SIMPLEACCESS™ CLIENT PORTAL TERMS
These Terms (“Terms”) apply to you as any person or business entity who is a client, customer, or other purchaser of goods or services (“Client”) from SimpleAccess™, a Barcodes, Inc. brand, or any of its subsidiaries or affiliates (“Vendor”).
These Terms form a legally binding agreement between Client and Vendor concerning any Client access of the customer-specific website that provides data analytics regarding device performance and other customer service features (the “Portal”). If and to the extent there exists any other written agreement executed and in force between Vendor and Client, and any of the Terms conflict with such agreement, such agreement shall supersede these Terms. Vendor and Client may singularly be identified herein as “Party” and collectively as “Parties”.
WHEN CLIENT PROVIDES ITS CONSENT BY (A) CLICKING THE “ACCEPT” BUTTON, (B) THROUGH THE ACCOUNT REGISTRATION PROCESS, (C) BY OTHERWISE BY ACCESSING THIS WEB ADDRESS WHICH REFERENCES THESE TERMS, OR (D) USING THE PORTAL, CLIENT IS AGREEING TO BE BOUND BY THESE TERMS TO THE SAME EXTENT AS IF A PAPER COPY OF THESE TERMS HAD BEEN MANUALLY EXECUTED, AND CLIENT UNDERSTANDS AND INTENDS TO ENTER INTO THESE TERMS ELECTRONICALLY. CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE TERMS AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE WITH THESE TERMS, CLIENT SHOULD NOT GIVE CONSENT, AND ARE NOT PERMITTED TO ACCESS OR USE THE PORTAL. THESE TERMS MAY CHANGE FROM TIME TO TIME AND CLIENT AGREES IT IS THE SOLE RESPONSIBILITY OF CLIENT TO BE AWARE OF THE CURRENT VERSION OF THESE TERMS.
1. LICENSE AND ACCESS TO PORTAL
1.1. Subject to these Terms, Vendor grants to Client a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to display, access, and use the Portal, for the duration of the Term and solely for Client’s internal purposes.
1.2. Client may grant access and use rights to any employee that Client permits to use or access the Portal provided that such employee has a need to use the Portal in the scope and course of their employment with Client (“Authorized Users”) provided that (i) Client agrees to be responsible for the acts and omissions of such Authorized Users in relation to the Terms (ii) all of Client’s obligations under the Terms will remain in force and undiminished. In connection with an Authorized User’s use of the Portal, Vendor may collect certain personal information, which may be used to validate the identity of an Authorized User. Prior to initial access to the Portal, each Authorized User shall electronically execute an acknowledgement appearing on the Portal to the effect that such Authorized User personally consents to the disclosure, collection, storage and processing of the data provided in connection with the Portal.
1.3. Client and each Authorized User will be given a unique user identification (“User ID“) and a corresponding passcode or other access code to enable access and use the Portal. Client agrees to keep your passcode secure and strictly confidential and ensure that all Authorized Users agree to the same. Client agrees to notify Vendor immediately of any change in access and use rights for any Authorized User. Client acknowledges that Client, and not Vendor, is ultimately responsible for the access to its account by Authorized Users; and Vendor disclaims all liability resulting from or arising out of the unauthorized access of Client’s account through any User ID assigned to Client or its Authorized Users.
2. CONDITIONS OF USE
2.1. Client and its Authorized Users are prohibited from using the Portal for any purpose which would violate any provision of these Terms. Specifically, Client and Authorized Users shall not (i) copy, modify, or create a derivative work from, reverse engineer, disassemble, decompile, decode, adapt, reverse assemble or otherwise attempt to discover any source code in part or in full; (ii) rent, lease, lend, sell, assign, sublicense, distribute, publish, or otherwise transfer any right in the Portal; (iii) re-sell the Portal or its contents, or permit collection (including but not limited to collection via web-scraping); (iv) use any device, software, or routine to bypass any code of the Portal or to interfere or attempt to interfere with the proper working of the Portal; (v) take any action that imposes an unreasonable or disproportionately large load on the Portal or its host infrastructure; (vi) engage in any automated system or method of data collection from the Portal; (vii) disclose, disseminate, reproduce, or publish any portion of the Portal in any manner or permit the same; (viii) use the Portal to create derivative products or other derivative works; or (ix) disassemble, decompile, manipulate, or reverse engineer any portion of the Portal.
