Terms of Service

TERMS OF SERVICE

These Terms of Service govern all use of the Simplified website simplified.tv (“Simplified Website”), Simplified’s (including its licensors’, suppliers’ and partners’) technology, all Contracts, and all Services which are provisioned, provided, and/or performed by Simplified (“Simplified”) and/or its licensors, suppliers, partners and/or resellers, including but not limited to that in connection with Simplified, the online software, and/or other technologies provided by or through Simplified and/or its licensors, suppliers, partners and/or resellers. By having access to, receiving, and/or using the Services, You agree, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Simplified that are applicable to any other website where the Services are found.

SIMPLIFIED RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT SIMPLIFIED SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.

YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL USES OF THE SERVICES ARE FURTHER SUBJECT TO SIMPLIFIED’S PRIVACY POLICY LOCATED AT SIMPLIFIED.TV/PRIVACY-POLICY (“PRIVACY POLICY”) AND ACCEPTABLE USE POLICY LOCATED AT SIMPLIFIED.TV/ACCEPTABLE-USE (“AUP”), EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY SIMPLIFIED WITH OR WITHOUT NOTICE.

1. Definitions

1.1 “Account” means a Simplified user profile created by You or for You and used to produce and make selections with respect to the presentation, management, distribution and/or end user access to Content.

1.2 “Simplified” means Simplified’s online video optimization, content delivery and analytics solutions.

1.3 “Content” means any and all HTML code, microdata code, meta tag information, video sitemaps and descriptive information generated, published and/or distributed by Simplified’s “Software” or “Services.” Furthermore it includes any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials uploaded or otherwise provided by, or viewed by, You and/or Your agents and/or Your users in connection with the Services.

1.4 “Contract” means a “Simplified Services Agreement,” “Services Agreement and Order Form,” supplemental order form, and/or similar document(s) provided by Simplified and/or its resellers which You have signed and/or an online agreement to which You have agreed by way of clicking to accept and/or a statement of work and/or other written agreement between You and Simplified or its resellers or other authorized agents.

1.5 “Trial Account” means a temporary account provided to You by Simplified or its Resellers that permits a potential customer to use the Services on a trial basis for a limited time.

1.6 “Simplified Fees” means all fees relating to any or all of the Services including, without limitation, all fees set forth in a Contract.

1.7 “Software” means Simplified’s online video optimization software.

1.8 “Services” means any and all of the following products and/or services that are provided and/or made available to You by or through Simplified and/or its authorized resellers, partners, licensors and/or suppliers: (i) Simplified and the Software, and (ii) any other products or services provided to You by or through Simplified and/or its authorized resellers, partners, licensors, and/or suppliers pursuant to a Contract such as (but not limited to) technical support, engineering work, and/or any other professional services.

1.9 “Player” means Simplified’s video player.

1.10 “Term” and “Initial Term” have the meanings set forth in Section 4 of these Terms of Service.

1.11 “You” and “Your” means the individual, corporation or other entity which (i) has entered into a Contract, (ii) has received a Trial Account through Simplified or one of its resellers, and/or (iii) otherwise uses the Services. Nothing herein permits You to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.

2. Grant of Licenses, Scope of License, Restrictions

2.1 Grant of Licenses
(a) Right to Use the Services. Provided You comply at all times with all terms and conditions of Your Contract(s), these Terms of Service, and the AUP, Simplified grants to You, during the Term specified in the Contract(s) or the limited time period specified for the Trial Account issued to You, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to use the Services.

(b) Content. You hereby grant Simplified a worldwide, royalty-free, non-exclusive, transferable, license to perform such acts with respect to the Content solely as are reasonable or necessary to provide the Services including, without limitation, the right to: (i) deliver Content in accordance with the preferences You set and data you enter using Your Account and any authorized subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iv) utilize Content to test Simplified’s internal technologies and processes.

2.2 Scope of Use
(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.

(b) Content. Simplified and the Services are passive conduits of the Content and Simplified has no obligation to undertake to edit, review, monitor or oversee Content submitted, generated, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto.

