By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.
2. Use License
Permission is granted to temporarily download one copy of the materials (information or software) on SimpleWAN’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not: modify or copy the materials; use the materials for any commercial purpose, or for any public display (commercial or non-commercial); attempt to decompile or reverse engineer any software contained on SimpleWAN’s web site; remove any copyright or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server. This license shall automatically terminate if you violate any of these restrictions and may be terminated by SimpleWAN at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
The materials on SimpleWAN’s web site are provided “as is”. SimpleWAN makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, SimpleWAN does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
In no event shall SimpleWAN or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on SimpleWAN’s Internet site, even if SimpleWAN or a SimpleWAN authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
5. Revisions and Errata
The materials appearing on SimpleWAN’s web site could include technical, typographical, or photographic errors. SimpleWAN does not warrant that any of the materials on its web site are accurate, complete, or current. SimpleWAN may make changes to the materials contained on its web site at any time without notice. SimpleWAN does not, however, make any commitment to update the materials.
SimpleWAN has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by SimpleWAN of the site. Use of any such linked web site is at the user’s own risk.
8. Governing Law
Any claim relating to SimpleWAN’s web site shall be governed by the laws of the State of Arizona without regard to its conflict of law provisions. General Terms and Conditions applicable to Use of a Web Site.
These Terms of Service constitute the agreement (“Agreement”) between SimpleWan INC. and/or assignee by DBA SIMPLEWAN (“we,” “us” or “SIMPLEWAN”) and the user (“you,” “user” or “Customer”) of SIMPLEWAN’s enhanced business security services and any related products or services (“Service”). This Agreement governs both the Service and any devices, such as an IP router, network, switching device or any other IP connection device, (“Device” or “Equipment”) used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. If you have purchased Equipment from any SIMPLEWAN authorized reseller, you will be deemed a “Reseller Customer” and will be governed by their Reseller Customer terms and conditions as set forth herein.
1.1 Term Service is offered on a contractual term basis for a term which begins on the date that SIMPLEWAN activates your service and is in “contract” from the dates specified in Schedule A of this agreement. and will continue on a month to month basis after the end date without further action by you unless you give SIMPLEWAN written notice of non-renewal at least ten (10) days before the end of the term in which the notice is given. You are purchasing the Service for full terms, meaning that if you attempt to terminate Service prior to the end of a term, you will be responsible for the full charges to the end of the then-current term, including without limitation unbilled charges, plus any disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.2.1 Business Use of Service and Device – Prohibition on Resale If you have subscribed to SIMPLEWAN’s Small Business services, the Service and Device are provided to you as a business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from SIMPLEWAN in advance. You agree that the SIMPLEWAN Business Plans do not confer the right to use the service for malicious or illegal activities. SIMPLEWAN reserves the right to immediately terminate or modify the Service, if SIMPLEWAN determines, in its sole discretion, that Customer’s Service is being used for any of the aforementioned activities.
1.2.2 Business Use of Service – Prohibition on Resale If you have subscribed to SIMPLEWAN’s Business services, the Service is provided to you as a business user. This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from SIMPLEWAN in advance. Customer is responsible for purchasing the standard Customer Premise Equipment (CPE) (‘device’) for use with the service. Business customers are solely responsible for maintaining, operating the device they use in conjunction with SIMPLEWAN’s service. SIMPLEWAN reserves the right to immediately terminate or modify the service, if SIMPLEWAN determines, in its sole discretion, that Customer’s Service is being used for any of the aforementioned activities.
1.2.3 Ownership of Equipment & Collateral You agree that the equipment you receive will remain SIMPLEWAN’s intellectual property. This equipment may be rendered useless without the continued services from SIMPLWAN. Any equipment not returned to SIMPLEWAN in the event of a failure to complete this Agreement will be treated as theft of SIMPLEWAN property and the appropriate action will be taken. All equipment on your site will be held as collateral until any outstanding final debt or agreements are resolved with SIMPLEWAN.
1.2.4 NFR Products Offered (Not For Resale) SIMPLEWAN offers a NFR demo product for resellers and master dealers that is to be used internally for testing or used in reseller’s own office. This product is not to be sold to an end user and is offered at a discounted rate. The NFR product includes no cost monthly base service and upgraded addons. This product will remain free of charge as long as reseller or master dealer is authorized to sell SIMPLEWAN product. This product is limited to one per reseller or mast dealer.
1.3.1 Prohibited Uses You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in SIMPLEWAN’s sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. SIMPLEWAN reserves the right to terminate your service immediately and without advance notice if SIMPLEWAN, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full contractual term charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at SIMPLEWAN’s discretion be immediately charged to your company. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless SIMPLEWAN against any and all liability for any such use. (iii) You may not modify, install, upload or in any other way change or modify the software on the SIMPLEWAN firewall. If SIMPLEWAN, in its sole discretion believes that you have violated the above restrictions, SIMPLEWAN may forward the objectionable material, as well as your communications with SIMPLEWAN and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.3.2 Use of Service and Device by Customers Outside the United States While we encourage use of the Service within the United States and in other countries, SIMPLEWAN does not presently offer or support the Service to customers located in other countries including Canada. If you move the Device to a country other than the United States and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless SIMPLEWAN against any and all liability for any such use. Should the removal from the United States of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless SIMPLEWAN against any and all liability for such violation. SIMPLEWAN reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States.
1.4 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by SIMPLEWAN. You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the service requires a fully functional broadband connection to the Internet (which is not provided by SIMPLEWAN) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider (“ISP”) and/or broadband provider, the service will not function in its entirety, but that you will continue to be billed for the service unless and until you or SIMPLEWAN terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the service will not fully function until power is restored or the ISP outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Should SIMPLEWAN suspend or terminate your Service, the Service will not function until such time as SIMPLEWAN restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on SIMPLEWAN’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of SIMPLEWAN are and shall remain the exclusive property of SIMPLEWAN and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that SIMPLEWAN will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. If you decide to use the Service through an interface device not provided by SIMPLEWAN, which SIMPLEWAN reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless SIMPLEWAN against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.6 Tampering with the Device or Service You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from SIMPLEWAN in each instance which SIMPLEWAN may deny in its sole discretion. SIMPLEWAN reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full contractual term charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to “hack” or otherwise disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
1.7 Theft of Service You agree to notify SIMPLEWAN immediately, in writing or by calling the SIMPLEWAN customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as SIMPLEWAN receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
1.8 Return of Device(s) The Device(s) may be returned to SIMPLEWAN within the first 30 days for a full refund or covered under warranty for one year and may be exchanged if the following are provided: (i) you have retained, and return along with the Device, proof of purchase and original packaging; (ii) contents are undamaged and in original condition, reasonable wear and tear excluded; (iii) all parts, accessories, documentation and packaging materials are returned; and (iv) equipment is returned with a valid return authorization number obtained from SIMPLEWAN’s customer care department. You are responsible for the cost and risk of return shipping of equipment. If you receive cartons and/or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact SIMPLEWAN’s customer care department immediately. To obtain a return authorization number, you must contact firstname.lastname@example.org or 1-855-GET-A-WAN.
1.11 Ownership and Risk of Loss You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is delivered, installed or shipped to you until the time (if any) when it is returned by you pursuant to Section 1.8 and has been received by SIMPLEWAN.
2.1 SLA of Service Agreement SIMPLEWAN agrees to provide a service and server availability of 99.90% SLA or higher. This SLA is provided based on the ability to reach the SIMPLEWAN equipment or services from a fully functional Internet connection. This SLA is not extended to the customers Internet connection. Proof of the SLA can be requested at anytime and must be presented to the Customer within two weeks of the request. In the event the SLA has been proven not to meet the 99.90% requirement a Customer may request a service credit of 1% of the total monthly bill for every hour services are unavailable.
2.2 Possibility of Network Congestion and/or Reduced Speed for Routing Due to the technical constraints on the manner in which it is possible to provide the features for SIMPLEWAN Service at this time, you acknowledge and understand that there is a possibility of network congestion and/or reduced speed in the routing of communication made utilizing your SIMPLEWAN equipment. You acknowledge and understand that SIMPLEWAN equipment will be routed to the best of our ability in the quickest, shortest possible manner. You acknowledge and accept that SIMPLEWAN relies on third parties for the forwarding of information underlying such routing, and accordingly SIMPLEWAN and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect. SIMPLEWAN or its officers or employees, may not be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to routing congestion unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of SIMPLEWAN.
