Last Updated: December 11, 2013
Symulate, LLC., ("Symulate," "we," "our," "us") provides its Service (as defined below) to you ("you" or "your") through its website located at http://www.symulate.com (the "Site"), subject to these Terms of Service ("Agreement").
1.1 This Agreement constitutes a binding legal contract that governs your trial (if applicable), purchase and ongoing use and access of the Service. You must complete the registration form and accept the terms of this Agreement before you may access or use the Service. You can accept the terms of this Agreement by either: (a) clicking to accept or agree where such option is made available to you; or (b) actually using or accessing the Service.
1.2 By accepting this Agreement, or by accessing or using the Service or Site, you represent and warrant the following:
1.4 If you do not agree with this Agreement, or you cannot abide by the representations set forth in Section 1.2 above and elsewhere in this Agreement, then you must not accept this Agreement and must not use the Service.
1.5 We reserve the right to update this Agreement at any time, in our sole discretion, and will notify you of such updates either via email or by posting such changes on our Site, or such other reasonable means. You can find the most recent version of this Agreement at http://symulate.com/terms with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. If you do not agree to the revised terms and conditions, your sole recourse is to cancel your account and cease use of the Service. Your continued access and use of the Service, including the continued use or enjoyment of any Perks offered through the Service, following notification of an updated version of this Agreement shall constitute your acceptance of the revised Agreement.
2.1 Our service consists of access to our Site and the platform contained therein in which we make certain employee perks and products and services (the "Perks") offered by a wide range of participating merchants and vendors ("Vendors") available to you (the "Service"). Subject to and conditioned on your compliance with the terms of this Agreement, you shall have a non-exclusive, non-transferable, non-sublicensable, limited right, during the Term (as defined below) to access and use the Service. Subject to your payment of the applicable fees as set forth in Section 6.1, you and your employees ("Users") may use the Service, provided that you ensure that all Users comply with the terms of this Agreement. Additionally, you will be fully liable for the acts, omissions, or violation of the terms of this Agreement by any of your employees. Except for the express licenses granted in this Section 2, no other licenses are granted by Symulate hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved.
2.2 In order to use the Service, a modern browser such as Firefox 3+, Safari 3+ or Google Chrome 9+ is recommended. Additionally, a stable connection to the Internet is required. The Service may work in a limited manner on other web browsers and earlier versions of the recommended browsers, but please keep in mind that the Service was not designed for use or compatibility with web browsers other than the ones we specifically recommend.
3.1 Acceptable Use. You agree that you will not (and will not permit or encourage any Users or other third party to) directly or indirectly:
3.2 Notice of Unauthorized Use. You will immediately notify us of any unauthorized use of your account or the Service that comes to your attention. In the event of any such unauthorized use, you will take all steps necessary to terminate such unauthorized use. Additionally, you will cooperate and assist us as we may reasonably request in regard to any such unauthorized use.
The Service may change over time as we refine and add more features or content. We reserve the right to update, modify, or discontinue the features, functionality, content or other aspects of the Service, including any and all Perks, at any time, with or without notice, in our sole discretion. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this Agreement. Symulate does not guarantee the availability of the Service and/or any of the Perks or other perks contained therein, which are all subject to change at any time without notice.
5.1 Account Registration. To obtain access to the Service as a User, you are required to obtain a login to the Site, by completing a registration form providing your name, email address, password and other similar information. When registering as a User you must satisfy the conditions set forth in Section 1.2 above, including: (a) providing true, accurate, current and complete information about yourself as required by the registration form for the Service, and (b) maintain and promptly update throughout the Term such information to keep it true, accurate, current and complete. Your User account login is personal to you and may not be shared or used by anyone else. However, subject to the terms of this Agreement, you may add or create separate logins for as many Users as you like.
5.2 Account Security. Only you may use your User account login. You are entirely responsible for maintaining the confidentiality of your User account password and you agree not to disclose such password to any other User or third party or let any third party use the Service on your behalf. You must contact us immediately if you suspect misuse of your User account or any security breach in the Service. Please be aware that you are responsible for any and all activity occurring through your User account, whether or not you actually authorized that activity.
