Last Updated: May 6, 2020
If you are using the Services on behalf of a company or other organization, you represent and warrant that you have the authority to act on behalf of your entity, and that entity, its employees, agents, principals, and affiliates who accepts each of the Terms contained herein.
If you do not agree to these Terms, please do not use our Platform or the Services.
SECTION 1 – MEMBERSHIP SERVICES.
Simplifyy provides certain software-enabled property operation services to you (the “Services”). As part of the Services, you will be provided a login and password for the Platform that enables you to access and use the Services. We recommend that you keep this information private, subject to disclosing it to your necessary agents. You are responsible for ensuring that you have the necessary technology capabilities to access the Platform and the Services. Simplifyy hereby grants Member a non-exclusive, non-transferable right to access and use the Services during the Term (as defined below) solely for Member’s business use and Member’s provision of residency to Member’s tenants. Member’s access and use of the Services shall be limited to Member, end users designated by the Member (the “Designated Users”) and the Member’s administrator for the Services (“Administrator”).
As a member and user of the Services, you will receive access to all content and accessibility that is made available to other members. Subject to the terms and conditions of this Agreement, Simplifyy shall provide you the following Services and you shall allow Simplifyy to take the following actions in connection with the Services:
- Receipt of Funds; Bank Accounts; Payments. Member authorizes Simplifyy to request, demand, collect, receive and receipt for all such rent, security deposits and other charges.
All monies collected by Simplifyy shall be forthwith deposited in the separate bank account or accounts established by Member, for such purpose, having such signatories and in such banks or financial institutions as approved by Simplifyy. Member acknowledges and agrees that these account(s) are only to be used for purposes as contemplated by these Terms. Member shall be required to provide Simplifyy access to such bank or financial account(s). Simplifyy shall distribute the monies deposited in such account or accounts in accordance with this Agreement. Funds in such account or accounts shall not be co-mingled with any funds of Simplifyy or of others.
Member shall be required to maintain a bank account balance equal to the greater of Ten Thousand and 00/100 Dollars ($10,000.00) or 3x the following month’s forecasted expenses, and if necessary, shall fund said account within ten (10) business days of Simplifyy’s request for said funding. Failure to maintain said balance shall be deemed to constitute an event of default on part of the Member. Simplifyy shall be obligated to make payments required by this Agreement on behalf of Member only to the extent that funds of Member are available for such payments. In the event there are insufficient funds in the operating account to pay the obligations of the Member that the Simplifyy is to pay under the terms of this Agreement, Simplifyy shall forthwith notify Member who shall deposit sufficient funds in the operating account to enable Simplifyy to pay such obligations as the same become due.
- Repairs and Maintenance. Simplifyy, at Member’s expense, shall make all repairs and perform all maintenance on the improvements, appurtenances and grounds of all portions of the subject properties or property (referred to herein as the “Property” or “Properties”) as reasonably required to keep the same in good order and repair (ordinary wear and tear excepted) or as otherwise required by Member. Member acknowledges and agrees that this may include a salaried employee of Simplifyy who is tasked with maintenance of any number of Units and Member shall be responsible for payment its shared payment responsibility of this employee, proportional to the amount of Units owned and under management by this employee.
- Payment of Expenses of Operation. Costs and expenses incurred by Simplifyy in keeping a Unit in operation (excluding reasonable attorney’s fees incurred for legal fees and expenses of counsel) and/or arising out of such legal actions that Simplifyy may undertake on Member’s behalf shall, unless herein specified to the contrary, be deemed to be “expenses of operation” and shall be payable by Simplifyy.
Simplifyy shall make no expenditures in excess of Ten Thousand and 00/100 Dollars ($10,000.00) for any single item without the prior written approval of Member, except for items included in the forecast, or in the event of an emergency situation wherein Simplifyy shall notify Member promptly in writing, and shall be empowered to, with prudent judgment, expend such necessary sums to insure the operation of the Property and protect the Member’s interest.
- Utilities, Equipment, Supplies and Maintenance Services. Except to the extent a tenant is to pay and perform the same under the terms of any lease, Simplifyy shall, at Member’s expense, make all arrangements for the furnishing of each unit and the Property of, and payment for, utilities, maintenance and other services and for the acquisition of equipment and supplies as necessary or proper for the operation, maintenance and servicing of the units and Property as proper for the operation of the Property and the preservation of Member’s assets related thereto. Simplifyy, on Member’s behalf, may enter into maintenance and/or utility contracts and service agreements with independent contractors to provide such services. Simplifyy shall pay all fees and charges for such utilities, maintenance and other services and equipment and supplies that are Member’s responsibility before the same become delinquent.