2.2. Client acknowledges and agrees that the Portal may include reports, results, findings, or other analyses; but all decisions in connection with the use or implementation of such analyses shall be the responsibility of, and made by, Client. Vendor will not perform management functions or make management decisions for Client.
2.3. Vendor will use commercially reasonable efforts to maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of data or other information supplied by Client to be used in connection with the Portal that Client provides to Vendor (“Client Data”). By using the Portal, Client acknowledges and agrees that the security procedures of the Portal are commercially reasonable. Client acknowledges and agrees that access to and use of the Portal is through the World Wide Web or other Internet services are NOT necessarily secure, and Vendor does NOT warrant that such systems are secure.
2.4. Client shall be responsible for the security of Client’s (and Authorized User’s) use of the Portal and Client Data, and shall take and maintain appropriate steps to ensure the security of the Client Data and Customer’s use (and the use by Authorized Users) of the Portal. At all times Client shall use an industry-standard anti-virus software and commercially reasonable security measures to protect Client, the Portal, and all Client Data against any viruses, worms, Trojan horses or other harmful codes and/or devices, operating on Client’s or any Authorized User’s system. Vendor may set cookies on an Authorized User’s computer as identification to permit access to areas of the Portal in place of login and password and to record use of the Portal; no such cookies shall be accessible by domains outside of Company.
2.5. Client acknowledges and agrees that Vendor exercises no control whatsoever over the content of Client Data and that Client is solely responsible for determining whether it can disclose Client Data to Vendor. Accordingly, Vendor hereby disclaims and Client acknowledges and agrees that Vendor shall have no liability for the accuracy or usage rights of Client Data. As between the Parties, Vendor acknowledges that Client is the exclusive owner of all right, title and interest in and to the Client Data.
2.6. As between the Parties, Client acknowledges that Vendor is the exclusive owner of all right, title and interest in and to (the following, inclusively “Vendor Materials”):
a) the Portal;
b) any pre-existing invention, discovery, original works of authorship, developments, improvements, trade secrets, concepts or other proprietary information or intellectual property right developed and/or owned by Vendor, Vendor’ affiliates, employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide Portal or other services to others or on Vendor’ behalf;
c) all copyrights, trademarks, service marks, patents, trade names (registered and unregistered), trade secrets, know-how, inventions, licenses, and all other intellectual property or proprietary rights throughout the world developed and/or owned by Vendor, its agents, or third parties on or after the effective date of these Terms, including, without limitation, all marks;
d) research, benchmarking methodologies, tools, and other confidential materials relating to the Portal (including, without limitation, any such materials based on aggregated and de-identified Client Data); and
e) any derivative works of any of the foregoing.
2.7. Client is hereby granted a worldwide, royalty-free right to distribute to its Authorized Users all reports and analyses provided as part of the Portal. Upon termination of these Terms, Client’s rights to and its use of the Portal and any of the Vendor Materials shall promptly cease.
2.8. Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “Feedback”) is strictly voluntary. If Client provides any Feedback to Vendor, orally or in writing, Vendor shall: (i) own, exclusively, all now known or later discovered rights to the Feedback; (ii) not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Feedback; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
2.9. Vendor may, at its sole discretion, from time to time, provide Client, access to electronic versions of any documentation with respect to the Portal (“Documentation”). Client may print and reproduce the Documentation, provided that: (i) the number of such copies is limited to those reasonably necessary for use by Client, including, without limitation, training and archival purposes; and (ii) proprietary notices contained in the original copies of the Documentation are reproduced and included in all copies. The copyrighted and proprietary property of Vendor may not be duplicated or used without Vendor’ express prior written consent. Any product or service content permitted to be copied, download, or printed must retain all the copyright, and other proprietary notices included by Vendor.