6.1 Service Fees. Unless you are purchasing the Service from an authorized reseller, you will pay us the fees for the Service ("Service Fees") in accordance with the then current payment and pricing terms set forth on our pricing information page available at http://www.symulate.com (or such URL as we may provide) which is incorporated by reference into this Agreement. All payments shall be made by credit card or such other payment methods that we may make available in the future at our sole discretion. When registering for the Service on behalf of your company, you will be required to provide a valid credit card. You understand that we will automatically charge your credit card monthly or yearly in advance, depending on the plan you have selected, unless and until you cancel your account. All Service Fees are payable in U.S. dollars, unless otherwise agreed by Symulate in writing. All payment obligations are non-cancelable and all Service Fees and other amounts paid are non-refundable. We may assess a late charge if you do not pay the Service Fees on time. The late charge will be the lesser of one and a half (1.5%) percent of the unpaid amount each month or the maximum rate permitted by law. You will reimburse us for all costs we incur in connection with our effort to collect any past due amounts, including attorneys' fees and other related expenses. We may suspend or cancel your Service if you fail to pay the Service Fees in full on time. In the event your Service is suspended or canceled for violating the provisions of this Agreement, all fees paid will be non-refundable, unless in its sole discretion Symulate determines that a refund is appropriate.
6.2 Taxes. You will be responsible for all taxes related to the Service Fees or your use of the Service, excluding taxes based on Symulate's net income. You will also be responsible for procuring and maintaining all hardware, software and telecommunications services needed to connect your network to the Service and for paying all third-party access charges (e.g., Internet service provider fees).
6.3 Updates. We reserve the right to update the Service Fees, at any time, and for any reason, upon thirty (30) days’ notice to you via the email address on file with your account or such other reasonable means. If you do not agree to such a change in the Service Fees, you may cancel your account during such thirty (30) day period. By continuing to use the Service after the effective date of the change in Service Fees, you agree to such Service Fees.
6.4 Free Trials and Other Promotions. Any free trial or other promotion that provides you access to the Service must be used within the specified time of the trial subscription period. You must cancel your trial subscription before the end of the trial period in order to avoid being charged the applicable monthly Service subscription fee.
7.1 Term. This Agreement shall remain effective and you will continue to be billed for the Service until we terminate your account or you properly cancel your account in accordance with this Agreement ("Term").
7.2 Termination. You are solely responsible for properly canceling your account. You may cancel your account at any time through the Service dashboard. All cancellations will be processed within three (3) business days receipt of the request for cancellation. We may terminate this Agreement and your rights to access and use the Service for any or no reason, without liability, at our sole discretion at any time, including if we suspect that you or your Users have violated this Agreement. We will attempt to notify you of any such termination but are under no obligation to do so. In addition, without limiting the foregoing termination rights, we reserve the right, at any time and in our sole and absolute discretion, to temporarily suspend access to the Service (in whole or in part) for: (a) scheduled or unscheduled maintenance; (b) purposes of maintaining the security and/or integrity of Symulate’s network, hardware, or associated systems or those of its third party providers; (c) failure by you to timely pay the Service Fees; or (d) the actual or suspected violation of this Agreement by you or your Users. Any fees paid prior to suspension or termination are non-refundable.
7.3 Effect of Termination. Upon termination of this Agreement or cancellation of your account, all licenses and other rights granted to you hereunder will immediately terminate and you will lose access to and will cease all use of the Service (including all Perks and or other discounts offered through the Service). For avoidance of doubt, you understand and agree that any Perks that you obtained through the Service during the Term may not be used beyond the termination of this Agreement or cancellation of your account.
The Site and Service may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including but not limited to websites, directories, servers, networks, systems, information and databases, software, applications, programs, products and/or services, and the Internet as a whole. When you engage a third party’s website or service which is linked to the Site and/or Service, you are interacting with the third party and not with us. Such linked websites are not under our control and we are not responsible for the contents of any linked website or any link contained within a linked website, or any changes or updates to such websites maintained by third parties. Posting of a link to another website does not constitute endorsement of that website (or any of the products, service or other materials offered through that website) by us or our licensors, regardless of whether or not the link is associated with any Perks or discounts listed on our Site. All Perks that you pursue or other transactions you engage in using the Service are between you and the transacting party. Symulate is not an agent of any transacting party, nor are we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Symulate shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Service, including the delivery of and payment for goods and services.
9.2 Trademarks. The Site and/or Service contain valuable trademarks owned and used by us to distinguish the Site and Service from those of others. The Site and/or Service may also contain references to other entities’ trademarks and service marks, but such references are for identification purposes only. We do not claim ownership in, or any affiliation with, any third party trademarks or service marks appearing on the Site and/or Service. You agree not to use or display any trademarks or service marks you do not own without our prior written consent or the consent of the owner of such mark.
