These Terms & Conditions of Service (the “Agreement”) available at https://simplytechnology.com/terms-conditions/ govern the provision of certain Information Technology (“IT”) products and services by Simply Technology, LLC (“ST”), a Michigan limited liability company, to Customer (including any “Affiliate(s)” designated on an applicable Order) (collectively, the “Customer”) (each a “party” and collectively, the “parties”). By accepting IT products and services provided by ST, Customer agrees to be bound by this Agreement.
Scope. The scope of this Agreement is a “master” agreement and encompasses any and all products and services provided by ST to Customer during the term of this Agreement.
Order Form. ST may provide products and services pursuant to an Order Form (“Order”) describing the products and services to be provided (including any applicable Service Level Agreements). A formal quotation (“Quote”) duly issued by ST and signed by the parties shall be an Order under this Agreement. Orders shall be valid and enforceable under the terms of this Agreement upon acceptance by the parties and, upon such acceptance, shall be incorporated into this Agreement.
Change Orders. During the term of this Agreement, if the parties desire to make changes to an existing Order, they may issue a Change Order. A Change Order shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon its acceptance, shall be incorporated into this Agreement.
Estimates. Any estimate provided by ST, whether made orally or in writing, is provided strictly for budgetary purposes only and shall not be binding.
Professional Services. Professional Services provided under this Agreement will be billed on a time and material basis at ST’s then applicable hourly rates for such services. ST reserves the right to add a reasonable markup to any material supplied.
Joint Efforts. Customer acknowledges that ST’s ability to perform its obligations is contingent upon Customer’s cooperation, which may include Customer supplying certain access, information, specifications, feedback, and other items as ST may reasonably determine. Customer hereby agrees to provide such cooperation in a timely manner upon ST’s reasonable request.
Service Start; Installation; Improvements
Service Start Date. The expected start date for any project or service to be provided by ST (the “Service Start Date”) may be subject to the satisfaction of certain prerequisites, including, but not limited to, the receipt of any required materials, information, or payments, and the completion of any site preparation and necessary installations. Regardless of any specific timing or delivery schedules or estimates provided in an applicable Order or Change Order, Customer acknowledges that the services rendered by ST are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by ST shall not constitute a breach of this Agreement. If ST expects a delay in delivery to occur, ST will make commercially reasonable efforts to keep Customer apprised of such delay. Customer shall pay, as a liquidated damage, ten percent (10%) of the applicable contract price (subject to a Five Hundred Dollar ($500.00) minimum) for any delay or rescheduling of a Service Start Date caused by Client that occurs within ten (10) calendar days of the scheduled Service Start Date if ST was prepared to deliver on such date.
Installation. ST shall install any products or materials that are to be installed according to its fee for such installation, if any. Dates or timelines provided for installation are only estimates and actual timing may vary. Customer is responsible for preparing and maintaining the site for installation, including providing the necessary infrastructure, including any electrical power, communication lines, HVAC, and physical security, etc. that may be needed for the particular products or services. Prior to ST performing any on-site services, including installation, Customer shall name ST as an additional insured under its general liability insurance policy. If Customer fails to do so, then Customer will be deemed to have self-insured ST for any such claim or liability.
Improvements. During the term of this Agreement, ST may (but is under no obligation) provide maintenance, updates, replacements, and upgrades (collectively, “Improvements”) to improve the performance of Customer’s IT systems. To enhance the speed and quality of such service, Customer hereby authorizes ST to perform such Improvements as it deems necessary in its discretion and consents to paying ST for any cost associated therewith, including for labor and materials, not to exceed One Hundred Dollars ($100.00) in any given month (not including any regular monthly charges). If the cost of any such Improvements would exceed said amount in a given month, ST will seek Customer’s approval prior to providing such Improvements.
