Terms & Conditions

This Agreement permits Client to purchase services from Simplus pursuant to Simplus Orders referencing this Agreement and sets forth the terms and conditions under which those services will be delivered and paid for. This Agreement shall govern Client’s initial purchase on the Effective Date as well as any future purchases made by Client.
1)    Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
a)    “Confidential Information” has the meaning set forth in Section 5.
b)    “Order” means an ordering document, including any SOW change order, specifying the commercial terms regarding Services ordered by Client.
c)    “SOW” means a statement of work form describing the Services to be delivered by Simplus to Client.
d)    “Services” means any consulting or other professional services to be performed by Simplus under this Agreement.

2)    Services and Personnel.
a)    SOWs and Orders. Subject to the terms of this Agreement, Simplus will render the Services as described in a SOW and Order. Each SOW and Order that is executed by the parties under this Agreement will be subject to the term and conditions contained therein and shall be deemed to incorporate all of the provisions of this Agreement.
b)    Conflicts. If any terms of a SOW or Order conflict with the terms of this Agreement, the provisions of this Agreement shall be controlling and shall govern, except to the extent such provisions are expressly superseded by the provisions of the SOW or Order and then such provisions shall prevail solely with respect to the subject matter of such SOW or Order.

3)    Deposit, Invoicing, Payment and Taxes
a)    Deposit. Simplus requires a deposit before projects begin. Invoices are applied against the deposit, then due and payable from the Client when invoiced. As a time and materials estimate agreement, payments are not tied to milestones, objectives or project approval. Project management will communicate project progress, status and final approval with Client.
b)    Invoicing and Payment. Client shall pay Simplus for performing the Services as specified in each Order. Client shall reimburse Simplus for all actual pre-approved and appropriately documented travel and related expenses incurred by Simplus in performing Services at Client’s location and such reimbursement shall be made in accordance with the terms of the applicable Order. Unless otherwise specified in an Order, payment for Services fees and expenses are due and payable within thirty (30) days of Simplus’ invoice date. Unless otherwise set forth in an Order, payments shall be in United States dollars.
c)    Taxes. The fees listed in this Agreement are exclusive of taxes and other similar charges; Client shall be responsible for, and shall pay or reimburse Simplus for, all taxes, duties, and like charges arising out of the transactions contemplated by this Agreement other than taxes based on Simplus’ net income.
d)    Late Payments. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If payment of any fee is overdue, Simplus may also suspend provision of the services until such delinquency is corrected.

4)    Ownership.
a)    As between the parties, Client owns all right, title and interest in and to its intellectual property including software, programming documentation, technical ideas, patents, trademark, trade secrets, service marks, trade names, domain name rights, mask work rights, know how, processes, algorithms, user interfaces, techniques, designs, mappings, routings, templates and any other intellectual property rights therein developed or owned prior to commencement of this Agreement (“Client Technology”) and Simplus only receives limited license to Client Technology for the limited purpose of providing the Services under this Agreement.
b)    As between the parties, Simplus owns all right, title and interest in and to its intellectual property including software, programming documentation, technical ideas, patents, trademark, trade secrets, service marks, trade names, domain name rights, mask work rights, know how, processes, algorithms, user interfaces, techniques, designs, mappings, routings, templates and any other intellectual property rights therein developed or owned prior to commencement of this Agreement  and any derivative works, improvements enhancements or modifications made to the foregoing (“Simplus Prior Technology”) pursuant to this Agreement and Client receives only the limited license to use Simplus Prior Technology for the purposes set forth in the relevant SOW.
c)    Each party reserves all rights not otherwise expressly granted in this Agreement and no licenses are granted by implication, estoppel or otherwise.
d)    Notwithstanding the foregoing, each party will retain all of its rights in any materials, ideas, products, concepts, methodologies, processes, techniques, templates, reports, information, inventions, concepts, data (including customer data), know-how and other works, and all intellectual property rights therein owned or controlled by such party prior to the date of this Agreement, or acquired or developed after the date of this Agreement, but unrelated to this Agreement and developed without reference to or use of the intellectual property or confidential information of the other party.

5)    Confidentiality.
a)    As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Schedules), the Software, customer information, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
b)    Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
c)    If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
d)    If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
e)    Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and upon request return to the Disclosing Party, or (at the Disclosing Party’s election) destroy, all materials containing such Confidential Information.

6)    Warranties and Indemnification.
a) No Warranty on Third Party Software. Simplus is not responsible for undocumented limitations of software for Salesforce or any third party application. When software does not operate as advertised or documented, it may impact the estimate. In this case, Simplus will coordinate closely with Salesforce or third party software company to research alternatives and may also initiate the Change Order process to address the change in design and any increase in estimate.
b)    Services Warranty. Simplus warrants that it will provide the Services in a professional and workmanlike manner consistent with industry standards and practices.
c)    Mutual Warranty. Each party represents and warrants that (i) it has all requisite rights and authority to enter into this Agreement, and (ii) it shall comply with all applicable laws, regulations, and rules, as amended from time to time.
d)    DISCLAIMERS. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY. OTHER THAN AS PROVIDED IN THIS SECTION 6, SIMPLUS DISCLAIMS ANY SERVICES WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT THE SERVICES PROVIDED BY SIMPLUS ARE ADVISORY ONLY AND NO SPECIFIC RESULT IS ASSURED OR GUARANTEED.
e)   Mutual Indemnification. Each party hereto (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its Affiliates and the employees, agents and independent contractors of such other party and its Affiliates (collectively, the “Indemnified Parties”) from any and all third-party losses, claims, damages, liability or other expenses (including reasonable attorneys’ fees) that any Indemnified Party may incur from or as a result of a third-party claim against the Indemnified Party arising out of (i) a material breach by the Indemnifying Party of its representations and warranties set forth in this Agreement; and (ii) the gross negligence or willful misconduct of the Indemnifying Party.