In connection with this Agreement, you may receive or have access to Confidential Information of Symulate. For purposes of this Agreement, "Confidential Information" means the terms of this Agreement, and all technical and non-technical information concerning or related to Symulate’s or its affiliates’ respective products, services, and general business operations, information of or concerning Symulate’s or its affiliates’ users or employees, and any and all data, information and materials related to any of the foregoing. You agree that you shall not disclose Confidential Information to any third party, except to your employees who have a need to know and are bound by written confidentiality obligations no less restrictive than these. Confidential Information remains the sole and exclusive property of Symulate.
By registering for the Service, you understand that we may send you or your Users communications or data regarding the Service, including but not limited to notices about your use of the Service (including any notices concerning violations of use), updates, and promotional information and materials regarding the Service, all in electronic form via the email address you specified when you registered.
WE PROVIDE OUR SERVICE TO YOU "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". YOU AGREE THAT ANY USE OF AND RELIANCE UPON THE SERVICE (INCLUDING ANY AND ALL OF THE INFORMATION, CONTENT, AND/OR MATERIALS CONTAINED THEREIN, OR RESULTS OBTAINED THEREFROM) BY YOU IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN ADDITION, SYMULATE DOES NOT WARRANT THAT ACCESS TO THE SERVICE OR SITE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT INFORMATION OBTAINED THROUGH THE SERVICE WILL BE ACCURATE OR RELIABLE. SYMULATE MAKES NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE VENDORS OR ADVERTISERS LISTED ON THE SITE. ACCORDINGLY, SYMULATE IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS. YOUR PURCHASE AND USE OF THE PERKS, DISCOUNTS, OR PRODUCTS AND SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.
You agree to indemnify, defend, and hold harmless Symulate, its subsidiaries, affiliates, subcontractors and Vendors, and all of their respective officers, directors, employees, agents, licensors, suppliers and any third-party information providers from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including without limitation, all associated costs, expenses and reasonable attorneys’ fees and court costs) arising out of or related to: (a) your breach of the provisions of this Agreement, or (b) your violation of applicable laws, rules, or regulations in connection with the Service. We will provide you with notice of any such claim within a reasonable time, and we reserve the right to assume exclusive defense and control of any claim, subject to your indemnification obligation, and you agree to fully cooperate with us in connection with our defense of such claim.
14.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SYMULATE, OR ITS OFFICERS, EMPLOYEES, AGENTS OR VENDORS BE LIABLE TO YOU (OR ANY PARTY CLAIMING THROUGH YOU) FOR ANY LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SYMULATE OR ITS OFFICERS, EMPLOYEES, AGENTS OR VENDORS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SYMULATE, AND ITS OFFICERS, EMPLOYEES, AGENTS AND VENDORS MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICE, SITE OR THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO SYMULATE IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
15.1 Entire Agreement. This Agreement constitutes the entire agreement of the parties regarding the Service. It supersedes any and all proposals, oral or written, negotiations, conversations, discussions, or agreements between the parties relating to your use of the Service (including, without limitation, any prior versions of this Agreement).
15.2 Assignment. You may not assign this Agreement in whole or in part, by operation of law or otherwise, and any attempt to do so will be null and void. We may assign this Agreement, in whole or in part, at any time without notice. Subject to the foregoing restriction, this Agreement shall be binding upon and shall inure to the perk of your and Symulate’s successors and assigns.
15.3 No Waiver. Our failure to enforce any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision, right or remedy in that or any other instance.
15.4 No Partnership. This Agreement does not create a joint venture, agency, or partnership between the parties. Our engagement with you under this Agreement is non-exclusive and Symulate reserves the right to offer the Service to any other person or entity.
15.5 No Third Party Beneficiaries. This Agreement is solely for the perk of the parties and there shall be no third party beneficiaries except as otherwise expressly provided under this Agreement.
15.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the parties agree that such provision shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and that the remaining provisions shall remain in full force and effect.
15.7 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Maryland, without regard to its principles regarding conflicts of law. Each party hereby irrevocably submits to, and waives any objection to, the exclusive personal jurisdiction of the state and federal courts located in Montgomery County, Maryland.
15.8 Agreement Binding on Successors. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
15.9 Survival of Terms. Sections 3, 6 through 10, and 12 through 15 shall survive termination of this Agreement. After your subscription to the Service has terminated, any and all additional terms not listed in the foregoing sentence that by their nature may survive termination of this Agreeement shall be deemed to survive such termination.
We hope we can provide you with the best experience possible, and we welcome any feedback, suggestions for improvements to the Service, as well as any questions, issues, concerns or other inquiries related to the Service. If you are having trouble with the Service or your User account, or wish to contact us for any reason, please feel free to email us at email@example.com so that our support team may promptly assist you.