Last updated: October 4th, 2018.
Simplifeye, Inc. and its affiliates (collectively, “Company,” “we” or “us”) provides a variety of technology services to dental or other medical professionals and facilities that facilitates the services provided to their patients and potential patients in different ways (Simplifeye’s technology services will be referred to herein collectively as, the “Services”). The Services may be (1) accessed via a third-party mobile application through your smartphone or tablet, (2) used in connection with a third-party voice-activated device, (3) used with your voice commands to access x-ray images; and/or (4) accessed through your desktop or laptop computer.
These Terms of Service (“Terms”) govern your access to, and use of, the Services. Please read these Terms carefully. The words “you” and “your,” as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (as defined in Section 2(a) and accepts these Terms, including the primary user of the Services designated by you who creates your Account (“Principal User”) and those additional users authorized by the Principal User to access the Services (“Authorized Users”). For the avoidance of doubt, any and all users of the Services are Principal Users or Authorized Users. All references to “you” or “your” with regard to access and use of the Services will include any Principal Users and Authorized Users
These Terms give you specific legal rights, and you may also have additional legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY CLICKING THE “I AGREE” OR “I ACCEPT” OR SIMILAR BUTTON, BY CHECKING A BOX INDICATING YOUR AGREEMENT, OR BY ACCESSING AND USING THE SERVICE, YOU AGREE THAT YOU HAVE REVIEWED, ACCEPTED AND AGREED TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE OF THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU MUST CEASE ACCESSING OR USING THE SERVICES.
1. Overview, Eligibility, Subscription Terms, Customer Services, Term and Termination
(a) Overview and Relation to Other Terms. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms or rules from Company applicable to the Services are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.
(b) Eligibility. You may use the Services only 18 years of age or older. For a description of the Services, follow the link(s) here:
(c) Customer Services. If you have any questions or concerns regarding the Services or these Terms, please contact Company at (888) 883-3947 between 8am and 8pm Eastern, Monday to Friday.
(d) Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Company may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Company, in good faith, believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate. Any sums payable by you to Company will remain due.
(a) Your Account. To use the Services, you must complete the registration process (“Account”) and provide certain information about yourself and your entity (as applicable), as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services will not violate any US or other applicable law, rule or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations).
(b) Users. Authorized Users are responsible for their own actions in connection with the Services, but the Principal User also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Principal User’s Account and the access and use of the Services. If you are a Principal User who invites or enables an Authorized User, you acknowledge and agree that said Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Services set out above. As a result, if you are a Principal User, you should only authorize those individuals whom you trust to access your Account and Services.
3. Access to the Services
(a) Access and Use. Subject to these Terms, Company grants you a limited, non-transferable, non-exclusive right (without the right to sub-license) to access and use the Services for your use for the purposes as described here (the “Intended Use”):
(b) Automatic Software Updates. Company may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). You consent to Updates that may be automatically installed without providing any additional notice to, or receiving any additional consent from, you. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and you agree to install any Updates that Company provides promptly.
(c) Third-Party Services.
(i) You may interface the Services to one or more third-party products and services, through using the Services, which may include mobile applications and devices (“Third-Party Services and Products”). You will be responsible for purchasing or otherwise obtaining any Third-Party Services and Products that are required for operation of the Services. You acknowledge and agree that such third parties may have their own terms and conditions to which you must agree before using. You agree to comply with such third-party terms and conditions. To the extent that such other terms and conditions from such a third party are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply. It is your responsibility to install any required Third Party Services and Services and use the Services pursuant to the applicable manual and instructions. It is your responsibility to test the Third Party Services and Services once installed to be sure they (and any related components and peripherals) are functioning and communicating as intended and designed, and then regularly test and maintain them after installation.
(iii) You acknowledge and agree that Company makes no representation or warranty about the quality or safety of any Third-Party Products and Services or their interface with the Services. Accordingly, Company is not responsible for your use of any Third-Party Products and Services, or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third-Party Products and Services. You should contact the third party with any questions about their Third-Party Products and Services. You hereby discharge, waive and release Company and its licensors, service providers and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
(v) THIRD-PARTY PRODUCTS AND SERVICES THAT ARE NOT DESIGNATED BY COMPANY AS COMPATIBLE WITH THE SERVICES MAY NOT WORK WITH THE SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION. YOU AGREE ONLY TO USE THIRD-PARTY PRODUCTS AND SERVICES DESIGNATED BY COMPANY AS COMPATIBLE WITH THE SERVICES. FURTHER, YOU AGREE THAT THE COMPANY PARTIES ARE NOT RESPONSIBLE FOR, AND YOU HEREBY RELEASE AND HOLD COMPANY PARTIES HARMLESS FROM AND AGAINST, ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM. RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, THIRD-PARTY PRODUCTS OR SERVICES THAT ARE NOT CERTIFIED BY COMPANY AS COMPATIBLE WITH THE SERVICES.
