Terms of Service

These Software as a Service Terms and Conditions (the "Agreement"), effective as of the date the customer signs up for the Simple Cal Sync Service ("Effective Date"), is between A Trillion Tiny Things, LLC DBA Simple Cal Sync, a Colorado LLC ("Simple Cal Sync"), and the Customer ("Customer"). Simple Cal Sync and Customer agree as follows:

1. SERVICES

1.1 License

Subject to the terms and conditions of this Agreement, Simple Cal Sync (a) will use commercially reasonable efforts to host, operate and maintain the services as set forth on the Order Form, which may include the Simple Cal Sync platform (the "Platform"), and/or other services offered by Simple Cal Sync (collectively, the "Services"), (b) grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services and (c) grants Customer a non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. For clarity, unless otherwise specified by Simple Cal Sync in writing, any and all rights or licenses granted by Simple Cal Sync to Customer shall only apply to Customer and not Customer's affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.

1.2 Access and Account Setup

Upon execution of an Order Form, Simple Cal Sync will provide Customer with a unique login and password to access the Services web pages which are hosted and maintained by Simple Cal Sync. Customer shall be responsible for the acts or omissions of any person who accesses the Services using logins provided to or created by Customer. Simple Cal Sync reserves the right to modify or discontinue any part of the Services at anytime by giving thirty (30) days' prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Customer may terminate this Agreement upon at least thirty (30) days' prior written notice to Simple Cal Sync, and Simple Cal Sync shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. From time to time, Simple Cal Sync personnel may log in to the Service under Customer's account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.

1.3 Service Availability

Simple Cal Sync will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Simple Cal Sync will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Simple Cal Sync will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Content (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Simple Cal Sync's facilities or control.

1.4 Service Support

Simple Cal Sync will provide Customer with e-mail support for Customer's use of the Service during Simple Cal Sync's regular business hours. Customer agrees that Simple Cal Sync is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer's systems or hardware.

1.5 Customer Content

As used herein, the term "Content" includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined below). All Content created through or submitted to the Services by Customer (collectively "Customer Content") is the sole responsibility of Customer. Customer acknowledges and agrees that Simple Cal Sync will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants Simple Cal Sync a worldwide, non-exclusive, perpetual, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content.

1.6 Use Restrictions

Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Simple Cal Sync's Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (h) permit any third party to engage in any of the foregoing proscribed acts.

1.7 Limitations

Simple Cal Sync will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer use of the Services not in accordance with this Agreement or any relevant documentation provided by Simple Cal Sync, (b) failures in any telecommunications, network or other service or equipment outside of Simple Cal Sync's or its service providers' facilities, (c) Customer's or any third party's products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond Simple Cal Sync's reasonable control, or (e) unauthorized access, breach of firewalls or other hacking by third parties.

2. PROPRIETARY RIGHTS

Subject to the rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, Simple Cal Sync (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Platform, the API, all Content (excluding the Customer Content), all Simple Cal Sync trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein.

3. CONFIDENTIALITY

3.1 Definition

Each party agrees that the business, technical and financial information, including without limitation, the Services, the Platform, and the API, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors ("Confidential Information").

3.2 Confidentiality

Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party's Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party's Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party's Confidential Information as this Agreement.

3.3 Required Disclosure

Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

4. PAYMENTS; TAXES

Customer shall pay to Simple Cal Sync fees as set forth in the applicable Subscription Form in accordance with the terms therein. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Simple Cal Sync's net income.

5. LIMITED WARRANTY AND DISCLAIMERS

5.1 General

Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.

5.2 Customer

Customer represents and warrants that (a) Customer has all rights to grant the licenses to Simple Cal Sync set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.

5.3 Third-Party Software and Hardware

Simple Cal Sync assigns to Customer all of the vendors' and manufacturer warranties and indemnities relating to any third-party hardware and software to the extent Simple Cal Sync is permitted by the vendors and manufactures to make such assignments to Customer. Such assignment is subject to all of the terms and conditions imposed by the vendors and manufacturer respect thereto. No other warranty is provided for any such third party software and hardware. Customer agrees to contact such vendors or manufacturers directly in the event of any failure or defect with such hardware.

6. DISCLAIMERS

Except as provided in Section 5.1 herein, to the fullest extent permitted by law, Simple Cal Sync hereby disclaims (for itself and its suppliers) all other warranties, whether express or implied, oral or written, with respect to the services, including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability, fitness for any particular purpose, reliability, or that their operation will be uninterrupted or error-free, as well as all warranties arising from course of dealing, course of performance or usage of trade.

7. INDEMNIFICATION

7.1 Customer

Customer agrees to defend against and hold Simple Cal Sync harmless from any claim by a third party that arises from or is related to (a) any Customer Content, (b) Customer's use of the Services in violation of this Agreement, and to indemnify Simple Cal Sync for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims.

7.2 Simple Cal Sync

Simple Cal Sync agrees to (a) defend against and hold Customer harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claim.

7.3 Procedures

Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.

8. LIMITATION OF LIABILITY

Except for any breach of Section 3 (Confidentiality) or liabilities to third parties pursuant to Section 7 (Indemnification), in no event shall either party be liable concerning the subject matter of this Agreement, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) interruption of use, loss or inaccuracy of data, loss of, or cost of procuring substitute technology, goods or services, (b) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits and goodwill or (c) damages, in the aggregate, in excess of the amounts paid to it (in the case of Simple Cal Sync) or paid and payable by it (in the case of Customer) hereunder during the six (6) months preceding such claim, even if it has been advised of the possibility of such damages.

9. TERM AND TERMINATION

9.1 Term

Unless otherwise specified or terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue for one (1) year from the Effective Date. The term shall automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then current term.

9.2 Termination

This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment).

9.3 Effects of Termination

Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive.

10. GENERAL PROVISIONS

This Agreement constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.