7)    Infringement Indemnification.
a)    Simplus shall defend and indemnify Client at Simplus’ expense in any third-party suit, claim, action or proceeding brought against Client alleging that any portion of the Services provided hereunder directly infringes the intellectual property rights of such third party (each, a “Claim”). Client (i) shall promptly notify Simplus of any Claim, (ii) give to Simplus the reasonable assistance required to defend the Claim (at Simplus’ expense), and (iii) be permitted to retain legal counsel of its choice and to participate in the defense of the Claim (at Client’s expense). Without the written consent of Client, Simplus may not settle any Claim unless it unconditionally releases Client of all liability and obligation.
b)    Should Client’s use of the alleged infringing Services be enjoined, Simplus will, at its discretion and expense: (i) procure for Client the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the infringing Services and refund Client all fees for the Services, or portion thereof, giving rise to the Claim.
c)    Simplus shall have no liability for any claim of infringement resulting directly from (i) the unauthorized modification or alteration by Client or any third party of the Services provided hereunder, or (ii) Simplus’ compliance with any designs, specifications or instructions of Client where Simplus could not reasonably have been expected to avoid such infringement, or (iii) the combination of any Services provided hereunder with any other products or materials, except as specified in the applicable SOW, provided such Claim would not have arisen but for the actions of Client as described in subsections (i), (ii), or (iii) above.
d)    THE PROVISIONS OF THIS SECTION 7 SET FORTH SIMPLUS’ SOLE AND EXCLUSIVE OBLIGATIONS AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT.

8)    Limitation of Liability.
a)    EXCEPT FOR DAMAGES RELATED TO EITHER PARTY’S (i) MATERIAL BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY OR INDEMNIFICATION, OR (ii) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO SIMPLUS FOR THE SERVICES AS TO WHICH THE CLAIM AROSE.
b)    IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9)    Term and Termination.
a)    Term. This Agreement will begin on the Effective Date and will continue until final completion of the Services unless terminated pursuant to the terms of this Agreement or otherwise agreed by the parties.
b)    Termination.
i)    Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) if either party undergoes a change of control in favor of a direct competitor of the other party; or (iv) as otherwise provided herein.
ii)    Upon termination or expiration of this Agreement, any amounts owed to Simplus under this Agreement before such termination or expiration will be immediately due and payable. Termination of this Agreement will not limit or restrict any of the remedies otherwise available under this Agreement.
c)    Survival. All sections which by their nature should survive the termination or expiration of this Agreement, as well as any accrued but unpaid payment obligations will survive termination of this Agreement for any reason.

10)    General Terms.
a)    Assignment. Neither party may assign or transfer this Agreement nor any right or obligation hereunder without the express written consent of the other party. The foregoing notwithstanding, either party may assign this Agreement in its entirety (including all SOWs hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity.
b)    Entire Agreement. This Agreement and each SOW and Order, and any addendums, appendices and exhibits referencing this Agreement are incorporated herein and constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms and conditions on any purchase order or similar document submitted by Client to Simplus will have no effect. Time is of the essence with respect to this Agreement.
c)    Force Majeure. Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation, acts of God or nature; labor disputes; sovereign acts of any federal, state or foreign government; zombie apocalypse; or shortage of materials.
d)    Governing Law, Disputes. This Agreement shall be governed exclusively by the internal laws of the state of Utah and the United States without regard to conflicts of laws provisions.
e)    Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address set forth beneath such party’s signature, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
f)    Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
g)    Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
h)    Noninterference with Business. During the term of any individual SOW issued pursuant to this Agreement, and for a period of six (6) months following date of termination of such SOW, neither party will actively solicit for employment those employees of the other party who are directly involved in the performance or receipt of Services. However, this restriction does not apply in the event that a party’s employee or ex-employee responds to and is hired through a general job posting or public advertisement made in the ordinary course of the party’s business.
i)     Independent Contractor. Nothing in this Agreement shall in any way be construed to constitute Simplus as an agent, employee or representative of Client. Simplus shall perform the Services hereunder as an independent contractor.
j)    Attorneys’ Fees and Costs. In the event of any action to enforce this Agreement, the prevailing party shall be entitled its costs and expenses, including reasonable attorney’s fees, incurred in connection with such action.
k)    Headings.  Headings used in this Agreement or any Order or SOW are for reference purpose only and in no way define, limit, construe or describe the scope or extent of such clause, or in any way affect meaning or interpretation this Agreement.
l)    Counterparts. This Agreement may be executed by facsimile and in counterparts.