Users. The users of simapp.com consist of the following roles (collectively the “Users”):
- A “Potential Customer” may view the publicly available content on simapp.com without logging in.
- An “Owner” is an individual that has purchased a plan for a single or multiple Users, or has signed up for a free trial.
- An Owner may create Calendars (as defined below); may create, edit, preview, view, delete, schedule, approve, boost with ads, assign and comment upon content on their Calendars; may invite other Collaborators, up to the allotted User amount provided under the plan purchased, to their Calendars; may assign and modify the roles of all invited Collaborators; and may connect social and ad accounts to their Calendars.
- As used herein, a “Calendar” means a digital timetable used to create, manage, and schedule social media content.
- Editors, Contributors, Clients and Viewers that are granted access to Owner’s Calendars (collectively, “Collaborators”) have the following rights and restrictions:
- An “Editor” may create, edit, preview, view, delete, schedule, approve, boost with ads, assign and comment upon content on Calendars he or she has been granted access to by the Owner; may invite other Collaborators, up to the allotted User amount provided under the plan purchased by the Owner, to such Calendars; may assign and modify the role of Contributors, Clients, and Viewers using such Calendars; and may connect social and ad accounts to such Calendars. An Editor may not delete, assign or otherwise transfer Calendars he or she has been granted access to by the Owner.
- A “Contributor” may create, edit, preview, view, assign and comment upon content on Calendars he or she has been granted access to by the Owner or an Editor. A Contributor may not delete, schedule, approve or boost with ads content on Calendars he or she has been granted access to by the Owner or an Editor; may not invite Collaborators to such Calendars; may not assign or modify the role of other Collaborators; may not connect social or ad accounts to such Calendars; and may not delete, assign or otherwise transfer such Calendars.
- A “Client” may view, delete, assign, schedule, and comment upon content on Calendars he or she has been granted access to by the Owner or an Editor; may invite other Collaborators, up to the allotted User amount provided under the plan purchased by the Owner, to such Calendars; may connect social and ad accounts to Calendars; and may manage his or her own role. A Client may not preview, create, edit, approve or boost with ads content on Calendars he or she has been granted access to by the Owner or an Editor; may not assign or modify the role of other Collaborators; and may not delete, assign or otherwise transfer such Calendars.
- A “Viewer” may view and comment upon content on Calendars he or she has been granted access to by the Owner or an Editor; and may manage his or her own role. A Viewer may not create, edit, preview, delete, assign, schedule, approve or boost with ads content on Calendars he or she has been granted access to by the Owner or an Editor; may not invite Collaborators to such Calendars; may not assign or modify the role of other Collaborators; may not connect social or ad accounts to such Calendars; and may not delete, assign or otherwise transfer such Calendars.
- The “Services” shall refer to the products offered by the Company that include, but are not limited to, the scheduling, managing, uploading and facilitating of social media content via Calendars, and related analytical, interaction management and URL shortening tools.
- The Company hereby grants to Owner a revocable, limited, assignable, non-sublicensable, non-exclusive license for the duration of Owner’s subscription to access and use the Services purchased or made available temporarily through a free trial offer made by the Company.
- The Company hereby grants to Editors, Contributors, Clients, and Viewers a revocable, limited, non-sublicensable, non-exclusive license for the duration of Owner’s subscription to access the Owner’s Calendar or Calendars, subject to the rights and limitations set forth above in Section 1(c). Editors, Contributors, Clients and Viewers acknowledge and agree that this license may only be assigned by the Owner, in the Owner’s sole discretion.
- The Users hereby grant to Company an exclusive, non-revocable, worldwide, royalty free license to use, copy, sublicense through multiple tiers, publish, reproduce, prepare derivative works, distribute, and display any feedback or suggestions communicated to Company (“Suggestions”), or any derivative works thereof. Without limiting the foregoing, Company will be entitled to unrestricted use and other exploitation of Suggestions for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Suggestions.
- Limitations. Users may not circumvent any technological measures or features of the Services that are intended to or effectively control access to the Services, or any other protected content or information included on the Services. The Services may contain robot exclusion headers. Users agree to not use any robot, spider, crawler, scraper or other automated means to access the Services for any purpose without the Company’s express prior written consent. Users further agree to not (i) take any action that imposes or may impose, in the Company’s sole discretion, an unreasonable or disproportionately large load on the Service’s infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; or (iii) bypass any measures the Services may use to prevent or restrict access to the Services. The Company and Owner reserve the right to refuse the use of or access to the Services for any User, upon notice to the Owner or Company, as appropriate, for any reason in the Company’s or Owner’s discretion.
Intellectual Property Ownership.
- Users acknowledge and agree that the trademarks of the Company (the “simapp Marks”), the Services, and the look and feel of any content accessible through simapp.com are proprietary, original works of authorship of the Company, or licensors of the Company, protected under United States and worldwide copyright, trademark, and trade secret laws of general applicability (“Company IP”). Users further acknowledge and agree that all right, title and interest in and to the Company IP are and shall remain with the Company or its licensors. Users agree not to contest or infringe these rights, directly or indirectly, at any time. Without the prior written consent of the Company, Users may not use or modify the Company IP.
