Effective Date: 20 September 2023
THESE GENERAL TERMS OF SERVICE (“Terms”), together with all documents and policies incorporated by
these Terms, constitute an agreement (“Agreement”) by and between IME Institute, LLC doing business
as Simplexam, a
Delaware limited liability company (“Simplexam”), and you (“You,” “Your,” or “Yourself”), made
effective as of the
date You electronically accept these Terms (“Effective Date”). Simplexam and You are sometimes
collectively in these Terms as the “Parties” and singularly as a “Party.” This Agreement governs Your use of
Simplexam’s Services, the Simplexam IP, Simplexam Materials, and Simplexam Systems, as defined herein.
By electronically accepting this Agreement, You acknowledge that you have read these Terms and agree to
the provisions set forth herein. You acknowledge and agree that You are accepting this Agreement on behalf
Yourself and any Authorized User, to the extent provided herein.
1. Access and Use.
1.1. Provision of Access. Subject to and conditioned on Your payment of Fees and compliance
with this Agreement,
Simplexam hereby grants You a non-exclusive, non-transferable right to access and use the Services
during the Term,
solely for use by Authorized Users in accordance with this Agreement. Such use is limited to Your
Simplexam will provide to You the necessary passwords and network links or connections to allow You to
Services. The total number of Authorized Users will not exceed the number agreed between You and
Simplexam from time
to time. You may increase or decrease the total number of Authorized Users at any time during the Term,
an appropriate adjustment of the Fees payable hereunder.
1.2. Use Restrictions. You shall not use the Services for any purposes beyond the scope of
the access granted in
this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized
Users to: (i)
copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend,
license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services;
engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any
component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services;
or (v) use
the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any
intellectual property right or other right of any person, or that violates any applicable law.
1.3. Service and System Control. Except as otherwise expressly provided in this Agreement,
as between the Parties:
(i) Simplexam has and will retain sole control over the operation, provision, maintenance, and
management of the
Simplexam Materials; and (ii) You have and will retain sole responsibility for all access to and use of
Simplexam Materials by any person by or through Your information technology infrastructure, including
software, databases, electronic systems (including database management systems), and networks, whether
directly by You or through the use of third-party services (“Customer Systems”), or any other
You or any Authorized User. Simplexam may from time to time in its discretion engage third parties to
Services (each, a “Subcontractor”).
1.4. Reservation of Rights. Simplexam reserves all rights not expressly granted to You in
this Agreement. Except for
the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement
implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights
right, title, or interest in or to the Simplexam IP.
1.5. Suspension. Notwithstanding anything to the contrary in this Agreement, Simplexam may
temporarily suspend Your
and any Authorized User’s access to any portion or all of the Services if: (i) Simplexam reasonably
(A) there is a threat or attack on any of the Simplexam IP; (B) Your or any Authorized User’s use of the
IP disrupts or poses a security risk to the Simplexam IP or to any other customer or vendor of
Simplexam; (C) You
are, or any Authorized User is, using the Simplexam IP for fraudulent or illegal activities; (D) subject
applicable law, You have ceased to continue Your business in the ordinary course, made an assignment for
of creditors or similar disposition of Your assets, or become the subject of any bankruptcy,
liquidation, dissolution, or similar proceeding; or (E) Simplexam’s provision of the Services to You or
Authorized User is prohibited by applicable law; (ii) any vendor of Simplexam has suspended or
Simplexam’s access to or use of any third-party services or products required to enable You to access
or (iii) in accordance with Section 3(iii) (any such suspension described in subclause (i), (ii), or
“Service Suspension”). Simplexam will use commercially reasonable efforts to provide written
Suspension to You and to provide updates regarding resumption of access to the Services following any
Suspension. Simplexam will have no liability for any damage, liabilities, losses (including any loss of
profits), or any other consequences that You or any Authorized User may incur as a result of a Service
1.6. Privacy. You acknowledge and agree to Simplexam’s collection, use, and protection of
user information, as
provided herein. Simplexam will collect all account information necessary for the operation of the
including Your name, address, phone number, or any other information. Simplexam agrees not to share any
information to third parties unless required by law.