- Insurance Coverage; Claims. Member shall cause to be placed and kept in force all forms of insurance to the extent reasonably available as required by law or as customary to protect the Member, any lenders, and the Simplifyy adequately including, but not limited to, general liability insurance, fire and extended coverage insurance, vandalism, burglary and/or theft insurance, boiler and machinery insurance, builder’s risk insurance, flood insurance, and business interruption and rent insurance. All such liability coverages shall name Simplifyy as an additional insured. Member acknowledges and agrees to reimburse Simplifyy for any deductible or other expenses related to insurance, that it pays or is required to pay as a result of the business relationship contemplated herein.
- Leasing. Simplifyy shall organize and implement an ongoing leasing and licensing program for the Property in conjunction with the Simplifyy App. Simplifyy shall exercise its best efforts to lease any vacant apartment units and license other rentable improvements on the Property to tenants that comply with the requirements of Simplifyy’s leasing program. All such leases and/or licenses shall be prepared on standard forms which are expressly acknowledged and approved by Member, including any amendments or changes to all such leases/licenses. The delivery and receiving of leases and/or licenses will be done through the Simplifyy App. Simplifyy shall have authority to execute such leases and/or licenses, and any amendments, renewals or cancellations thereof, on behalf of Member.
- Deposit Replacement. Renters will be required to purchase deposit replacement insurance (“Deposit Insurance”) which shall cover the length of each lease agreement, any subsequent renewals, and their place of residency (“Unit” or "Units"). This includes any new leases and lease renewals for leases that began prior to the business relationship contemplated herein. Any rental or leasing deposit paid by a resident of one of Member’s Units prior to this relationship will be returned to the resident who will then be required to purchase Deposit Insurance. The Deposit Insurance will cover 3x monthly rent up to $3,000.00. The Deposit Insurance covers expenses associated with the end of a renter’s residency including but not limited to unpaid rent, eviction costs, legal fees, and other damages incurred or related to a resident.
- Files. Simplifyy may maintain physical or electronic files and confidential information as required pursuant to applicable laws and will hold such information confidential and strictly for use as required by law, at all times subject to any indemnification herein included to the fullest extent possible.
SECTION 2 – Term/Termination.
Each "Term” shall last for thirty (30) days. When you agree to the Services, you expressly acknowledge and agree that (a) Simplifyy or its third-party processor is authorized to charge you for each Term for the full price of your membership (in addition to taxes and other charges set forth) for as long as the membership continues; and (b) your membership is continuous until cancelled, suspended, or terminated.
The Term shall automatically renew at the end of each Term or any renewal thereafter (a “Renewal”) without any action on your part or the part of Simplifyy. If you wish to terminate the Services, notice of termination must be provided at least thirty (30) days prior to the end of the then current Term. By way of example, if notice of termination given on March 3, it is effective April 1. Notice of termination must be provided by written notice, either via U.S. Mail, hand delivery, or via email in accordance with the provision below titled Notices. In the event that a notice to terminate is provided by U.S. Mail, termination shall be effective on the date the notice is postmarked. All disputes that arise out of when termination was provided, if not clear, shall be resolved in the favor of Simplifyy. Given this, we suggest that notice of termination be provided by email to Investorsuccess@simplifyy.com and clearly marked with the subject line: NOTICE OF TERMINATION. Please be sure to include your name, Unit number and/or account number.
Termination of the Services shall not relieve you of your payment obligations for a Term, or any part thereof. You are responsible for all charges (including taxes and other charges) incurred with respect to the Services prior to the end of a Term after effective termination.
Simplifyy may suspend access to or performance of all Services if Simplifyy reasonably believes that Member is in breach or will be in breach of any of its obligations under these Terms, or the terms governing use of the Simplifyy App, and if such breach or anticipated breach is not remedied within ten (10) business days from the date that Simplifyy notifies Member of the suspected breach.
SECTION 3 – Authority As Your Agent.
You hereby expressly agree and authorize Simplifyy to act as your express written agent in respect to the Services. All such actions taken by Simplifyy that are made to further or have furthered the Services will have been made as if expressly authorized by you prior to each action taking place.
