This master subscription agreement is a legal agreement between you and Spruce Business Solutions, LLC (dba: SimplaCRM) governing your use of the SimplaCRM Landline Texting platform, including any applicable free trials. Please read this agreement carefully. Creating a SimplaCRM account and completing your registration, you indicate your acceptance of this agreement and agree to abide by the terms and conditions set forth herein. If you are entering into this agreement on behalf of a business or other legal entity, you hereby represent and warrant that you have the authority to bind such entity and its affiliates to the terms and conditions of this agreement, in which case “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you may not accept this agreement nor may you use the SimplaCRM platform or receive services hereunder.
In addition to the terms defined in the body of the agreement, the following terms have the following meanings:
“Affiliates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“End Users” means individuals fifteen years or older who are authorized to access and use the SimplaCRM Platform under your Subscription and associated account. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.
“SimplaCRM Platform” means any and all SimplaCRM applications (including any web-based, computer-based, or mobile appications) and the underlying servers and software used to provide such application (collectively the “System”)
“Customization” means any Deliverable that is included in the SimplaCRM Platform or other SimplaCRM offering.
“Deliverable” means any software, documentation, or other materials expressly required to be delivered to You pursuant to a SOW.
“Fees” means Subscription Fees. Services Fees, and any other amounts due to SimplaCRM and payable by You under this Agreement.
“Order Forms” means the ordering documents that are entered into by you and SimplaCRM from time to time, in the form provided by SimplaCRM. Order Forms are deemed incorporated herein.
“Residuals” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) SimplaCRM has developed or is developing in connection with the business of creating and offering the SimplaCRM Platform. Residuals do not include Your Confidential Information or Your Data.
“Services” means the professional services provided to You by SimplaCRM pursuant to an SOW under this Agreement.
“Services Fees” means the fees set forth in an SOW under this Agreement.
“Statement of Work” or “SOW” means a statement of work to be performed by SimplaCRM that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.
“Subscription” means the right to access the SimplaCRM Platform during the Term.
“Subscription Fees” means the fees for a Subscription to each version of the SimplaCRM Platform are set forth on the SimplaCRM website.
“Your Data” means any personally identifiable data uploaded by You to the SimplaCRM Platform that would typically be provided in the normal course of using the SimplaCRM Platform, including all information generated by the End Users during the use of the SimplaCRM Platform. Your Data includes, without limitation, the content of all messages and conversations sent and received within the SimplaCRM Platform and any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.
You must be fifteen years or older to register, and must provide complete and accurate information during the registration process, including a valid credit card number that you are authorized to use if you are registering for a paid Subscription.
SimplaCRM may make all or part of the SimplaCRM Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to SimplaCRM, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by SimplaCRM upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement. NOTWITHSTANDING SECTION 10, ACCESS TO THE SimplaCRM PLATFORM IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL. YOUR DATA ENTERED, AND ANY SPECIFIC SETTINGS OR PREFERENCES YOU OR YOUR END USERS MAKE, DURING THE FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION OR EXPORT SUCH DATA/SETTINGS PRIOR TO THE EXPIRATION OF THE FREE TRIAL.
SimplaCRM shall make the SimplaCRM Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by SimplaCRM with respect to future functionality or features.
Support via email is available in connection with a paid Subscription.
SimplaCRM may or may not offer applications that allow you to access the SimplaCRM Platform from internet-enabled devices using a web browser on any internet-enabled device (such as a computer, tablet, or smart phone). Web browsers must be installed on your device separately and are not included in your subscription. Examples of web-browsers include: Google Chrome, Apple Safari, Firefox, Microsoft Edge. Devices must be purchased separately and are not included in your Subscription. Spruce Business Solutions, LLC (dba: SimplaCRM) web-based apps require an active internet connection, and may incur data charges with Your wireless carrier, including roaming charges where applicable. Spruce Business Solutions, LLC (dba: SimplaCRM) web-based apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such web-based apps offered by Spruce Business Solutions, LLC (dba: SimplaCRM) shall constitute part of the SimplaCRM Platform, and as such their usage is subject to the terms and conditions of this Agreement.
SimplaCRM may or may not offer applications that allow you to access the SimplaCRM Platform on Your mobile device, including, for example, the Windows Phone and devices running the Android or iOS operating system. Mobile devices must be purchased separately and are not included in your Subscription. Spruce Business Solutions, LLC (dba: SimplaCRM) mobile apps require an active internet connection, and may incur data charges with Your wireless carrier, including roaming charges where applicable. Spruce Business Solutions, LLC (dba: SimplaCRM) mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by Spruce Business Solutions, LLC (dba: SimplaCRM) shall constitute part of the SimplaCRM Platform, and as such their usage is subject to the terms and conditions of this Agreement.