You further acknowledge and agree that the Services and the Content provided by third parties may contain errors or omissions. You acknowledge and agree that Simplified does not screen or review published Content on the Services to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Simplified be liable in any way for any user or other third party Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services. Simplified does not guarantee that any Content will be to Your satisfaction. You acknowledge Simplified is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Simplified assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing Your rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with the United States of America Federal Communications Commission or other governmental laws and/or regulations.

(c) Third Party Materials/Products/Services. Any third party products, Content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and You assume all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 2.2(c) diminishes Simplified’s obligations to You under these Terms of Service with respect to Simplified’s (or its licensors’ or suppliers’) technology within the Services (the “Simplified IP”), but instead relates to any access and/or use of third party products and/or services that You elect to utilize in connection with the Simplified IP (regardless of whether Simplified provides integration services at Your request in connection with third party products and/or services). If You utilize YouTube in connection with the Services, YouTube wants You to know that it is not charging You to view its content, and as such the Simplified Fees never include charges for the YouTube content itself.

(d) The Player. The Player contains software to track and capture user activity to assist Simplified in optimizing delivery of Content. Your use of the Player constitutes acceptance of this feature. For further information on how such software is used, please review the Privacy Policy. If You enable syndication of Your Content on third party websites (which You may be permitted to do via Your Account), You, and not Simplified, are solely responsible for notifying each such third party website that Simplified may track information regarding the third party users.

(e) Content Preservation and Disclosure. You expressly acknowledge and agree that Simplified may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce a Contract or these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Simplified, its licensors, suppliers, partners, resellers, or users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including the Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

(f) Trial Accounts. At Simplified’s discretion, You may receive a Trial Account which may include limited access to test certain features and functionality of the Services free of charge. Simplified is permitted to suspend or terminate the Trial Account at any time with or without notice. At the end of any demonstration period as determined by Simplified, You are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between You and Simplified (or one of its resellers) or, if no such agreement has been executed, then pursuant to the Simplified’s then-current standard pricing schedule, which may (but is not required to) be available on the Simplified Website or Your Account interface.

3. Fees/Taxes

In consideration of Your rights in and to the Services, You shall timely pay Simplified in U.S. dollars the Simplified Fees designated in your Contract(s). You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the exploitation of the Content under the Contract(s). Simplified Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Simplified may, with or without notice, suspend or terminate access to the Services if You are more than thirty (30) days delinquent in paying any portion of the Simplified Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Simplified, all committed fees for the Term shall become immediately due and owing in full. After the Initial Term of a Contract or renewal thereof (as applicable), the Simplified Fees shall be subject to Simplified’s standard pricing changes.

4. Term and Termination

The term of a Trial Account shall be as determined by Simplified in its sole discretion. The term of all Contracts shall be the initial committed term (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Either party can terminate the Contract effective as of the end of the then-current term by notifying the other party in writing or email at least thirty (30) days prior to the end of then-current term. Upon the termination of a Contract any reason, You shall immediately discontinue all use of the Services and Simplified is not obligated to provide you with any Services. You may suspend or terminate a Contract if Simplified materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Simplified with written notice of such suspension or termination, provided however that all Simplified Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination. Simplified may in its sole discretion terminate or suspend the Contract and/or Your access to the Services: (a) should You fail to comply with a term or condition of Your Contract, these Terms of Service and/or the AUP; (b) based on any conduct that Simplified believes is or may be directly or indirectly harmful to other users, to Simplified or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Simplified reasonably believes may be a violation of law, third party rights, and/or Simplified’s Prohibited Activities or restrictions on Prohibited Content (each as described in the AUP), or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on You, Simplified, and/or its suppliers with respect to provision of the Services. Simplified’s right to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to Simplified or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).