Acceptance; Payment; Term & Termination
Acceptance of Delivery; Inspection; Exclusive Remedy; Right to Cure. Customer shall inspect all products, deliverables, and services promptly upon delivery or completion, as applicable. Within thirty (30) days after delivery of any product or deliverable or completion of any service (the “Acceptance Period”), Customer shall provide ST written notice describing in reasonable detail any claimed nonconformity with the applicable Order, Change Order, or written specifications expressly agreed by ST (a “Notice of Nonconformity”). If Customer fails to provide a timely Notice of Nonconformity within the Acceptance Period, then the applicable product, deliverable, or service will be deemed accepted, and Customer irrevocably waives and releases any and all claims relating to such product, deliverable, or service, including claims for breach of warranty, breach of contract, negligence, and any other theory, to the maximum extent permitted by applicable law. Upon receipt of a timely Notice of Nonconformity, ST shall have the right, in its sole discretion, to: (i) determine that the alleged nonconformity is not covered by this Agreement or is otherwise not a nonconformity; (ii) re-perform, repair, replace, or otherwise cure the nonconformity; or (iii) issue a refund or credit of fees actually paid to ST for the nonconforming portion of the applicable product or service. ST will be afforded a reasonable opportunity to cure, including through multiple attempts, and Customer shall reasonably cooperate with ST to facilitate investigation and cure (including providing access, information, and test conditions). The remedies set forth in this paragraph are Customer’s sole and exclusive remedies for any nonconformity or other objection relating to delivered products, deliverables, or services. Upon ST’s cure, refund, or credit (as determined by ST), the matter shall be deemed finally settled and Customer shall fully release and forever discharge ST and its Affiliates from and against any and all claims, actions, demands, rights, causes of action, and liabilities, whether in law or in equity, arising out of or relating to such nonconformity.
Payment Terms. Except as otherwise specified in an applicable Order or Change Order, payments are due within 30 days of invoice (Net 30). ST shall determine the timing of invoices in its discretion.
Late Payments; Interest. All amounts not paid when due will be considered past due. Without limiting any other rights or remedies, late payments shall be subject to a late fee equal to the greater of (i) $50.00, (ii) interest in the amount one and one-half percent (1.5%) per month (18% per annum), or (iii) the maximum rate permitted by applicable law.
Effective Date. This Agreement shall become effective and binding on the earlier of: (i) the date Customer (or an authorized representative of Customer) signs or otherwise accepts this Agreement (including by electronic acceptance); (ii) the effective date of the first Order or Change Order accepted by the parties under this Agreement; or (iii) the date Customer first requests, authorizes, accesses, uses, or accepts any products or services provided by ST under this Agreement (the “Effective Date”).
Term; Renewal. This Agreement shall commence on the Effective Date and shall remain in effect until terminated in accordance with this Agreement. The initial term for each Order or Change Order shall be the term or duration stated in such Order or Change Order (the “Order Term”). If an Order or Change Order does not specify an Order Term, then the Order Term shall be twelve (12) months from the applicable Service Start Date (or, if no Service Start Date is stated, from the effective date of such Order or Change Order). Unless otherwise stated in the applicable Order or Change Order, each Order Term shall automatically renew on its anniversary (and each anniversary thereafter) for successive renewal terms of equal length until terminated in accordance with this Agreement. Multiple Orders and Change Orders may be in effect concurrently, and the expiration or termination of any individual Order or Change Order will not, by itself, terminate this Agreement or any other Order or Change Order.
Renewal Price Increase. Unless otherwise stated in the applicable Order or Change Order, upon the renewal of an Order Term, ST may increase the recurring service fees, subscription fees, and/or other recurring charges applicable to such renewed Order by an amount not to exceed ten percent (10%) of the then-current recurring charges. Any such increase will apply beginning on the first day of the applicable renewal term and will be reflected on Customer’s invoice(s).
Termination for Convenience. ST may terminate this Agreement, including any Order or Change Order, without cause or for convenience upon thirty (30) days’ written notice to Customer. Customer may terminate this Agreement (non-renewal) without cause or for convenience by providing ST written notice no later than ninety (90) days prior to the end of the then-current Order Term. Any such termination for convenience will be effective only as of the last day of the then-current Order Term, and Customer remains responsible for all fees, charges, and other amounts due and payable through the effective date of termination.
Termination for Cause. Subject to ST’s right to cure, either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement.
Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice if the other party becomes insolvent, enters into bankruptcy, or makes an assignment for the benefit of creditors.
Default for Nonpayment. ST reserves the right to treat payments or amounts more than sixty (60) days past due as a material breach of this Agreement and may stop or suspend any and all services (including the right to suspend third-party software and services provisioned or managed by ST, i.e., Microsoft 365), in addition to exercising any and all rights and remedies to which ST may be entitled. Further, ST reserves the right to retain or re-gain possession of all equipment, software, and documents ordered or installed at Customer’s site and to dismantle any hardware and/or software already installed. The cost of re-mounting any such hardware or software will be charged to Customer at ST’s then applicable rate(s). Customer agrees to pay ST on demand all costs and expenses to enforce its right to payment under this Agreement, including reasonable attorneys’ fees and expenses.
