PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT (“PLATFORM AGREEMENT”) CAREFULLY BEFORE ACCESSING THE PLATFORM (“PLATFORM”) OF, OR USING ANY OF THE SERVICES (“SERVICES”) OFFERED BY, SIMPLIFI HOLDINGS, INC. (“WE,” “US,” “OUR,” OR “SIMPLIFI”).
IF YOU HAVE SIGNED OUR MASTER SERVICES AGREEMENT (“MSA”), THE TERMS OF THAT AGREEMENT APPLY TO YOU. BY CLICKING “I ACCEPT”, YOU AGREE THAT YOU WILL COMPLY WITH THE TERMS AND CONDITIONS OF THE MSA AND WILL NOT ACCESS OUR PLATFORM TO USE ANY OF THE SERVICES FOR WHICH YOU HAVE NOT CONTRACTED. YOU ARE NOT AGREEING TO ANY OF THE TERMS SET FORTH BELOW.
IF YOU HAVE EXECUTED AN INSERTION ORDER WITH US OR IF YOU HAVE SUBMITTED AN ONLINE ORDER THAT IS ACCEPTED BY US, BUT, IN EITHER CASE, YOU ARE NOT PROVIDED ACCESS TO OR USE OF OUR PLATFORM ON A SELF-SERVICE BASIS (EACH, A “MANAGED ORDER”) OR HAVE EXECUTED A DATA LICENSE AGREEMENT (“DATA LICENSE”) WITH US, YOU ARE BEING PROVIDED ACCESS TO OUR PLATFORM ONLY FOR THE PURPOSE OF ACCESSING REPORTING APPLICABLE TO YOU. BY CLICKING “I ACCEPT”, YOU AGREE, AS PART OF YOUR MANAGED ORDER AND/OR DATA LICENSE WITH US: (A) TO ONLY ACCESS OUR PLATFORM TO ACCESS REPORTING APPLICABLE TO YOU, (B) TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 1, 4, 6 AND 7 OF THIS PLATFORM AGREEMENT, AND (C) THAT SUCH TERMS BECOME PART OF YOUR MANAGED ORDER AND/OR DATA LICENSE WITH US. IN THE EVENT OF AN EXPRESS CONFLICT BETWEEN YOUR MANAGED ORDER OR DATA LICENSE, ON THE ONE HAND, AND THIS PLATFORM AGREEMENT, ON THE OTHER HAND, YOUR MANAGED ORDER OR DATA LICENSE SHALL CONTROL.
IF YOU HAVE EXECUTED AN INSERTION ORDER WITH US OR IF YOU HAVE SUBMITTED AN ONLINE ORDER THAT IS ACCEPTED BY US (“ONLINE ORDER”), AND YOU ARE PROVIDED ACCESS TO AND USE OF OUR PLATFORM ON A SELF-SERVICE BASIS (EACH, A “SELF-SERVICE ORDER”), BY CLICKING “I ACCEPT”, YOU AGREE, AS PART OF YOUR SELF-SERVICE ORDER WITH US: (A) IN THE CASE OF SUCH EXECUTED INSERTION ORDER WITH US, TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 2, 4, 6 AND 7 OF THIS PLATFORM AGREEMENT AND, IN THE CASE OF SUCH ONLINE ORDER ACCEPTED BY US, TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 2, 4, 5, 6 AND 7 OF THIS PLATFORM AGREEMENT, AND (C) THAT SUCH TERMS BECOME PART OF YOUR SELF-SERVICE ORDER WITH US. IN THE EVENT OF AN EXPRESS CONFLICT BETWEEN YOUR SELF-SERVICE ORDER AND THIS PLATFORM AGREEMENT, YOUR SELF-SERVICE ORDER SHALL CONTROL.
IF YOU DO NOT HAVE A MANAGED ORDER, SELF-SERVICE ORDER OR DATA LICENSE WITH US, YOU HAVE BEEN GIVEN TEMPORARY ACCESS TO OUR PLATFORM SOLELY TO REVIEW THE FEATURES OF OUR PLATFORM (“TEMPORARY ACCESS”), BUT YOU ARE NOT AUTHORIZED TO UTILIZE ANY SERVICES PROVIDED BY THE PLATFORM (E.G., LOADING ADS, PROVIDING DATA OR INVENTORY). BY CLICKING “I ACCEPT,” YOU AGREE (A) TO ONLY ACCESS OUR PLATFORM TO REVIEW THE FEATURES OF OUR PLATFORM, (B) NOT TO ACCESS OR USE OR ATTEMPT TO ACCESS OR USE ANY OF OUR SERVICES, AND (C) TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 3, 4 AND 5 OF THIS PLATFORM AGREEMENT.