- The Company and Owner make no representation or warranties with respect to the reliability or performance of the Services, and will not be liable to anyone for losses, damages, liabilities, settlements, causes of actions, or other claims arising out of or due to the use of the Services. Users waive any such claims it may have against the Company for access to or the use of the Services.
- Except as set forth in any agreement between Owner and Collaborators, without limiting the generality of this Section 5(f), Collaborators acknowledge and agree that Owner shall have full rights to use and access any and all content provided by or made accessible by Collaborators. Users acknowledge and agree that Company may grant access to User’s content to third-parties for support purposes or for any lawful purpose reasonably deemed appropriate by the Company.
- To the extent an Owner contributes any content that a Collaborator desires to be removed, Collaborator shall contact Owner to remove such content. Further, Collaborators shall indemnify Company pursuant to Section 5(d) in all claims against Owner.
Links to Other Services. The Services are integrated with and link to other services (“Linked Services”).
- The integration has been provided for Users’ convenience and, as such, Users access the Linked Services at their own risk. The Linked Services are not under Company’s control, and Company is not responsible for the contents of any Linked Services. A link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Company. Without limiting the generality of the foregoing, the Company is not responsible and shall have no liability for any viruses or other illicit code that results from accessing the Linked Services.
- Collaborators acknowledge and agree that the functionality of the Services depend on Owner assigning Collaborators access to the calendar. As long as Users utilize Company’s Services and its Linked Services, Users acknowledge and agree that Company shall have access to, and a license to use (per Section 2) the content of such Linked Services.
- Users acknowledge and agree that they are simultaneously bound by each Linked Service’s terms and policies, which may specify rules and restrictions for posting certain content, and the Linked Services's practices for using, storing and facilitating the exercise of certain rights in respect to personal information. Users further acknowledge and agree that they are solely responsible for reviewing and accepting Linked Services' terms and any liability that arises from or in relation to its breach of any such terms. The terms of each Linked Service, which only apply to the extent a User links or otherwise uses the Linked Service, can be accessed through the following links:
- Users acknowledge and agree that Linked Services may add, remove, bifurcate, and otherwise modify features of their third-party services (“Modifications”). Company is not responsible and shall have no liability for disturbances of Company Services caused by Modifications to Linked Services.
- Company has and will continue to integrate with ad accounts from Linked Services (the “Post Sponsoring Feature”). By using the Post Sponsoring Feature, the User: (i) agrees to strictly adhere to the Linked Service's advertising policies; and (ii) accepts the risk of any adjustments made by the Linked Service which may cause an unintentional increase or decrease to the budget that will be used by the Linked Service. For example, the Company’s integration with the Facebook Marketing API accurately reflects Facebook's stated foreign currency offset as of October 1, 2018, and will be periodically updated, but there is a risk that Facebook may adjust the foreign currency offset and temporarily render the Company’s API inaccurate. It is the User's sole responsibility to continuously monitor the charges made by any Linked Services and to terminate the advertising campaign in the event the User’s budget is exceeded. simapp shall in no way be held liable and hereby explicitly disclaims any responsibility for any charges that User may incur that relate to the Post Sponsoring Feature.
- simapp’s use and transfer of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
Removal of Content.
- Collaborators agree and acknowledge that (i) Owner has administrative control over the Services, including but not limited to Calendars and postings, and (ii) Owners and Editors may remove any content at the Owner’s or Editor’s sole discretion.
- Technical and Customer Support. Users may contact Company for technical support using the following email: [email protected]
Representations, Warranties, and Covenants. Users represent, warrant, and covenant the following:
- Users have all rights, title and interest, including all copyright rights and other intellectual property rights, in and to the content they submit or post. Users acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, the Company may immediately remove the identified materials from the Services without liability to Users or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the DMCA.
- Users shall not knowingly submit or post any information that is false or misleading, including any content with any false or misleading information.
- Users shall not use their accounts to breach the security or gain access to the account of any other Users.
- If any graphical content includes any persons, or the likeness or image of any person, Users have obtained the written consent of each such person to the display of the person’s likeness or image in the graphic, including a waiver of all applicable publicity rights, and shall deliver a copy of such consent to the Company upon consent.
- There is no claim, litigation or proceeding pending or threatened with respect to the content submitted by Users.
- Users shall not use post or transmit any harassing, threatening, infringing, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or material that violates federal, state, or local laws and regulations.
- Subject to the license provided in Section 2, Users shall maintain the confidentiality to the extent a User gains access to such personal information of Collaborators. To the extent a User desires to share or make available Collaborator information with third-parties, User shall obtain prior consent from Collaborator.
- Pursuant to Section 19, Owner is responsible for the payment of all fees and other terms and conditions as negotiated by the Company and Owner.
- Users shall provide Company with accurate, current and complete registration information.