Service Administration; Access; Security Incidents
Independent Contractor. The parties agree that ST is an independent contractor and not an employee, partner, agent, or joint venture of Customer and shall control the mode of its own work performed under this Agreement.
Subcontracting. ST reserves the right to utilize subcontractors and other vendors in its sole discretion.
Access Rights. ST, its employees, agents, designees, and assigns shall be permitted access to Customer’s facilities upon reasonable request for the purposes of fulfilling its obligations hereunder. However, Customer shall remain responsible for ensuring the security of its facilities and IT systems prior to, during, and following such access.
Security Incidents. In the event of an immediate information security risk to Customer’s IT systems, Customer expressly permits ST to take any reasonable measures in its discretion to respond to and remediate such risk without prior notice to or obtaining consent or authorization from Customer. Customer agrees to reimburse ST for all reasonable costs associated with responding to and remediating any such risk that arises as a result of Customer’s own negligence.
Information Security; Administrator Access
Information Security Responsibilities. Customer shall be solely responsible for its own:
- Governance, risk management, and compliance (GRC);
- Information security practices, including internal controls, proper security “hygiene,” and employee training;
- Security appliances, tools, and products not specifically provided and exclusively managed by ST;
- IT systems and infrastructure not specifically provided and exclusively managed by ST, including any “legacy” systems;
- Software and hardware not specifically provided and exclusively managed by ST;
- Data backups not specifically provided and exclusively managed by ST;
- Data retention and disposal policies and practices; and
- Compliance with local, state, federal, and foreign laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the EU General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Payment Card Industry Data Security Standard (PCI-DSS), and other compliance requirements.
Administrator Access. Unless otherwise agreed, ST shall retain “administrator” access to Customer’s IT environment(s) and shall retain access to any administrator passwords. In situations where Customer has or is provided administrative access, Customer is solely responsible for the actions it takes when acting as administrator, including the cost of any service or repairs necessary as a result of Customer’s administrative access regardless of whether Customer is under an “unlimited” support plan.
Duty to Notify; Change Management; AI Tools
Duty to Notify. Customer shall notify ST immediately upon discovering or suspecting that it has or is presently experiencing an information security or cybersecurity incident or upon the occurrence of any material changes to be made to Customer’s IT systems or environment including, but not limited to, changes in IT personnel, access controls, workstations and endpoints, networked equipment, network configurations, data backup or storage practices, Internet Service Provider (ISP), or any non-routine software or application changes or updates.
Accountability & Change Management. Customer agrees that all packaged, i.e. “off-the-shelf,” “shrink-wrapped,” or custom software intended to be added to Customer’s IT environment is subject to prior review and testing by ST. Customer acknowledges that the expense associated with testing software prior to deployment on the production environment is minimal relative to the potential exposure of introducing untested software into a “live” environment. With respect to obtaining a software vendor’s cooperation in securing software media, license keys, or documentation, Customer agrees to intercede to secure such vendor’s cooperation and pay any costs relating thereto that may be incurred.
Artificial Intelligence Tools. “AI Tools” means artificial intelligence and/or machine learning tools, including, without limitation, “generative AI,” large language models, chatbots, automated decision-making tools, and similar tools or services, whether provided by third parties or embedded in Customer’s systems or applications. At Customer’s request, ST may assist Customer in enabling and deploying AI Tools subject to ST’s costs and fees for rendering such assistance. Notwithstanding any such assistance, Customer shall be solely responsible for (i) selecting, enabling, deploying, configuring, operating, monitoring, and managing AI Tools, (ii) verifying the accuracy, completeness, legality, and suitability of any outputs, recommendations, or results generated by AI Tools, (iii) complying with all applicable laws, regulations, and third-party terms relating to AI Tools, including with respect to privacy, data protection, intellectual property, confidentiality, and security (including ensuring configurations and user privileges appropriately protect information for unauthorized access and disclosure). Notwithstanding anything to the contrary, ST shall not be responsible for any losses or liability arising from or related to Customer’s use of AI Tools. For the avoidance of doubt and without limiting the foregoing, ST disclaims all responsibility for configuring, integrating, training, tuning, testing, validating, maintaining, monitoring, or securing any AI Tools (including access controls, logging, data retention, prompt/content filtering, model settings, or vendor security controls), and ST will have no responsibility for any security incident, data loss, unauthorized access, or confidentiality breach arising from or relating to AI Tools, except to the extent ST has expressly agreed in a written, signed statement of work or other written agreement to provide specific AI Tool configuration and/or security services, and then only to the extent of such expressly agreed services.