IF YOU REPRESENT A COMPANY AND CLICK “I ACCEPT,” YOU ARE BINDING SUCH COMPANY TO THE TERMS OF THIS PLATFORM AGREEMENT APPLICABLE TO YOU. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS PLATFORM AGREEMENT APPLICABLE TO YOU, CLICK “CANCEL” AND DO NOT ACCESS OUR PLATFORM.
THIS SECTION 1 APPLIES TO YOU IF YOU HAVE A MANAGED ORDER OR DATA LICENSE WITH SIMPLIFI.
A. License. We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for accessing reporting applicable to you. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to access reporting applicable to you. You shall not upload, send or store ANY material through Our Platform.
THIS SECTION 2 APPLIES TO YOU IF YOU HAVE A SELF-SERVICE ORDER WITH SIMPLIFI.
A. License. We hereby grant You a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for bidding on and uploading and serving online digital advertising (“Ads”), uploading your data to target your Ads (“Your Data”) and accessing reporting related thereto. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to exercise your rights in the preceding sentence. You shall not: (i) send or store infringing, or otherwise unlawful or tortious material, including material violative of third party intellectual property or privacy rights; or (ii) send or store material containing software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines (collectively, “Harmful Code”) to, on or through Our Platform.
SECTION 3 APPLIES TO YOU IF YOU HAVE TEMPORARY ACCESS.
A. License. We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for the purpose of reviewing the features of our Platform. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to review the features of Our Platform. You shall not upload, send or store ANY material through Our Platform.
THIS SECTION 4 APPLIES TO YOU IF YOU HAVE ACCESS TO OUR PLATFORM FOR ANY REASON.
A. Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Our Platform, services, API, and/or the data contained therein, including without limitation, underlying technology, trade secrets, content or information (collectively, “Our Technology”) (or any portion thereof) in any way; (ii) modify, reproduce, adapt, translate Our Technology (or any portion thereof) or make derivative works based upon Our Technology (or any portion thereof), (iii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from Our Technology (or any portion thereof), (iv) violate any applicable local, state, national and foreign laws, treaties and regulations in connection with your access and use of Our Technology (or any portion thereof) nor use Our Technology for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (v) interfere with or disrupt the integrity or performance of the Our Technology (or any portion thereof), including without limitation, the Services, the Platform, the API or the data contained therein, (vi) access Our Platform or APIs by any means other than through the interface that is provided by Us for use in accessing the Platform or APIs, (vii) attempt to gain unauthorized access to Our Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier), (viii) use Our Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (ix) publicly disseminate information or analysis regarding the performance of the Our Technology, including without limitation, the Platform or APIs, or (x) permit or authorize any party to do any of the foregoing.
B. Account. You have been provided with a password protected account to access reporting applicable to you on the Platform. You are responsible for all activity occurring under your account. You shall: (i) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of Our Technology (or any portion thereof) or of any data or content contained in Our Platform through your account that is known or suspected by you.
C. Ownership. You acknowledge that you are obtaining only a limited right to access and use Our Technology as set forth in Sections 1-3, as applicable, and that We or Our suppliers or licensors retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to Our Technology, including the right to continually evolve Our Technology (or any portion thereof). We may freely use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to Our Technology (or any portion thereof). Our name, Our logo, and the product names associated with Our Technology (or any portion thereof) are trademarks of Ours or third parties, and no right or license is granted to use them. Our Technology shall be deemed to be Our Confidential Information.
D. WARRANTY DISCLAIMER. WE AND OUR LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND WE DO NOT REPRESENT OR WARRANT THAT (I) OUR TECHNOLOGY (OR ANY PORTION THEREOF) OR THE USE THEREOF WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) OUR TECHNOLOGY WILL MEET YOU’S REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (IV) OUR TECHNOLOGY OR THE INFRASTRUCTURE THAT MAKES OUR TECNOLOGY AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE AND OUR LICENSORS HEREBY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF OUR CONTROL.
E. INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS FOR ANY THIRD PARTY CLAIMS OR DAMAGES ARISING OUT OF YOUR BREACH OF THIS PLATFORM AGREEMENT.
F. Rejection; Termination. We reserve the right for any reason to (a) reject your Ads, and/or (b) terminate or suspend your access (or the access of specific personnel) to Our Platform.
THIS SECTION 5 APPLIES TO YOU IF YOU HAVE (A) AN ONLINE ORDER, WITH EITHER MANAGED OR SELF-SERVICE ACCESS TO OUR PLATFORM, OR (B) IF YOU HAVE TEMPORARY ACCESS.
Definition. “Confidential Information” means: (i) Our Technology; and (ii) any of Our business or technical information, including but not limited to any information relating to Our product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by you; (ii) is known to you at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by you without use of Our Confidential Information; (iv) you rightfully obtain from a third party without restriction on use or disclosure; or (v) is disclosed with Our prior written approval.
Use and Disclosure Restrictions. You will not use Our Confidential Information except as permitted herein and will not disclose Our Confidential Information to any third party.
B. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE HEREUNDER FOR ANY LOSS OF USE, LOST OR INACURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. OUR MAXIMUM LIABILITY HEREUNDER SHALL BE LIMITED TO (A IN THE CASE OF AN ONLINE ORDER, $100, AND (B) IN THE CASE OF NO ORDER NOR EXECUTED AGREEMENT, $0.
C. INDEMNIFICATION. You shall defend, indemnify and hold Simplifi, its licensors and Simplifi’s subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) (“Claims”) arising out of or in connection with any Claim arising from your breach of this Platform Agreement. In addition, if you have an Online Order, you shall provide the foregoing for any Claims arising out of or in connection with any Claim arising from the products, goods and services promoted in Your Ad.
E. Termination. WE RESERVE THE RIGHT TO TERMINATE THIS PLATFORM AGREEMENT OR YOUR ACCESS (OR THE ACCESS OF SPECIFIC PERSONNEL) TO THE PLATFORM FOR ANY REASON.
F. General. This is the entire agreement between you and Us on the subject matter herein. We may modify this Platform Agreement at any time and your continued access of the Platform using your account will signify your acceptance of such modifications. This Platform Agreement will be governed and interpreted in accordance with the laws of the State of Texas without reference to conflicts of laws principles. You agree that any dispute under this Agreement shall be brought in the federal or state courts located in Tarrant County, Texas and you agree to submit to the exclusive jurisdiction of the federal and state courts located in Tarrant County, Texas. No failure of Simplifi to enforce any of its rights under this Platform Agreement will act as a waiver of such rights. Provisions of this Agreement held unenforceable under applicable law shall be excluded to the minimum extent required to conform to such law and the remainder of the Agreement will remain enforceable. We may assign this Agreement without your consent and use subcontractors in any manner. You may not assign this Agreement without Our written consent. You and We are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership. You agree that during the term of this Agreement and for twelve months thereafter, you will not encourage or solicit any employee or consultant to leave the employ of Simplifi; provided that, you shall not be prohibited from employing any such person who contacts you in response to a published general solicitation not specifically targeted at such person.
THIS SECTION 6 APPLIES TO YOU IF YOU ARE CONTRACTUALLY PERMITTED TO ACCESS AND USE OUR API TO ACCESS YOUR REPORTING.
You may allow your Third Party Reporting Provider to access, on Your behalf, Our API provided to You for the sole purpose of accessing the Services in order to access, use and report on Customer’s campaign data and such access and use of the API, the Platform and the Services shall be in accordance with the provisions of our Agreement and subject to the confidentiality provisions therein. All actions or omissions of such Third Party Reporting Provider shall be deemed to be Your actions or omissions. As used herein, “Third Party Reporting Provider” means a company engaged by You to provide reporting on advertising campaigns that has been prior approved by our CEO, CFO, CRO or CTO in writing (email to suffice). You shall be responsible for the actions and omissions of your Third Party Reporting Provider and shall defend, indemnify and hold harmless Us, Our licensors and each of Our or their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any acts or omissions of your Third Party Reporting Provider in accordance with the indemnification provisions of our Agreement.
THIS SECTION APPLIES WHEN THE GENERAL DATA PROTECTION REGULATION APPLIES TO CUSTOMERS UTILIZING OUR PLATFORM OR SERVICES
This Platform Agreement incorporates the Data Protection Addendum, including the Standard Contractual Clauses attached thereto, when the GDPR applies to your use of our Services and Platform to process EU Personal Data (as defined in the DPA). The DPA is effective as of November 1, 2020 and replaces and supersedes any previously agreed data processing addendum between you and Simplifi. For clarity, the DPA supplements this Platform Agreement.
Last Revised October 30, 2020