3.1 FUTURE CHANGES SIMPLEWAN may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the “Service Announcements” section of SIMPLEWAN’s website (currently located at http://www.simplewan.com/terms ). Such changes will become binding on Customer, on the date posted to the SIMPLEWAN website and no further notice by SIMPLEWAN is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Device and also supersedes any written terms provided to Reseller Customers in connection with resale distribution, including without limitation any written terms enclosed within the packaging of the Device..
4.1 Billing We must receive from you the completed credit application form delivered to you by SIMPLEWAN before the Service activated. If your credit application is not deemed acceptable by SIMPLEWAN, you may not be issued terms and the payment of an advance one month deposit for the payment of services may be required. SIMPLEWAN will accept credit cards or a company check as valid forms of payment for service. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which SIMPLEWAN decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. SIMPLEWAN reserves the right to collect any unpaid balance exceeding fifty dollars ($50.00) and will be charged to a credit card on file without further authorization from the customer.
4.2 Billing Disputes You must notify SIMPLEWAN in writing within 7 days after receiving your statement if you dispute any SIMPLEWAN charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Customer Care Billing Department
PO Box 71305
Or email@example.com or 1-855-GET-A-WAN or 602-274-4000 option 2
4.3 Payment SIMPLEWAN accepts payments only by credit card or company check as set forth in Section 4.1. Your initial use of the Service authorizes SIMPLEWAN to charge the credit card account number on file with SIMPLEWAN, including any changed information given to SIMPLEWAN if the card expires or is replaced, or if you substitute a different card, for SIMPLEWAN charges as set forth in Section. You agree to promptly notify SIMPLEWAN of any changes to your credit card used for billing purposes.
4.4 Payment Authorization This authorization will remain valid until 30 days after SIMPLEWAN receives your written notice terminating SIMPLEWAN’s authority to charge your credit card, whereupon SIMPLEWAN will charge you the disconnect fee(s) and any other outstanding charges and terminate the Service.
4.5 Late Fees SIMPLEWAN provides Net 30 terms. Accounts not paid within 7 days of that term expiration are subject to a 2.5% one time finance charge (or $25 late fee, whichever is greater) on that invoice. Accounts that become 15 days late are subject to dashboard access suspension and a $25 account suspension fee that must be paid prior to service re-activation. Accounts that become 30 days late are subject to closure and a $25 account closure fee & $25 account reinstatement fee (should services be re-activated). Accounts that have been closed 2 or more times for non-payment will no longer receive Net 30 terms and invoices will become due upon receipt.
4.6 Non-Payment Termination SIMPLEWAN may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with SIMPLEWAN is declined or reversed, your credit card expires and you have not provided SIMPLEWAN with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card or failure to pay by check, reversed charges or non-payment leaves you FULLY LIABLE to SIMPLEWAN for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by SIMPLEWAN in collecting such amounts, such as (but not limited to) collection costs and attorney’s fees.
4.7 Termination/Discontinuance of Service SIMPLEWAN reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If SIMPLEWAN discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a prorated portion of the final month’s charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of SIMPLEWAN or of a third party provider to which SIMPLEWAN is subject), you will be responsible for any contractual charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.8, all of which immediately become due and payable.
4.8 Taxes You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your account as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide SIMPLEWAN with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date SIMPLEWAN receives such certificate.
4.9 Disconnect Fee Customer will be charged a disconnect fee for any devices terminated before the end of the current billing term that will amount to the remainder of the active billing period.
4.9.1 Early Termination Fee The Customer is responsible for 100% of the contract value left if terminated prior to the Term end date on Schedule A.