Use of AI Tools. ST may use AI Tools in the performance of its Services. In connection with such use, ST will implement commercially reasonable measures designed to protect Customer Confidential Information and other sensitive information from unauthorized access, use, or disclosure. Without limiting the foregoing, unless expressly authorized by Customer in writing, ST will not input or submit Customer Confidential Information, personal data, or other sensitive information into any third-party AI Tool unless such third-party is subject to appropriate commitments, including that the provider not use such information to train or improve its models. ST’s use of AI Tools will not expand ST’s obligations or liabilities under this Agreement beyond those expressly set forth herein.
Assumption of Risk; Malware Disclaimer
Assumption of Risk. Customer acknowledges that the use of information technology systems and networked devices, especially those connected to the Internet, carry inherent risks, including risks to the confidentiality, integrity, and availability of data, as well as to the disruption and loss of cyber-physical and other critical systems, which may occur as a result of cyberattacks, software and hardware faults, failures, breakage, malfunctions, and other events (collectively, the “Potential Risks”). Customer hereby agrees to assume such risks and to hold ST harmless with respect to the Potential Risks except as may be the direct result of ST’s own gross negligence or willful misconduct.
Malware and Virus Disclaimer. With respect to ST’s services involving the provision or management of third-party antivirus software by ST, ST will use commercially reasonable efforts to ensure that such antivirus software is installed as intended, patched, and updated to the latest version within commercially reasonable timeframes. However, Customer acknowledges that antivirus software is not 100% effective, including against “zero-day” exploits, advanced persistent threats (APTs), and other malware, and that even if reasonable efforts and precautions are taken, antivirus tools and associated updates sometimes fail. Inclusive of Customer’s assumption of the Potential Risks as set forth in the preceding Section, Customer assumes the risks associated with antivirus software failures and the resulting harms that may be caused by computer viruses and malware. ST shall have no liability whatsoever arising out of the failure of antivirus software. Customer shall be responsible for all costs and fees associated with triaging, containing, eradicating, and remediating, etc., any computer viruses or malware.
Indemnification; Third Parties; Disclaimers; Liability
Indemnification. Customer agrees to indemnify and defend ST, its officers, directors, employees, agents vendors, contractors, associates, and assigns (each an “Indemnitee” and collectively, “Indemnitees”) (including any costs, expenses, and attorneys’ fees) from and against any and all third party claims, suits, demands, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or in any way relating to this Agreement except as such may be the result of ST’s own gross negligence or willful misconduct.
Third Party Services. Customer expressly agrees to assume full responsibility for its compliance with all third-party software licenses and terms of service, including that such licenses are properly maintained and abided. ST hereby disclaims any and all responsibility and liability for or relating to Customer’s use of third-party software and the use of unlicensed, out-of-support, or deprecated software and may deny or limit the provision of service for reasons relating thereto. Customer’s use of or access to any third-party products and services provided under this Agreement shall be strictly limited to and governed by any such agreements, licenses, terms of service, or the like associated with such products and services. Customer’s sole and exclusive remedy with respect to a third-party product or service shall be limited to any remedy against that third-party that may be made available by such third party and under no circumstances will Customer look to ST for any such remedy.
DISCLAIMERS. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN: (1) ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ST DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE; (2) ST DOES NOT WARRANT THE WORK AND SERVICE PROVIDED WILL BE UNINTERRUPTED AND/OR ERROR FREE; (3) ST DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE; (4) ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT ST SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR OR WARRANTY OF ANY OF SOFTWARE OR HARDWARE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY ST OR BY A THIRD PARTY; AND (5) ST HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS COMPLIANE WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EU GENERAL DATA PROTECTION REGULATION (GDPR), THE CALIFORNIA CONSUMER PRIVACY ACT (CCPA), THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI-DSS), THE FEDERAL INFORMATION SECURITY MANAGEMENT ACT (FISMA), THE DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS), THE CYBERSECURITY MATURITY MODEL CERTIFICATION, THE FBI CRIMINAL JUSTICE INFORMATION SERVICES (CJIS), THE SECURITIES AND EXCHANGE COMMISSION REUGLATION S-P RULE 30, THE SARBANES-OXLEYACT (SOX), AND ANY OTHER SIMILAR COMPLIANCE REQUIREMENT.
LIMTATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ST BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. ST’S TOTAL POSSIBLE LIABILITY UNDER THIS AGREEMENT (WHETHER ARISING FROM CONTRACT, TORT, OR OTHERWISE) SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000.00) OR THE TOTAL AMOUNT CUSTOMER HAS PAID ST IN SERVICE FEES IN THE PRECEDING THREE (3) BILLING CYCLES. CUSTOMER FURTHER AGREES THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT OF ST SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT.