- User shall not use the Services, provide any personal information to the Company, or otherwise submit personal information through the Services (including, for example, a name, address, telephone number, or email address) if User is under the Minimum Age. The "Minimum Age" is (i) thirteen (13), or (ii) the minimum age to consent to the processing of User’s personal data as required by the laws of User’s country. Additionally, User shall only use the Services if User can form a binding contract with the Company and is not legally prohibited from using the Services.
- Confidential Information. Except as set forth in Section 2, as ordered by a court of competent jurisdiction or as otherwise required by law, Company shall refrain from sharing Confidential Login Information and any other confidential User information. Users shall adhere to their confidentiality obligations set forth in Section 11.
No Warranty; Disclaimer.
- THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability.
- WITHOUT LIMITING AND NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY USER FOR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF FORESEEABLE OR IF THE COMPANY OR OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE.
- WITHOUT LIMITING THE FOREGOING, USERS ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVICES AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD-PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD-PARTIES CAN IMPAIR OR DISRUPT USERS’ OR OTHER THIRD-PARTIES’ CONNECTIONS TO THE INTERNET, OR PORTIONS OF THE INTERNET. ALTHOUGH THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, THE COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
- AS SET FORTH IN SECTION 6, IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY USER FOR ERRORS IN POSTING CONTENT OR ANY OTHER DISRUPTIONS IN THE SERVICES RESULTING FROM A MODIFICATION TO THE SERVICES OF THIRD-PARTY BY LINKED SERVICES.
- The Company or Owner may at any time and without notice terminate or modify Collaborator’s license.
Fees and Payment.
- Owner will pay Company all applicable fees and any related taxes (other than taxes on Company’s income) for use of the Services. Company may change its fees for current paying Owners by providing advanced written notice to such paying Owners. Owner authorizes Company to charge the applicable fees to the payment card that Owner submits to Company and agrees that a third-party credit card processing company may store such financial information. Owner will pay all fees and taxes as they become due. Owner’s obligation to pay fees continues through the end of the subscription period. If Owner’s payment card issuer or bank does not honor charges Owner has paid using Owner’s card, Owner will remain directly liable to Company for all unpaid amounts. Owner may cancel his or her subscription by sending an email to [email protected] or through the Owner’s account on simapp.com.
- By signing up for a subscription, Owner agrees that his or her subscription will be automatically renewed upon completion of the subscription term. Unless Owner cancels prior to the completion of the subscription term, Owner authorizes Company to charge the payment card provided for the renewal term. The period of auto-renewal will be the same as the initial monthly or yearly subscription period unless otherwise disclosed to Owner at the time of subscription purchase. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless Owner is notified of a rate change prior to the auto-renewal. Owner must cancel his or her subscription in accordance with the cancellation procedures in Section 19(a) or as otherwise agreed in writing. Company will not refund fees that may have accrued to Owner’s account and will not prorate fees for a cancelled subscription.
- Nonpayment of any fees or other sums due to Company or any other party related to Owner’s use of the Services will result in termination. Company may, at its discretion, also appoint an outside debt collection agency to collect amounts owed to Company. Owner agrees to reimburse Company for all costs that Company incurs in enforcing its collection of Owner’s unpaid amounts, including debt collection agency fees, reasonable attorneys’ and legal fees and court costs.
- All overcharges or billing disputes must be reported within 30 days of the date that the dispute occurred. If Owner disputes a charge to his or her payment card issuer that, in the Company’s reasonable judgment, is a valid charge under the provision of this Agreement, Owner agrees to reimburse the Company for its reasonable costs incurred in connection with the investigation of the matter. Company will refund any such fees if the investigation finds that Owner’s action in disputing the charge to his or her card issuer was justified because the charge was not, in fact, a valid charge under the provisions of this Agreement.
- All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.
- Upon cancellation of a subscription or free trial, Company shall switch calendars to view only mode and continue to toll analytics for a period of one (1) month to prevent a gap in data in the event that the Owner desires to renew their subscription.
- In the event that an Owner desires to modify his or her subscription plan to gain additional capabilities provided by the Company’s Services (“Upgrade”), the increase in charge is automatically adjusted and applied to the Owner’s account for the current term and all future renewals. The Company does offer pro-rated adjustments where appropriate. An Upgrade occurs when either an Owner (i) changes from a lower to a higher tier plan, or (ii) changes from a monthly to yearly subscription but maintains the same tier plan.
- In the event that an Owner desires to modify their subscription plan to have fewer capabilities provided by the Company’s Services (“Downgrade”), the decrease in charge is only applied after the subscription term concludes. A Downgrade occurs when an Owner (i) changes from a higher to a lower tier plan, or (ii) changes from a yearly to a monthly subscription but maintains the same plan. Downgrade may only occur at the end of a subscription term whether monthly or yearly. In the event of a Downgrade, the subscription tier will be maintained, but will not renew. Once the term for that subscription concludes, a new subscription reflecting the Downgrade will commence.
If to Owner:
- At Owner’s e-mail associated with their account.