You are responsible for all activities that occur in your account and for Your End User’s compliance with this Agreement. You shall, and shall cause your End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with the use of the SimplaCRM Platform, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive and other laws applicable to you related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of your Data that is stored on the System or used in connection with the SimplaCRM Platform. Spruce Business Solutions, LLC (dba: SimplaCRM) will not be responsible for any loss or disclosure of Your Data (or any damages related thereto) resulting from you or your End Users’ failure to adequately secure their user identification and passwords.
You and your End Users shall use the SimplaCRM Platform for your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the System or tamper with other customer accounts of Spruce Business Solutions, LLC (dba: SimplaCRM), (ii) access data on the System not intended for You, (iii) log into a server or account on the System that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any System or to breach the security or authentication measures without proper authorization; (v) render any part of the System unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the SimplaCRM Platform or make the SimplaCRM Platform available to a third party other than as contemplated in this Agreement; (vii) use the SimplaCRM Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (viii) use your text jab account for any purpose other than regular conversational texting; or (iv) provide to third parties any evaluation or Free Trial version of the SimplaCRM Platform without SimplaCRM’s prior written consent.
You shall be responsible for the content of all communications sent through the SimplaCRM Platform, and shall comply with all applicable laws and regulations in Your use of the SimplaCRM Platform. You agree that You will not use the SimplaCRM Platform to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. You further agree that You shall not use the SimplaCRM Platform for the purpose of making emergency calls or providing emergency services.
In the event You or Your End Users materially breach this Section 4, SimplaCRM will endeavor to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that SimplaCRM reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, SimplaCRM reserves the right to immediately suspend access to the SimplaCRM Platform if such breach, in SimplaCRM’s opinion, is an imminent threat to the System, other customer accounts, or constitutes abusive, unlawful, or threatening behavior.
You acknowledge that third party products or services may be made available to You from time to time by SimplaCRM or third parties, and that Your decision to acquire any such products or services is solely between You and the applicable third party provider. Unless specifically set forth on an Order Form, SimplaCRM does not warrant or support third party products or services.
You further acknowledge that if You acquire third party applications for use with Your Subscription, SimplaCRM may allow the providers of such applications to access Your Data in order to allow such applications to interoperate with the SimplaCRM Platform. SimplaCRM shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.
As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Subscription Fees are set forth on the SimplaCRM website. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are paid on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. SimplaCRM may modify the Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the SimplaCRM Platform will take effect immediately and be prorated for the rest of the month if paying monthly, and if prepaid for annual or 2 year subscription, the proration will happen until end of term. If you downgrade, no adjustment will be made until your next billing term. A valid credit card that You have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties. Unless otherwise agreed by the parties, paid Subscriptions will be billed in advance on a monthly, annual, or 2-year basis, starting on the Effective Date.
In the case where payment is not received by the due date SimplaCRM reserves the right to suspend Your access to the SimplaCRM Platform and SimplaCRM’s performance of Services under any applicable SOWs, without liability to SimplaCRM, until Your account is paid in full.
You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than SimplaCRM’s income taxes. If SimplaCRM pays any such taxes on Your behalf, You agree to reimburse SimplaCRM for such payment unless You provide SimplaCRM with a valid exemption certificate authorized by the appropriate taxing authority.
If SimplaCRM is required to incur in any additional costs or expenses in providing You Services or support under this Agreement, SimplaCRM shall first obtain Your written approval.
The SimplaCRM Platform and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by SimplaCRM. Except for the Subscription granted hereunder, nothing in this Agreement gives You any right, title or interest to the SimplaCRM Platform or related support.
You shall not: (i) modify, translate, or create derivative works based on the SimplaCRM Platform; (ii) create any link to the SimplaCRM Platform or frame or mirror any content contained or accessible from the SimplaCRM Platform, (iii) reverse engineer, de- compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the SimplaCRM Platform; (iv) or access the SimplaCRM Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the SimplaCRM Platform.
SimplaCRM owns all work product, including Customizations, produced as part of the Services, and all intellectual property in and to such work product. For avoidance of doubt, as between the parties, SimplaCRM owns and shall own all proprietary or other rights in or to the SimplaCRM Platform, Residuals, and Deliverables. To the extent that a Customization has been provided under a Statement of Work, SimplaCRM will support such Customization as part of the SimplaCRM Platform; provided, however, that SimplaCRM reserves the right to deprecate, replace, modify, rebuild, or discontinue (collectively, the foregoing shall be referred to as “Replacement”) any such Customization, if in each such case: (I) SimplaCRM provides and supports substantially equivalent functionality within the SimplaCRM Platform; or (II) You no longer require the functionality provided by such Customization; or (III) You otherwise consent to the Replacement.
