Last updated June 22, 2018
WHITE ROOM PROJECTS LLC D/B/A SIMPLEMDM (“SIMPLEMDM”) PROVIDES ACCESS TO ITS SOFTWARE TITLED SIMPLEMDM (THE “SOFTWARE”) SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY USING THE SOFTWARE. SIMPLEMDM AND YOU ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.” NOTWITHSTANDING THE FOREGOING, YOUR PURCHASE OR USE OF THE SOFTWARE MAY, FROM TIME TO TIME, BE SUBJECT TO DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS. ADDITIONAL OR DIFFERENT TERMS OF CONDITIONS WILL BE PROVIDED TO YOU, IF APPLICABLE, PRIOR TO YOUR PURCHASE OR USE OF THE SOFTWARE AND THOSE ADDITIONAL OR DIFFERENT TERMS SHALL SUPERSEDE THESE TERMS AND CONDITIONS IF A CONFLICT EXISTS.
BY VISITING THIS WEBSITE OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST FORGO THE USAGE OF THIS WEBSITE AND THE SOFTWARE.
- Authorized Use
SimpleMDM authorizes You to access and use the Software during the term of this Agreement through a combination of issued user names and passwords. You are not allowed to resell or otherwise commercialize the Software without written permission. You are responsible for maintaining the confidentiality of the password(s) assigned to You. You are responsible for ensuring that the passwords assigned to the number of individuals selected under a particular subscription plan will not be shared with unauthorized individuals. You agree to immediately notify SimpleMDM if a password is lost, stolen, disclosed to an unauthorized third party, or has otherwise been compromised. You shall be solely responsible for any and all activities made under Your account, including, but not limited to, exceeding the number of authorized users, whether or not you permitted the use of Your account.
You agree to pay SimpleMDM for use of the Software according to the posted pricing schedule, purchase order, or invoice. SimpleMDM reserves the right to change the pricing schedule or adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion, provided that no change to pricing will be made retroactive for your account. Except as otherwise expressly provided for in this Agreement, any price change or changes to your pricing schedule or subscription plan will take effect following notice to You. SimpleMDM does not provide refunds or credits for partial month usage.
- Payment Terms
For use of the Software, You will pay the amounts, and in the manner, set forth in this Agreement and any applicable addendum(s). Unless otherwise identified in this Agreement or an addendum, payments shall be stated (and payments made) in United States dollars and are exclusive of applicable sales, use, or similar taxes. Except for any amounts in dispute and as may otherwise be set forth in an Addendum, SimpleMDM is hereby authorized to charge Your credit card on a recurring basis for the usage of SimpleMDM according to the price schedule. You must provide SimpleMDM with a valid credit card number and associated payment information including all of the following: (i) Your credit card number; (ii)) the date of expiration; and (iii) any activation numbers or codes needed to charge Your card. If SimpleMDM does not receive payment from Your credit card issuer or its agent, You will be responsible for an alternate payment arrangement and any resulting fees if SimpleMDM has approved the alternative method of payment.
You are responsible for paying all taxes associated with Your use of the Software. If SimpleMDM has the legal obligation to pay or collect taxes for which You are responsible under this section, SimpleMDM will invoice You and You will pay that amount unless You provide SimpleMDM with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SimpleMDM is solely responsible for taxes assessable against it based on its income, property, and employees.
- Use Restrictions
By using the Software, You agree not to do any of the following: (i) intentionally or unintentionally violate any local, state, or federal law; (ii) knowingly upload any files that contain software viruses or other harmful computer code; (iii) interfere with the operation of SimpleMDM’s Web servers or other computers or Internet or network connections; (iv) rent, retransmit, disclose, publish, sell, lease, assign, market, sublicense, or transmit the Software or any portion thereof or use it in any manner not expressly authorized by this Agreement; or (v) copy, reverse engineer, translate, port, modify, or make derivative works of any portion of the Software.
You are solely responsible for providing, maintaining, and ensuring, at Your sole expense, all hardware, software, electrical, and other physical requirements for Your use of the Software, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs, and services required to access and use the Software. SimpleMDM may, in its sole discretion, change the applicable technical requirements to use the Software from time to time.
You may report an error with the Software through an online support channel. SimpleMDM will attempt to fix the error as soon as possible and will keep you informed of its repair efforts. But SimpleMDM does not warrant that the error will be fixed and nothing in this Section will be construed as SimpleMDM warranting that an error will be fixed or fixed to Your satisfaction.
You acknowledge and agree that at times the Software may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that SimpleMDM may undertake from time to time; or (iii) causes that are beyond the control of SimpleMDM or that are not reasonably foreseeable. SimpleMDM will make reasonable efforts to notify you in advance of any outages, but cannot guarantee any advance notice.