5.0.1 Client Money Back Guarantee SIMPLEWAN offers subscribers a 30 day Money Back Guarantee from date of activation of service (such 30 day period, the “Warranty Period”), applicable only to User’s initial service package and not to additional or secondary orders. Under terms of this Money Back Guarantee, SIMPLEWAN refunds the first month of service fee provided the terms described below are satisfied. All equipment must be returned within the 30 day period. Federal excise taxes and any other applicable taxes cannot be refunded. SIMPLEWAN reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.
In order to be entitled to this Money Back Guarantee, User must cancel service within the 30 day Warranty Period after the account activation; User remains responsible for any charges for usage in excess of the amount included within the Plan to which User subscribes. To qualify a valid return authorization number obtained from SIMPLEWAN customer care. User is responsible for the cost and risk of return shipping and de-installation of equipment. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS. To obtain a return authorization number, User must contact firstname.lastname@example.org or 1-855-GET-A-WAN or 602-274-4000.
5.1.1 Limitation of Liability SIMPLEWAN shall not be liable for any delay or failure to provide the Service at any time or from time to time, or any interruption or degradation of Service quality that is caused by any of the following:
1.) act or omission of an underlying carrier, service provider, vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force major events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer’s ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond SIMPLEWAN’s control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed, or degradation of Service quality. SIMPLEWAN’s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to SIMPLEWAN’s performance or nonperformance hereunder or (iii) any SIMPLEWAN act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. YOU AGREE THAT SIMPLEWAN WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE(S), (b) USE OF OR INABILITY TO USE THE SERVICE(S), (c) INTERRUPTION OF BUSINESS, (d) ACCESS DELAYS OR INTERRUPTIONS OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. (e) EVENTS BEYOND SIMPLEWAN’S AND SUBCONTRACTOR’S REASONABLE CONTROL OR (f) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICE(S). SIMPLEWAN ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SIMPLEWAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SIMPLEWAN’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT GREATER THAN FIVE HUNDRED DOLLARS ($500.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL SIMPLEWAN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT SIMPLEWAN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification Customer agrees to defend, indemnify, and hold harmless SIMPLEWAN, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customers’ Service, relating to this Agreement, the Services, or the Device. This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service CUSTOMER ACKNOWLEDGES THAT DATA TRANSMISSION SECURITY SERVICES SUCH AS THOSE PROVIDED UNDER THIS EXHIBIT ARE NOT FOOLPROOF AND, THEREFORE, ARE NOT GUARANTEED. IN ADDITION TO THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THE AGREEMENT, NEITHER SIMPLEWAN NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGE TO DATA) RELATING TO OR ARISING FROM THE USE OF THE SERVICES PROVIDED HEREUNDER (THIS EXCLUSION DOES NOT APPLY TO ANY SERVICE WARRANTIES OR SERVICE LEVEL AGREEMENTS FOR ANY COMMUNICATION SERVICES PROVIDED BY SIMPLEWAN UNDER THE AGREEMENT). SIMPLEWAN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, SIMPLEWAN DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF SERVICE OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER SIMPLEWAN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO SIMPLEWAN’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF SIMPLEWAN’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY SIMPLEWAN OR SIMPLEWAN’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. SIMPLEWAN AND ITS AFFILIATES PROVIDE PCI AND HIPAA AND OTHER COMPLIANCE REPORTS AS SUGGESTIVE SECURITY ONLY. OUR REPORTS ARE DESIGNED TO HELP ILLUSTRATE WHERE AN ORGANIZATION MAY HAVE COMPLIANCE ISSUES. IT IS BY NO WAY MEANT TO BE THE ONLY COMPLIANCE TOOLS OR AUDIT AN ORGANIZATION SHOULD USE. THERE ARE A NUMBER OF OTHER PROCEDURAL AND TECHNOLOGICAL PIECES OF COMPLIANCE THAT CANNOT BE SEEN FROM THE PROVIDED REPORTING. SIMPLEWAN IS NOT A LICENSED AUDITOR OR A REPLACEMENT FOR A PROFESSIONAL AUDITOR. YOU ACKNOWLEDGE YOUR RESPONSIBILITY TO AUDIT AND VERIFY ANY CHANGES, UPDATES AND REQUESTS FOR SECURITY AND COMPLIANCE PRIOR TO APPROVING OR MAKING CHANGES TO ANY SIMPLEWAN PRODUCTS.