3. TERM AND TERMINATION
3.1. These Terms commences on the date Client registers to receive the Portal and continues for so long as the Client to access the Portal or until it is otherwise terminated (the “Term”). These terms and access to the Portal will automatically terminate if the underlying agreement through which Vendor provides other services to Client expires or is otherwise terminated.
3.2. Vendor may terminate these Terms and access to the Portal at any time, without notice. Client may terminate these Terms at any time by deleting their registered account.
3.3. Either Party may terminate these Terms immediately upon written notice for the material breach of the other Party, which material breach (if curable) has remained uncured for period of thirty (30) days from the date of delivery of written notice thereof to the breaching Party.
3.4. Vendor may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Client’s or any Authorized User’s access to or use of all or any part of the Portal without incurring any resulting obligation or liability, if: (i) Vendor receives a judicial or other governmental demand or order or law enforcement request that expressly or by reasonable implication requires Vendor to do so, in which case Vendor shall provide Client prompt written notice; or (ii) Vendor believes, in its reasonable discretion, that: (a) Client or any Authorized User has accessed or used the Portal beyond the scope of the rights granted or for a purpose not authorized under these Terms; (b) Client or any Authorized User is or has been involved in any fraudulent or unlawful activities relating to or in connection with the Portal; (c) Client’s use of the Portal in violation of these Terms, or the transmission of any Client Data, poses any security or vulnerability risk to Vendor or the Portal or (d) these Terms expire or are terminated.
4.1 Definitions. For purposes of the Terms and except as excluded under Section 4.2 below, “Confidential Information” shall include all information of which unauthorized disclosure by a Party, its Personnel, or any Authorized Service Recipient (each a “Recipient”) could be detrimental to the interests of the other Party (“Disclosing Party”) whether or not Disclosing Party identifies including, without limitation, all information of Disclosing Party of the following or similar nature, whether or not reduced to writing: invoices and billings, customer lists, customer and supplier identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans, business plans, business metrics, strategies, forecasts, financial information, budgets, software (including all enhancements, modifications and derivatives thereof), research papers, projections, procedures, routines, quality control and manufacturing procedures, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, specifications, data, know-how, formats, plans, sketches, specifications, drawings, models, employee lists and information and any other information or procedures that are treated as or designated secret or confidential by Disclosing Party or its customers or potential customers. Confidential Information also includes all non-public information or material that by its nature would have commercial value or competitive value in the business of Disclosing Party whether disclosed by or on behalf of Disclosing Party to Recipient.
4.2. Exclusions. Confidential Information does not include information that Recipient can demonstrate: (i) was in Recipient’s possession prior to its being furnished to Recipient under the Terms, and the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (ii) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (iii) is rightfully obtained by Recipient from a third-party, without breach of any obligation to Disclosing Party; or (iv) is independently developed by Recipient without use of or reference to the Confidential Information and is evidenced by independent documentation.
4.3. Confidentiality. Recipient shall use the Confidential Information solely for the purposes of the Terms and shall not in any way use the Confidential Information to the detriment of Disclosing Party and not authorized by the Terms. Recipient shall not disclose any of the Confidential Information in any manner whatsoever, except as set forth in Section 4.4 or Section 4.5 of the Terms, and shall hold and maintain the Confidential Information in strictest confidence. The Parties expressly agree that nothing in the Terms is meant to inhibit or prohibit a Party’s intellectual property development and that Recipient may develop similar products or services so long as no Confidential Information of Disclosing Party is used in violation of the Terms.
4.4. Permitted Disclosures. Recipient may disclose Disclosing Party’s Confidential Information to Recipient Personnel or any Authorized Service Recipient who have a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out the purposes of the Terms and only if such Personnel are advised of the confidential nature of such Confidential Information and the Terms and are bound by a written agreement to maintain the Confidential Information according to the terms herein. Recipient shall be responsible for the actions of its Personnel and agrees that such actions shall be deemed actions by Recipient. Recipient hereby agrees to indemnify Disclosing Party against any and all losses, damages, claims, expenses, and attorneys’ fees incurred or suffered by Disclosing Party as a result of a breach of the Terms by Recipient.