- Disclaimer of Warranties
SIMPLEMDM AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SOFTWARE “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND SIMPLEMDM HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. SIMPLEMDM DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THE AVAILABILITY OF THE USER CONTENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIMPLEMDM OR A SIMPLEMDM AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
- Limitation of Liability
EXCEPT FOR OBLIGATIONS RELATED TO SECTION 11 INDEMNIFICATION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SIMPLEMDM OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT, OR OTHERWISE) AND EVEN IF SIMPLEMDM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. IN NO EVENT SHALL SIMPLEMDM’S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES PAID FOR YOUR ACCESS TO THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, hold harmless, and defend SimpleMDM, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to the breach of this Agreement or the unauthorized use of the Software.
You may terminate this Agreement by closing your account. You acknowledge and agree that You remain liable for all fees incurred during the billing cycle in which you terminate this Agreement and authorize SimpleMDM to charge Your credit card or other payment source for these fees. Upon account termination, SimpleMDM will remove Your devices from the Software, remove any software and configuration from your devices that was added with the Software, and delete your account and account data. If You fail to pay the fees according to Section 2 of this Agreement, SimpleMDM will disable the features of the Software (the “Disabling Date”). SimpleMDM reserves the right to clean any software from your devices that was added with SimpleMDM, as well as the right to delete your account and account data.
You agree that SimpleMDM may, in its sole discretion and without prior notice, terminate your access to the Software and block your future access to the Software if we determine you have violated this Agreement or other agreements or guidelines which are associated with Your use of the Software.
- Effect of Termination
UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE ACCESS GRANTED TO YOU IN SECTION 1 CEASES AND YOU ARE NO LONGER AUTHORIZED TO ACCESS THE SOFTWARE FOR ANY PURPOSE. YOU FURTHER AGREE THAT SIMPLEMDM’S SERVERS AND COMPUTER NETWORK CONSTITUTE A “PROTECTED COMPUTER” AS DEFINED BY THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C § 1030 ET SEQ.) AND THAT YOUR ACCESS OF SIMPLEMDM’S SERVERS AND COMPUTER NETWORK FOLLOWING THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT IS WITHOUT AUTHORIZATION.
- Equitable Remedies and Enforcement
You acknowledge and agree that breach of any of the obligations under this Agreement shall cause irreparable injury to SimpleMDM and shall entitle SimpleMDM to equitable relief or remedy. The pursuit or securing of any equitable relief shall not prohibit or limit SimpleMDM to seek or obtain any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, You agree that the court making such determination shall have the power to reduce the scope, duration, and area of such covenant or agreement to the extent that allows the maximum scope, duration, and area permitted by applicable law. The covenants, agreements, and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to SimpleMDM including, but not limited to, those rights and remedies contained in the Uniform Trade Secrets Act, or its state counterparts.
- Governing Law; Jurisdiction; Venue; Attorneys’ Fees
This Agreement shall be construed and enforced in accordance with the laws of the State of Oregon, without regard to conflict of law principles. All actions, claims, or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Oregon.
The Parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each Party by the federal and/or state courts in the State of Oregon.
The Parties hereby irrevocably waive any and all objections which any Party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Oregon and to the venue of any such suit, action, or proceeding brought in any federal or state court in the State of Oregon. Should You breach any of the terms of this Agreement, You hereby agree to pay all the reasonable attorneys’ fees incurred by SimpleMDM in enforcing the terms of this Agreement. The attorneys’ fees shall be paid by You irrespective of any damages recovered or any relief afforded to SimpleMDM.
- Force Majeure
SimpleMDM shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted, or prevented by reason of any act of God, act of terrorism, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power, or supplies, or any other act or condition beyond SimpleMDM’s reasonable commercial control.
- Entire Agreement
This Agreement states the Parties’ entire agreement and understanding of the subject hereof. This Agreement supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.
SimpleMDM shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. You do not have the right to modify this Agreement without the consent of SimpleMDM.
- Third-Party Beneficiaries
There are no intended third-party beneficiaries of this Agreement.
No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision, or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision, or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
If any provision or clause of this Agreement as applied to either Party or to any circumstances, shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of this Agreement.
You may not assign Your rights or delegate Your duties under this Agreement without SimpleMDM’s prior written consent. Any attempted assignment or delegation by You without the required consent is void. Notwithstanding the foregoing, SimpleMDM may assign this Agreement to, without limitation, an affiliate, subsidiary, third party, or successor without Your prior consent.
Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Sections 2-5 and 9-15 shall survive termination of this Agreement for any reason.