This agreement is in effect as of June 2016.
Welcome, and thank you for your interest in SimpleBI, Inc. (“SimpleBI”, “we,” or “us”) and the SimpleBI services, including any platforms, APIs, interfaces, related web sites, networks, embeddable widgets, downloadable software, software as a service reporting and analytics, and other services provided by us and in which a link to these Terms of Service is displayed (the “Services”).
These Terms of Service are a legally binding contract between you and SimpleBI regarding your use of the Services. The general form of this Agreement is that we grant you a license to use the Services, and in return you pay us and agree to abide by our terms and policies.
You acknowledge and agree that, as provided in greater detail in this Agreement:
This Agreement contains the terms and conditions that govern your access to and use of the Services. This Agreement takes effect when you click an “I Accept” button or check-box presented with these terms or, if earlier, when you use any of the Services or signed a proposal agreement as of (the “Effective Date”).
This Agreement incorporates several policies. Failure to abide by your obligations under these policies constitutes grounds for suspension or termination of your account and revocation of your access to the Services. The incorporated policies (collectively, “Policies“) are:
We provide certain SimpleBI Services pursuant to a Service Level Agreement.
You must be at least eighteen (18) years of age to use the Services. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with all applicable laws and regulations. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization. SimpleBI may, in its sole discretion, refuse to offer the Services to any person or entity, and may change its eligibility criteria at any time.
To access the Services, you must create an SimpleBI user account. You may also need to create an SimpleBI customer account, if one does not exist already.
When you register for the accounts, you may be required to provide us with some information about yourself, such as your phone number or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate at all times. You are responsible for all activities that occur under your accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). You may create additional user accounts for users within your organization.
Each SimpleBI user account is protected by credentials. You are responsible for maintaining the security of your credentials. SimpleBI and our affiliates are not responsible for unauthorized access to your account, except to the extent caused by our breach of this Agreement.
If you do not abide by your obligations, or if you violate our Acceptable Use Policy, we may determine your account to be not in good standing and may take Remedial Action pursuant to Section 5. Good standing is determined at SimpleBI’s sole discretion.
SIMPLEBI RESERVES THE RIGHT TO DISABLE ANY USER’S ACCESS TO ANY PART OF THE SERVICE, AND TO TERMINATE ANY USER’S ACCOUNT.
You may terminate your account and this Agreement at any time in accordance with Section 11.
Your obligations. Your obligations include, but are not limited to, the following:
Unauthorized uses. You are authorized access to the Services only to the extent necessary to develop and run Applications. You will not, and will not allow third parties under your control to violate our Acceptable Use Policy.
We may change our Fees and Pricing Policy. In the event we do so, we will give you 30 days notice before the beginning of the billing cycle during which the revised policy will be applied.
Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all reasonable expenses and attorneys fees we incur collecting late payments. We reserve the right to discontinue the provision of the Services to you for any late payments.
Fees are based on our measurements of your use of the Services. Our determination is final. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at our discretion and only in the form of credit for the Services. Nothing in this Agreement obligates SimpleBI to extend credit to any party.
If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
Under some circumstances, you are obligated to suspend or remove an Application from the Services and take remedial measures. In addition, we reserve the right to suspend your account, suspend your access or your End Users’ access to the Services, and/or suspend or remove an Application (take “Remedial Action”). Our right to take Remedial Action is in addition to our right to terminate this Agreement pursuant to Section 11.
We reserve the right to take Remedial Action if you are in breach of this Agreement, including if you are delinquent on your payment obligations by more than 15 days.
Content.You are solely responsible for the development, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
You represent and warrant to us that:
SimpleBI responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. Please see Section 7 of this Agreement. We reserve the right to take Remedial Action upon receipt of a valid DMCA notice.
Proprietary rights.In general, except as expressly set forth below in Sections 8 and 9, this Agreement does not grant either party any rights, implied or otherwise, to the other’s Content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in your Applications and customer data, and we own all intellectual property rights in the Services.
Notwithstanding that general principle:
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the SimpleBI Services, please notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
Submit the above information to:
Attn: DMCA Notices
80 Aberdeen St Suite 100
Ottawa On Canada
SimpleBI will promptly terminate without notice the accounts of users that are determined by SimpleBI to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had Content removed from the Service at least twice.
This procedure is exclusively for notifying SimpleBI that your copyrighted material has been infringed. This policy is intended to protect and comply with SimpleBI’s rights and obligations under the DMCA, including 17 U.S.C. § 512(c), but does not constitute legal advice. You should contact an attorney for counsel regarding your specific legal rights and obligations.
The Services.You hereby grant us a worldwide, non-sublicensable, non-transferable, non-exclusive, terminable, limited license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, host, store, transfer, modify for the purpose of formatting for display, and distribute any Application and/or data (including Your Content) for the sole purpose of enabling us to provide you with the Services.
Your materials.You agree that SimpleBI, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) in any media format on any media channels for the purpose of advertising or publicizing your use of the Services.
