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:
- “Account” means a unique account created for Subscriber to access the Subscription Services.
- “Add-On Services” means additional services that may be added to a base subscription to the Subscription Services.
- “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Simply Measured Services.
- “Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc.
- “Professional Services” means time-and-materials services provided to Subscriber, such as consulting services, onboarding support, etc.
- “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of user profiles, or such other limits as are set forth in the Service Order.
- “Service Order” means a document setting out the specific details of one or more specific Simply Measured Services to be provided to Subscriber, which is agreed upon and signed by both parties.
- “Simply Measured Services” means, collectively, Subscription Services, Add-On Services and Professional Services.
- “Subscription Services” means the base subscription services provided by Simply Measured to Subscriber, as identified in one or more Service Orders. The Subscription Services include the use of web-based applications, technical support, and documentation such as user manuals and online help files.
- Service Orders. Subscriber must enter into a separate Service Order for each Group. 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. Simply Measured will provide, and Subscriber will pay for, all Simply Measured Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.
- Service Order Type. Service Orders will be one of the following types:
- New. A new Service Order sets forth the Simply Measured Services and applicable Scope Limitations.
- Amendment. An amendment to a Service Order modifies an existing Service Order (e.g., to change the scope, add Add-On Services, or add Professional Services). The amendment will apply for the remainder of the term of the Service Order(s). For the avoidance of doubt, Subscriber must pay all outstanding fees for usage prior to the Service Order amendment date in accordance with the terms set forth in the previous Service Order(s).
- Renewal. A renewal renews Subscriber’s existing Simply Measured Service subscription.
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 each Service Order to use the Simply Measured Services set out therein. 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 and the terms of the Service Order and this Agreement. If the Service Order permits usage by Clients, such Clients may use the Simply Measured Services in accordance with the terms of this Agreement. Subscriber will be liable for all use of the Simply Measured Services by its Clients.
- Access and Users; Groups. Subscriber is responsible for managing access to its Account. Subscriber may permit its agents or service providers to access the Simply Measured Services through its Account, provided that Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. If Subscriber uses the Simply Measured Services on behalf of its Clients or if it grants access to the Simply Measured Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent.
- 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 provide Subscriber with technical support services relating to the Simply Measured Services by email from 9am-5pm Pacific Time, Monday through Friday, excluding U.S. holidays.
- Use Restrictions. Subscriber may use the Simply Measured Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Subscriber may not resell Simply Measured Services to third parties. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Simply Measured Services; (b) use the Simply Measured Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Simply Measured Services, or (d) reverse engineer any element of the Simply Measured Service, or use the Simply Measured Services or any of Simply Measured’s Confidential Information (as defined below) to create a product that competes with the Simply Measured Services.
- Compliance with Laws. Subscriber will use the Simply Measured Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party.
- Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Simply Measured Services 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.
- Right to Suspend Services. Simply Measured may suspend Subscriber’s or any Client’s use of the Simply Measured Services if Simply Measured reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Simply Measured Services or to prevent an ongoing violation of any applicable laws or regulations. Simply Measured will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Simply Measured Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, 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.
- Reservation of Rights. Simply Measured grants to Subscriber a limited right to use the Simply Measured Services under this Agreement. Subscriber will not have any rights to the Simply Measured Services except as expressly granted in this Agreement. Simply Measured reserves to itself all rights to the Simply Measured Services not expressly granted to Subscriber in accordance with this Agreement. Simply Measured retains all copyright, patent, and other intellectual property rights in and to the Simply Measured Services.
FEES AND PAYMENT
- Fees. Subscriber will pay Simply Measured the fees specified in each applicable Service Order. If Subscriber orders additional Simply Measured Services or changes the Simply Measured Services it is receiving, the fees for such additional or changed services will commence on the activation date listed in the Service Order and will be reflected on Subscriber’s monthly invoice. Partial months will not be prorated. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
- Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that Subscriber notify Simply Measured of any such dispute in writing prior to the date they would otherwise be due, and that Subscriber cooperates with Simply Measured in promptly resolving such dispute. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (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.
- Subscription Plans; Service Boosts. The Subscription Services include a “Base Plan” which is subject to the Scope Limitations set forth in the applicable Service Order. If Subscriber exceeds the Scope Limitations 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 twelve (12) month period after the Effective Date, and each twelve (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 its purchase or use of the Simply Measured Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order.
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.
- Auto-renewal. If auto-renewal is expressly specified in the Service Order, the Service Order will automatically renew for additional successive one-year terms unless either party provides written notice to the other at least thirty (30) days before the end of the then-current term that it does not want to renew. The Initial Term and any auto-renewal terms shall be, collectively, the “Term.” If auto-renewal is not specified, the Service Order will terminate at the end of the Initial Term.
- Termination for Cause. Either party may terminate a Service Order (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- 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, Subscriber will discontinue all use of the Simply Measured Services, and (d) Simply Measured will delete any Subscriber data in its systems within one hundred eighty (180) days after the effective date of termination. If 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 for cause in accordance with Section 5.3. All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
- 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 will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
- Protection of Confidential Information. Each of the parties agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and 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. If a party is required by law to disclose the other party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law), and provide reasonable assistance in seeking protection of such Confidential Information.
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, TITLE, AND NON-INFRINGEMENT. SIMPLY MEASURED RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE 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 OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE.
INTELLECTUAL PROPERTY INFRINGEMENT
- Defense and Indemnification. 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 infringe or misappropriate any patent, copyright, trade secret, or trademark, right of any third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. Simply Measured’s obligation under this section is contingent on Subscriber giving Simply Measured prompt written notice of the Claim; Subscriber granting Simply Measured full and complete control over the defense and settlement of the Claim; and Subscriber providing assistance in connection with the defense and settlement of the Claim as Simply Measured may reasonably request, at Simply Measured’s cost. Subscriber will not defend or settle any Claim subject to this section without Simply Measured’s prior written consent.
- Infringement Remedy. If Subscriber is enjoined or otherwise prohibited from using the Simply Measured Services or a portion thereof based on an allegation that the Simply Measured Services violate any third party intellectual property right (including a Claim), or if Simply Measured reasonably determines that such prohibition is likely, then Simply Measured will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Simply Measured Services; (b) modify the allegedly infringing portions of the Simply Measured Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Simply Measured Services with non-infringing items of substantially similar functionality. If Simply Measured determines that the foregoing remedies are not commercially reasonable, then Simply Measured may terminate the impacted Service Order, or portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by Simply Measured for any Simply Measured Services that have not yet been performed at the time of termination.
- 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; any aspects of the Simply Measured Services that 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.
- Subscriber will defend Simply Measured from any actual or threatened third party Claim arising out of or based upon Subscriber’s breach of any of the provisions of this Agreement, and indemnify Simply Measured from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim. Subscriber’s obligation under this section is contingent on:(a) Simply Measured giving Subscriber prompt written notice of the Claim; (b) Simply Measured granting Subscriber full and complete control over the defense and settlement of the Claim; (c) Simply Measured providing assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) Simply Measured’s compliance with any settlement or court order made in connection with the Claim, provided that Subscriber may not agree to any settlement that imposes any obligation on Simply Measured without Simply Measured’s consent. Simply Measured will not defend or settle any Claim without Subscriber’s prior written consent.
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.
- Relationship. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or otherwise dealing in data or information from any third party.
- Export Compliance and Anti-Corruption. The Simply Measured Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users to access or use the Simply Measured Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
- 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 fax, e-mail, US mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement (or the applicable Service Order). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.
- 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.
- 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. 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. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile.