Effective: February 1st, 2024

The following terms and conditions (“Terms of Service”) and the terms any sales order (“Sales Order”) signed by You through an automated online Sign-up and/or a representative of Simplifya, LLC (“Simplifya”), constitute a legal agreement (“Agreement”) between You and Simplifya regarding Your use of Simplifya’s website simplifya.com (“Website”), Simplifya’s application (“App”), Simplifya Protect (“Protect”), Simplifya Market Guide (“SMG”), Simplifya RegFinder (“RegFinder”), Simplifya Verified (“Verified”) or any other Simplifya product or related service (“Services”), and any related data, information, and/or materials (“Content”) contained on the Website and/or within the App and/or Services (collectively the Website, the App, the Services, and the Content are referred to herein as the “Products”). You and Simplifya may be referred to herein individually as a “Party” or collectively as “Parties”.

 

By registering, accessing, or using any of the Products, You agree to the Terms of Service and to abide by the Terms of Service, and You represent and warrant that You have the power and authority to agree to the Terms of Service and this Agreement. If you do not agree to the Terms of Service, do not register, access, or use the Products.

 

THESE TERMS OF SERVICE INCLUDE: (1) A DISPUTE RESOLUTION PROVISION THAT REQUIRES A WAIVER OF YOUR RIGHT TO A JURY TRIAL; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST SIMPLIFYA; AND (3) A RELEASE BY YOU OF CLAIMS FOR DAMAGE AGAINST SIMPLIFYA THAT MAY ARISE OUT OF OR THAT MAY BE RELATED TO YOUR USE OF THE PRODUCTS OR THIS AGREEMENT. 

I. ABOUT SIMPLIFYA; ACKNOWLEDGEMENTS.

A. What Simplifya Does.Simplifya’s Products provide automated compliance solutions for use by licensed operators of cannabis businesses (“LO”), ancillary companies (“AC”) that provide services in support of LOs, and government entities (“GE“) that regulate LOs. Although marijuana has been legalized in some form in 38 states, it remains a Schedule I controlled substance under the Controlled Substances Act, 21 USC § 801, et seq., and, therefore, the possession, cultivation, and distribution thereof, or conspiring with or assisting others to do the same, is federally illegal and can result in significant criminal and civil penalties. Simplifya makes no representation to the contrary.

B. What Simplifya Does Not Do.SIMPLIFYA OR ITS PRODUCTS DO NOT CONSTITUTE, PROVIDE OR OTHERWISE CONVEY LEGAL ADVICE. Although the use of the Products may contain information related to select applicable state and local cannabis rules and regulations, or information regarding state cannabis regulatory structures, such Content does not constitute legal advice, nor is it intended to take the place of legal or other licensed professional advice. Simplifya uses best efforts to maintain and update Content contained in its Products and Services, but Simplifya does not represent or warrant that Products will always reflect the most current developments in applicable law, or amendments thereto. Content is subject to revision at any time without notice to You. TO THE FULLEST EXTENT PERMITTED BY LAW, SIMPLIFYA DISCLAIMS, AND YOU WAIVE, ALL LIABILITY WITH RESPECT TO ACTIONS YOU MAY TAKE OR NOT TAKE BASED ON THE CONTENT OR YOUR USE OF THE PRODUCTS OR SERVICES.

 

C. State and Local Law. Simplifya’s Products are designed to provide LOs, ACs, and GEs with Products for use in support of established compliance programs designed to help ensure compliance under certain state and local cannabis rules and regulations. At all times, Your use of the Products will be governed by the laws of the jurisdiction in which You use the Product. Simplifya reserves the right to deny or remove Your access to the Products, or any part thereof, at any time and for any reason without notice to You, including, but not limited to, Simplifya’s determination that Your use of the Products, or any part thereof, is not permitted under the laws of Your jurisdiction.It is Your responsibility to ensure Your compliance with the laws of the jurisdiction in which You use the Products. The Products are designed to assist You with compliance, but You remain responsible at all times for Your actions and omissions, the actions and omissions of Your employees, and ultimately for Your compliance or non-compliance with any applicable law whether federal, state, or local. Simplifya has no obligation to defend, release or hold You harmless from any civil, criminal, or administrative investigations, proceedings, or penalties that may result from Your use of the Products, or for any of the same despite Your use of the Products.

 

D. Assumption of Risk.You assume all risks known and unknown, foreseeable and unforeseeable, in any way connected with Your use of the Products or any part thereof. You accept personal responsibility for any liability, loss, death, criminal arrest, and prosecution, or damage in any way connected with Your use of the Products or any part thereof. You retain sole responsibility for ensuring Your actions are compliant with applicable laws. You waive all claims against Simplifya, its owners, directors, officers, employees, successors, managers, members, agents, affiliates, and assigns, arising out of any activities that You choose to undertake and/or decide not to take.

 

E. Simplifya Market Guide. Please be advised that compliance with the information contained in market guides does not guarantee compliance with local, state, or federal law and does not insulate the recipient or any of its affiliates from enforcement actions by any third-party or governmental entity. The cultivation, production, extraction, distribution, possession, and sale of marijuana and assisting others to do so remains illegal under federal law. These guides are limited to state laws and regulations, and other information that are in effect as of the date reflected in specific state content. The information contained herein are summaries of Simplifya’s and its third-party professional content providers’ interpretation of the plain meaning of state cannabis laws, regulations, policies, and other publicly available information. There may be other applicable laws not cited herein including, but not limited to, state food and drug laws, insurance laws, tax regulations, and banking laws and regulations. Simplifya’s attorneys and its third-party professional content providers are not licensed to practice law in all jurisdictions mentioned herein, and the information contained herein does not constitute legal or professional advice. Neither Simplifya nor its third-party content providers make any representation or warranty (express or implied) about the accuracy or completeness of the information contained in Simplifya Market Guide. Simplifya and its third-party content providers, their owners, directors, officers, members, partners, employees and agents, accept no liability, and disclaim all responsibility, for the consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in Simplifya Market Guide, or for any decision based on it. Simplifya makes no representation or warranty (express or implied) about the accuracy or completeness of the information contained in SMG. 

 

F. Simplifya RegFinder. Please be advised that compliance with the information contained in RegFinder does not guarantee compliance with local, state, or federal law and does not insulate the recipient or any of its affiliates from enforcement actions by any third-party or governmental entity. The cultivation, production, extraction, distribution, possession, and sale of marijuana and assisting others to do so remains illegal under federal law. These guides are limited to state laws and regulations, and other information that are in effect as of the date reflected in specific state content. The information contained herein are regulations directly extracted from state websites when available and updated when possible that contain state cannabis laws, regulations, policies, and other publicly available information. There may be other applicable laws not cited herein including, but not limited to, state food and drug laws, insurance laws, tax regulations, and banking laws and regulations. Simplifya’s attorneys and its third-party professional content providers are not licensed to practice law in all jurisdictions mentioned herein, and the information contained herein does not constitute legal or professional advice. Neither Simplifya nor its third-party content providers make any representation or warranty (express or implied) about the accuracy or completeness of the information contained in Simplifya RegFinder. Simplifya and its third-party content providers, their owners, directors, officers, members, partners, employees and agents, accept no liability, and disclaim all responsibility, for the consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in Simplifya RegFinder, or for any decision based on it. Simplifya makes no representation or warranty (express or implied) about the accuracy or completeness of the information contained in RegFinder. 

 

G. Simplifya Verified. Please be advised that compliance with the information contained in Verified does not guarantee compliance with local, state, or federal law and does not insulate the recipient or any of its affiliates from enforcement actions by any third-party or governmental entity. The cultivation, production, extraction, distribution, possession, and sale of marijuana and assisting others to do so remains illegal under federal law. These guides are limited to state laws and regulations, and other information that are in effect as of the date reflected in specific state content. The information contained herein are license information obtained from state websites, open record requests and other publicly available information. There may be other applicable laws not cited herein including, but not limited to, state food and drug laws, insurance laws, tax regulations, and banking laws and regulations. Simplifya’s attorneys and its third-party professional content providers are not licensed to practice law in all jurisdictions mentioned herein, and the information contained herein does not constitute legal or professional advice. Neither Simplifya nor its third-party content providers make any representation or warranty (express or implied) about the accuracy or completeness of the information contained in Simplifya Verified. Simplifya and its third-party content providers, their owners, directors, officers, members, partners, employees and agents, accept no liability, and disclaim all responsibility, for the consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in Simplifya Verified, or for any decision based on it. Simplifya makes no representation or warranty (express or implied) about the accuracy or completeness of the information contained in Verified. 

 

II. Your Account.

 

A. Age and Account Requirements.To use a Simplifya Product, You must be at least twenty-one (21) years of age. You must create an “Account” to use the Website or the App, which requires You to provide certain information to Simplifya, described below. You are responsible for providing Simplifya with and maintaining accurate Account and contact information, and You represent and warrant to Simplifya that all Account and contact information You provide Simplifya is true and accurate. To create an Account, You must provide all required information in the Account setup. You consent to Simplifya’s use of Your email address(es) in Your Account to contact You regarding use of the Platform, such as system maintenance activity.

 

B. Account Activities and Third Party Use of Your Account.You are the sole authorized user of Your Account, and You are responsible for maintaining the accuracy and confidentiality of Your login information. You are solely and fully responsible for all activities that occur under Your Account. Simplifya has no control over the use of Your or any other user’s Account and expressly disclaims any liability derived therefrom. Should You suspect that any unauthorized party may be using Your Account or You suspect any other breach of security, You will cease all use and contact Simplifya immediately by emailing support@simplifya.com. As part of Simplifya Third Party Auditing feature, You may authorize another user Account to use and access Your Account (“Third Party Access”). Simplifya has no control over the third party individuals or entities You select to give such Third Party Access to, and expressly disclaims any liability arising from such Third Party Access or activities of such third parties.

 

C. Privacy Policy.Simplifya’s practices regarding privacy and communicating with those using the Product are described in Simplifya’s Privacy Policy, which is available on the Website. Please review Simplifya’s Privacy Policy to learn about what information Simplifya collects from You, how Simplifya uses and shares it, and how Simplifya communicates with its users.

 

III. Product License and Restrictions; Ownership

 

A. License Grant. Subject to Your compliance with these Terms of Service, Simplifya hereby grants You a non-exclusive, non-transferable, revocable, Limited License (without the right to sublicense) to (a) access and use the Products; and (b) download, install, and use the Products solely on devices that You own or control, for Your use only in connection with the Products Simplifya provides to You, as applicable, and subject to the limitations set forth in these Terms of Service. (“Limited License” means the license granted in these Terms of Service subject to the terms contained herein). These Terms of Service are limited to the Products and Simplifya, and do not include any rights to any intellectual property which are not the subject of these Terms and Conditions. Simplifya reserves any and all rights not expressly granted to You pursuant to these Terms of Service. The rights granted to You to access and use the Products comprise a Limited License and do not constitute the sale of any software program.

 

B. Fees. The following terms apply to Limited License fee payments:

    1. Simplifya shall charge You and You shall pay the Limited License fee in advance of Simplifya providing the Product as outlined in an applicable Sales Order.
    2. You agree to pay all monthly fees in advance until Your Account is terminated. If paying by credit card, Simplifya shall charge You automatically using the credit card on file upon registration and monthly thereafter in advance until Your Account is terminated.
    3. If You do not timely pay all fees if the credit card is rejected, or if Simplifya is otherwise unable to process the credit card payment for any reason, Your Account status will be suspended and You will no longer be able to access Your Account or use the Products. In such cases, Simplifya shall notify You as soon as reasonably possible and You may reactivate Your Account by updating Your payment information and/or paying the amount due.

 

a. Authorization: Simplifya reserves the right to engage a collection agency to recover outstanding debts.

b. Assignment of Debt: Simplifya reserves the right to assign or transfer the debt owed to a collection agency.

c. Collection Activities: Collection agency has the right to engage in various collection activities to recover debt through phone, email, mail, collection letters and negotiating payment arrangement.  The collection agency must comply with applicable laws and regulations governing debt collection practices.

 

C. In addition to reserving the right to modify any of these Terms of Service, Simplifya reserves the right in its sole discretion to modify pricing, pricing structure, and price plans as well as to offer pricing at different rates and distinct price plans in different or other jurisdictions.

D. Use Restrictions.

 

    1. You agree that You will only use the Products (1) in full compliance with the laws and regulations of the jurisdiction in which You use the Product and all applicable federal laws, excepting only for federal laws and regulations related to marijuana; and (2) as provided for in these Terms and Conditions. You agree that You will not use the Products (1) for sending or storing any illegal material or material that is offensive, indecent or objectionable; (2) to advertise, solicit or transmit commercial advertisements, including “spam”; or (3) to cause nuisance, annoyance or inconvenience.
    2. Further, except as specifically permitted herein, You agree that You will not directly or indirectly: (1) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Products in any unauthorized manner; (2) use the Products in any service bureau arrangement; (3) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Products in any form or manner or by any means; (4) harvest or scrape any content or data from any Product; (5) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Products; (6) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Products or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law); (7) otherwise circumvent any functionality that controls access to or otherwise protects the Products; (8) use the Products with third party data in the form of consulting, billed project work or deliverables, or; (9) permit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a violation of Simplifya’s rights. If You breach these restrictions, Your Limited License granted herein shall immediately terminate and You may be subject to criminal prosecution or civil damages.

 

E. Ownership. The Products, including the “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, questions and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that Simplifya and/or its licensors, if any, own all right, title and interest in and to the Products (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto), and You agree not to take or fail to take, any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of Simplifya’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Service, except as expressly set forth herein.

F. Improvements.Any and all: (1) suggestions for correction, change and modification to the Products and other feedback (including, but not limited to, quotations of written or oral feedback), information and reports You provide to Simplifya (collectively “Feedback“); and all (2) improvements, updates, modifications or enhancements, whether made, created or developed by Simplifya or otherwise relating to the Products (collectively, “Revisions“), are and will remain the property of Simplifya. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant You any right, title or interest in the Products or any of the intellectual property rights associated with them or the Products, or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Simplifya and Simplifya may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to You and without retention by You of any proprietary or other right or claim. You shall assign and hereby assign to Simplifya any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that You may have in and to any and all Feedback and Revisions. At Simplifya’s request, You will execute any document, registration or filing required to give effect to the foregoing assignment.

 

G. Inappropriate Content.The Products may request You to rate Your experience with Products. You will also have the option to submit written feedback regarding the Products. WE RESERVE THE RIGHT TO REMOVE ANY OF YOUR FEEDBACK THAT WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE WEBSITE OR WITHIN ANY PRODUCT.

H. Notice of Infringement; Digital Millennium Copyright Act.

    1. Anyone who believes that his or her work has been reproduced on the Website or the App in a manner which constitutes copyright infringement may submit a notification to Simplifya’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA“), by providing the following information in writing: (1) identification of the copyrighted work that is claimed to be infringed; (2) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Website or the App; (3) information for Simplifya copyright agent to contact You, such as an address, telephone number, and, if available, e-mail address; (4) a statement that You have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (5) a statement that the information above is accurate, and under penalty of perjury, that You are the copyright owner or the authorized person to act on behalf of the copyright owner; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If You are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in Your written notice. You acknowledge that if You fail to comply with all of the requirements for a notice of infringement as specified above, Your DMCA notice may not be valid.
    2. Notices of claims should be sent by mail to: Simplifya, 7830 W. Alameda Ave. Suite 103-306, Lakewood, CO 80226, Attn: DMCA Claim; or by email to support@simplifya.com with the subject line “DMCA Claim.” Simplifya will respond to claims using the email or the address in the notification explained herein. It is Simplifya’s policy, in appropriate circumstances, and in Simplifya’s sole discretion, to disable or terminate the Accounts of users who submit false or frivolous DMCA claims.
    3. If You believe that any of Your content was removed (or to which access was disabled) after Simplifya received a notice of copyright infringement is not actually infringing, or that You have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, You may send a counter-notice containing the following information to Simplifya copyright agent: (1) Your physical or electronic signature (with Your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that You have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) Your name, address, telephone number, and email address, and a statement that You will accept service of process from the person who provided the original notification of the alleged infringement.
    4. If a counter-notice is received by Simplifya copyright agent, Simplifya may send a copy of the counter-notice to the original complaining party informing that person that Simplifya may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at Simplifya sole discretion. Please understand that filing a counter-notification may lead to legal proceedings between You and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in Your state if You make a false or bad faith allegation by using this process.
    5. Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf.

 

IV. TERM AND TERMINATION.

A. Agreement Term; Renewal.The term of this Agreement shall begin on the Effective Date as listed in the Sales Order and shall remain in effect for one (1) year unless terminated as set forth herein or by the Parties’ mutual written agreement (“Initial Term”). After the Initial Term, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS (each a “Renewal Term”) UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM.

B. Early Termination.If You terminate this Agreement during the Initial Term in the absence of a breach by Simplifya of any material provision of this Agreement (without cause), You shall pay the balance of all outstanding amounts due for the remainder of the Initial Term. If You terminate this Agreement during a Renewal Term in the absence of a breach by Simplifya of any material provision of this Agreement (without cause), You shall pay any amount due and owing if there are less than three (3) months left in the Renewal Term or, if there are more than three (3) months left in the Renewal Term, then You shall pay an amount equal to three (3) months of Your monthly subscription fee.

C. Termination for Cause.Either Party may terminate this Agreement immediately upon written notice if the other Party breaches any material provision of this Agreement and fails to cure the breach within thirty (30) days of such written notice from the non-breaching party. If Simplifya terminates this Agreement for Your uncured breach, You shall pay all outstanding payable amounts (if any).

 

V. THIRD-PARTY TERMS AND PROVIDERS.

A. Apple App Store Terms.The following terms and conditions apply to You only if You are using the App from the Apple App Store. To the extent the other applicable terms and conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms of Service are solely between You and Simplifya, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple may refund the purchase price, if any, for the App to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Service. You acknowledge that Simplifya is not responsible for addressing any claims of You or any third party relating to Your use and/or possession of the Products, including, but not limited to: (1) product liability claims; (2) any claim that the Product fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third party claim that the Website or the App, or Your possession and use of the Website or the App infringes that third party’s intellectual property rights, Simplifya, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service. You must comply with applicable third-party terms of agreement when using the App.

 


VI. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY.

A. Warranty Disclaimer.THE PRODUCTS AND ANY PART THEREOF ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SIMPLIFYA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. SIMPLIFYA DOES NOT WARRANT THAT: (1) THE PRODUCT WILL MEET YOUR REQUIREMENTS; (2) OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE; (3) THE PRODUCTS WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; (4) INACCURACIES OR DEFECTS IN THE PRODUCTS CAN OR WILL BE CORRECTED; (5) THE PRODUCTS ARE ACCURATE OR CURRENT; (6) YOUR USE OF THE PRODUCT WILL RESULT IN YOUR COMPLIANCE WITH APPLICABLE STATE OR LOCAL CANNABIS LAWS OR REGULATIONS; OR (7) YOUR USE OF THE PRODUCT WILL PREVENT ANY INVESTIGATION, PROSECUTION OR CIVIL ACTION AGAINST YOU BY ANY LAW ENFORCEMENT OR REGULATORY AGENCY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PRODUCTS REMAINS SOLELY WITH YOU.

B. Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SIMPLIFYA BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL DAMAGES INCLUDING LOSS OF PROFITS, LOSS OF DATA, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF SERVICE OR THE USE OR INABILITY TO USE ANY PRODUCT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOR SHALL SIMPLIFYA, IN ANY EVENT, BE LIABLE FOR ANY LOSS OF, OR DISCIPLINARY ACTION TAKEN AGAINST YOU, OR FOR ANY CRIMINAL PROSECUTION OR CIVIL ACTION TAKEN AGAINST YOU. IN NO EVENT SHALL SIMPLIFYA’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE REGARDING USE OR INABILITY TO USE THE PRODUCT, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF: (1) THE AMOUNTS, IF ANY, YOU PAY TO SIMPLIFYA UNDER THESE TERMS OF SERVICE FOR USE OF THE PRODUCTS IN THE PREVIOUS TWELVE MONTHS; OR (II) FIVE HUNDRED DOLLARS ($500.00).

C. Indemnity.

    1. By agreeing to these Terms of Service and using the Products, You shall, to the fullest extent allowable by law, defend, indemnify and hold Simplifya, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (1) Your violation or breach of any term of these Terms of Service or any applicable law or regulation; (2) Your violation of any rights of any third party; (3) any unauthorized use of the Products and any part thereof; (4) Your negligent acts or omissions, gross negligence, willful misconduct or intentional acts and omissions; or (5) Your use of the Products and any part thereof, including any Third Party Access You authorize.

 

VII. DISPUTE RESOLUTION

A. Governing Law and Venue. These Terms of Service are governed by and construed and enforced in accordance with the laws of the State of Colorado, without giving effect to any conflict or choice of law provision that would result in imposition of another state’s Law. The Parties irrevocably submit to the exclusive jurisdiction of the State Courts located in Denver County or Jefferson County, Colorado, to resolve any dispute related to or arising out of this Agreement. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties further waive any right of removal to the United States federal courts

B. Waiver of Right to Trial by Jury. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND WITH RESPECT TO ANY COUNTERCLAIM THEREIN.

C. Attorneys’ Fees. If a Party brings an action to enforce the provisions of this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and expenses incurred in such action from the non-prevailing Party.

D. Limitation on Claims/No Class Actions.You agree that You may only resolve Disputes with Simplifya on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under this Agreement and Terms of Service.

E. Limitation Period.Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

 

VIII. CONFIDENTIALITY.

A. Confidential Information.“Confidential Information” means all non-public, proprietary, business, technical, legal, or financial information disclosed or learned in connection with this Agreement that the Disclosing Party has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party would clearly understand it as confidential. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to the Receiving Party; (b) information that becomes generally known to the public (other than through a breach of Section 8 (Confidentiality) by the Receiving Party) after disclosure to the Receiving Party; (c) information that was in the Receiving Party’s possession free of any obligation of confidentiality prior to disclosure by the Disclosing Party; (d) information that is rightfully received by the Receiving Party from a third party without any restriction on disclosure; or (e) information that was independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.”  EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.

B. Use and Disclosure of Confidential Information.The Receiving Party: (a) will not use the Disclosing Party’s Confidential Information for any purpose except as permitted under this Agreement; (b) will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except to the extent expressly authorized in this Agreement or a separate written agreement signed by the Disclosing Party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature) to safeguard the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees, directors, Affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information in order to exercise their respective rights and obligations hereunder, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as those set forth in this Agreement. The Receiving Party will be responsible for its Representatives’ disclosure or use of the Disclosing Party’s Confidential Information in violation of Section 8 (Confidentiality).  The Receiving Party will promptly notify in writing the Disclosing Party upon discovery of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information, or any other breach of Section VIII, by it or its Representatives. The Receiving Party’s obligations set forth in Section VIII will remain in effect during the Term and three (3) years after termination of this Agreement. The disclosure of Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information.