- Authorization. In carrying out its obligations and providing the Services, Member authorizes Simplifyy, on Member’s behalf to make and enter into all contracts for services, and/or other rentable improvements, and other agreements as are required in the ordinary course of the operation, maintenance and service of the Property. Leases and/or licenses for any units (“Occupancy Agreement(s)”) shall be entered into by the Member, either directly, through electronic signature, or pursuant to any such methods requested by Simplifyy to ensure Owner is executing Occupancy Agreement(s). The Member agrees to be bound by the form of Occupancy Agreement provided by Simplifyy and Occupancy Agreement pricing (“Rent”) shall be subject to Simplifyy’s proprietary technology. Simplifyy is further authorized by Member, on its own behalf, (i) to terminate tenancies and to sign and serve in the name of Member such notices as are appropriate; (ii) to institute and prosecute actions with prior approval of Member; (iii) to evict tenants and to recover possession of the leased premises; (iv) to sue for and in the name of Member and to recover rents and other sums due; and (v) when expedient, to settle, compromise, and release such actions or suits or reinstate such tenancies all on such terms and conditions as Simplifyy shall determine.
- Pre-Existing Leases. Any existing leases at the beginning of the Initial Term is entered into shall be managed and honored upon the terms and conditions contained therein. Simplifyy shall have the right to require that any renewal, amendment, or other modification to any existing lease be completed utilizing the Simplifyy App or Services. Oversight and servicing of any existing leases, to the extent possible, shall be managed in accordance with the Terms and Conditions of the Simplifyy App. Notwithstanding any indemnification clause contained elsewhere in the Agreement, Member shall to the fullest extent permitted by law, indemnify and hold harmless Simplifyy for any claims, actions, or litigation by any pay party related in any way to terms or conditions contained in an existing lease that obligates the Member to a tenant in any manner exceeding that contained in the Occupancy Agreement approved by Member.
- Property Access. Member expressly provides Simplifyy or any of Simplifyy’s agents or employees, with the right to physically access the Property, as required in the sole and reasonable judgment of Simplifyy, to fulfill any of its rights, responsibilities, or obligations under the Terms or pursuant to any Occupancy Agreement(s) or leases and to take all reasonable actions it deems necessary.
SECTION 4 – Payment.
As payment for the Services, Member shall pay Simplifyy its quoted price per Unit (“Fees”), per month, regardless of the status of occupancy in any given Unit for any period during the Term of this Agreement. On or after the fifth (5th) day of each calendar month, Simplifyy shall disburse to itself an amount equal to the Fees due Simplifyy for such month from the operation bank account or accounts maintained by it in accordance with this Agreement; provided, however, that any such amounts which Simplifyy disburses to itself shall be disclosed in the Simplifyy App, Member Portal, and/or any reports furnished or made available to Member pursuant to their Agreement with Simplifyy.
You agree to provide current, complete, and accurate payment information at all times. In the event of a change in payment, whether by expiration of a payment card or otherwise, you agree to promptly update payment information so that payment can be timely made under this Section.
Any unpaid balances or failures to pay in connection with the Services will accrue interest at 4.5% per month, until satisfied. In the unlikely event that Simplifyy determines it necessary to go after you for any unpaid balances for the Services, you agree to reimburse Simplifyy for all reasonable costs and fees, including attorney’s fees.
SECTION 5 – Simplifyy Obligations; Representations and Warranties.
- Workers Compensation Insurance. Simplifyy shall maintain at all times relevant employee’s workers compensation and employer’s liability insurance for Simplifyy’s employees in at least the applicable required statutory amounts;
- Qualified to do Business. Simplifyy is, and throughout the term of the Agreement will remain, qualified to do business and in good standing under the laws of the State of Missouri and/or such other states as may be required from time-to-time.
- Obligations upon Termination. Upon the expiration or termination of the Services, Simplifyy shall deliver to Member, or to any person designated by Member (i) the balance of monies of Member held by Simplifyy; (ii) copies of all books, records and accounts of the Property of Member in the possession of Simplifyy and of all documents received by Simplifyy pursuant to the terms of this Agreement or of any loan documents or other agreements applicable to the Property or any portion thereof and originals of any such documents in Simplifyy’s possession; and (iii) any personal property of Member in the possession of Simplifyy. Simplifyy shall also, for a period of thirty (30) days after such termination, make itself reasonably available to consult with the Member and its agents or representatives related to the Property regarding the operation and maintenance thereof.