General Provisions
No Wavier. ST’s failure to seek redress for a violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation.
Confidentiality. Except as the parties may otherwise expressly agree (i.e. through a separate nondisclosure agreement or business associate agreement (“BAA”)), no information (whether or not marked confidential or proprietary) disclosed by Customer, either directly or indirectly, or made available or accessible to ST, its employees, subcontractors, agents, or designees and assigns through ST’s access to Customer and its employees, facilities, databases, and IT systems, etc. shall be considered confidential or proprietary and Customer hereby waives and releases ST from any claim or liability relating thereto.
Intellectual Property. Except as may otherwise be provided in this Agreement, neither party shall acquire any right, title, or interest in any intellectual property of any other party, including that of third parties, unless expressly agreed to in a writing signed by the applicable parties. Customer hereby agrees to be bound by any agreement, including, but not limited to, any terms of service and license agreements, of any third-party products or services provided to Customer under this Agreement.
Limited License. Customer hereby grants ST a limited, nonexclusive, fully paid, royalty-free, worldwide license to copy, modify, and distribute Customer’s supplied data (“Customer Data”) as ST may deem necessary in fulfilling its obligations under this Agreement.
ST Software. All software, including any related source code, developed by ST for use by Customer in connection with this Agreement is the sole and exclusive property of ST (the “ST Software”). Customer is hereby granted a limited, nonexclusive, nontransferable, revocable license to use the ST Software, as such software may be installed by ST on any servers, endpoints, personal computers, or any other devices, for Customer’s internal business purposes only. Except as set forth in this Section 28, Customer may not (i) copy, modify, or create derivative works of the ST Software or any component of the ST Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the ST Software except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the ST Software, in whole or in part; (iv) remove any proprietary notices from the ST Software; or (v) use the ST Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. ST is the sole owner of the methodologies used to develop the ST Software and retains all intellectual property rights relating thereto, including, but not limited to, any rights existing in patent, trademark, copyright, or otherwise, whether or not patented or patentable.
Hardware-as-a-Service (“HaaS”). ST is the sole owner of and retains all right, title, and interest in any computer hardware provided to Customer on a loaned, leased, or subscription basis (“HaaS”). With respect to HaaS, Customer shall be responsible for protecting and insuring such hardware from damage, including, but not limited to, fire, flood, theft, negligent acts, malicious destruction, and other casualty, and agrees assume the cost of any replacement of or repair to such hardware that results from such damage. ST reserves the right to access and reclaim such hardware as needed to provide the service, including any hardware “swaps” that may be necessary. Customer is prohibited from tampering with, removing, relocating, or materially altering any such hardware without ST’s prior written authorization.
Non-Competition. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not, anywhere in the continental United States, directly or indirectly compete with ST, without the prior written consent of ST. The parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that ST shall be entitled to injunctive relief in addition to pursuing other remedies.
Non-Solicitation. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not directly or indirectly solicit, recruit, or employ any employee of ST without the prior written consent of ST. Customer recognizes that because of the substantial recruitment and training costs in the Information Technology industry, Customer agrees to pay as liquidated damages for a breach of this Section 30 an amount equal to One Hundred Percent (100%) of the ST employee’s then annualized compensation (subject to an Eighty Five Thousand Dollar ($85,000) minimum) in addition to all of ST’s costs and expenses, including ST’s actual legal fees, associated with ST’s efforts to enforce the same.
Notices. All notices, demands, and communications required or permitted in connection with this Agreement will be in writing and shall be deemed effectively given in all respects upon delivery to a party’s principal place of business by registered mail or by personal delivery by a party or a third-party courier or, in the alternative, if delivered by email to ST at info@simplytechnology.com and to Customer at Customer’s then primary email address on file.
Incorporation. This Agreement incorporates any applicable Orders and Change Orders (including any applicable Service Level Agreements) accepted by the parties under this Agreement.
Force Majeure. In no event shall ST be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil unrest, civil or military disturbances, nuclear or natural catastrophes, pandemics, government ordered shut downs, acts of God, and interruptions to or the loss or malfunctions of utilities, communications or computer (software or hardware) services.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Michigan without regard to its conflict of laws principles.