C. Required Disclosures.The Receiving Party may disclose Confidential Information to the extent required by law or legal process. In such cases, however, the Receiving Party will (except to the extent prohibited by law or legal process): (a) give the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or other legally available means of protection.

D. Return of Materials.Upon written request by the Disclosing Party, the Receiving Party will, without undue delay: (a) either return or destroy all tangible documents and media in its possession or control that contain the Disclosing Party’s Confidential Information; (b) render unrecoverable electronically stored Confidential Information of the Disclosing Party in its possession or control; and (c) certify its compliance with Section VIII in writing. Notwithstanding the foregoing, the Receiving Party will not be obligated to render unrecoverable Confidential Information of the Disclosing Party that is contained in an archived computer system backup made in accordance with the Receiving Party’s legal and financial compliance obligations or security and disaster recovery procedure.

E. Remedies.The Receiving Party acknowledges that any actual or threatened breach of Section VIIII (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief to prevent or mitigate any breaches of Section VIII with respect to the Disclosing Party’s Confidential Information or any damages that may otherwise result from those breaches.

 

IX. GENERAL PROVISIONS.

A. Suspension and Termination.Simplifya may suspend, disable, or delete Your Account, the Products (or any part thereof) with or without notice, for any or no reason. If Simplifya deletes Your Account for any suspected breach of these Terms of Service by You, You are prohibited from re-registering for any Product under a different name. Simplifya has no obligation to retain or back up any information included as part of your Account. All sections which by their nature should survive the termination of these Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms of Service by Simplifya or You. Termination will not limit any of Simplifya other rights or remedies at law or in equity.

B. Injunctive Relief.You agree that a breach of these Terms of Service will cause irreparable injury to Simplifya for which monetary damages would not be an adequate remedy and Simplifya shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

C. Notices.Simplifya may give notice to You by means of a general notice on the Website, the App, electronic mail, SMS message, push notification, or by written communication sent by first class mail or pre-paid post. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Simplifya (such notice shall be deemed given when received by Simplifya) at any time by sending an email to support@simplifya.com. Please specify the reason for the email in the subject line so it can be forwarded to the proper department.

D. Miscellaneous.These Terms of Service may not be modified except by a writing executed by the duly-authorized representatives of Simplifya or as otherwise expressly set forth in these Terms of Service. No other act, document, usage or custom will be deemed to modify or amend these Terms of Service. These Terms of Service will inure to the benefit of and will be binding upon each party’s successors and assigns. Simplifya may assign or transfer (whether by operation of law or otherwise) these Terms of Service and the licenses, rights and obligations granted hereunder without Your prior consent.  You may assign or transfer these Terms of Service and the licenses, rights, and obligations granted hereunder without the consent of Simplifya only in the event that You are acquired.  Any other attempt by You to assign these Terms of Service without the written consent of Simplifya shall be null and void. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Service will be deemed to constitute either party as the agent, attorney, counsel or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Service due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms of Service but are for convenience only. These Terms of Service and the terms contained in any Sales Order signed by You constitute the entire agreement between the Parties on the subject matter of this Agreement.

E. Modifications.Simplifya may occasionally update these Terms of Service. If Simplifya make changes to these Terms of Service, we shall send an email notification to You informing You of such changes.  If You continue to use the Products after receiving email notification of any changes to these Terms of Service, You indicate Your acceptance of the updated Terms of Service.

F. Contact Simplifya.If You have any questions regarding these Terms of Service, Your Sales Order, or the Products, please contact Simplifya at support@simplifya.com.