- Accounting, Records and Reports. Simplifyy shall maintain a comprehensive system of records, books and accounts that shall belong to Member. Upon reasonable notice to Simplifyy, Member and others designated by Member shall have at all reasonable times during normal business hours access to such records, accounts and books and to all vouchers, files and other material pertaining to the Property and this Agreement, and shall be entitled to make such copies or extracts thereof as Member shall desire. Simplifyy agrees to keep all such records, books and accounts safe, available and separate, or, capable of being separated, from any records not involving the Property.
- Simplifyy will maintain financial and operating statements on behalf of Member. Simplifyy shall issue an unaudited statement of cash receipts and disbursements reflecting the operation of the Property for the prior month, which statement shall also accurately reflect in aggregate all deposits to and disbursements from the operating account or accounts to be maintained by Simplifyy pursuant to this Agreement, a report of receipts for the preceding calendar month and the expenses of operation. At the election of Member, such statement shall also include a check register indicating the name of each payee of each disbursement for the prior month, the amount of each disbursement, the check number and a description of the category of disbursements.
- Other Reports and Cooperation. Simplifyy shall further provide such other financial information as is available via the Simplifyy App. Simplifyy shall cooperate with and give reasonable assistance to any independent public accountant retained by Member to examine such statements or other records pertaining to the Properties.
- Insurance. Simplifyy shall at all times carry and maintain General Liability Insurance and Errors & Omissions Insurance.
SECTION 6 – YOUR Obligations; Representations and Warranties.
- Qualified to do Business. Member is, and throughout the term of the Agreement will remain, qualified to do business and in good standing under the laws of the state of its incorporation and the state of the Property location, if so required by state law.
- Obligations upon Termination. Upon the giving of notice of termination of this Agreement, unless such termination results from the default or bankruptcy of Simplifyy the Member shall continue to maintain sufficient funds in the accounts that are subject to this Agreement as are necessary to pay any obligations that are due and payable prior to the effective date of such determination and shall pay all accrued fees due Simplifyy to the effective date of such termination, on or before the date of any termination, all fees for services which have been performed prior to such date of termination, even if they would not otherwise have been paid until a later date had this Agreement continued in effect, and Simplifyy shall be entitled to deduct such unpaid fees and reimbursable expenses against any monies in its possession owed to Member.
- Claims, Litigation, Actions. Member is not aware of any existing, pending, or threatened claims, litigation, or other actions in any way related to the Property or the Member that may materially impact the ability of the Member to comply with the Agreement or that may cause a material impact on Simplifyy’s Services provided hereunder.
- Mortgages and Taxes. Member shall duly and punctually pay all mortgages, liens, real estate taxes, personal property taxes on, and assessments against, the Property or any part thereof. Such payments shall be made prior to the time that any penalties or interest would accrue thereon (except such interest as may accrue on an assessment which Member has properly elected to pay on an installment basis).
- Provisions of Initial Books and Records. Owner shall furnish Simplifyy with a copy of all necessary documents with respect to the Property and all books and records in Owner’s possession with respect to the operation of the Property, including, but not limited to, the items listed in Exhibit A attached hereto and all books and records necessary to enable Simplifyy to calculate any operating expenses, all correspondence and other documents with respect to interpretation of tenant leases and all plans and inspection reports with respect to the layout, construction, location, character, condition and operation of the Property and its improvements, and all obligations of the Owner under any loan documents affecting the Property. Thereafter, Owner shall promptly furnish Simplifyy with copies of any amendments to and of the foregoing documents or any replacements thereto or additional documents that thereafter come into existence and affect the Property. Simplifyy shall become familiar with all matter contained in those documents relating to the operation of the Property.
- Budget. If Member elects to Member shall comply with any method of budgeting as may be required by Simplifyy in fulfilling its Services hereunder or as may be required by the Simplifyy App.
- Power of Attorney. If Simplifyy determines that it requires a limited power of attorney to carry out the Services identified hereunder, the Member shall provide such limited power of attorney for those specified services subject to the Terms, allowing only for reasonable objections. Notwithstanding anything to the contrary in the Agreement, the refusal to provide any required limited power of attorney shall provide Simplifyy the ability to terminate this Agreement, if in the absolute discretion of Simplifyy, their ability to provide the Services hereunder is materially impacted.