4.5. Required Disclosures. Recipient may disclose Disclosing Party’s Confidential Information if and only to the extent that such disclosure is required by court or administrative order. Notwithstanding the foregoing, Recipient shall provide Disclosing Party a reasonable opportunity to review any such disclosure before it is made and to interpose its own objection to the disclosure. Recipient agrees to provide reasonable assistance to Disclosing Party in any request, filing or objection that Disclosing Party decides in its sole and absolute discretion to make to protect Disclosing Party’s Confidential Information.
5. REPRESENTATION AND WARRANTIES
5.1. CLIENT ACKNOWLEDGES AND AGREES THAT THE PORTAL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AT CLIENT’S SOLE RISK. VENDOR MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, LOSS OF DATA OR RESULTS OF USE OF THE PORTAL. WITHOUT LIMITING THE FOREGOING, VENDOR DISCLAIMS ANY WARRANTY THAT THE PORTAL WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED, AND VENDOR SHALL NOT HAVE ANY RESPONSIBILITY TO MAINTAIN THE PORTAL OR TO SUPPLY ANY CORRECTIONS, UPDATES, OR RELEASES IN CONNECTION THEREWITH. VENDOR MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, NONINFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.
5.2. Client represents and warrants that Client: (i) is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under these Terms, in accordance with Applicable Law and its articles of incorporation, bylaws, and/or other governance documents; (ii) has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under these Terms; (iii) performance of its duties under these Terms will in no way conflict with or violate any applicable law; (iv) it has read and understood these Terms and the services to be provided by Vendor; (v) it has the ability and right to provide Client Data; and (vi) all information and Client Data that Client or any Authorized User provides to Vendor is accurate, current and complete.
Client will defend, indemnify and hold harmless Vendor, its agents, affiliates and each of their respective officers, shareholders, directors, employees and agents (collectively, “Indemnitees”) from and against any and all damages, losses, liabilities, judgements, awards, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs), and in each case regardless of character or form (collectively, “Damages”) related to any claim, investigation, audit, regulatory action or other cause of action asserted against any Indemnitee arising out of or relating to any actual or alleged: (i) breach by Client of and/or its agents and/or of Authorized Users of these Terms;; (ii) violation by Client and/or its agents and/or of Authorized Users of Applicable Law; (iii) the acts and omissions Client and/or its agents and/or of Authorized Users; (iv) bodily injury, death or personal property damage caused by Client and/or its Agents and/or of Authorized Users; and (vi) disclosure or use by Vendor of Client Data (collectively, “Indemnified Claims”).
7. DAMAGES AND REMEDIES
IN NO EVENT WILL VENDOR BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THESE TERMS, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT (INCLUDING CLAIMS FOR INDEMNIFICATION AND CLAIMS INVOLVING A BREACH OF A VENDOR’ CONFIDENTIALITY AND PERMITTED USE OBLIGATIONS) WILL VENDOR OR ITS AGENTS LIABILITY FOR MONETARY DAMAGES UNDER THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100).
8. FORCE MAJEURE
Vendor shall be liable or responsible to Client or Authorized Users, nor be deemed to have defaulted or breached the Terms, for any failure or delay in fulfilling or performing the Terms, when and to the extent such failure or delay is caused by or results from acts beyond the affected Vendor’ reasonable control, including, without limitation: Acts of God; Flood, fire or explosion; War, invasion, riot or other civil unrest; Actions, embargoes or blockages in effect after the date of the Terms; or National or regional emergency, (each of the foregoing, a “Force Majeure Event”). Vendor shall give notice to Client of any Force Majeure Event, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure and minimize the effects of such Force Majeure Event.