5.5 No Warranties, or Limited Warranties, for Devices If Customer received the Device new from SIMPLEWAN and the Device included a limited warranty at the time of receipt; Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer’s Device did not include a limited warranty from SIMPLEWAN at the time of receipt, Customer agrees that it accepts its Device “as is” and that Customer is not entitled to replacement or refund in the event of any defect, except that for Retail Customers only, SIMPLEWAN will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Reseller Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, reseller handling or Reseller Customer handling. Reseller Customer’s sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.8. Reseller Customer must include with the returned Device a letter stating that the Reseller Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. This Reseller Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Reseller Customer than that contained herein. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RESELLER CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, SIMPLEWAN MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.
5.6 No Third Party Beneficiaries No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
5.7 Content You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User’s use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. SIMPLEWAN reserves the right to terminate or suspend affected Services, and/or remove your or Users’ content from the Services, if SIMPLEWAN determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with SIMPLEWAN’s ability to provide Services to you or others or receives notice from anyone that your or Users’ use or Content may violate any laws or regulations. SIMPLEWAN’s actions or inaction under this Section shall not constitute review or approval of your or Users’ use or Content. You will indemnify and hold SIMPLEWAN against any and all liability arising from the content transmitted by or to you or to Users using the Services. A “User” means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6.1 Mandatory Arbitration Any dispute or claim between Customer and SIMPLEWAN arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (or, for Customers subscribing to service in Canada, a Canadian arbitration organization of SIMPLEWAN’s choosing). The arbitration shall take place in, Prescott, Arizona and shall be conducted in English. The arbitrator’s decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law The Agreement and the relationship between you and SIMPLEWAN shall be governed by the laws of the State of Arizona without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and SIMPLEWAN agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Arizona and waive any objection as to venue or inconvenient forum. The failure of SIMPLEWAN to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Entire Agreement This Agreement and the rates for Services can be requested from SIMPLEWAN helpdesk constitute the entire agreement between you and SIMPLEWAN and govern your use of the Service, superseding any prior agreements between you and SIMPLEWAN and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon SIMPLEWAN unless and until posted in accordance with Section 3 hereof.
6.4 Severability If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
8. Notices Subject to the terms of this Agreement, you agree that, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail, return receipt requested, or by Federal Express or other recognized overnight delivery service to each of the parties in accordance with the most current contact information you have provided to us. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission. By providing such contact information to SIMPLEWAN, you agree that SIMPLEWAN may use the information you have provided to contact you via email, postal mail, telephone or fax in any format or manner. SIMPLEWAN may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall SIMPLEWAN be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
9. Conflicts with other Agreements In the event of any conflict between this terms of Agreement the terms and conditions of this Agreement shall govern as it relates to any rights and remedies as between you and SIMPLEWAN.
10. Entire Agreement; Section Headings This Agreement as well as any additional SIMPLEWAN rules and policies, together with all modifications thereto, constitute the entire agreement between you and SIMPLEWAN concerning your use of the Services, and supersede and govern all prior proposals, agreements or other communications between you and SIMPLEWAN (including, but not limited to, any prior versions of the Agreement). You also may be subject to additional terms and conditions that may apply when you use third party, affiliate or other SIMPLEWAN goods or services not addressed herein. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. The section titles in the Agreement are for convenience only and have no legal or contractual effect.
11. Force Majeure Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, SIMPLEWAN may immediately terminate this Agreement and shall have no liability therefore.
12 General You agree and acknowledge that any acceptance of your application for the services and the performance thereof will occur at SIMPLEWAN’s offices the location of our principal place of business. Except as otherwise set forth herein, your rights under this Agreement are neither assignable nor transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to resell any of the Services without SIMPLEWAN prior express written consent.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Except as expressly stated herein, this Agreement shall not be construed to create any obligation by SIMPLEWAN to any non-party or Assignee to this Agreement.
The failure of SIMPLEWAN to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by SIMPLEWAN of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. SIMPLEWAN will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of SIMPLEWAN as reflected in the original provision.
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