- Occupancy Agreement Review. Member expressly states that it has reviewed the “Occupancy Agreement”, utilized by Simplifyy and incorporated herein by reference, and acknowledges that the Occupancy Agreement shall be utilized by Simplifyy as the form of tenant lease with respect to the Property. Member agrees to be bound by the terms and conditions contained in the Occupancy Agreement.
SECTION 7 – FURTHER RESPONSIBILITIES.
Member shall use the Services in accordance with applicable laws, including all such laws that apply to or govern landlords of residential and/or commercial properties.
Member may enable access of the Services for use only by the Administrator and Designated Users. Member is responsible for all use by the Designated Users of the Services and compliance with this Agreement. Member shall: (a) have sole responsibility for the accuracy, quality, and legality of all Member Data; and (b) use commercially reasonable means to prevent unauthorized access to, or use of, the Services, and notify Simplifyy promptly of any known unauthorized access or use. Member shall defend, indemnify and hold Simplifyy, its affiliates, directors, employees, and agents harmless from any and all losses, liabilities or expenses relating to Member Data, Member’s breach of this Agreement, its improper use of the Services, and Member’s infringement of intellectual property rights.
Member represents and warrants that it has the authority to provide any personal information (e.g., an end user within Member’s organization) to Simplifyy for processing as contemplated by this Agreement. Member agrees that as the data controller, it is entitled to transfer its Confidential Information, including relevant personal information to Simplifyy, the data processor, so that it, its affiliates and third-party contractors may process the Confidential Information for purposes of providing the Services under this Agreement.
SECTION 8 – AFFILLIATES & THIRD PARTIES.
Simplifyy, in its sole and reasonable discretion may contract with affiliates or third-party contractors to assist with providing any portion of a Service hereunder, so long as the cost of such engagement with an affiliate or third-party is at an arm’s length and fair market rate. Services in addition to those specified as being provided by Simplifyy which are considered additional may be requested by a Member or offered by Simplifyy, but compensation for those Services shall be in addition to the Compensation hereunder (e.g. “smart locks”).
SECTION 9 – LICENSE TO USE.
Simplifyy grants Member a revocable, non-exclusive, non-transferrable, and limited licenses to download, install, and use the Platform and the Services for uses consistent with the purposes of these Terms. These Terms will govern any content, materials, or services accessible from the Platform, as well as upgrades provided by Simplifyy that replace or supplement the original Platform, or part of it. You may not transfer, redistribute, or sublicense your license to any third party, and may not copy (except as permitted by this Agreement), reverse-engineer, attempt to steal or use the source code of, or create derivative works of the Platform or any of its contents. Your access and use of the Services shall be limited to you, Designated Users and an/the Administrator.
SECTION 10 – INTELLECTUAL PROPERTY.
You acknowledge and agree that the Platform and the Services are provided under license and are not being sold to you. You or your users do not acquire any ownership interest in the Platform or the Services under this Agreement, or any other rights other than to use the Platform and the Services in accordance with the granted license, and subject to all terms, conditions, and restrictions under this Agreement. Simplifyy retains their entire right, title, and interest in and to the Platform and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto.
Member retains ownership of all its intellectual property rights in its data or the data of its Units (“Member Data”) and information provided to Simplifyy during Member’s use of the Services. Member grants Simplifyy and its service providers the right to use Member Data solely in connection with provision of the Services. Notwithstanding the foregoing, Simplifyy may collect and compile data and information related to Member's use of the Services, including Member Data, in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, operation and improvement of the Services. All right, title, and interest in such aggregate information is retained solely by Simplifyy.
To the extent that any content of any kind that is submitted to Simplifyy outside of the above-intellectual property that Member retains rights to, Member grants Simplifyy a license to use, distribute, and publish said content in connection with its business and services offered to members.
SECTION 11 – PRIVACY.
In order to operate and provide the best experience on the Platform and the Services, Simplifyy may collect certain information about you including to your use of the Platform. You acknowledge that when you download, install, and use the Platform and the Services, Simplifyy may use various automatic means, which include but are not limited to cookies and web beacons, to collect information about your mobile device, computer, and about your use of the Platform and Services. By downloading, installing, using, and providing information on the Platform and Services, you consent to all reasonable actions taken by Simplifyy with respect to your information.