This Agreement commences on the Effective Date and continues until the expiration or termination of your Free Trial or Subscription (as applicable) (the “Term”).
You may cancel Your Subscription at any time by providing notice to SimplaCRM via support@SimplaCRM.com. Upon canceling your account, SimplaCRM will allow a 30-day grace period in which you will be able to reactivate your account and restore your data. In the case you wish your data to be completely and permanently removed from SimplaCRM’ application servers, please send an email to our support team at support@SimplaCRM.com.
This Agreement may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately in the event of a material breach of Section 4 hereof.
The following provisions shall survive any termination or expiration of this Agreement: Sections 7 to 14.
Each party represents and warrants that it has the legal power to enter into this Agreement.
SimplaCRM warrants that the SimplaCRM Platform will operate in substantial conformity with the then current version of the applicable documentation provided by SimplaCRM.
SimplaCRM or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by SimplaCRM, whether by accident or otherwise.
SimplaCRM warrants that it will perform the Services related to each Deliverable in a competent and workmanlike manner and in accordance with applicable industry standards for similar types of services.
SimplaCRM shall, as your sole and exclusive remedy and SimplaCRM’s sole and exclusive liability for a breach of the warranties set forth in Section 10 hereunder, (i) use commercially reasonable efforts at its own expense to cause the SimplaCRM Platform to comply with the warranties in Section 10(b) and (c), and re-perform any portion of the Services that are not provided in compliance with the warranty in Section 10(d), provided in each case that such noncompliance is promptly brought to SimplaCRM’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SimplaCRM PLATFORM AND SERVICES ARE PROVIDED “AS-IS,” AND SimplaCRM DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. SimplaCRM does not warrant that the Services or the functions contained in the SimplaCRM Platform will meet Your requirements or that the operation of the SimplaCRM Platform will be uninterrupted or error- free. Further, SimplaCRM does not warrant that all errors in the SimplaCRM Platform can or will be corrected. SimplaCRM will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade your Subscription.
NEITHER YOU NOR SimplaCRM, NOR OUR RESPECTIVE SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF (I) FOR CLAIMS PAID ON SERVICES PROVIDED UNDER AN SOW, THE TOTAL SERVICES FEES PAID OR PAYABLE BY YOU UNDER SUCH SOW IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; AND (II) FOR CLAIMS BASED ON THE SimplaCRM PLATFORM OR THIS AGREEMENT GENERALLY, THE TOTAL SUBSCRIPTION FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
YOU AND SimplaCRM AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.
The limitations of liability under Sections 11(a) and 11(b) shall not apply to any indemnification provided by You or SimplaCRM hereunder.
Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to You.
No action against either party arising out of this Agreement may be brought by the other party more than one (1) year after the cause of action has arisen.
SimplaCRM shall indemnify and hold You harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against You by a third party alleging that the use of the SimplaCRM Platform, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if SimplaCRM reasonably believes that Your use of any portion of the SimplaCRM Platform and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then SimplaCRM may, at its expense: (i) procure for You the right to continue using the SimplaCRM Platform or support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the SimplaCRM Platform and/or support as set out herein. SimplaCRM shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the SimplaCRM Platform or support with other equipment or software not supplied by SimplaCRM or in a manner not consistent with SimplaCRM’s instructions.
You agree to indemnify and hold SimplaCRM harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against SimplaCRM by a third party arising from or relating to (i) Your breach of Section 4, or (ii) Your use of Your Data or the SimplaCRM Platform.
Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
This Agreement, inclusive of the Order Forms, SOWs and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between You and SimplaCRM with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms or SOWs now or hereafter appended hereto, the terms of the Order Form or SOWs shall govern.
Neither party may issue press releases regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.
You and SimplaCRM are independent contractors. This Agreement does not create a joint venture or partnership between You and SimplaCRM; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
SimplaCRM may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via a link when logging into the SimplaCRM Platform. Any waiver of any right or remedy under this Agreement by SimplaCRM must be in writing and signed by SimplaCRM. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that any assignee that is a separate entity agrees in writing to be bound by the terms of this Agreement.
The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of Utah, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of Davis County, Utah, USA, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to SimplaCRM shall be addressed as follows:
ATTN: VP of Finance & Operations
1344 W 75 N
Centerville, UT 84014
If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.