1.6.1 Limited Use Requirements. Simplexam’s use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
1.7. User Data. If You upload, store, share, or otherwise process documents, information,
data, and other
(“User Data”) or sync User Data from Your own personal software to the Services, You acknowledge
Simplexam’s access and processing of User Data in accordance with this Agreement. Simplexam reserves the
pursuant to its reasonable discretion, to remove or delete User Data from the Services for any reason,
without limitation, if the User Data violates this Agreement or any applicable laws. Simplexam does not
ownership of any User Data. You grant all such rights and permissions in or relating to User Data as are
or useful to Simplexam and its Subcontractors to enforce this Agreement and exercise Simplexam’s and its
Subcontractors’ rights and perform Simplexam’s and its Subcontractors’ obligations hereunder.
1.7.1. Monitoring. Simplexam has no responsibility to monitor or police Your use
of the Services, including
limitation communications, information, or data transmitted through the Services, such as User
not responsible for the content of any such communications, data, or transmissions. However,
right, at all times, to review, retain, and disclose any such information as required to ensure
Agreement or as required or permitted by all applicable laws.
1.7.2. Technical Data. Simplexam may collect and use any and all technical data
and related information,
without limitation information about Your device, systems, and application software, as it
relates to the
(“Technical Data”), for purposes of providing the Services to You and in order to provide
support, risk, and
management and other services related to the Services. Such Technical Data may be anonymous for
the purposes of
1.7.3. No Liability. Simplexam maintains no responsibility or liability with
respect to any User Data that You
process, transmit, disclose, or store in connection with the Services, including any User Data
that You request
have deleted from the Services, unless otherwise required under this Agreement or under
2. Your Responsibilities.
2.1. General. You are responsible and liable for all uses of the Services resulting from
access provided by You,
directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
limiting the generality of the foregoing, You are responsible for all acts and omissions of Authorized
any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by
deemed a breach of this Agreement by You. You shall use reasonable efforts to make all Authorized Users
this Agreement as applicable to such Authorized User’s use of the Services, and shall cause Authorized
comply with such provisions.
2.2. Control and Responsibility. You have and will retain sole responsibility for: (i) all
User Data, including
their content and use; (ii) all information, instructions, and materials provided by or on behalf of You
Authorized User in connection with the Services; (iii) Customer Systems; (iv) the security and use of
Credentials of Yourself and Your Authorized Users; and (v) all access to and use of the Services and
Materials directly or indirectly by or through the Customer Systems or Access Credentials, with or
knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions
such access or use.
2.3. Effect of Failure or Delay. Simplexam is not responsible or liable for any delay or
failure of performance
caused in whole or in part by Your delay in performing, or failure to perform, any of Your obligations
2.4. Access and Security. You shall employ all physical, administrative, and technical
controls, screening, and
security procedures and other safeguards necessary to securely administer the distribution and use of
Credentials and protect against any unauthorized access to or use of the Services, and control the
of User Data.
You agree to pay Simplexam the fees (“Fees”) set forth by Simplexam. You
shall make all payments
dollars on or before the time reasonably established by Simplexam. If You fail to make any payment when
limiting Simplexam’s other rights and remedies: (i) Simplexam may charge interest on the past due amount
highest rate permitted under applicable law; (ii) You shall reimburse Simplexam for all costs incurred
in collecting any late payments or interest, including attorneys’ fees, court costs, and collection
(iii) if such failure continues for ten (10) days or more, Simplexam may suspend Your and Your
access to any portion or all of the Services until such amounts are paid in full. All amounts payable to
under this Agreement shall be paid by You to Simplexam in full without any setoff, recoupment,
deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may
by applicable law). All Fees and other amounts payable by You under this Agreement are exclusive of
similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar
and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on
payable by You hereunder, other than any taxes imposed on Simplexam’s income. Simplexam reserves the
the Fees from time to time, in its sole discretion. Simplexam will provide advance notice of any
of a change in Fees. If the increase in Fees is not acceptable to You, Your sole and exclusive remedy
terminate Your use of the Services. By continuing to use the Services after notice of the new Fees, You
and agree to all changes in the Fees. All Fees are non-refundable, except in the sole discretion of