SECTION 12 – RESTRICTED USE.
Except as expressly permitted in these Terms or otherwise authorized by Simplifyy in writing, Member shall not directly or indirectly do any of the following: (a) access, use, sell, distribute, sublicense, broadcast, or commercially exploit any Services, any content delivered to Member in connection with the Services or any rights under the Agreement, including without limitation any access or use of any Services beyond the scope specified in this Agreement (such as for any third parties on a rental or sharing basis); (b) knowingly introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the Services; (c) copy, modify, or prepare derivative works based on the Platform or the Services; (d) reverse engineer, decompile, disassemble, or attempt to derive source code from the Platform or the Services; (e) access the Services in order to build any commercially available product or service; (f) copy any features, functions, integrations, interfaces, content or graphics of the Platform or Services; or (g) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of the Platform or Services.
SECTION 13 – PROHIBITED USES.
In addition to other prohibitions as set forth above, you are prohibited from using the Services or the Platform: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Platform or Services; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Platform or Services or any related website, other websites, or the Internet.
We reserve the right to terminate your use of the Services for violating any of the prohibited uses.
SECTION 14 – CONFIDENTIAL INFORMATION.
Each Party will use the other’s Confidential Information (as defined below) solely to perform its obligations under this Agreement and will not use or disclose the other party’s Confidential Information other than as required or permitted by this Agreement. Accordingly, each Party will disclose the other’s Confidential Information only to those of its agents, contractors, and employees who need to know the information for purposes of performing this Agreement, provided that they are legally bound, in writing, not to disclose the other Party’s Confidential Information except as permitted by this Agreement. Each party will give the other prompt written notice if it learns of any unauthorized use, disclosure, theft, or other loss of the other’s Confidential Information. The recipient may disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law.
"Confidential Information" shall mean all information, know-how, ideas, designs, documents, concepts, technology, software (which specifically includes source and object code), algorithms, computer processing systems, compilations of information, data, notes, lists, marketing, commercial knowledge, property information, Member Data, financial information, and other materials of a confidential nature and includes trade secrets, know- how, patent and ancillary information and other proprietary or confidential information, regardless of form, format, media including without limitation any other information that either Party reasonably believe is confidential or knows or should have reason to know is confidential.
A breach or threatened breach by a Party of any of its obligations of confidentiality or by Member of any use restrictions applicable to the Services would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
All Confidential Information delivered pursuant to this Agreement by either Party shall be and remain the property of the providing Party, and any documents containing or reflecting the Confidential Information, and all copies thereof, shall be promptly returned to the providing Party upon written request, or at the termination of this Agreement.
SECTION 15 – INDEMNIFICATION.
Except to the extent of Simplifyy’s gross negligence or willful misconduct, Member agrees to protect, defend, indemnify and hold Simplifyy harmless from any and all liability, costs, obligations, expenses (including all attorneys’ fees, litigation expenses and court costs), judgments, damages, claims and demands of any kind whatsoever arising out of (a) the acts of Member, (b) the acts of Simplifyy within the scope of its authority under any of the provisions of this Agreement, or (c) any claim for any commissions, compensation, brokerage fee or other charges made against Simplifyy by any broker, agent, finder or other party who dealt with or was engaged by Member to perform any services for Member, whether covered by, similar to or dissimilar from the services to be performed by Simplifyy under this Agreement. This includes, but is not limited to liability, costs, obligations, expenses, claims, fines and penalties associated with data breaches, loss of data, data use and privacy. Member further agrees to hold Simplifyy harmless in the event Member’s volitional spending reasonably prevents Simplifyy from effectively managing the agreed upon budget.
SECTION 16 – DISCLAIMER.
The Services and the Platform are provided 'as is' and, to the extent permitted by applicable law, Simplifyy and its' directors, officers, employees, agents, representatives, licensors, third party providers and affiliates, exclude all representations or warranties of any kind, express or implied including, but not limited to, implied warranties of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. Any reliance on or use of the Services and Platform shall be at the sole risk of you. We expressly disclaim any liability for loss or damage sustained by you as a result of the accessing and use of the Platform or Services.