You acknowledge and agree that the form and nature of the Services which SimpleBI provides may change from time to time without prior notice, subject to the terms in Section 5. Changes to the form and nature of the Services will be effective with respect to all versions of the Services; examples of changes to the form and nature of the Services include without limitation changes to the Fees and Pricing Policy, security patches, added functionality, and other enhancements.
The license granted in this Agreement will remain in effect, unless terminated earlier as set forth in this Agreement. Sections 6 (Intellectual Property), 11 (this Section), 13 (Indemnification), 14 (Exclusion of Warranties), 15 (Limitations of Liability), 18 (Governing Law), 19 (Dispute Resolution and Arbitration), and 21 (General Terms) shall continue to be effective after this Agreement is terminated.
You may terminate this Agreement at any time by canceling your account. You will delete any Applications and customer data from the Services prior to closing your account. You will make your own copy of regulated data, including protected health information as defined in 45 C.F.R. § 160.103, prior to canceling your account. You will not receive any refunds if you terminate this Agreement.
We may, in our sole discretion for any or no reason, terminate this Agreement by canceling your account or any portion of your access to the Services. You agree that any termination of your access to the Services may be without prior notice, and you agree that SimpleBI will not be liable to you or any third party for such termination.
If the Agreement is terminated, all of your rights under this Agreement immediately terminate and all fees and charges (including any applicable taxes) owed by you to us are due immediately, including fees and charges for in-process tasks completed after the date of termination.
YOU ARE SOLELY RESPONSIBLE FOR EXPORTING YOUR CONTENT AND APPLICATIONS FROM THE SERVICES PRIOR TO CLOSING YOUR ACCOUNT. IF WE CANCEL YOUR ACCOUNT, WE WILL PROVIDE YOU A REASONABLE OPPORTUNITY TO RETRIEVE YOUR CONTENT AND APPLICATIONS, AS PERMITTED BY LAW.
We reserve the right, at our discretion, to change these Terms, as well as the Policies, on a going-forward basis at any time. Please check these Terms and the Policies periodically for changes. In the event that a change to these Terms or Policies materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms or Policies materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms or Policies, as applicable. If we require your acceptance of the changed Terms or Policies, changes are effective only after your acceptance. If you do not accept the changed Terms or Policies, we may terminate your access to and use of the Services. All other changes are effective upon publication of the changed Terms or Policies. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
You agree to indemnify and hold harmless SimpleBI Inc. and its parent company and affiliates, and their directors, officers, managers, employees, donors, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this User Agreement or the failure to fulfill any obligations relating to your account incurred by you or any other person using your account. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this User Agreement. In such event, you shall provide us with such cooperation as is reasonably requested by us..
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPLEBI DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. SIMPLEBI IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR APPLICATION AND CUSTOMER DATA, EXCEPT WHERE BACKUP OR SECURITY CONTROLS ARE EXPRESSLY PROVIDED AS FEATURES OF THE SERVICES. SIMPLEBI DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE, TIMELY, OR UNINTERRUPTED. SIMPLEBI DOES NOT WARRANT THAT THE SERVICES WILL BE SECURE, EXCEPT AS EXPRESSLY DOCUMENTED. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES. YOU UNDERSTAND THAT YOU USE THE SERVICES AT YOUR OWN DISCRETION AND RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE SIMPLEBI ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL THE SIMPLEBI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SIMPLEBI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SIMPLEBI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT PAID BY YOU TO SIMPLEBI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION 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 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The foregoing limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s intellectual property rights by the other party, or indemnification obligations.
We will provide technical support to you pursuant to our Support Policy. We reserve the right to revise this policy without notice at any time. The specific terms of a custom Service Level Agreement or enterprise support agreement will supersede the Support Policy, should you enter into such an agreement with us.
This Agreement is governed by the laws of the Province of Ontario without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this Agreement, then, unless another location is expressly specified in this Agreement, you and SimpleBI agree to submit to the personal and exclusive jurisdiction of the provincial courts and federal courts located within the province of Ontario, for the purpose of litigating any dispute.
Generally.In the interest of resolving disputes between you and SimpleBI in the most expedient and cost effective manner, you and SimpleBI agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SIMPLEBI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notice; Process.A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice“). SimpleBI’s address for Notice is:
80 Aberdeen St Suite 100
Ottawa Ontario Canada
The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or SimpleBI may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or SimpleBI must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, SimpleBI will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by SimpleBI in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with this Agreement, SimpleBI will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Ontario, Canada but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the province(or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse SimpleBI for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the preceding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions.YOU AND SIMPLEBI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and SimpleBI agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If SimpleBI makes any future change to this arbitration provision (other than a change to SimpleBI’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to SimpleBI’s address for Notice, in which case your account with SimpleBI will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
Enforceability.If Section 19(F) is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to this Agreement.
Notices. All notices to SimpleBI must be in writing and addressed to email@example.com. Notice will be treated as given on receipt as verified by written automated receipt or by electronic log (as applicable).
You agree that SimpleBI may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the SimpleBI Services. By providing SimpleBI your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.