4. Service Levels and Credits.
4.1. Service Levels. Subject to the terms and conditions of this Agreement, Simplexam will
reasonable efforts to make the Services Available at least ninety-nine and ninety-five hundredths
of the time as measured over the course of each calendar month during the Term (each such calendar
“Service Period”), excluding unavailability as a result of any of the Exceptions described below
Section 4.1 (the
“Availability Requirement”). “Service Level Failure” means a material failure of the
Availability Requirement. “Available” means the Services are available for access and use by You
Users over the Internet. For purposes of calculating the Availability Requirement, the following are
the Availability Requirement, and neither the Services will be considered un-Available nor any Service
be deemed to occur in connection with any failure to meet the Availability Requirement or impaired
Yourself or Your Authorized Users to access or use the Services that is due, in whole or in part, to
omission by Yourself or any Authorized User; (ii) delay or failure of performance caused in whole or in
delay in performing, or failure to perform, any of Your obligations under this Agreement; (iii) Your or
Authorized User’s Internet connectivity; (iv) Force Majeure Event; (v) failure, interruption, outage, or
problem with any software, hardware, system, network, facility, or other matter not supplied by
to this Agreement; (vi) Scheduled Downtime; or (vii) disabling, suspension, or termination of the
to Section 10.
4.2. Service Level Failures and Remedies. In the event of a Service Level Failure,
Simplexam will issue a credit
You equal to the proportion of the Service Level Failure duration to the Service Period multiplied by
the Services due for the Service Period in which the Service Level Failure occurred (each a “Service
subject to the following: (a) Simplexam has no obligation to issue any Service Credit unless: (i) You
Service Level Failure to Simplexam immediately on becoming aware of it; and (ii) You request such
writing within ten (10) days of the Service Level Failure; and in no event will a Service Level Credit
Service Period exceed ten percent (10%) of the total Fees that would be payable for that Service Period
Service Level Failure had occurred. Any Service Credit payable to You under this Agreement will be
issued to You
the calendar month following the Service Period in which the Service Level Failure occurred. This
forth Simplexam’s sole obligation and liability and Your sole remedy for any Service Level Failure.
4.3. Scheduled Downtime. Simplexam will use commercially reasonable efforts to: (a)
schedule downtime for
maintenance of the Services between the hours of 8:00 p.m. and 6:00 a.m. Pacific; and (b) give You at
seventy-two (72) hours prior notice of all scheduled outages of the Services (“Scheduled
4.4. Service Support. The Services include Simplexam’s standard customer support services
accordance with the Simplexam service support schedule then in effect, a current copy of which is
__________________ (or a successor website address) (the “Support Exhibit”). Simplexam may amend
from time to time in its sole discretion.
5. Confidential Information. From time to time during the Term, either Party may
make available to
other Party information about its business affairs, products, confidential intellectual property, trade
third-party confidential information, and other sensitive or proprietary information, whether orally or in
electronic, or other form or media/in written or electronic form or media, and whether or not marked,
otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential
include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the
at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from
party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the
Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have
to know the Confidential Information for the receiving Party to exercise its rights or perform its
hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited
required (i) in order to comply with the order of a court or other governmental body, or as otherwise
comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first
given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii)
establish a Party’s rights under this Agreement, including to make required court filings. On the expiration
termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies,
in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or
such copies and certify in writing to the disclosing Party that such Confidential Information has been
Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the
Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however,
respect to any Confidential Information that constitutes a trade secret (as determined under applicable
obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as
Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership. You acknowledge that, as between Yourself
and Simplexam, Simplexam owns all
right, title, and interest, including all intellectual property rights, in and to the Simplexam IP.