Member acknowledges that the Services may depend in part on the infrastructure, networks, and connectivity and acts or omissions of service providers such as communications carriers, colocation providers and content and software providers that Simplifyy uses to deliver the Services. Simplifyy shall have no liability for those areas of functionality, infrastructure or technology that are under the control of such service providers.
Member acknowledges that Simplifyy does not provide any real estate services not identified in the Services or the Platform or act as a broker, agent, appraiser, or in any other capacity in any way related to real estate investment. Simplifyy is not a property management company. Simplifyy Services are utilized by owners to self-manage the owner’s property. All information and content obtained by Member’s use of the Services is for informational use only and is not intended in any way to create any fiduciary relationship between Simplifyy and Member related to real estate services not identified these Terms as any such fiduciary relationship may be defined by state and federal law. Reliance on any information or content obtained by Member in its use of the Services is solely at Member's own risk.
SECTION 17 – LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY, INDEMNIFICATION OBLIGATIONS, BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY OR SIMPLIFYY’S’ LICENSORS OR VENDORS BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES OR COSTS (INCLUDING LOSSES RELATED TO DATA OR DATA INTEGRITY, LOSS OF REVENUE, LOSS OF PROFIT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL), REGARDLESS OF THE FORM OF ACTION, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BODILY INJURY, DEATH, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY A PARTY’S NEGLIGENCE AND AS OTHERWISE PROHIBITED BY LAW, THE TOTAL MAXIMUM LIABILITY OF SIMPLIFYY OR ITS LICENSORS, AFFILIATES AND VENDORS FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY THE MEMBER UNDER THE TERMS OF THIS AGREEMENT LESS ACTUAL EXPENSES PAID BY SIMPLIFYY IN PROVIDING SERVICES OUTLINED IN THIS AGREEMENT, EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. ACTIONS HEREUNDER MUST BE COMMENCED WITHIN TWELVE (12) MONTHS OF THE DATE THE ACTION FIRST ACCRUES.
SECTION 18 – GENERAL PROVISIONS.
- Entire Agreement. This Agreement contains the entire agreement of the Parties and there are no other promises or conditions in any other agreement whether oral or written.
- Non-Exclusivity. During the term of this Agreement, Simplifyy and its affiliates may render services identical or similar to those required of it under this Agreement to other members and may, itself, engage in the acquisition, development, leasing and exploitation of real property for its own account and benefit without any accountability or liability whatsoever to Member, even though such services or business activities compete with or are enhanced by the business activity of Member, including Member’s ownership of the Property.
- Waiver. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
- Assignment. Member may not assign, pledge, delegate, or otherwise transfer any of his or her rights or obligations under this Agreement without Simplifyy’s prior written consent.
- Relationship. Member and Simplifyy are independent contractors. Nothing in these Terms shall create, or is intended to create, an agency, employment, franchise, joint venture, or partnership relationship between the Parties.
- Identification. Either party may publicly refer to the other by name as a provider or Member, as applicable, and may disclose the general nature and existence of the Agreement, but not any of its specific terms or performance information. Member expressly permits Simplifyy to use Member’s name to promote its business or services offered on its website and/or any press release.
- Applicable Law/Dispute Resolution. This Agreement shall be governed by the laws of the State of Missouri. Any dispute arising from this Agreement shall be subject to binding arbitration. The governing rules shall be the rules, then-implemented, by the American Arbitration Association commercial division. The prevailing Party in any dispute shall be entitled to recover its/his/her reasonable attorney’s fees and costs.
- Notices. All notices are recommended to be sent via email to Operations@simplifyy.com. Legal notices should be sent to Legal@simplifyy.com. Notices provide by U.S. Mail or other means of mail should be sent to our office at 1828 Walnut St., Kansas City, Missouri 64108 and will be deemed made when postmarked.
- Force Majeure. If the act of God, such as fire, flood, earthquake, tsunami, or other natural disasters, or any health pandemic, government regulation, or other act arising out of any cause or event beyond the control of both parties that makes the Services contemplated herein impossible or impracticable, the Parties shall be permitted to pause or terminate the Services and Member will only be responsible for payment through the notice of force majeure.
- Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If an arbitrator or panel of arbitrators finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
- Reservation of Rights. Simplifyy reserves the right to amend these Terms from time to time and at its sole discretion. Member will be obligated to the provisions of each amendment of these Terms as if they were agreed to when made by way of continued use of the Platform and the Services. We recommend that you check the Terms periodically for updates.