(d) Content and User Submissions. Certain voice-related and other information may be submitted to the Services when creating an Account and in the course of using the Services (“Content”) to provide the Services to you. You are solely responsible for all Content that you upload, submit, post, email, transmit or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services ; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Company; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
(f) Compliance with Laws. You agree that you (and not the Company Parties) are responsible for ensuring that you comply with any applicable laws when you use the Services, including, but not limited to, (i) any laws relating to the recording or sharing of content, or (ii) any laws requiring notice to third parties, or consent or explicit consent of third parties with respect to your use of the Services.
(g) Confidentiality and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). To the extent you create, receive, maintain or transmit PHI in your capacity as a Covered Entity using the Services, Company acts as your “business associate” under HIPAA, and you agree to the terms and conditions of the Business Associate Agreement attached hereto and incorporated herein.
(h) Security. Company cares about the integrity and security of your personal information. We endeavor to implement appropriate security measures. However, Company cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide any and all information at your own risk.
(i) Modification. Company reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
(j) Access Outside of US and Canada. The Services is permitted to be accessed in the United States and Canada (“Territory”). If you choose to access the Sites from outside of the Territory: (i) you do so on your own initiative and risk and you are solely responsible for complying with applicable local laws of that country; (ii) you understand and accept that the Services is not designed for use outside of the Territory and that some, or all, of the features of the Services may not work or be appropriate for use in such a country; and (iii) to the extent permissible by law, Company accepts no responsibility or liability for any damage or loss caused by your access or use of the Services outside of the Territory. You will be bound by these Terms from wherever you access or use the Services.
4. Usage and Limitations of the Services
(a) Intended Use. You acknowledge that the only permitted use of the Services is for the Intended Use (as defined in Section 3(a)). Any other use of the Services is strictly prohibited.
(b) Your Responsibilities. The Services is a sophisticated tool for use only by trained personnel, and it is not a substitute for competent human intervention and discretionary thinking. Therefore, you will do each of the following:
(i) You will ensure that all Principal Users and Authorized Users are trained on operating the Services properly. You are solely responsible for ensuring that you, your employees and consultants, all members of your workforce, and your agents and contractors (collectively, “Personnel”) comply with all applicable laws, including HIPAA, with respect to PHI and any other personal data created, received, transmitted, used, disclosed, maintained, or processed by you or on your behalf, including in connection with your use of the Services;
(ii) You will confirm the accuracy of information accessed by using the Services using applicable standards of good dental practice;
(iii) You will report to Company immediately all errors and suspected errors and other problems related to the Services that you become aware of and know or should know could adversely affect patient care. If any you are alerted to such a problem, you will immediately alert all of your Personnel whom your Personnel know or should know could be affected by the problem; educate your Personnel about the problem, including affected workflows, workarounds and potential impacts; take all measures reasonably likely to avoid or mitigate such impacts, including implementing additional safeguard procedures, deploying other available workflows or functionality and turning off the Services functionality related to the problem; and promptly install an update that helps avoid or mitigate any impact on patient care promptly following the update being made available;
(iv) You will use best efforts to test the Services in your environment before using it with patients and you will not permit use of the Services until you have assured yourself of accuracy, completeness and appropriateness for your environment and for your patients; and
(v) You will use the Services only in accordance with applicable standards of good dental practice.
(b) Reliability. You acknowledge that the Services is not error-free or 100% reliable and 100% available. Company does not offer any specific uptime guarantee for the Services. The Services is subject to sporadic interruptions and failures for a variety of reasons beyond Company’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Company is not responsible for any damages allegedly caused by the failure or delay of the Services. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, for which neither Company nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Services Interruptions”). You understand that Services Interruptions may result in the Services being unreliable or unavailable for the duration of the Services Interruption. We cannot and do not guarantee that you will receive notifications within any given time, or at all.
(c) Services Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions.
(d) System Requirements. The Services will not be accessible without: (i) an Account; (ii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Services); (iii) always-on broadband Internet access in your facility with bandwidth sufficient to support the Services; and (iv) other system elements that may be specified by Company. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Services. You must follow any and all instructions and operating documents in these Terms and in any other documentation or information provided to you by Company in order to use the Services. As set forth in Section 3(c), you are responsible for providing all necessary equipment in order to use the Services. A complete list of system requirements can be found here: https://help.simplifeye.co/user-guides/system-requirements
(e) Services Information. The Services may provide you with information (“Services Information”) regarding the Services and their connection with Third-Party Services and Services. All Services Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.
(f) Representations and Warranties. You represent, warrant and agree that:
(i) You have the due authority to execute and deliver these Terms and to perform the obligations hereunder;
(ii) You have received all patient consents required by applicable law to operate the Services;
(iii) That neither Company nor its licensors or service providers are responsible for any acts or omissions of any Third-Party Product and Services, including the Hardware Unit.
(g) Further Representations and Warranties. You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that:
(i) infringes or violates the Intellectual Property Rights, rights of publicity or privacy or other rights of any third party;
(ii) violates any law, statute, ordinance or regulation or is otherwise illegal;
(iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable;
(iv) impersonates any person or entity, including, without limitation, any employee or representative of Company;(vi) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program;
(vii) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log into the Services as you who is not an Authorized User);
(viii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party;
(ix) violates the security of any computer network or cracks any passwords or security encryption codes;
(x) runs Mail list, Listserv or any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(xi) copies or stores any significant portion of the Content;
(xii) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;
(xiii) denigrates or disrupts any network capacity or functionality; or
(xiv) is contrary to the Intended Use of the Services.