acknowledges that, as between Simplexam and You, You own all right, title, and interest, including all
property rights, in and to the User Data. You hereby grant to Simplexam a non-exclusive, royalty-free,
license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with
the User Data as may be necessary for Simplexam to provide the Services to You. If You or any of Your
contractors sends or transmits any communications or materials to Simplexam by mail, email, telephone, or
suggesting or recommending changes to the Simplexam IP, including without limitation, new features or
relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Simplexam is
Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You
assign to Simplexam on Your behalf, and on behalf of Your employees, contractors, and/or agents, all right,
and interest in, and Simplexam is free to use, without any attribution or compensation to any party, any
know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any
whatsoever, although Simplexam is not required to use any Feedback.
7. Warranty Disclaimer. ALL SERVICES AND SIMPLEXAM MATERIALS ARE PROVIDED ON AN
“AS IS, AS
SIMPLEXAM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT
THE FOREGOING, SIMPLEXAM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SIMPLEXAM MATERIALS, OR ANY
RESULTS OF THE USE THEREOF, WILL: MEET THE REQUIREMENTS OF YOU OR ANY OTHER PERSON; OPERATE WITHOUT
ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR BE
ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification. To the fullest extent permitted by applicable law, You agree
to indemnify, hold harmless,
at Simplexam’s option, defend Simplexam and its Subcontractors and affiliates, and each of its and their
directors, managers, officers, shareholders, members, employees, agents, successors, and assigns (each, a
“Simplexam Indemnitee”), from and against any and all losses, damages, deficiencies, claims, actions,
interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’
(“Losses”), incurred by any Simplexam Indemnitee resulting from any claim, action, cause of action,
arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or
investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in
otherwise by a third party (other than an affiliate of a Simplexam Indemnitee), that arise out of or result
are alleged to arise out of or result from: (i) User Data, including any processing of User Data by or on
Simplexam in accordance with this Agreement; (ii) any other materials or information (including any
specifications, software, content, or technology) provided by or on behalf of You or any Authorized User;
allegation of facts that, if true, would constitute Your breach of any of Your representations, warranties,
covenants, or obligations under this Agreement; (iv) any act or omission by You, any Authorized User, or any
party on behalf of You or any Authorized User, in connection with this Agreement or the Services; or (v) any
omission by Simplexam on behalf of You or any Authorized User in connection with the Services, including but
limited to electronic billing pursuant to Sections 2.1.2 and 2.10 of the California Division of Workers’
Compensation Electronic Medical Billing and Payment Companion Guide, Cal. Code Regs., tit. 8, § 9792.5.1,
9. Limitations of Liability. IN NO EVENT WILL SIMPLEXAM BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT
ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE
INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF
REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA
SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SIMPLEXAM
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
EVENT WILL THE AGGREGATE LIABILITY OF SIMPLEXAM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING
OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR
THEORY, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SIMPLEXAM BY YOU UNDER THIS AGREEMENT. THE FOREGOING
APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.1. Simplexam Not Liable for Your Use. The Services are being made available to You for
use by the Authorized
in accordance with this Agreement. You are solely responsible for any use or dissemination of the
information therefrom) by Authorized Users. Decisions based upon information contained in or distributed
Services are the sole responsibility of You and Your Authorized Users, and Simplexam and its affiliates
responsible for any use of user output from the Services. All disclosures required for Authorized User
interaction or presentation are Your sole responsibility.
9.2. Simplexam Not Liable for Third-Party Providers. Simplexam or third-party providers
may make available,
the Services or otherwise, various third-party products or services, including but not limited to
of injury, record summarization, and/or transcription services. Your ordering of such third-party
services, and any exchange of data between You and any third-party provider, product, or service is
You and the applicable third-party provider. Simplexam does not warrant or support such third-party
services. Simplexam is not responsible for any disclosure, modification, or deletion of User Data
access by such third-party provider. The Services may contain features designed to interoperate with
products or services. Simplexam cannot guarantee the continued availability of such Services features,
providing them without entitling You to any refund, credit, or other compensation, if for example and
limitation, a third-party provider ceases to make the third-party product or service available for
with the corresponding Services features in a manner acceptable to Simplexam.