Dispute Resolution; Prevailing Party. Any dispute arising hereunder, whether arising in contract, tort, or otherwise, shall be adjudicated in a court of competent jurisdiction located in Wayne County, Michigan and the parties hereby agree, consent, and submit to the personal jurisdiction of such court or courts. If Customer brings an action of any kind arising under or in relation to this Agreement and ST prevails in such action, Customer shall pay ST its actual and costs and expenses, including legal fees and for any appeals, incurred by ST with respect to such action.
CLASS ACTION WAIVER. THE PARTIES AGREE THAT ANY DISPUTE SHALL BE RESOLVED IN EACH PARTY’S RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
Privacy Policy. Customer acknowledges that it has reviewed and accepted ST’s Privacy Policy located at https://simplytechnology.com/privacy-policy/ as such policy may be updated from time-to-time in accordance with its terms and consents to such policy concerning ST’s collection, use, and sharing of personal information. Customer agrees to comply with all applicable local, state, national, and foreign laws concerning this Agreement including, but not limited to, those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer specifically agrees to provide any notices and to obtain any consent related to Customer’s collection, use, processing, transfer, and disclosure of personal information. If Customer and ST agree to exchange personal information, such transfer and processing shall be according to ST’s Data Processing Agreement, which may include Standard Contractual Clauses (SCCs) for the purposes of cross-border transfers of personal data from the EU and Switzerland to the United States and other jurisdictions, as the case may be. Customer acknowledges that ST exercises no control over the content of the information collected and transmitted by Customer and its agents and users. In connection with this Agreement, Customer represents and warrants that it shall not upload, post, reproduce or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights or that Customer owns all right, title, and interest, including all intellectual property rights, in and to such information.
Acceptable Use Policy. ST’s services may not be used for unlawful, fraudulent, offensive, or obscene activity, as determined solely in the discretion of ST. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations applicable to Customer, and all guidelines, standards, and requirements that may be included in ST’s Acceptable Use Policy, as such policy may be updated from time-to-time in accordance with its terms.
Survival. The expiration or termination of this Agreement shall not release Customer of its obligation to make any payments owed under this Agreement. Further, the parties agree that the indemnification, disclaimers, and limitation of liability provisions shall survive expiration and termination of this Agreement indefinitely. Furthermore, the non-competition and non-solicitation provisions shall each survive for their respective terms.
Modification. ST may, in its sole discretion, modify this Agreement from time-to-time by posting the modified Agreement at https://simplytechnology.com/terms-conditions/ and/or by giving Customer notice through other means, such as by email. Unless a different effective date is stated in ST’s notice, any such modification will become effective sixty (60) days after the date ST first posts the modified Agreement or provides notice of the modification (the “Modification Effective Date”). If Customer does not agree to the modification, Customer may terminate this Agreement by providing written notice of termination to ST at any time before the Modification Effective Date. Customer’s continued engagement of ST or the use or consumption of ST’s products or services on or after the Modification Effective Date will be deemed Customer’s acceptance of the modified terms.
Assignment; Successors and Assigns; No Third-Party Beneficiaries. This Agreement may be assigned by ST in its discretion upon reasonable notice. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and assigns. There are no intended beneficiaries other than the parties hereto.
Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.
Construction. Unless the context of this Agreement otherwise requires: (1) words importing the singular include the plural and vice-versa, (2) the use of all pronouns shall be interchangeable and considered gender neutral, and (3) section headings and paragraph titles in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation.
Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” shall mean with respect to any specified person or entity (a “Person”), any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person; and for the purposes of this definition, “control” (including the terms controlling, controlled by, or under common control with) means the possession, direct or indirect, or the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, partnership or member interests, by contract or otherwise.
Export Regulation. The products and services provided utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the products and services or the software or technology included in the products and services to, or make the products and services or the software or technology included in the products and services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the products and services or the software or technology included in the products and services available outside the US.
U.S. Government Rights. Each of the software components that may constitute the products and services and Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the products and services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
Opportunity to Review. Each party hereto acknowledges and agrees that it had sufficient time and opportunity to review and consult with legal counsel prior to executing this Agreement.
Entire Agreement. This Agreement, along with ST’s then current Privacy Policy, Data Processing Agreement, Acceptable Use Policy, and any Orders and Change Orders (including any applicable Service Level Agreements) that may be duly issued hereunder, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and, upon its effectiveness, shall supersede all prior agreements, understandings and arrangements, both oral and written, with respect to the subject matter hereto.
Authority. The parties hereto represent and warrant that they are legally authorized to enter into this Agreement and that each has the full power and authority to perform this Agreement and has taken all actions required to authorize the execution and delivery of this Agreement.