5. Title and Ownership

Simplified and its suppliers and licensors own all right, title and interest in and to the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. As between You and Simplified, any and all trademarks that Simplified uses in connection with the Services are owned by Simplified and any goodwill associated with the use of such marks shall inure to the benefit of Simplified. In no event shall the Services be deemed sold or assigned to You. Any and all rights not expressly granted by Simplified are reserved to Simplified and its suppliers and licensors. Simplified is not required to accept unsolicited feedback. If You provide any feedback about the Services to Simplified, Simplified shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You shall take all necessary actions to affect Simplified’s rights in and to such feedback.

6. Warranties

You represent and warrant that You are solely responsible and liable for: (i) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (ii) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (iii) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by all the terms of these Terms of Service.

7. Disclaimer of Warranties

SIMPLIFIED MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND SIMPLIFIED IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND SIMPLIFIED’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL.

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties.

8. Indemnification

You shall defend, indemnify and hold harmless Simplified and its suppliers, licensors, partners, and resellers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with the Content and/or Your use (which includes use by Your employees, agents, customers, and users) of the Services, including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities or Prohibited Content or Your breach of any of these Terms of Service, the AUP, and/or Your Contract(s), including but not limited to any of the representations or warranties set forth in any of the foregoing.

9. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL SIMPLIFIED OR ITS SUPPLIERS, RESELLERS, PARTNERS, OR LICENSORS OR ANY OF THEIR SUCCESSORS IN INTEREST (COLLECTIVELY HEREIN, “SIMPLIFIED”) BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMPLIFIED BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF SIMPLIFIED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND SIMPLIFIED’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO THE GREATER OF THE SIMPLIFIED FEES FOR USE OF THE SERVICES THAT YOU PAID DIRECTLY TO SIMPLIFIED IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ONE THOUSAND U.S. DOLLARS ($1,000.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA.
In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to You.

10. Compliance With Laws, Government Restricted Rights

The Services are of Irish origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which You use the Services, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Contractor/licensor is Simplified, Gardiner House, Gardiner Street, Dublin 1, Republic of Ireland.

11. Publicity and Marketing

Neither You nor Simplified will issue any press releases or make public statements relating to any purchase order, order form, or similar contract between You and Simplified nor the relationship between You and Simplified without the other party’s prior written approval, which shall not be unreasonably withheld. However, Simplified shall be permitted to line-list You as a customer and use Your standard logo for Simplified’s promotional and marketing use until your use of the Services expires or otherwise terminates.

12. Governing Law, Dispute Resolution

You understand and agree that the Contract(s) and these Terms of Service shall be governed by the laws of the Republic of Ireland as such laws apply to contracts between Irish residents performed entirely within Ireland, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be brought in Irish courts located in Ireland and each party irrevocably submits to such exclusive jurisdiction and venue.

13. Interpretation

In the event of any conflict between or among any Contract(s) executed by both You and Simplified and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.

14. General Provisions

These Terms of Service, including all URLs incorporated herein (i.e., the Acceptable Use Policy located at simplified.tv/legal/acceptable-use-policy and the Simplified Privacy Policy located at simplified.tv/legal/privacy-policy constitute the complete and exclusive agreement between You and Simplified with respect to its subject matter; provided, however, that if You accept or enter into a Contract or some other written agreement with Simplified or its authorized agents (including its resellers) that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of a Contract or these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and Simplified are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between You and Simplified as a result of these Terms of Service or Your use of the Services as authorized hereunder. A Contract may only be modified by written amendment signed by authorized representatives of both You and Simplified. All waivers must be made in writing and the failure of You or Simplified to enforce any right or provision in a Contract or in these Terms of Service shall not constitute a waiver of such right or provision. Any waiver on one occasion shall not imply or constitute a waiver on any other occasion. Simplified shall not be responsible for any failure to perform, or delay in performing any of its obligations under a Contract or these Terms of Service to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Simplified and any such assignment shall be null and void from the beginning. These Terms of Service shall inure to the benefit of and be binding upon Simplified’s or Your respective permitted successors and assigns.

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