9.1. Independent Contractor. Client and Vendor are independent contractors with respect to these Terms. The provisions of the Terms will not be construed to establish any form of partnership, agency or other joint venture of any kind between Client and Vendor, nor to constitute either Party as the agent, employee or legal representative of the other. All persons furnished by either Party to accomplish the intent of the Terms will be considered solely as the furnishing Party’s Personnel and the furnishing Party will be solely responsible for compliance with all laws, rules and regulations involving, among other things, employment of labor, hours of labor, working conditions, workers’ compensation, payment of wages, and withholding and payment of all applicable taxes of any nature.
9.2. Dispute Resolution.
i) If a dispute or claim arises under or related to the Terms (a “Dispute”) that the primary business contacts of each Party are unable to resolve, a Party will notify the other Party of the Dispute in writing (email acceptable) with as much detail as possible.
ii) Client and Vendor senior business representatives with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice.
iii) If the Parties’ senior business representatives are unable to resolve the Dispute or agree upon the appropriate corrective action to be taken within such ten (10) business days, then the Dispute shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
iv) The place of arbitration shall be determined at the sole discretion of the Party against whom arbitration is being sought, meaning, the Party requesting arbitration shall agree to the location set by the other Party. The arbitration shall be governed by the laws of the State of Delaware applicable to contracts, without regard to any otherwise applicable choice of law provisions.
v) Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
vi) The arbitration shall be conducted by one (1) arbitrator in accordance with the American Arbitration Association (“AAA“) Rules for Expedited Procedures, which arbitrator shall be selected in accordance with the AAA Rules for Expedited Procedures, and which arbitrator shall have had at least ten (10) years’ experience in general commercial transactions and contract disputes.
vii) In connection with any arbitration proceeding: (a) no arbitrator shall have been employed by either Party hereto during the five (5) year period immediately preceding any arbitration of the Parties; (b) the arbitrator shall be neutral and independent of the Parties; (c) no arbitrator shall be affiliated with any Party’s auditors; and (d) no arbitrator shall have a conflict of interest with (including, without limitation, any bias towards or against) either Party.
viii) The arbitrator will have no authority to award punitive or other monetary damages not measured by the prevailing Party’s actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated herein. The award of the arbitrator shall be accompanied by a reasoned opinion.
ix) Either Party also may, without waiving any remedy under the Terms, seek from any court of competent jurisdiction located in Delaware, any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal.
x) Pending resolution of the Dispute, both Parties will continue to perform their respective undisputed responsibilities under the Terms.
xi) Nothing contained in this Section 9.2 will limit or delay the right of either Party to seek injunctive relief from a court of competent jurisdiction, whether or not such Party has pursued informal resolution in accordance with this Section 9.2.
9.3. Governing Law and Waiver of Jury Trial. The Terms and its validity, construction and performance is governed by the laws of the State of Delaware, including provisions of the Uniform Commercial Code, but excluding the United Nations Convention on Contracts for the International Sale of Goods, and without giving effect to principles of conflict of laws. Sole jurisdiction and venue of any action arising out of the Terms shall be had in the state or federal courts in Delaware, and each Party hereto irrevocably submits to, and waives any objection to, the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. To the fullest extent permitted by law, each Party waives its right to trial by jury in connection with any action hereunder.
9.4. Assignment. Client shall not assign or transfer these Terms, in whole or in part, without the other Vendor’ prior written consent. Any assignment in contravention of this provision will be null and void. The Parties agree that assignment by operation of law in the context of the sale of all or substantially all of a Party’s stock or assets shall not constitute an “assignment” for purposes of this prohibition. These Terms will be binding on all permitted assignees and successors in interest.
9.5. Entire Agreement/Amendments. These Terms contains the entire agreement of the Parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby. The provisions of the Terms may not be amended except by an agreement in writing signed by authorized representatives of both Parties referencing the Terms and stating their intention to amend the Terms.
9.6 Severability. If any provision of the Terms is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of the Terms, and the invalidity or unenforceability of any provision of the Terms in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.
9.7. Waiver of Breach. The waiver of any breach of any provision of the Terms will be effective only if in writing (email acceptable). No such waiver will operate or be construed as a waiver of any subsequent breach.
9.8. Notices. All notices under these Terms will be in writing and delivered via to the e-mail address provided by Client.