The following Additional Terms are incorporated and are a part of every Proposal submitted to a Customer for use of The Simplex Group, Inc. (SIMPLEX) VPO as if recited in full therein. After execution of the Proposal by both SIMPLEX and Customer, together the Proposal and these Additional Terms form the entire Agreement (“Agreement”) of the parties.
1) Use of VPO.
a) Use of VPO. SIMPLEX grants Customer the right to use VPO during the life of and subject to the terms and conditions of the Agreement, to use VPO for its intended purpose, as described VPO on the website at www.vpocloud.com. Customer agrees that under no circumstances shall Customer attempt to or reverse engineer, duplicate, or modify all or any part of VPO or any other software or program that makes up or is involved in the operation and functioning of VPO.
b) Users. Customer may grant access to use VPO for a project to internal and external users (hereinafter individually and/or collectively a “User” or “Users”), if any only if, the Users agree to abide by the terms and conditions of the Agreement between Customer and SIMPLEX. Customer hereby expressly guarantees the performance and compliance of each User under the Agreement with SIMPLEX.
2) Certain Obligations of the Parties.
a) General. SIMPLEX agrees to perform its obligations under the Agreement in accordance with generally accepted industry standards. Customer agrees to set up and pay for the communication connections between SIMPLEX and Customer that will be necessary for Customer to use VPO as contemplated in the Agreement. Customer agrees to provide and maintain at its expense all such computer equipment, communication devices, software, hardware and other materials as may reasonably be required from time to time to provide the connectivity and functionality necessary and appropriate to permit Customer to use VPO as provided in this Agreement. SIMPLEX shall (i) design, develop, provide, host and maintain the application through which Users provide the data and information to be processed through VPO under the Agreement (the “Application”), (ii) cause the Application to be available on and accessible to Users through the Application, (iii) provide sufficient interrogatory and data input functions to permit Users to input and use User Data by means of VPO, in each case in accordance with VPO. Customer shall be responsible for and perform all communications, procedures and other activities required. The Application shall have other features and functionalities as SIMPLEX and Customer may agree to include in the Application.
b) Service and Technical Support. SIMPLEX agrees to make VPO available for participation by Customer pursuant to the Agreement.
c) Compliance with Laws and Policies. Customer agrees (i) to comply with all federal, state and local laws, rules, regulations, ordinances and orders applicable to the subject matter of the Agreement or the performance by Customer and its Users of their obligations under the Agreement with SIMPLEX, and (ii) to abide and be bound by any and all policies and procedures established from time to time by SIMPLEX regarding VPO.
d) Availability. Customer acknowledges and agrees that the SIMPLEX services may be unavailable and inaccessible from time to time and that such unavailability and inaccessibility may be caused by or may be the result of planned outages for maintenance and upgrades to VPO or unplanned outages or interruptions. Customer acknowledges and agrees that during such times the services will be unavailable and inaccessible to Users. To the extent any such outage or interruption is caused by or relates to any aspect of VPO, Customer agrees to provide reasonable cooperation to SIMPLEX, as and when requested by SIMPLEX, to keep the duration of such outage or interruption to a minimum. SIMPLEX SHALL HAVE NO LIABILITY TO CUSTOMER, ITS USERS OR ANY OTHER ENTITY ARISING FROM OR RELATING TO ANY SUCH PLANNED OUTAGE.
3) Fees and Taxes.
a) Fees. In consideration of the license granted under this Agreement, and the facilities and services SIMPLEX is to provide Customer and its Users under this Agreement, Customer shall pay to SIMPLEX the Subscription Fees, the Implementation Costs and the Customization Fees in the amounts and at the times as designated by SIMPLEX in the Proposal Form and as may be adjusted from time to time.
b) Taxes. Each party shall be solely responsible for and shall pay all sales, use, service or other taxes, duties or levies of any governmental entity (not including taxes on SIMPLEX’s net income), including interest and penalties, if any, relating to the performance of its obligations under this Agreement.
c) Remedies. Customer shall pay SIMPLEX all Subscription Fees, Implementation Costs and Customization specified on the Proposal. Overdue payments will be subject to a late fee of one and one-half percent (1.5%) for each month or fraction thereof that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is lower. In addition to any other remedies available to SIMPLEX, SIMPLEX shall be entitled to discontinue provision of the Services until all overdue amounts due are paid in full. All payments to SIMPLEX are non-refundable and non-cancelable. Specifically, Customer’s loss of construction business or Customer’s failure to use the Services will not be cause for any refund to Customer from SIMPLEX. Customer shall reimburse SIMPLEX for SIMPLEX’s collection costs incurred in attempting to collect any late payments, including reasonable attorneys’ fees.
4) Ownership Rights.
a) In VPO. Customer agrees that title and all ownership rights to VPO and related intellectual property shall reside in SIMPLEX or third party licensors to SIMPLEX, as the case may be, and that the Agreement gives Customer no claim or right of ownership in all or any part of VPO or related intellectual property. Customer agrees that SIMPLEX shall be the sole and exclusive owner of, and Customer hereby assigns and agrees to assign to SIMPLEX all rights in, any changes, modifications, upgrades or enhancements in design, functionality or otherwise, to VPO or any successor or related systems, services or products, including any such changes, modifications, upgrades or enhancements made at the request or suggestion of Customer. Customer acknowledges and agrees that SIMPLEX shall be under no obligation to consider or implement any changes, modifications, upgrades or enhancements to VPO which are suggested by Customer or its Users.
b) In User Data. Customer and SIMPLEX agree that, as between SIMPLEX and Customer, (i) Customer shall be the sole owner of and may use, reproduce and retain all User Data input into VPO by Customer, and (ii) to the extent permitted under applicable laws and regulations and only as necessary for the performance by SIMPLEX of its obligations under the Agreement, SIMPLEX may use, store and transmit User Data in strict accordance with the provisions of the Agreement and with the requirements and restrictions of all applicable laws and regulations. Except with regard to the transactions contemplated in the Agreement, SIMPLEX shall not, at any time either during or after the term of this Agreement, directly or indirectly, use, disclose, publish, transfer, reveal, disseminate, or otherwise publicize or make available, any User Data.