10. Term and Termination.
10.1. Term. This Agreement is effective on the Effective Date and will continue in effect
for as long as You use
Services in accordance with this Agreement, unless terminated earlier pursuant to this Agreement.
10.2. Termination. You may request to terminate this Agreement at any time by written
notice to Simplexam.
reserves the right to require up to sixty (60) days’ prior notice of termination.
10.3. Termination for Breach. In addition to any other express termination right set forth
in this Agreement,
Simplexam may terminate this Agreement and Your use of the Services, effective on written notice to You,
fail to pay any amount when due hereunder; or (b) breach any of Your obligations under this Agreement,
failure/breach: (y) is incapable of cure; or (z) being capable of cure, remains uncured more than
after Simplexam’s delivery of written notice of the failure/breach.
10.4. Effect of Expiration or Termination. Upon expiration or earlier termination of this
Agreement, You shall
immediately discontinue use of the Simplexam IP and, without limiting Your confidentiality obligations
Agreement, You shall delete or destroy any Simplexam IP from Your Customer Systems. No expiration or
will affect Your obligation to pay all Fees that may have become due before such expiration or
entitle You to any refund.
10.5. Survival. This Section (Survival) and Sections 1.2 (Use Restrictions), 5
(Confidential Information), 7
(Warranty Disclaimer), 8 (Indemnification), 9 (Limitations of Liability), 10.4 (Effect of Expiration or
Termination), and 11 (Miscellaneous) survive any termination or expiration of this Agreement. No other
this Agreement survive the expiration or earlier termination of this Agreement.
11.1.1. “Access Credentials” means any username, identification number, password,
or other security code,
technology, or device used, alone or in combination, to verify an individual’s identity and
and use the Services.
11.1.2. “Authorized User” means Your employees, consultants, contractors, and
agents (i) who are authorized by
to access and use the Services under the rights granted to You pursuant to this Agreement and
(ii) for whom
to the Services has been purchased hereunder.
11.1.3. “Services” means the following software-as-a-service offerings: (a)
Medical History Questionnaire On
(b) Record Summary On Demand; (c) Telehealth On Demand; and (d) any other software-as-a-service
to You during the Term.
11.1.4. “Simplexam IP” means the Services and any and all intellectual property
provided to You or any
User in connection with the foregoing. For the avoidance of doubt, Simplexam IP does not include
11.1.5. “Simplexam Materials” means the Services, Simplexam Systems, and any and
all other information, data,
documents, materials, works, and other content, devices, methods, processes, hardware, software,
technologies and inventions, including any deliverables, technical or functional descriptions,
or reports, that are provided or used by Simplexam or any subcontractor in connection with the
comprise or relate to the Services or Simplexam Systems.
11.1.6. “Simplexam Systems” means the information technology infrastructure used
by or on behalf of Simplexam in
performing, maintaining, or providing the Services, including all computers, software, hardware,
electronic systems (including database management systems), and networks, whether operated
directly by Simplexam
through the use of third-party services.
11.1.7. “User Data” means information, data, and other content, in any form or
medium, that is submitted,
otherwise transmitted by or on behalf of Yourself or an Authorized User through the Services.
11.2. Entire Agreement. This Agreement, together with any other documents incorporated
herein by reference and
related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject
this Agreement and supersedes all prior and contemporaneous understandings, agreements, and
warranties, both written and oral, with respect to such subject matter.