5. Limitations of Company Services Due to Third Parties.
6. Ownership and Intellectual Property
(a) Company Property.
(i) You acknowledge that all Intellectual Property Rights, in the Services are owned by Company or its affiliates or licensors. Your possession, access to and use of the Services do not transfer to you or any third party any rights, title or interest in or to such Intellectual Property Rights. Company, and its affiliates and licensors, service providers and suppliers, reserve all rights not granted in these Terms. The Services is subscribed to you, not sold, under these Terms.
(ii) You may only copy parts of the Services onto your own computer for your own personal use and in accordance with the functionality of the Services. You may not use the content of the Services in any other public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, including your own website, without the written consent of Company. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to Content, Company retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein.
(b) Feedback. You may choose to or Company may invite you to submit comments, suggestions or ideas about the Services, including how to improve the Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place Company under any fiduciary or other obligation. Company may use, copy, modify, publish or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Company does not waive any rights to use similar or related ideas previously known to Company, developed by its employees or obtained from other sources.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS (COLLECTIVELY, THE “COMPANY PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE COMPANY PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH PRIMARY USER’S AND AUTHORIZED USER’S USE OF THE PRODUCTS OR SERVICES; (B) YOUR OR YOUR PRIMARY USERS’ OR AUTHORIZED USERS’ VIOLATION OF THESE TERMS; (C) ANY CONTENT OR FEEDBACK YOU PROVIDE; OR (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE COMPANY PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE COMPANY PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE COMPANY PARTIES, OR MADE BY ANY OF THE COMPANY PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE COMPANY PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE COMPANY PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE COMPANY PARTIES, OR GROSS NEGLIGENCE OF THE COMPANY PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Company’s prior written consent. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. Warranty Disclaimers
(a) THE SERVICE IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND COMPANY, AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
(b) COMPANY, AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
9. Waiver of Subrogation
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
10. Limitation of Liability
Nothing in these Terms and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL (A) COMPANY, ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF COMPANY KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) COMPANY’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE SERVICES OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE COST OF THREE (3) MONTHS OF SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 10 SHALL APPLY EVEN IF COMPANY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS, IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF COMPANY OR GROSS NEGLIGENCE OF COMPANY IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
(a) Changes to These Terms. Company reserves the right to make changes to these Terms. Company will make the most recent Terms available to you at https://simplifeye.com/terms. You should ensure that you have read and agree with the most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES TO ANY OF THE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICE.
(b) Governing Law & Venue. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services shall be governed by the laws of the State of New York without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR NEW YORK, NEW YORK FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, UNLESS SUCH CLAIM OR DISPUTE IS REQUIRED TO BE ARBITRATED AS SET FORTH IN THE DISPUTE/ARBITRATION PROVISION OF THESE TERMS. Notwithstanding the exclusive jurisdiction set forth in the prior sentence, the parties expressly agree that COMPANY may, at its sole discretion, request in writing that any dispute, claim, or controversy in connection with these Terms, including any questions regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination, shall be resolved by a final, binding arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association. If COMPANY elects to exercise its right to resolve such dispute, claim, or controversy by binding arbitration, the following parameters shall apply to the arbitration: (i) the arbitration shall be decided by one (1) arbitrator appointed in accordance with such rules; (ii) the place of the arbitration shall be New York County, New York; (iii) the language of the arbitration shall be English; and (iv) at any time, a party may seek or obtain preliminary, interim, or conservatory measures from the arbitrator or from a court of competent jurisdiction. If any provision of these Terms is deemed unenforceable or invalid by a court or arbitrator, then the court or arbitrator will modify the provision to the minimum extent necessary to make it enforceable. In the event such a modification is impossible or impracticable then the provision will be severed and the remaining terms will be enforced to the maximum extent possible. NOTWITHSTANDING THE FOREGOING, If a court decides that any of the provisions of Section THE CLASS ACTION WAIVER BELOW is invalid or unenforceable, then THE Arbitration TERMS ABOVE shall be null and void. The remainder of this Agreement will continue to apply.
THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief to protect its confidential information and Intellectual Property Rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) Entire Terms/Severability. These Terms constitute the entire agreement between you and Company regarding the use of the Services. Any failure by Company to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) Survivability. The obligations in Sections 3(f) and (g), 4, 6, 7, 8, 9, 10, 11, and 13 will survive any expiration or termination of these Terms.
(f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Company’s prior written consent. These Terms may be assigned by Company without restriction. These Terms are binding upon any permitted assignee.
(g) Notifications. Company may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy or posting of such notice on https://simplifeye.com. Company is not responsible for any automatic filtering that you or your network provider may apply to email notifications. Company recommends adding @simplifeye.com email addresses to your email address book to help ensure that you receive email notifications from Company.
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