5) Representations and Warranties.
a) By Each Party. Each party to this Agreement represents and warrants to the other that it is duly organized, validly existing and in good standing under the laws and regulations of the state or jurisdiction of its incorporation or formation and is duly qualified and in good standing to do business in each jurisdiction in which the conduct of its business or the ownership or leasing of its assets so requires.
b) By Customer. Customer represents and warrants to SIMPLEX that (i) all computer and communication devices and software Customer uses in connection with VPO shall provide the functionality contemplated by this Agreement, and (ii) Customer has the legal right to use all such devices and software in the manner and for the purposes contemplated in this Agreement.
c) SIMPLEX. SIMPLEX represents and warrants to Customer that (i) all software SIMPLEX uses to provide VPO shall provide the functionality contemplated by the user documentation for VPO, and (ii) SIMPLEX has the legal right to use all such software in the manner and for the purposes contemplated in this Agreement.
6) Limitation of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SIMPLEX GIVES NO WARRANTY IN CONNECTION WITH VPO, THE SERVICES, OR ANY COMPONENT, FEATURE, FUNCTIONALITY OR OPERATION OF ALL OR ANY PART OF VPO OR ANY RELATED PRODUCTS OR SERVICES PROVIDED BY SIMPLEX UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY MADE IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. VPO, THE SIMPLEX SERVICES AND ALL COMPONENTS, FEATURES, FUNCTIONALITIES AND OPERATIONS OF ALL OR ANY PART THEREOF OF THEM ARE PROVIDED “AS IS.”
7) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT OR ITS RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY CLAIMING UNDER OR THROUGH THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, VPO, THE SIMPLEX SERVICES OR ANY RELATED INTELLECTUAL PROPERTY, SOFTWARE, PRODUCTS, SERVICES OR INFORMATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST, REVENUE, DATA OR USE, OR INTERRUPTION OF BUSINESS, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, THE MAXIMUM CUMULATIVE LIABILITY OF SIMPLEX AND ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS ARISING FROM OR RELATING TO ANY CLAIM, DEMAND, ACTION, ASSERTION, SETTLEMENT (INCLUDING ATTORNEYS FEES) SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SIMPLEX UNDER THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION (a) FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND (b) REPRESENT THE PARTIES’ AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING, WITHOUT LIMITATION, THE POSSIBILITY THAT A REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE AMOUNTS PAYABLE TO SIMPLEX PURSUANT TO THIS AGREEMENT REFLECT SUCH ALLOCATION OF RISK, WITHOUT WHICH THE PARTIES WOULD NOT HAVE BEEN WILLING TO ENTER INTO THIS AGREEMENT.
8) Indemnification. Each party to this Agreement shall indemnify and hold harmless the other and its affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, as such, from and against any Losses which arise out of or result from any third-party claim relating to (i) the first party’s performance of, or failure to perform, its obligations under this Agreement, and/or (ii) any breach of any representation or warranty made by the first party in this Agreement.
9) Certain Obligations Upon Termination. Upon termination of this Agreement, Customer and all Users shall immediately cease using VPO, and SIMPLEX shall turnover all User Data to Customer.
a) Notices. All notices and statements to be given under the Agreement are to be in writing, delivered by hand, facsimile, telegram, e-mail with proof of receipt, a nationally recognized overnight express or similar service with package tracking capability, or first class United States mail, postage prepaid and registered or certified with return receipt requested, to the following addresses or facsimile numbers, as applicable (which addresses and facsimile numbers may be revised by notice:
The Simplex Group, Inc.
811 Boyd Avenue, Suite 205
Pittsburgh, PA 15238
Attention: Laura M. Nee, CEO
All notices and statements shall be deemed given, delivered, received and effective upon personal delivery or receipt of facsimile, e-mail or telegram, one calendar day after sending by overnight express or any similar service, or three calendar days after mailing by first class United States mail in the manner set forth above.
b) No Waiver. The failure of a party to insist in any one or more instances upon strict performance of any of the covenants, agreements or conditions of the Agreement or to exercise any rights under the Agreement shall not be construed as a waiver or a relinquishment for the future of such covenants, agreements, conditions or rights.
c) Assignment. Customer may not assign this Agreement without the express prior written consent of SIMPLEX.
d) Governing Law; Venue. The Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania, without reference to the choice of law principles under such laws. Any action arising from or relating to the Agreement may only be brought and shall be conducted in the State and Federal Courts in the Western District of Pennsylvania, and each of the parties hereby irrevocably consents to jurisdiction and venue for any such action in such Courts.
e) Attorney’s Fees. In the event a dispute arises under the Agreement between the parties, which dispute results in legal action being taken by one party against the other party, the prevailing party shall be entitled to recover its reasonable attorney fees, costs and other expenses associated with the enforcement of its rights under this Agreement from the non-prevailing party.
f) Force Majeure. Neither party shall be responsible for delay or failure in performance caused by or resulting from acts beyond the control of such party. Such acts shall include, but not be limited to, an act of God, war, riot, epidemic, earthquake, flood or other disasters, an act of government, communication line failure, or power failure.
g) Relationship. Nothing in this Agreement shall create, or be deemed to create, an agency relationship, partnership or joint venture between the parties, and no party may make a representation to the contrary.
h) Severability. The invalidity or unenforceability of a particular provision of the Agreement shall not affect the other provisions thereof, and the Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.