11.3. Notices. All notices, requests, consents, claims, demands, waivers, and other
a “Notice”) must be in writing and addressed: (a) as to Simplexam, to Simplexam’s addresses of record
www.simplexam.com; and (b) as to You, to Your address provided at initial registration or to such other
You may designate by giving Notice from time to time in accordance with this Section. All Notices must
by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or
confirmation of transmission), or certified or registered mail (in each case, return receipt requested,
pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt
receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this
11.4. Force Majeure. In no event shall Simplexam be liable to You, or be deemed to have
breached this Agreement,
any failure or delay in performing its obligations under this Agreement, if and to the extent such
is caused by any circumstances beyond Simplexam’s reasonable control, including but not limited to acts
disease, pandemic, epidemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other
unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any
taken by a governmental or public authority, including imposing an embargo (each, a “Force Majeure
11.5. Amendment and Modification. Simplexam reserves the right to modify or change this
Agreement, as well as
policies relating to the Services, at any time, in its sole discretion. Simplexam will post revised
policies on its website, and will provide notice to You of material changes to this Agreement. You will
have accepted and agreed to any revisions or changes to this Agreement at the time of (i) Your
of the revised, changed, or new Agreement; or (ii) Your use of the Services after the effective date of
changed, or new Agreement. If the revised, changed, or new Agreement is not acceptable to You, Your sole
exclusive remedy will be to stop using the Services and/or to cancel Your account.
11.6. Waiver. No waiver by any Party of any of the provisions hereof will be effective
unless explicitly set
in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no
exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement
or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power,
privilege hereunder will preclude any other or further exercise thereof or the exercise of any other
power, or privilege.
11.7. Severability. If any provision of this Agreement is invalid, illegal, or
unenforceable in any
such invalidity, illegality, or unenforceability will not affect any other term or provision of this
invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such
any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good
modify this Agreement so as to effect their original intent as closely as possible in a mutually
in order that the transactions contemplated hereby be consummated as originally contemplated to the
11.8. Governing Law. This Agreement is governed by and construed in accordance with the
internal laws of the
of California without giving effect to any choice or conflict of law provision or rule that would
the application of the laws of any jurisdiction other than those of the State of California.
11.9. Venue, Jurisdiction, and Arbitration.
11.9.1. Any legal suit, action, or proceeding arising out of or related to this
Agreement or the licenses
hereunder will be instituted exclusively in the federal courts or state courts located in the
California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in
any such suit,
action, or proceeding.
11.9.2. Notwithstanding Section 11.9.1, at the request of Simplexam, any
controversy, dispute, or claim arising
of the interpretation, performance, or breach of this Agreement (including disputes as to the
arbitrator) shall be resolved by a binding arbitration in Riverside County, California
by JAMS and conducted by a single arbitrator (“Arbitrator”) in accordance with the JAMS
Rules & Procedures (unless the total amount in dispute is less than $250,000.00, in which case
Arbitration Rules & Procedures shall apply). The Arbitrator will prepare and provide to the
parties a written
decision (“Decision”) on all matters which are the subject of the Arbitration, including
reasons which form the basis of the Decision of the Arbitrator. The Decision will be conclusive
and final and
have the effect and be enforceable in the manner provided by the California Code of Civil
11.10. Attorneys’ Fees. In the event that any action, suit, arbitration, or other legal or
is instituted or commenced by either Party against the other Party arising out of or related to this
prevailing party is entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing
addition to any other appropriate relief.
11.11. Assignment. You may not assign any of Your rights or delegate any of Your
obligations hereunder, in each
whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent
Simplexam. Any purported assignment or delegation in violation of this Section will be null and void.
is binding upon and inures to the benefit of the Parties and their respective permitted successors and
11.12. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened
breach by such Party of
of its obligations under Section 5 (Confidential Information) or, in the case of You, Sections 1.2 (Use
Restrictions) or 2.2 (Control and Responsibility), would cause the other Party irreparable harm for
damages would not be an adequate remedy and agrees that, in the event of such breach or threatened
Party will be entitled to equitable relief, including a restraining order, an injunction, specific
any other relief that may be available from any court, without any requirement to post a bond or other
to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not
in addition to all other remedies that may be available at law, in equity, or otherwise.