Date” means the first date on which Subscriber and Simply Measured enter into a Service Order.
- Service Orders. The specific details of the Simply Measured Services to be performed will be described in one or more written service orders (each, a “Service Order”). Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.
USE OF THE SIMPLY MEASURED SERVICES
- Use of the Simply Measured Services. Subject to the terms and conditions of this Agreement, Simply Measured grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of this Agreement to use the Simply Measured Services as specified in the applicable Service Order, solely in connection with Subscriber’s internal business operations. Subscriber’s right to use the Simply Measured Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
- Use of the Documentation. Subject to the terms and conditions of this Agreement, Simply Measured grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Simply Measured Services in accordance with this Agreement.
- Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Service Order, Simply Measured will use reasonable efforts to provide Subscriber with technical support services relating to the Simply Measured Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
- Use Restrictions. Except as otherwise explicitly provided in this Agreement, including the applicable Service Order, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Simply Measured Services or Documentation; use the Simply Measured Services to provide services to third parties (e.g., as a service bureau); nor circumvent or disable any security or other technological features or measures of the Simply Measured Services.
- Compliance with Laws. Subscriber will use the Simply Measured Services and Documentation in compliance with all applicable laws and regulations.
- Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Simply Measured Services and Documentation and immediately notify Simply Measured in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Simply Measured Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Simply Measured to prevent or terminate unauthorized use of the Simply Measured Services or Documentation.
- Reservation of Rights. Simply Measured grants to Subscriber a limited right to use the Simply Measured Services and Documentation under this Agreement, in each case to the extent purchased under an applicable Service Order. Subscriber will not have any rights to the Simply Measured Services or Documentation except as expressly granted in this Agreement. Simply Measured reserves to itself all rights to the Simply Measured Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.
FEES AND PAYMENT
- Fees and Payment Terms. Subscriber will pay Simply Measured the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in each applicable Service Order. Unless otherwise specified in a particular Service Order, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Simply Measured to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. Fees are based on services purchased and not actual usage. Payment obligations are non-cancelable. Fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
- Service Boosts. In the event that Subscriber has an increase in usage in a given month, Simply Measured may offer Subscriber the option to purchase a one time “boost” in Scope Limitations only for the given contract month. Subscriber may only purchase a “boost” once during the 12 month period after the Effective Date, and each 12 month period thereafter, and Simply Measured reserves the right to decline to offer a “boost” to Subscriber it its sole discretion.
- Taxes. Other than net income taxes imposed on Simply Measured, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Simply Measured after all such taxes are paid are equal to the amounts that Simply Measured would have been entitled to in accordance with this Agreement as if the taxes did not exist.
TERM AND TERMINATION
- Term. Each Service Order will commence on the specified effective date and will continue for the initial term specified in the applicable Service Order (“Initial Term”) unless the Service Order is terminated earlier in accordance with the terms of this Agreement. Unless otherwise specified in the applicable Service Order, the Service Order will automatically renew for additional successive terms of the same duration as the Initial Term (or such other period as is specified in the Service Order) unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
- Termination for Material Breach. Either party may terminate a Service Order if the other party does not cure its material breach of this Agreement or the Service Order within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Simply Measured may, without limitation to any of its other rights or remedies, suspend performance of the Simply Measured Services until it receives all amounts due.
- Post-Termination Obligations. If this Agreement is terminated for any reason, Subscriber will pay to Simply Measured any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Subscriber will provide Simply Measured with a written certification signed by an authorized Subscriber representative certifying that all use of the Simply Measured Services and Documentation by Subscriber has been discontinued. If this Agreement or a Service Order is terminated prior to the end of the Initial Term, Subscriber will pay all fees owed for the remainder of the Initial Term unless the Agreement or the Service Order was terminated by Subscriber in accordance with Section 5.2.
- Protection of Confidential Information. Each of the parties agrees: (a) not to intentionally disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those subcontractors hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement.
- Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of Simply Measured or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information shall not, however, include any information which the recipient can establish: (a) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (b) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (c) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (d) was independently developed by the recipient, where such independent development has been documented by the recipient.
WARRANTIES AND DISCLAIMER
- Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, SIMPLY MEASURED MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SIMPLY MEASURED EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SIMPLY MEASURED DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SIMPLY MEASURED SERVICES. SIMPLY MEASURED DOES NOT WARRANT THAT THE SIMPLY MEASURED SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SIMPLY MEASURED SERVICES WILL BE SECURE OR UNINTERRUPTED. SIMPLY MEASURED DOES NOT WARRANT THAT any information PROVIDED THROUGH the SIMPLY MEASURED SERVICEs IS accuraTE OR COMPLETE OR THAT any information PROVIDED THROUGH the SIMPLY MEASURED SERVICES WILL ALWAYS BE AVAILABLE. SIMPLY MEASURED EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SIMPLY MEASURED SERVICES.
INTELLECTUAL PROPERTY INFRINGEMENT
- Defense of Infringement Claims. Simply Measured will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Simply Measured Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Subscriber gives Simply Measured prompt written notice of the Claim; Subscriber grants Simply Measured full and complete control over the defense and settlement of the Claim; Subscriber provides assistance in connection with the defense and settlement of the Claim as Simply Measured may reasonably request; and Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Simply Measured Services). Subscriber will not defend or settle any Claim without Simply Measured’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Simply Measured will have sole control over the defense and settlement of the Claim.
- Indemnification of Infringement Claims. Simply Measured will indemnify Subscriber from and pay all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Simply Measured’s consent after Simply Measured has accepted defense of the Claim); and all amounts that Simply Measured agrees to pay to any third party to settle any Claim under Section 8.1.
- Exclusions from Obligations. Simply Measured will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Simply Measured Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; the Simply Measured Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Simply Measured Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s failure to use the Simply Measured Services in accordance with instructions provided by Simply Measured, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Simply Measured Services not made or authorized in writing by Simply Measured where such infringement or misappropriation would not have occurred absent such modification.
- Limited Remedy. This Section 8 states Simply Measured’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Simply Measured Services.
- Defense. Subscriber will defend Simply Measured from any actual or threatened third party Claim arising out of or based upon Subscriber’s use of the Simply Measured Services or Subscriber’s breach of any of the provisions of this Agreement if: Simply Measured gives Subscriber prompt written notice of the Claim; Simply Measured grants Subscriber full and complete control over the defense and settlement of the Claim; Simply Measured provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and Simply Measured complies with any settlement or court order made in connection with the Claim. Simply Measured will not defend or settle any Claim without Subscriber’s prior written consent. Simply Measured will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
- Indemnification. Subscriber will indemnify Simply Measured from and pay all damages, costs, and attorneys’ fees finally awarded against Simply Measured in any Claim under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Simply Measured in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 9.1.
LIMITATIONS OF LIABILITY
- Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SIMPLY MEASURED WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SIMPLY MEASURED IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL SIMPLY MEASURED’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO SIMPLY MEASURED UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SIMPLY MEASURED TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- Relationship. Simply Measured will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
- Public Reference. Unless otherwise specified in an applicable Service Order, Subscriber consents that Simply Measured may refer to Subscriber name and marks on Simply Measured’s website and in public marketing materials.
- Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
- Subcontractors. Simply Measured may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Simply Measured remains responsible for all of its obligations under this Agreement.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the applicable Service Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.5. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington in connection with any action arising out of or in connection with this Agreement.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Simply Measured Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Simply Measured Services will immediately terminate.
- Counterparts. Service Orders may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. Service Orders may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
- Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Simply Measured Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Simply Measured Services that Simply Measured may provide. No employee, agent, or other representative of Simply Measured has any authority to bind Simply Measured with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Simply Measured will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Simply Measured specifically agrees to such provision in writing and signed by an authorized agent of Simply Measured.